HC Deb 15 June 1875 vol 224 cc1924-35

Order read, for resuming Adjourned Debate on Amendment proposed to Question [4th June], "That Mr. Speaker do now leave the Chair" (for Committee on the Land Titles and Transfer Bill); and which Amendment was, 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 carry out those objects,"—(Mr. Osborne Morgan,)

—instead thereof.

Question again proposed, "That the words proposed to be left out stand part of the Question."

Debate resumed.

MR. GOLDNEY

said, that no one disputed the desirableness of substituting for our present system of transferring titles to land a simpler, cheaper, and more expeditious system, and in his opinion the present measure offered as simple and effectual a mode as was consistent with our existing law. During the last 50 years Lord Eldon, Lord Campbell, Lord Westbury, and other eminent lawyers, had endeavoured to provide remedies for the defects in the law on this subject, and it was remarkable that one and all of them pointed to a General Registry as the sole solution of the difficulty. The Report of the Commission of 1857 had for its substantive recommendation that a general registry of titles to land should be established, and that owners of land should be allowed to register their titles either as indefeasible titles or as ordinary titles, subject to adverse claims. In 1859 the present Lord Chancellor, then Solicitor General, brought into the House of Commons a Bill founded on that Report. That Bill passed a second reading; but it proceeded no further in consequence of a dissolution of Parliament, which took place shortly afterwards. In the Session of 1862 a Bill was introduced in this House by Lord Westbury. It was based on the principle of a "registry of title to land;" but it was not, in fact, a measure for the registry of land, but provided a complicated machinery for the registry of deeds relating to land. It enabled the owner of land, after examination of title by official inquiry, to obtain and place on record a declaration of title which thereafter became indefeasible, but it made no provision for placing on the register a title of the ordinary class—that was to say, a title good in itself, but open to adverse claims. The Bill of Lord Westbury passed into law, and a Registry Office with a staff was established in London, for the purpose of carrying it into operation. After a short experience the scheme was found to be a failure. The hon. and learned Member (Mr. Osborne Morgan), in criticizing the Bill now before the House on the former occasion, tried to fasten upon it a sort of odium, by saying it was merely a reproduction of Lord Westbury's Act. But what was the state of things prior to the passing of that Act? The Royal Commission of 1856, composed of men of high standing, who commanded the confidence of the legal Profession, reported in favour of the establishment of a General Registry, and the principles laid down in that Report were accepted at the time by the House, and also, he believed, by the legal Profession generally, as providing a means of meeting the difficulties of the case. When the failure of Lord Westbury's Act became apparent, a Commission was issued in 1868 to inquire into the operation of the Act. The Report of the Commission, issued in 1869, stated that, in their opinion, the Act had proved a failure; and, after pointing out the causes of its want of success, they proceeded to recommend the principle on which the Bills of 1859 had been framed. That was what the present Bill proposed to do. It proposed to do all that was approved of in the Bill of 1859, while it avoided the defects and inconveniences that the Commissioners pointed out in the measure of Lord Westbury. It provided that any person coming to the Registry could have his name entered as owner of a property; and after that property had been on the register 20 years he would have a good sound and holding title; and this was done by a simple, easy, quick, and inexpensive process. A system of general registry had been adopted not only in the colony of Victoria but in the United States, which had originally adopted the old English system with regard to the transfer of land. The result of the change in America was that the people did not look on land merely as a permanent investment, but as a commodity which could be purchased and sold with facility, and in which they could invest their money in as ready and convenient a manner as in any other commodity. If this Bill were regarded as a measure which would work well—if it were allowed fair scope—he felt assured it would be proved to be one of the best modes of solving the difficulty in regard to the transfer of land.

MR. WHALLEY

said, the hon. Member's allusion to America recalled to his own mind a meeting held some years ago of the Law Amendment Society, when the question discussed was, how the Court of Chancery was to be got rid of. Lord Brougham presided on the occasion. The Court of Chancery was then regarded as a sort of when on our jurisprudence. Mr. Field, a Chief Justice of America, happened to be present, and from what he said it appeared that the Americans did not know how the Court of Chancery had been established—his (Mr. Whalley's) conviction was that the Court of Chancery was designed by the Papacy to destroy our Common Law—yet he said that the Common Law, as imported from England into America, would be sufficient to meet every difficulty if the Chancery system were put an end to. The passing of this measure would, he hoped, have the effect of restoring lawyers to that position of respectability to which they could not lay claim at present.

