MR. OSBORNE MORGAN
, in rising to call attention to the question of Land Registration, and to the working of the Acts of Parliament regulating the same, and to move for a Select Committee to inquire and report whether any and what 1886 steps ought to be taken to simplify and secure the title to land, and to facilitate the transfer thereof, said, he did not know that he should have brought the subject forward at a time like the present, when it was so difficult to get the House to take an interest in a domestic question, however important, but for two or three recent cases which had led many practical men to believe that investments on landed securities, so far from being, as people had formerly supposed, the safest investments a man could make, were about the most dangerous things with which he could meddle. The first case to which he would refer was that of the notorious Dimsdale, who had managed to raise £300,000 upon the security of property in which he had not a particle of interest. The second was that of an accountant, named Downs, who, in one sense, was more honest than Dimsdale; for he was actually the owner of the property which he purported to mortgage. He bought land for £1,500, and having done so, proceeded to mortgage it for £40,000 to 25 different sets of persons. His modus operandi was charmingly simple. He took a conveyance from the British Land Company, and, having obtained a fac simile of the seal of the Company, he proceeded to copy out the deed some 20 or 30 times over, and to stamp each deed with the seal of the Company, and then took it about to different persons, who, in each case, were induced to lend him money in the belief that they had the first charge upon the property. This went on for five years, and there was no reason why it should not have gone on for 50 years, if the borrower had not, by reason of unfortunate speculations on the Stock Exchange, been unable to meet the current interest, and so the bubble burst—and these 20 or 30 persons, on being confronted with each other, found that they had got a security which was not worth the paper on which it was written. Now, the defence set up by Downs was a very remarkable one, and one which he would commend to the attention of the Home Secretary. He pleaded that he was naturally an honest man, but that the law had made it so easy to borrow money upon other people's property, that he really could not resist the temptation. Now, it was obvious that the rudest system of registration would have prevented such a fraud as 1887 this. And he was really tired of hearing it said that they could not prevent fraud by Act of Parliament, and that there must always be a certain percentage of rascality in the world. His complaint against their system was, not that it did not prevent fraud—no law could do that—but that it acted as a direct premium upon fraud; indeed, it was not too much to say, that a man advancing money upon land in these days trusted rather to the respectability of the borrower, and the character of the solicitor than to the protection of the law. And yet the temptation to fraud was but a small part of the mischief of the present system, and the evils with which they had to deal. Indeed, the insecurity of their system was only equalled by its clumsiness. It might be true that 99 titles out of 100 were good, and that 999 owners of property out of 1,000 were honest men; but the worst of their system was, that while they let the one rogue slip through their fingers, they insisted upon treating the 999 honest men as if they were rogues. As a result of 16 years' experience as a conveyancer, he might go behind the scenes and tell purchasers of property what took place when they bought an estate. The first thing was to ask for an abstract of title which, though only a summary of the deeds, might run to 200 brief sheets or more. Then, the deeds, which were sometimes at a distance, had to be compared and the facts verified. When this was done, the abstract was usually laid before the purchaser's counsel, who looked at it very much in the way in which a veterinary surgeon looked at a horse—that was to say, with a view to pick as many holes in it as possible. Then followed a sort of fencing match between the solicitors of the vendor and purchaser, frequently assisted by counsel on both sides, which might take weeks, or even months; and, if the parties were reasonable, half the objections were waived and the other half answered, the title was accepted, the conveyance—sometimes of portentously great length—drawn, and the purchaser had handed to him a perfect mountain of parchment, which he was told were his title deeds. And, when all was done, probably the only thing in the transactions which he really understood was the lawyer's bill which he had to pay at the end of it. Well, but now, suppose the purchaser wanted to sell 1888 part of the property, or to borrow money upon it, exactly the same process had to be gone through over again. He could not do better than describe it in the words of the noble and learned Lord the present Lord Chancellor, when Sir Hugh Cairns—You buy an estate at an auction, or you enter into a contract for the purchase of the estate. You are very anxious to get possession of the property you have bought, and the vendor is very anxious to get his money. But do you get possession of the property? On the contrary, you cannot get the estate, nor can the vendor get his money until after a long lapse—sometimes no inconsiderable portion of a man's lifetime—spent in the preparation of abstracts, in the comparison of deeds, in searches for incumbrances, in objections made to the title, in answers to those objections, in disputes which arise upon the answers, in endeavours to cure the defects. Not only months, but years, frequently pass in a history of that kind; and I should say that it is an uncommon thing in this country for a purchase of any magnitude to be completed—completed by possession and payment of the price—in a period under, at all events, twelve months."—[3 Hansard, clii. 280–1.]Those observations were made 19 years ago, but they were substantially true now. No wonder that under these circumstances their lawyers had been endeavouring to establish that system of registration which existed in every country but their own; in fact, for the last 25 years, a perfect system of land registry had been a sort of philosopher's stone, which their legal alchemists had been trying, and trying in vain, to discover. The history of these attempts was a melancholy one; in fact, a more dismal history of failures it would be difficult to find. The first attempt dated as far back as 1833, when a Bill passed the House of Lords to compel the registrations of deeds. That Bill was referred to a Select Committee of the House of Commons—the only Select Committee, by the way, which had ever sat upon the subject—which recommended the appointment of a Royal Commission. That Commission, so appointed, made its Report in 1857, against the registration of deeds and in favour of the registration of titles, and a Bill founded upon its recommendations was