HC Deb 25 May 1880 vol 252 cc465-79
MR. GREGORY,

in rising to call attention to the Report of the Committee on Land Titles and Transfer; and to move— That, in the opinion of this House, effect should be given by legislation to the recommendations of that Committee, said, that when land was to be sold under the present system what was called "an abstract of title" had to be prepared, which involved inquiries carried back on an average for 40 years, and was a long, tedious, and expensive process. Having described this process the hon. Gentleman observed that if the land was to be sold once more the purchaser had to go through the same thing all over again. The reason why the process was so expensive was because a great responsibility was thrown on the solicitor of the purchaser, and to absolve himself of that responsibility he had no other course but to investigate the matter from the beginning. The House would understand how great that responsibility was, and how it added so much to the expense, delay, and trouble. He was very much afraid that could never be altogether avoided while the present mode of giving a title continued. Various attempts had been made to facilitate the transfer of land, to simplify titles, and to do away, as far as possible, with the necessity for investigating everything which now existed. So long ago as 1830 or 1832 a Royal Commission was appointed—he believed there never was a better constituted body—which reported in favour of the registration of deeds. But in 1854 another Royal Commission was issued; and they, after investigation, rejected the scheme for the registration of deeds, and recommended a scheme for the registration of titles. It was to be observed that there did not then exist those facilities for the registration either of titles or deeds which were to be found in the Ordnance maps. That Report seemed to have given rise to the Bill of Sir Hugh Cairns, introduced in 1859, which was a scheme for the registration of titles. That Bill, however, was dropped, and in 1862 the Bill of Lord Westbury became law. Under that Bill an office was founded for the registration of land. It was for the registration of indefeasible titles—that was, titles which could be enforced against all comers. Very few titles, however, of that nature existed, very few were without some flaw or defect, though they were practically good. It was also necessary that the boundaries of the property subject to registration should be accurately defined, and that involved giving notice to all the adjoining occupiers. The consequence was that every man so noticed was put on his defence, because when you gave notice you challenged the man's title to every boundary adjoining your own. There had been only some 400 transactions under Lord Westbury's Act, notwithstanding the desire of the officers to whom the business had been committed to make the Act work and to give every facility. In 1876 a Bill was brought in by Lord Cairns, removing, to some extent, the defects of Lord Westbury's Act; but the results of this had been again unsatisfactory, and he believed that a system of registration of titles, if voluntary, would be inoperative, and that if compulsory it would be found inconvenient and burdensome. A compulsory system might, perhaps, succeed in a new country; but in England the necessary investigations as to the validity of titles would be so expensive, and at the same time so troublesome, as to cause great repugnance to the working of the Act. However, he thought that a third course might be taken with advantage. The best mode of obviating the difficulty was to register the deeds. If that were done, a copy of every deed executed would be retained in an office and indexed so as to be accessible whenever it was wanted; and such copies would be taken, in the absence of the originals, as evidence of the transactions to which they referred. That would greatly reduce the inconvenience caused by the loss of deeds, and would tend to lessen the law expenses in connection with them, and the present practice of requiring covenants for the production of them, where they could not be handed over to a purchaser. Another practical advantage would result with respect to what was called the doctrine of "tacking," by which a third mortgagee was enabled, by obtaining a transfer of the first mortgage, to get possession of the legal estate and to squeeze out the second mortgagee. The registration of deeds would necessarily be accompanied by a provision that each incumbrance on the estate ranked in its due order. In Scotland the system of registration had prevailed for a long time, and had been found entirely satisfactory. It had called into existence a class of practitioners called searchers of deeds, whose work greatly facilitated the purchase and sale of estates in that country. The change that he advocated was very frequently objected to on the score of expense; but he could not admit the force of the argument. An office for each county would be necessary, and the expenses of each office might be estimated at £1,000; but the number of deeds annually made was so great that the cost would be amply covered by very moderate registration fees. The Committee had also recommended the propriety of completing the Ordnance survey, because it was obvious that any system of land registration must be accompanied by good maps. He hoped the Motion of his hon. and learned Friend the Member for Coventry (Sir Henry Jackson) on this subject would, be acceded to by the Government. He had gone through the recommendations of the Committee, and he hoped they would commend themselves to the attention of the House and the Government. The hon. Member concluded by moving the Resolution of which he had given Notice.