MR. MORGAN LLOYD

said, that the system of registration provided by Lord Westbury's Act had proved a complete failure, and he thought the best that could be said in favour of the scheme proposed by the present Bill was that it would prove a dead letter. If it worked at all it would work a great deal of mischief. Instead of simplifying titles it would complicate them, and instead of lessening expense it would increase it—especially in small transactions, where people of limited means, the very persons whose benefit ought particularly to be kept in view in a Bill of this kind, were concerned. The Bill proposed to register three kinds of title, an absolute title, a possessory title, and a qualified title. As to the first, when a man had got an absolute title something was gained. But how was that to be obtained? Not without incurring an amount of expense and trouble of which at present no one had an adequate idea. And then it might happen after all that a man obtained a title to something altogether indefinite and uncertain, for whenever a question arose as to the extent or the boundaries of the property his title would be as doubtful as before. In this respect the scheme was much less perfect than Lord Westbury's, which provided for an indefeasible title to land with definite boundaries. The next title that could be obtained was a possessory title. But the Bill was not compulsory, and so long as that was the case no one in his senses would register a title which threw a slur on his right to the possession of his property. He would give such a man the advice which he heard Baron Martin give a witness who was asked to produce his title—namely, to shut his box and sit on it. Then the Bill proposed to give a qualified title. But that was still worse than a possessory title. How, then, could a measure of this description be of any real benefit in simplifying title and reducing the expense of transferring land from man to man? If Her Majesty's Government meant to satisfy the public and to bring forward a scheme which would be a clear simplification of title they would have to introduce a system analogous to that which had been adopted in the United States, in Australia, and other of our Colonies, but which, owing to the more complicated titles of land in this country, it would be much more difficult to devise, and ten times more difficult to carry into execution. There must be a general survey of the whole country on a large scale, and land titles must be simplified by enacting that the legal owner for the purpose of registration should be the sole owner, and that settlements and other incumbrances should affect the equitable, but not the legal right. The remedy of beneficiaries against the legal owner should be the remedy provided against the trustee of stock or shares, and power should be given to beneficiaries to place a notice on the registry in order to prevent dealings with the property, just as a distringas operated in the case of stock. Such was his scheme, but he was not, under existing circumstances prepared to advocate its adoption, for it would involve enormous difficulty and expense; he put it forward as the only real scheme for simplifying the title to land. Unless the Government were prepared to go to this extent they had much better leave registration alone, simplifying landed titles gradually and removing defects in our present system, thereby preparing the way for a more complete system.

MR. GREGORY

said, there was one point in which he concurred with the hon. and learned Gentleman (Mr. Morgan Lloyd), and that was that the scheme which he proposed was utterly impracticable, and if they waited until the system adopted in the Australian Colonies could be introduced into this country they would have to wait a long time. The Bill embodied a plan which was far simpler and more feasible. The objections against the successful working of Lord Westbury's Act were, first, that it required the registry of an indefeasible title; secondly, the necessity of giving notices to adjoining owners; and, thirdly, the necessity of placing all subservient interests upon the registry, as well as the primary title to the land. This Bill was free from these objections. Under it a man might register an indefeasible title, a qualified title, or a possessory title dating from the time of registration. It was not so ambitious a Bill as that of last year, and did not make registration compulsory; but he did not agree with those who said that the measure would, for this reason, prove a nullity. On the contrary, he knew that owners were waiting for the passing of the Bill to register under it. They would not be called on to prove an indefeasible title, and there would be no slur cast upon their title by a refusal to register at all, if they could not prove an absolutely valid title. As to notices to adjoining landowners, there was one case in which, under Lord Westbury's Act, it became necessary to serve 180 such notices; and by giving these notices you not only incurred great expense, but aroused the sleeping hon. and invited adverse claims upon such questions as boundaries, fences, or the right of way. As to incumbrances, the registered owner under the Bill had full power to make a title in case of sale. It was true that persons beneficially entitled might protect themselves by putting a caution upon the registry and in other ways. There were some practical Amendments which might be adopted in Committee; but, speaking generally, he thought the Bill likely to prove acceptable to the public and a considerable benefit to vendors and purchasers of land.