introduced by Sir Hugh Cairns in 1859, as Solicitor General, in a masterly speech, from which he had already quoted, and in which he stated, on the authority of some of the most eminent valuers in the country, that a perfect land registry system would add three years' purchase 1889 to the value of all the land in the Kingdom. In consequence, however, of the resignation of the Ministry, that Bill was dropped, and the subject slept until 1862, when it was taken up by Lord Westbury; and, certainly, if faith in his own scheme entitled any man to success, Lord Westbury deserved to succeed. He introduced his measure in a characteristic speech, in which he stated that he had got hold of a plan which, like Aaron's rod, would swallow up all the other projects which had ever been brought forward; and he drew a picture of a great landowner walking about with the whole of his title deeds in his waistcoat pocket condensed to the dimensions of a visiting card. Unfortunately, his plan, though perfect in theory, proved hopelessly impracticable. It was a beautiful machine which would not work. Lord Westbury said, and he said no doubt truly, that all titles were either perfect or imperfect, and that he would make provision for registering both, and would call the one an indefeasible, and the other a defeasible title. Unfortunately, the cost of obtaining a perfect title was found to be so great that people refused to buy the gold at the price. On the other hand, people naturally shrank from proclaiming to the whole world that they possessed a title, the very name of which implied a doubt as to their right to hold it. In other words, they could not register perfect titles, and they would not register imperfect ones. The result was, that between the time when the Act came into operation in the year 1868, not more than 507 applications for registration under the Act had been made—that being about the number of titles which were accepted in England in the course of one day—and so, before the end of the year, Lord Westbury was called upon to preside over a Royal Commission to inquire into the causes of the failure of his own Act. That Commission was composed of three most distinguished Judges, of the Members for the Universities of London and Cambridge, Mr. Howes (the late Member for Norfolk), Sir Arthur Hobhouse, and Sir Henry Thring; Mr. Wolstenholme and Mr. Waley, two distinguished conveyancers; and Mr. Farrer and Mr. Young, two of the most eminent solicitors in London—an admirable Commission, except that, perhaps, it was some- 1890 what too heavily weighted with lawyers. That Commission made its Report, or, rather, it made six different Reports, the principal Report being only entirely adopted by three of its Members. Well, in 1873, a Bill, founded on the lines of that Report, was introduced by Lord Selborne. It was drawn by one of the most distinguished real property lawyers in the country, Mr. (now Vice Chancellor Hall); and, being a daily witness of the great ability and industry of that very learned Judge, he felt exceedingly reluctant to criticize his handiwork. And he might say at once that, in two important respects, the Bill of 1873 was an immense improvement upon its predecessors. In the first place, it introduced a new kind of registration—that of possessory titles. Now, that was a new and most important starting point. He believed it was the key to a proper registration of titles, for until they took the apparent owner—that was, the owner in possession—and assumed that he was entitled to be put upon the register until somebody else could show that he had a better right, they would make no progress towards a proper system. But then, unfortunately, the Bill preserved the old system of registering indefeasible and defeasible titles under a new name. Now, he had always maintained that the business of a registry office was ministerial only—that it had nothing to do with investigation of title, properly so-called, which was a judicial and not a ministerial act—the business, in fact, of a Landed Estates Court, and not of a registry office. Indeed, if registration was to be preceded by anything like a judicial investigation of title, it would be perfectly impossible for any office, however large, to undertake it. Moreover, the very fact of keeping up these distinctions threw a slur upon what people would necessarily regard as an inferior kind of title, and accounted, in a great degree, for the disinclination to register such a title. The Bill of 1873 was also an enormous improvement upon its predecessors, in so far as, by indirect means, it made the registration of possessory titles compulsory. Now, it was no use mincing matters. Registration, in order to be general, must be compulsory. They could not coax people into adopting it. It involved a certain expenditure of trouble and money, however small, 1891 which people would not voluntarily undertake except in the comparatively rare case of purchasers who wished to re-sell. It was useless to tell people that those who came after them would be infinitely benefited by that small outlay of trouble and money. They would ask, like the Irishman—"Why should we do anything for posterity; posterity has done nothing for us?" Moreover, in his opinion, the possibility of making a system compulsory was a very fair test of its feasibility; for if the system were cheap and simple, what was the hardship of making it compulsory? whereas, if it were not cheap or simple that was a very good reason, not merely for not making it compulsory, but for rejecting it altogether. Now, unfortunately, the registration of possessory titles under the Bill of 1873, instead of being made perfectly simple, was beset by so many difficulties that when the Bill was re-introduced in 1874 by Lord Cairns, the country solicitors pointed out that the cost of even possessory registrations under it would be so great that it would practically put an end to all small purchases. Now, that, in itself, furnished a strong argument against the Bill. It was urged with some force that the Bill was intended to facilitate and cheapen purchases of land, and yet that it made those purchases so expensive that it would practically put an end to them altogether. Yielding to the pressure put upon him, the Lord Chancellor inserted a clause that the provisions as to compulsory registration should not apply to purchases under £300. That was tantamount to giving up compulsion altogether, for it was impossible to draw a hard-and-fast line at that sum; and, as might have been expected when the Bill was re-introduced in 1875, the compulsory clauses were entirely omitted. On that occasion, he (Mr. Osborne Morgan) moved a Resolution condemning the Bill on the grounds he had stated, but he met with but little support. The hon. Member for Chippenham (Mr. Goldney), with regard to it, said that—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."—[3 Hansard, ccxxiv. 1927.]The hon. and learned Baronet the Member for Coventry (Sir Henry Jackson) said that, for one, he believed— 1892It 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."