Motion made, and Question proposed, That, in the opinion of this House, effect should be given by legislation to the recommendations of the Committee on Land Titles and Transfer."—(Mr. Gregory.)

MR. P. MARTIN

said, that the present system of land transfer in England was unsatisfactory both to buyers and sellers. It was attended with two striking disadvantages—first, it was costly; and second, even after the cost had been paid, possession was insecure. It was of importance that this question should be brought prominently before the attention of the public, because land reform interested both the man about to buy and the man about to sell, to whom it would be equally advantageous if at once the transfer of land could be facilitated, cheapened, and possession rendered secure. Under these circumstances, the recommendations of the Select Committee were eminently worthy of the immediate consideration of the Government. That Committee founded their inquiry on a true basis, and were to be commended for having kept in view that the first point to be considered was, how they could arrive at simplicity of title in England, because without that it would be impossible to arrive at a simple mode of land transfer. To legislate for the registration of titles, without first simplifying the titles to be registered, was to begin at the wrong end. The number of estates to which land was subject and the difficulty and intricacy in tracing the titles to these estates would, on examination, be found the true solution of the unfortunate miscarriages which, up to the present time, had prevented effect being given to principles which everyone had conceded. Thoroughly bonâ fide attempts had been made by the Legislature to cope with the difficulties of the subject. There was first the Act devised by Lord West-bury. The object of that measure was to render titles in England transferable in the same way as they were in Australia—namely, by having recourse merely to the register. That Act, however, failed to effect the object its framer had in view, and the reason of its failure was that title was not simplified in the first instance. A Royal Commission proceeded to consider Lord Westbury's Act. Many able lawyers sat as Members, and carefully considered how Lord Westbury's Act of 1862 could be re-modelled or amended; and, as the result of the recommendations of the Royal Commission, both the late and the present Lord Chancellor entered on the task of coping with the admitted difficulty. The latter brought forward a Bill in 1873, which sought compulsorily to make every person in England place his title on record. That, however, was too drastic a measure. Then, in 1876, a permissive was substituted for the compulsory measure, but again there was failure; and, accordingly, one of the representations contained in the Report of the Select Committee, which had been presented to the House, was that the Act of 1876 had proved an unworkable measure, and which, in the interests of the public, ought not to continue in force. One of the first suggestions made by the Committee was simple as well as valuable—namely, that conveyances should be shortened. Instead of an enormous, cumbersome deed, why should there not be a short conveyance, expressing in a few simple lines what ordinarily filled two very large skins of parchment, the latter being paid for simply according to length, and not according to the skill displayed in the preparation of the deed? In Australia and other Colonies the pur- port and effect of an English mortgage was given in three short lines. And yet the interests of both borrower and lender were each as well protected and secured as in England. Why should they place a premium on verbiage by refusing to adopt a similar system of short conveyances? Payment by length should be got rid of, and solicitors should be remunerated, either according to the skill that was necessary for the preparation of the document, or according to some graduated ad valorem scale. If the brief statutory form were substituted for the lengthy deed, its preparation should be rendered compulsory. A similar system had been found efficacious in Scotland, as well as in the Colonies. The two changes to which he had referred, though small, would be of great advantage in arriving at the simplification of titles. Practical effect and validity might be given by Act of Parliament to the suggestion of making mortgages not a conveyance of the property, but simply a charge, defeasible on payment. The opinions given by several skilled witnesses and eminent lawyers showed that to give effect to this recommendation of the Committee no difficulty really existed in regard to practical details. Under the present system, in every simple case of the settlement on marriage of lands in England where lands were granted to trustees for a term of years to raise money for the settlor and also for younger children, and there was also a jointure and a mortgage at least on property in England where there was a mortgage and also a jointure, four distinct sets of titles had to be traced, all the devolutions had to be run through, and there was all the cost of almost endless parchments in respect of the transaction. If the owner of an estate wished to borrow money he might be enabled to do so by a form of deed to this effect—"I charge my estate, describing it, with the repayment to A.B. of the sum borrowed on a day named, with interest thereon half-yearly, after the rate and on the days specified." And on the back of the mortgage deed, when the sum was paid back, there should be a simple indorsement showing that it had been paid back, and then the whole matter would be complete. Great difficulty and expense was occasioned in deducing and proving frequently the title to an estate, from the fact that portions there of were held in fee or freehold, and other portions thereof for terms of years and then vested in different persons. It would be most desirable that both freeholds and estates for years should vest in some one ascertained person as administrator. He would be glad, though he did not think the Government could now fairly be called on to give effect to all the recommendations of the Committee, that legislative sanction should this Session be given to some of those suggested changes to which he had alluded. As to the general question of recording titles on an Official Register in England, unless the public be content to have simply the ownership of land registered, and to give the absolute powers of dispute to those named on the Register, he did not think any system could be devised which would work. If that was done, the registered owners could always be easily ascertained, and, as in the case of Stock, the other claims and charges on the land could be transferred to the proceeds when the lands were sold.