MR. JACKSON

thought the hon. and learned Member for Denbigh (Mr. Osborne Morgan) had done good service by moving his Amendment, inasmuch as it had evoked a most interesting and useful discussion. He hoped, however, that the hon. and learned Gentleman would not press his Amendment to a Division. The effect of his hon. and learned Friend's Motion was, that the Bill was not the best possible one that could be desired. That, no doubt, was perfectly true; but the practical question they had to take into consideration was, whether or not the Bill would be an improvement upon the existing law. He (Mr. Jackson), for one, believed that it contained much that was valuable, and that when it had been considered in Committee, and had received some Amendments, of which it was susceptible, it would be a valuable addition to the Statute Book. The Bill contained this most valuable principle, that under its provisions the registered owner could make a title without regarding equitable or beneficial interests. That principle was a sine quâ non to any improvement, and great efforts to obtain the sanction of Parliament to that principle should be made. No doubt the first registration with any guarantee of title would involve expense, but no more expense than the present system, while for the future all registered dealings would be simplified and made more economical. For his own part, he should like to see land sold upon the same simple terms as ships were sold. The transfer of land did not differ in essence from the transfer of a ship. A ship did not pass by delivery, but by a statutable transfer, which gave the transferee a right against all the world—a right which was not affected by any equitable interests. He could see no reason to prevent us from dealing with land substantially in the same way. He did not indeed approve of the machinery of the Bill, but the Attorney General was not responsible for that. The first great requirement was some easy machinery for identifying a particular piece of land, and the only way of obtaining that desirable object was by means of cadastral maps. There being no difficulty about identifying a ship, there was no difficulty in transferring her, and if there were a good map with an accessible index to the land of that country there need be no difficulty in transferring land even without professional assistance. But without a map this would be impossible. Maps, too, to be useful must be accessible. It occurred to him that the clerks of the peace or the clerks of the Unions throughout the country might easily be appointed to take charge of those maps, and the result would be that in a few years an entirely new and simple system of land transfer would come into operation. Three maps would be required—one relating to the ownership of the fee-simple, another relating to the ownership of the mines, and a third relating to the ownership of the leaseholds. But as they would all be drawn on the same scale, no difficulty need arise from there being more than one. The mere transferring land and registering of charges might be done by the country officers in charge of the maps, while the more difficult and responsible work of deciding titles might be referred to the head office in London. The Ordnance Survey presented a basis for such a system; but when he remembered that only £7,000 had been voted this year for that survey, he felt that unless public opinion was roused years must elapse before anything was done. He was glad that the Bill did not contain compulsory clauses. No doubt an uniform system of land transfer was desirable, but they were not in possession of information which would justify the forcing of so extensive a change before they had provided the necessary machinery, or even knew what machinery would be required. The present Bill was an experiment, and for that reason it was not right that it should be forced upon the acceptance of people against their inclination. As for the fears expressed in some quarters that the object of the Bill would be defeated by the solicitors, he believed them to be entirely unwarranted. He hoped they would soon get into Committee, and that whatever Amendments were brought forward would be proposed—not in a spirit of hostility to the measure—but with a desire to improve it, and by so doing to take the first step towards the attainment of what had been done abroad and might be done here, and which, when effected, would be of the utmost importance to all classes of the community.