—[Ibid. 1930.]Even the hon. Member for Peterborough (Mr. Whalley) said—It would, he hoped, have the effect of restoring lawyers to that position of respectability to which they could not lay claim at present,"— [Ibid. 1927.]In fact, with the single exception of his lamented Friend the late Member for Reading (Sir Francis Goldsmid), who, in addition to his other great and varied accomplishments, enjoyed that of being one of the best real property lawyers in the House, he (Mr. Osborne Morgan) met with no support and was compelled to withdraw his Resolution. As he did so, however, he prophesied that the Bill, when passed, would be as great a failure as the Act of 1862. But what were the facts? Compared with the Act of 1875, the Act of 1862 was a brilliant success, for, under that Act, about 100 titles on an average had been registered every year; but, in the two years and a-quarter which had elapsed since the passing of the present Act, only 28 titles had been registered altogether, and the number was getting "small by degrees and beautifully less;" for, in the seven last months, only four titles had been registered—that was to say, one in every seven weeks, or about one in 24,000. It would be curious to know what each of those purchases cost the country. He could only say that he had passed the Office—which, it was fair to say, was presided over by two of the ablest real property lawyers who could be found—every day for the last 16 years, and he had never seen a single person either going into it, or coming out of it. Well, under these circumstances, they were driven to the humiliating admission that they had all along been proceeding upon a wrong tack, and that if they wished to succeed they would have to start afresh. A Greek Philosopher had once said that "the knowledge of our ignorance was the beginning of wisdom;" and in the same way, possibly, an acknowledgment of their failures might turn out to be the first step towards success. He had pointed out that the Commission of 1857 had recommended the registration of titles in preference to that of deeds. With what success, the House was now 1893 aware. In consequence, however, of the failure of these recommendations, there had been lately a strong re-action in favour of the registration of deeds. It had been pointed out that a registration of titles, if it pre-supposed anything like a judicial investigation, could never be carried out by one Office, however large; for in this country titles were counted by millions, and dealings with property by hundreds of thousands; and to demand of an Office in London that it should investigate, and, so to speak, report upon all these titles, would be like asking the officials of the General Post Office to read and examine all the letters that they sorted. On the other hand, it was proved by the experience of two of the most important counties in England—namely, Middlesex and Yorkshire—that a local registration of deeds was perfectly possible. It had been pointed out to him, also, by some of his Irish Friends, that in Ireland the two systems had been tried side by side, and that the registration of titles had proved a complete failure, and the registration of deeds a complete success. Now, he had made it his business to inquire into the opinions entertained by the Profession and the public, as to the working of the Middlesex and Yorkshire registries, and he was bound to say that he met with a singular divergence of opinion. On the one hand, it was said by his hon. Friend the Member for Maidstone (Sir Sydney Waterlow), and others, who had waited upon the Home Secretary the other day, that all that was wanted to prevent frauds like those of Dimsdale and Downs, was the extension of the Middlesex system to the whole country; and they pointed out, with some show of reason, that none of these frauds had been attempted in the "register" counties. On the other hand, he was informed by many solicitors that, while the registration of deeds added enormously to the responsibility of solicitors, it had increased, rather than lessened, the expense of conveyancing; and that the Middlesex registry, in particular, was the bête noire of solicitors, who frequently protected themselves by special contract with their clients against liability arising from it. To a great extent, he believed that its unpopularity was caused by the confused state of the index, which referred to names and not to property, and which made an examination 1894 for the deeds relating to any particular property very much like looking for a needle in a bundle of hay. Indeed, the whole machinery of the registry was of the most primitive description, and it was scarcely to be wondered at considering the fact that it was established some 170 years ago. No doubt, all this might be greatly improved, and, upon the whole, he had come to the conclusion that the question whether a registration of deeds was preferable to a registration of titles depended upon what they wanted. If they wanted security and protection against fraud, then, no doubt, registration of deeds would give them that protection, except, of course, in the case of personation; if, on the other hand, they wanted simplicity and economy, he was afraid it would not be so. He could understand, indeed, a system of deed registration, such as that which prevailed in America, being both simple and cheap; but, then, for that purpose, they ought only to admit upon the register simple transfers of property, and make those transfers as short as possible. Titles in England were more complicated, and solicitors in England were paid in proportion to the length of their deeds, and he had often been told that if lawyers were compelled to draw short deeds, their charges would not repay a tithe of their labours. But the system was, nevertheless, a vicious one. It was like going to a doctor and offering to pay him in proportion to the length of time he could keep you ill. Now, why should not an ad valorem scale of payment be adopted? It had been adopted with marvellously good results by some of the land companies. Why should not solicitors be paid, to a certain extent at least, in the same way as stockbrokers? They were, in fact, land brokers. That brought him to a question which he had often heard asked—why should not land be transferred in exactly the same way as stock? He had often been told that £1,000 of stock might be transferred in a few minutes, at the expense of a little more than £1; while a few acres of land might take months, and cost hundreds of pounds to convey. Well, now, there were two reasons arising from the nature of the subject-matter, which made it impossible entirely to assimilate the transfer of land and stock. In the first place, stock was a debt, and when a man took a transfer of it, he got a contract from 1895 the debtor—that was, the Bank of England—securing him the amount transferred. In the next place, stock was an abstract thing; land was a concrete thing. Any £1 worth of stock was as good as another, but one acre of land was by no means the same as another. If he instructed his broker to buy him £100 of Consols, he could feel perfectly sure that he had got the thing which he wished to buy; but he could not feel the same certainty if he instructed his solicitor to bid for Blackacre or White-acre. It was the difficulty of identifying land, which caused nine-tenths of the difficulties with which they had to grapple. Now, there was one way, and one way only, in which they could remove that difficulty, and that was by having a perfect map. Fortunately, they had such a map in the Cadastral Survey which had lately been made over a great part of England. Not long ago, he put a Question to the First Commissioner of Works on the subject, and he was rejoiced to hear that, as regarded 30 of the counties of England and Wales, that Survey had been completed; but, to his disappointment, he also heard that it would still take 18 years to complete it as to the remaining 22. He a was sure that they could never have a perfect system of land registration without such a map. The map was to the registry what the compass was to the ship. His proposal would be, that there should be kept in the office of every clerk of the peace for each county, or some other official, a map of the whole of the property in the district, which would thus become a sort of pictorial representation of all the land in the Kingdom. In that case, he did not see why land should not be as easy of identification as a ship. It was said that the aspect and character of the property changed from day to day. His own experience as a conveyancer led him to believe that, except in the neighbourhood of large towns, the changes in the character of property were by no means so great as was commonly supposed; but, in any case, would there be any great hardship in compelling a man who threw two fields into one, or who built a house upon his property, to have that fact recorded upon the map; or, if that was thought inexpedient, might not the official in charge of the map be required to investigate and record the 1896 change? But then, it was said that land might be settled and tied up, and stock could not. Now, that was a layman's fallacy. The fact was that stock could be and was settled every day as stringently as land—the only difference being that the Bank of England did not recognize the trust, and treated the trustee as the person entitled to transfer; nor did it follow that because an estate was entailed, it was therefore unsaleable. Why, nine-tenths, or more, of the settled lands in England were vested in trustees who had the right to sell it, usually with the consent of the tenant for life, if of full age, or, if there were no such tenant for life, at their own discretion. Now, his proposal was, that every acre of land in England should be vested in some person who had the right to sell it, not necessarily the beneficial owner, but, as in the case of stock, the fiduciary owner, or, as the case might be, the mortgagee. Starting with this, he would wish to see nothing recorded upon the register but this right of sale or transfer, the right to which might be asserted by a short affidavit of the claimant proving the exercise of rights of ownership for a limited period, or the last instrument of transfer or devolution as the case might be, the equitable owners being left to protect themselves by something in the shape of a distringas or caveat. If this plan were once adopted, it would be a matter of comparative indifference whether they adopted the plan of registering deeds or the plan of registering titles; because, in the latter case, the deed, as in the United States of America, to which he had already referred, would really constitute the title. Now, he had made this proposal with some trepidation, because he was afraid that hon. Gentlemen opposite would regard it as radical and revolutionary; but, as a matter of fact, it had been recommended by Mr. Spencer Follett, a Conservative lawyer, the head of the Land Registry Office, who, in his evidence before the late Royal Commission, said—In every well-drawn settlement there is a power of sale overriding all the estates, to be exercised with certain consent, and registering the estates in the name of the trustees of the power would give them no more power than they had already. My theory is that the purchaser should have nothing to do with the title of the vendor. He might go to the vendor and say—'Sell me the estate and I will give you so 1897 much for it when you convey it. I do not care what your title is, if you can sell it to me I will buy it.'The same view was taken by an eminent London solicitor, Mr. William Ford, who, in his evidence, 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 loss than the absolute ownership. The registered owners of laud should be able to sell it. All equitable interests, or interests less than the fee simple, should be regulated by separate declarations of trusts which should be kept of the register. Such a system would be simple, easily worked, conciliate the favour of the public and profession, and be a real boon to every owner of land. I should always advise my clients to make use of such a registry. The apprehension that trustees would sell estates of their cestui que trust behind their backs is a chimera. Most of the large estates in England are vested in trustees or mortgagees, who have power to sell without the consent, or even in spite of the dissent, of the owners.These were his own views, but he did not wish to prejudge the question in any way, nor did he desire to express any final opinion upon the comparative advantages of deed and title registration. In fact, he had not come down to the House with any cut-and-dried projects. But it had occurred to him, and it had occurred to others, that if this matter, instead of being relegated to a Royal Commission of distinguished Judges and conveyancers, were referred to a Select Committee of that House, composed not only of lawyers, but of landed proprietors and business men—men who knew what they wanted, and only required to be told how to do it—they might arrive at something like a satisfactory settlement. He knew, of course, the epithet which was in store for those who rushed in "where angels feared to tread," and it might be thought the height of presumption that a private Member of the House should attempt the task which three of their most distinguished Lord Chancellors had attempted and failed to accomplish. Still, the evil was so crying, the benefits to be obtained so incalculable, that he thought the experiment worth trying. He had heard, indeed, within the last two or three days, that there was some chance of the Government taking the matter up. In that case, he should, of course, be only too glad to stand aside, and let them try their hand again, for the subject was obviously one more proper to be dealt with by the Government than by a private Member. At 1898 the same time, he must warn his hon. and learned Friend the Attorney General, that if he proceeded upon the lines of past legislation, he would be only adding another to that long and dreary list of failures which he had already enumerated. The hon. and learned Member concluded by moving the Resolution.