SIR JOHN KARSLAKE

said, he was convinced that when on a future occasion his hon. and learned Friend (Mr. Jackson) proposed to have maps of the country prepared for the purpose which he had suggested, the Chancellor of the Exchequer would be found in his place, and would have something to say. He quite agreed with his hon. and learned Friend that this Bill was so framed that, without being ambitious in its character, it would, with certain Amendments, tend largely towards the simplification of titles and transfers; and he was sure the hon. Member for Sussex (Mr. Gregory) was correct in ascribing the failure of Lord Westbury's Act to the mode in which it proposed to register titles, and to ascertain the boundaries of land. Questions of boundaries and fences were very difficult to determine; but whatever difficulties might be met with in the preparation of maps, as a general rule, when property had been held for a long time with little doubt as to its real boundaries, such doubt need not prevent the register of the title in the manner proposed by the Bill. This alone would to a considerable extent simplify the transfer of land, and they would at least get rid of litigation between neighbouring landowners before the register of the title could be entered upon. It might be that in process of time far more ambitious schemes than this measure would be carried out; but when it was suggested that this Bill was inefficient, or that while it had some merits it prevented more ambitious measures being brought before Parliament, he thought it enough to consider at the present moment whether some real and absolute benefit would be derived from it. Having spoken on this question last year, his observations now should be very few; but he wished to point out that what the Bill proposed to carry out had been suggested by the Commissioners of 1857, whose Report had been so often quoted. He differed from those who said owners would not find it worth while to put their titles on the register. But it would get rid, to a great extent, of the expense of furnishing an abstract of title, and the long and cumbrous process of the existing system. Under this Bill any person having a perfect title had simply to place it on the register and say to anyone who wished to purchase—" I agree to sell you a portion of this property, and this registered title is a guarantee to you that the portion you buy is a portion which I am entitled to sell." There were great advantages also in registering a qualified title. A man who held under a deed of conveyance of 1860 might know that doubts existed as to an earlier title; but he could register the title of 1860, and that in course of time would become an absolute title. Registration would benefit those who had possessory titles, for, as the Commissioners said, the effect would be similar to that of a dam or filter across a stream—above it the water was full of impurities; below, it became purer and clearer as it flowed on. In the same way the possessory title would in progress of time become a perfect title, simply by registration. These were great advantages, and, of course, if those who were interested refused to avail themselves of them they alone would have the blame. But if it was found expedient that land should be placed upon the register he was sure that the advisers of the landed gentry would promote the process. A good deal had been said in the course of the discussions on this Bill with reference to compulsory registration, and opinions had been freely expressed in its favour and against it. The Bill of last year made registration compulsory under certain circumstances only, and having regard to the resolution which had been arrived at, to exempt properties of a small class from the operation of the register, he held that it was wise to take compulsion out of the Bill. A legal friend of his, a conveyancer, had suggested to him that registration would bear heavily upon smaller properties, and that if registration were made compulsory it should, as regarded properties under a certain value, be done at the expense of the State. That might be a very useful suggestion, but he thought it was one as to which the Chancellor of the Exchequer might intervene; and he thought the framers of the Bill had done well to leave compulsion out. There were, without doubt, matters of detail in the Bill which might well be discussed in Committee. As regarded perfect, qualified, and possessory titles, this Bill provided machinery which, with the aid of time, would have a material effect in simplifying titles and cheapening transfer; and he hoped that those concerned in having the transfer of land simplified would adopt the Bill, and having brought their titles on the register would show by the operation of the register upon those titles that the subject might be carried further hereafter, so that this, which had been properly called a by no means ambitious Bill, might become the foundation of future measures, which would promote the interests of the community. The objection that the profession would object to bring titles upon the register had already been answered, and he would merely say that if, instead of being paid on an absurd plan of calculating the number of sheepskins they could cover with writing, or the number of words in which they could express one idea, they had been remunerated according to the value of their labour without reference to the quantity of words which they used, we should have had a very different system from that which now existed.

THE ATTORNEY GENERAL

said, that he did not rise to express any further opinion on the Bill, but to suggest to the hon. and learned Member who had moved the Amendment that it was desirable either at once to proceed to a division, or else to allow the Bill to be read a second time, so as to give the House an opportunity of discussing in Committee the many suggestions which had been made for its improvement; and he would ask hon. Members generally to exercise some little self-denial, and to abstain from further discussing the details of the Bill, as it would be open to them to do so when they got into Committee. On the part of the Government, he was anxious that the fullest consideration should be given to the suggestions of hon. Members.

MR. OSBORNE MORGAN

said, that after the discussion which had occurred, he would, with the permission of the House, withdraw the Amendment which he had moved.

SIR FRANCIS GOLDSMID

dissented from the opinion which had been expressed to the effect that the Bill would simplify the existing procedure with regard to the sale and transfer of land. The only thing that the Bill would do would be to leave the whole matter in an utterly indefinite and unsatisfactory state.

SIR GEORGE BOWYER

said, he had no desire to stop the progress of the measure at its present stage, but expressed a hope that the clauses would be thoroughly discussed in Committee. There were many questions which did not appear to have been so thoroughly threshed out as they ought to be. He would not offer any opposition to the Bill, which was not compulsory but optional. It no doubt presented many valuable features, and he thought the Government ought to be thanked for introducing it.

Amendment, by leave, withdrawn.

Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.

Bill considered in Committee.

Committee report Progress; to sit again upon Thursday.