§ MR. GREGORY
, in seconding the Resolution, said, that he did so with much pleasure. Taken as a body, it was a fallacy to suppose that the members of his Profession were opposed to a plan like that proposed by his hon. and learned Friend the Member for Denbighshire (Mr. Osborne Morgan) with regard to the transfer of land. A strong motive, which actuated him in wishing for reforms was the very grave responsibility which rested upon solicitors under the present system of land transfers. Solicitors were, in fact, the guarantors of title. A solicitor who made an abstract of title-deeds was bound to supply the purchaser with a full disclosure of the title. If he did not, ho might be struck off the Rolls. And if the solicitor of the purchaser failed to point out any defect in the title arising on the examination of such abstract, he became personally responsible. Although he did not agree with the whole of the scheme propounded by his hon. and learned Friend, yet, in his opinion, the time was come for the investigation of the subject before a Committee of the House. He, therefore, thought his hon. and learned Friend had been very wise in the course he had taken; and he hoped that the Committee, if granted, would have the assistance of some gentleman from Scotland, who would give the Committee an account of the system in Scotland, the way in which it worked, and the expense incurred by it. He confessed that there were many other points he should like to see the Committee take under their consideration, which appeared to him to unnecessarily hamper the transfer of land in the country. For instance, there were the tenures in gavel-kind and Borough English which were antiquated and exceptional, and gave rise to much difficulty and confusion. He thought, however, that something would be effected by a general registration of deeds; but if they had registration of deeds, they must give local facilities for carrying it out. They had district registries for the grant of probates of 1899 wills, and there was little difference between a registration of deeds and a registration of the probate of wills.
Motion made, and Question proposed,
That a Select Committee be appointed to inquire and report whether any and what steps ought to be taken to simplify and secure the title of land and to facilitate the transfer thereof."—(Mr. Osborne Morgan.)
§ MR. RATHBONE
supported the Motion, believing that the question of land registration was one of the most important waiting solution in the interest of the welfare and prosperity of the country. It was of the greatest concern to the owners of property as well as to the working man that the transfer of land should be made simple and easy, so that a much larger number of persons than at present might have an interest in it. It should not be forgotten how great was the temptation where democracy prevailed to levy heavy taxation on landowners, and if any such feeling should manifest itself as had been shown in America, he fancied the proprietors in this country would wish very much that the land had been more sub-divided. It was equally in the interest of the working man that the transfer of land should be made as cheap as possible, and there was, he thought, no greater inducement to frugality, and no better investment for their savings, than enabling such men to become the owners of the houses in which they lived, which, however, they but rarely could so long as the expenses of transfer were so great as they now were. It was urged in favour of the continuance of the present system that under it land was so safe an investment. He, however, had been told by legal friends, who were in a position to speak with authority, that they had known more cases of land being in wrong hands than of personal property. He believed it was not the lawyers who objected to an increase in the facilities for the transfer of land.
§ SIR WALTER B. BARTTELOT
said, he quite agreed with the last speaker that it was of the greatest importance to the owners of property that there should be an easy and simple mode of transferring land. No one who had anything to do with the purchase of it could fail to be aware not only of the cost, but the difficulty, of getting a really good title. He could not, however, concur with the hon. and learned Member for 1900 Denbighshire (Mr. Osborne Morgan), when he said that it took a year to transfer land from one person to another. [Mr. OSBORNE MORGAN: It was Lord Cairns who said that.] Be that as it might, the transfer certainly took a considerable time, occupying, as it did at present, three months on the average; and it was extremely desirable that that time should as far as possible be shortened. He would further observe that, unless a man was prepared to pay absolutely for the land which he wanted to purchase, that land was, in reality, a great snare to him. The hon. and learned Member for Denbighshire made, he might add, an observation with regard to the Survey which was going on throughout the country, to which he attached great weight. He had now got a map on which the pasture and arable land was marked out, and in which every cottage and almost every tree was set down, so that the property could be identified in a moment. Now, maps of that kind for the whole country would, in his opinion, be of inestimable value, whether for strategical, commercial, or social purposes; and he would urge the House to impress upon the Government the expediency of finishing at once a Survey which, at the pace at which it was now being carried on, it would take 18 years to complete. If the Committee asked for were granted, he hoped the hon. and learned Member for Denbighshire and the hon. Member for East Sussex (Mr. Gregory) would undertake to get together a Committee of lawyers who would agree not to pull all the titles to pieces. He should rejoice as heartily as the hon. and learned Gentleman opposite if some step could be taken in the direction which he had pointed out. It was apparent to everyone that the transfer of land was one of those matters which ought to be dealt with. Hon. Members, however, knew the difficulties with which the question was surrounded, and the man who could show them how to overcome those difficulties would render an inestimable service to the country.
§ SIR HENRY JACKSON
hoped the hon. and learned Gentleman, on the part of the Government, would agree to the appointment of a Select Committee on this important subject. There was a rumour that the Government were about to bring in a Bill dealing with the question on their own responsibility; but he 1901 thought the matter had now reached a stage when it might well be made the subject of further inquiry by a Committee of the House, as that would be the best means of throwing fresh light upon it. Several attempts had been made, first by Lord Westbury and afterwards by the present Lord Chancellor, whose Bill was, in the main, identical with one prepared by Lord Selborne, though differing from it in detail. All had proved failures, as he and his hon. Friend the Member for East Sussex (Mr. Gregory) had predicted during its passage through that House. Lawyers felt it was of pressing importance that the difficulties which had hitherto attached to the transfer of land should, as far as possible, be removed. That difficulties existed could not be disputed; but he denied that the lawyers, as a Profession, had deliberately thrown obstacles in the way of the settlement of the question. Solicitors were, however, in this position—if a title proved bad, they were in peril of being personally responsible for the consequences; and it was this liability which rendered them somewhat pedantic in investigating titles. If that liability were removed or diminished, the hearty concurrence of the solicitors would be secured. Every lawyer had his own nostrum for the cure of this disease. He rejoiced to find that recently there had been a great advance of public opinion in favour of a Cadastral Map. He considered this a first necessity, without which no really advantageous step could be taken. Another absolute necessity was the constitution of some person as registered owner, with full power of disposition as regarded purchasers and mortgagees. That principle was to be found in the present Act, and it could not be too highly valued. In his judgment, the Government would not cure the evil by establishing additional registration of deeds; for experience showed that in Middlesex, where a registry existed, nobody could rely on it as a protection, as solicitors would not undertake to make an adequate search, so as to guarantee their clients against every deed which might be registered. What was really wanted was a registration of titles, as in the case of a shop or ship. Such a thing was perfectly possible, although it would take some years and considerable outlay to carry out. Its essential condition was that 1902 the register should refer, not to deeds and names, but to the land in regard to which a title was being sought. First of all, there must be a Cadastral Map, on the face of which every plot of land should be so identified by a number that an intending purchaser, by referring to the same number in the register, might ascertain the ownership of the land in question. Looking at the general interest which was taken in the matter—seeing that it had passed out of the domain of legal technicality into the domain of social and political economy—he believed that better results would attend the appointment of a Select Committee at the present time than would have been the case at any previous period. The objects to be aimed at were of course, facility of transfer and safety of title. The latter was not so much a necessity as the former; for, as a rule, titles were particularly safe. The recent frauds had been in reference to leaseholds, which were often held six or seven leases deep, and afforded facilities for frauds. This kind of holding was exceptional, being mostly in the metropolitan counties; but if the alarm which had been occasioned should result in the amendment of the law, there would be some ground for consolation.
§ MR. ALFRED MARTEN
, while supporting the Motion for the Committee, pointed out that one central registry would by no means meet the necessity of the case. The Dimsdale frauds had been committed with respect to property in Surrey, where there was no register; the Middlesex part of the property had been protected by the register. The great interest excited by those frauds, even if there were no other ground, was in itself sufficient reason for asking for a Committee. In order to show that the House was alive to this view of the case, he would suggest that the Motion should state, among other reasons for appointing a Committee, the necessity of preventing frauds on purchasers or mortgagees. With regard to titles, he did not think that any measure for their compulsory registration throughout the country would ever pass through Parliament. It would, he believed, give rise to great inconvenience, especially in small transactions. If compulsion were to be adopted at all, he believed the House would not extend it beyond the registration of deeds. As for the Cadastral Map, which 1903 found favour in the eyes of the hon. and gallant Baronet the Member for West Sussex (Sir Walter B. Barttelot), how long would it be of service? It would be obsolete in a year; as, through the circumstances continually changing, the position, limit, and particulars of property could not hold good for any length of time.
§ MR. SHAW LEFEVRE
wished to join in pressing on the hon. and learned Gentleman the Attorney General to grant this Committee. The importance of this question had been brought prominently under his notice while sitting during the last two Sessions of Parliament on the Committee on the Bright clauses of the Irish Land Act, the evidence taken before it showing clearly the difficulty of dealing with small properties in Ireland, the average cost of transferring landed properties in that country worth less than £200 being 15, 20, and sometimes even 25 per cent on their value. That amounted to an almost absolute prohibition of the transfer of such properties. The question of registration had been solved in almost every other country in Europe, and especially in Belgium, Germany, and Denmark. He could see no reason why it would not be possible in this country. There were three things necessary to make registration successful. The first thing was a complete Cadastral Survey; and he hoped the time for the completion of the Cadastral Survey would be shortened. It was worthy of consideration that the Cadastral Survey of Ireland was completed, and that in that country it would be possible to carry out a thoroughly complete system of registration. He hoped, therefore, the Committee would extend its inquiries to Ireland, and not confine them to England; and that they would consider whether registration could be introduced in districts where the Survey was finished. The next thing necessary was local registration. Thirdly, there must be someone in a position to give a full and complete title to property. With these three conditions, registration would be an easy matter. It would very much simplify and cheapen the transfer of houses and lands, and would confer a great benefit on the people of this country.
§ SIR GEORGE BOWYER
said, that much of the difficulty which beset this subject had arisen from the confusion of two subjects which were really distinct 1904 and separate—the law of title and the law of registration; and from the doctrine, which existed in England alone, of the distinction between the legal and equitable estate. The registration of a title did not make the title a bit better than it was before; and, until they had a simple system of title, it was impossible to have an effective system of registration. All Continental countries had a system of registration; but then, as the Commissioners remarked in their Report, in those countries, the law in respect of real property was not so complicated as it was here, and there was in those countries, practically, no difference between real and personal property in regard to its disposal, for there was no distinction between legal and equitable estates. It was manifest that registration merely would not cure the defects in their system of the transfer of land; and, therefore, if they desired to facilitate the sale of land, they must not look to registration but to a reform of their system of title. And they must get rid of the complicated system of trustees which was unknown in any other country. They must go back to the statute of uses, and carry that statute into effect by getting rid of the distinction between legal and equitable estates, and thus obtaining unity of title. That was the policy of the Roman Law, which did not allow the usufruct to be separated from the dominion beyond the life of the usufructuary. When unity of title had been obtained, an acre of land would be as easily bought or sold as a horse or an ox. For the same purpose a system of hypothecation should be introduced, instead of a conveyance of the land, subject to an equity of redemption. He came now to the subject of registration. There were three kinds of registration—registration of deeds, registration of title, and registration of land. His hon. Friend opposite (Mr. Gregory) had condemned a system of registration of deeds. He (Sir George Bowyer) differed from his hon. Friend; and Mr. Joshua Williams—whose authority on the subject his hon. Friend would admit—had recently published a letter in which he expressed his opinion that a system of registration of deeds was the best of the three systems. The system of registration of title was both complicated and costly. Before they registered their title they must establish their title. In the first instance, a solicitor 1905 had to prepare the title for registration—a long and expensive process—they then had to take the title before the registrar; and the registrar had to investigate the title over again; and in this way a variety of questions arose, which necessarily led to doubts about the title itself, and a great expense. The landowners were not likely to adopt a system, which, besides raising unnecessarily doubts in regard to their title, exposed them to a publicity which few prudent men would willingly incur. The system of registration had already been tried and had proved a conspicuous failure. There was is Lincoln's Inn Fields an Office for the Registration of Titles, but no one even went there. Then as to the registration of land. They were told that there was to be an accurate survey of the land for the purposes of registration. Such a plan might work very well in a new country like a Colony, where they could divide the land in square plots and map them to scale, and where the natural boundaries were few and undefined. These plots might be transferred from hand to hand with great facility. But in this country it would be impossible to adopt such a survey as would be of any use 30 years hence, so rapidly and so completely did the conditions of the land change. The registration of deeds in Middlesex, he believed, had been found to be very useful, so far as it went; but its utility had been considerably impaired by the judgment of Lord Hardwicke, in the case of Leneve v. Leneve, 1 Vesy, 64, that though by the Register Acts a registered deed was to be preferred to an unregistered one of a prior date, yet that, if a subsequent purchaser by the registered deed had notice of the unregistered deed, he could not derive benefit from his registration. The registration of deeds was the only practicable registration, and would be found more simple and certain and far less costly than a registration either of title or of land.
§ MR. D. DAVIES
said, he had purchased large quantities of land under compulsion for railway companies, and he was consequently acquainted with the difficulties of getting up titles. He had, he might add, bought several lots of land over 14 or 15 years ago, which had never yet been conveyed. He had also purchased more than once about half-an-acre of land for £50 or £60, the expenses of conveying which had been over £150. 1906 In these cases some five or six lawyers were generally engaged—he had no fault to find with the lawyers—they were, on the whole, a very respectable body of men—and the result was that the cost was swelled up to the amount which he had mentioned. There was, he might add, no comparison to be drawn as to the conveyance of land between this country and America. America was a new country, and there was no difficulty about titles; but even here, when a railway company had made out a title, land could, be conveyed as cheaply as in America. He might further state that, having bought several properties, he could convey half-an-acre of land to a working man for building purposes for a sum of 10s. The great difficulty in the matter seemed to him to be the making out the first title. He concurred in the view that something was required to be done to make the transfer of land more cheap, especially in the case of small lots; but the question was surrounded by difficulties. Any system of registration unless made compulsory would be inoperative, and yet a compulsory system would inflict on many persons considerable hardship.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
said, that having listened to the debate attentively, he was himself strongly in favour of the appointment of a Committee. There appeared to be a general concurrence of opinion in the House on that point, partly, perhaps, because of the fact that every hon. Member had his own nostrum, which he considered best fitted to remedy the evil that existed. He did not believe in many of those remedies; but, as there was a strong feeling in the House in favour of an inquiry on the subject, and of the appointment of a Select Committee, he would not, on the part of the Government, object to such a Committee being appointed. This matter really and truly divided itself into two branches—the question of the registration of deeds, and the question of the registration of titles—and he fancied that the debate had been brought about, to a considerable extent, in consequence of the alarm which had been raised in the minds of many persons by reason of the enormous frauds which had recently been perpetrated. Building societies had naturally become alarmed, and all persons who were in the habit of lending money on security in connection with 1907 land had also become alarmed, notwithstanding the fact that the perpetrators of these recent frauds had been brought to justice. He knew there was an exceedingly strong feeling outside the House that a registration of deeds, such as existed in Middlesex and Yorkshire, would cure the evil, and prevent the perpetration of such frauds for the future. He dared say it would, to a certain extent. He had no doubt that if there had been such a registration of deeds, where the property which was conveyed by Dimsdale or his confederates existed, he would not have been able to commit his frauds. But it was very difficult to legislate in order to check the perpetration of fraud. It was difficult, when people resorted to gross frauds and forgeries, to prevent those frauds and forgeries from being effectual; and if Dimsdale and his confederates had not been able to carry out the frauds which they did execute, it was quite possible that they would have invented some other contrivance for deceiving the public, and getting hold of property which did not belong to them. But those who asked for a registration of deeds to be established over the whole country, must remember that what they were asking for was a compulsory registration of deeds; for, unless it was compulsory, it would be quite idle, and would be of no efficacy whatever. Well, then, the grave question arose—would the benefits which they would get from such compulsory registration overweigh the evils which would flow from it? That, however, was not a matter upon which he pretended to give an opinion; but it was a matter which had been investigated by a Royal Commission, and that Royal Commission, which was composed of men of the greatest possible experience and eminence, came to the conclusion that the registration of deeds was anything but a good thing; that it was to be deprecated in consequence of the expense, which pressed heavily in the case of small transactions, and in consequence of the necessary exposure of private concerns, and the paralysis which would be caused in connection with the dealings with the banks and individuals on the deposit of deeds. In short, the Commission arrived at the conclusion that the compulsory registration of deeds was not desirable, and that, instead of being a benefit, it would 1908 be a detriment to the community. Their Report concluded as follows:—On this subject we have thought it necessary to examine only three witnesses. All agree in saying that the Registry causes a great increase of trouble and expense, affords no additional security or other special advantage, and ought not to be continued. We entirely concur in this opinion, and recommend that, from as early a date as possible, the Registry (i.e., the Middlesex Registry) should be closed as regards the deeds executed after that date.He did not himself think it a desirable thing to institute compulsory registration of deeds in order to prevent those frauds. It was much more important to consider whether they could not have a good registration of titles. Perhaps it would be an advantage if a man could invest his savings in real property more cheaply and easily than he could do at present; but he never could understand how it was essential to the happiness of a working man that he should possess an acre or half-an-acre of land. He admitted fully that a good system of registration of titles, even taking the law as it stood, would to a very considerable extent facilitate and cheapen the transfer of property, and be, on the whole, beneficial to lawyers; but how were they to bring about this system? There had been a great many attempts to bring it about—Commission after Commission, Committee after Committee, Bill after Bill, Act after Act had been passed; yet these Statutes had all been ineffectual. How could they make them effectual? Only by making the registration of titles compulsory. This would be excessively vexatious and annoying—would the benefit be worth the sacrifice? Of this he was quite certain—there would be great opposition in the country to any proposal of that sort. If a compulsory registration of titles were established, every man who had any defect in his title would be compelled to disclose it—he could not raise money on his property without telling the whole world that his title was defective; and such a proposal would be resisted to the last extremity. But if it were necessary for the benefit of the community that such a measure should be introduced, the public interest, no doubt, must prevail; but he was not prepared to say that the time had arrived for that yet. Reference had been made to the law of other countries, and that law had been contrasted with the law 1909 of England; but were they prepared to do away in England with all settlements of real property, and alter the law as suggested by the hon. Member for Reading (Mr. Shaw Lefevre)? He was not prepared to go to that extent. If any reasonable plan could be provided for curing existing defects, he would be glad to support it; and, with regard more immediately to the subject before the House, all he could say was, that he felt quite convinced, after the feeling which had been manifested by the House, that a Committee ought to be appointed. He would, therefore, agree to the Motion.
MR. OSBORNE MORGAN
, in reply, said, he must be allowed to express his thanks for the manner in which his Motion had been received, and hoped that one result of the debate which had taken place would be a more rapid progress in the manner in which the Survey was being carried on. He was quite willing to add to his Motion the words suggested by the hon. and learned Member for Cambridge (Mr. Marten)—namely, "and also to prevent frauds on purchasers and mortgagees of land."
Motion by leave, withdrawn.
Select Committee appointed, "to inquire and report whether any and what stops ought to be taken to simplify the title to land, and to facilitate the transfer thereof, and to prevent frauds on purchasers and mortgagees of land.
And, on May 22, Committee nominated as follows:—Mr. WALPOLE, Mr. LOWE, Mr. ATTORNEY GENERAL, The LORD ADVOCATE, Mr. GREGORY, Sir HENRY JACKSON, Sir JOHN KENNAWAY, Mr. SHAW LEFEVRE, Mr. CHARLES LEWIS, Mr. ALFRED MARTEN, Mr. PATRICK MARTIN, The O'CONOR DON, Mr. RYDER, Mr. WALTER, Sir SYDNEY WATERLOW, Mr. PERCY WYNDHAM, and Mr. OSBORNE MORGAN:—Power to send for persons, papers, and records; Five to be the quorum.