MR. J. HINDE PALMER

thought many of the observations which had been made on this subject were entitled to great consideration; but after the answer given last night by the Prime Minister to the right hon. Member for Montrose (Mr. Baxter) that it was the intention of the Government, at an early period, to enter into the whole of this subject—not only the transfer of land, but the alterations that should be made in the titles to land—he thought it would be well to leave the question in the hands of the Government to be dealt with by them next Session. Although he agreed in the necessity for a change which would facilitate the transfer of land, that only formed a part of the question. He thought the abolition of primogeniture, by which the landed estate went to the eldest son, to the prejudice of the other children, would be a great advantage to the country. In conjunction with Mr. Locke King, he brought in a Bill abolishing primogeniture, which was adopted by the Government in the Parliament of 1868; but owing to their defeat at the next General Election it was dropped. He hoped it would now form part of the scheme of the Government. It was very much the practice to deal with the Land Question as one of the popular topics of the day which could be treated in a very summary manner; whereas those who were conversant with the law and practice with regard to land knew it was a subject which should be dealt with only after very mature deliberation, after calm consideration of its political bearings, and the effect it would have on the social relations of the country. It was impossible to deal with the question merely in reference to legal considerations. It must be dealt with on much broader lines. The late Lord Chancellor introduced three or four Bills which would tend very materially to improve the tenure and transfer of land. They did not go quite so far as he was prepared to go; but they certainly would very much facilitate the transfer of land and cheapen the whole system of conveyancing, which was the great incumbrance in the transfer of land. He hoped these Bills would not escape the careful consideration of the Government. He thought they should not unduly press on the Government measures of this description.

MR. DAWSON

said, he hoped that any scheme of reform in the Land Laws which might be brought forward would include the abolition of the Law of Primogeniture and some modification of the Law of Entail and Settlement, because under that law land was tied up in such a manner as to render easy transfer impossible, and the proceedings under its provisions were the origin of most of the complications which affected land.

MR. OSBORNE MORGAN

desired, as Chairman of the Committee to which the hon. Member for East Sussex (Mr. Gregory) had referred, to say a few words. That Committee had been appointed to inquire into the Land Transfer Act of 1875, which was an attempt to apply to England the land system which prevailed in Australia. He supposed that in no country in the world would the system of land transfer be found so costly and clumsy as in England, and there were few countries in which the security was less. As a proof of the necessity of some reform in the Land Laws, he might observe, a man had in one case mortgaged the same property 14 times over, to 14 different persons. The authors of the Act of 1875 had endeavoured to embody the Australian system, so far as it could be applied; but there were two things in which Australia differed from this country. First, the laud could be easily identified; and, second, the title was clear. Lord Cairns's Act, the object of which was to assimilate, as far as possible, the transfer of land to the transfer of stock and shares, had, notwithstanding the success of a similar Act in Australia, proved a signal failure, the number of titles registered under it being about one in two months, or one in 10,000. Practically, therefore, the Act was a dead letter; and it would be a very strong thing to make that compulsory which only one in 10,000 did of their own accord. The Committee reported, it was true, in favour of a system of registration, not of titles, but of deeds; and nothing had since occurred to change his individual opinion on that point. That Report, however, in no way committed the Government with which he had now the honour to be connected. The question was one of great difficulty, on which even experts disagreed; but it was evident the question must be dealt with in a comprehensive way, and not by piecemeal. He had not had an opportunity of consulting the Lord Chancellor on this matter; but he had no doubt that when the Government, in accordance with the promise given by the Prime Minister on the previous night, came to consider the subject, as they probably would during the coming Recess, they would give it the fullest and most thorough consideration.

MR. GREGORY

said, that after the assurance given by the right hon. and learned Gentleman he would, with the permission of the House, withdraw his Motion.

COLONEL MAKINS

thanked the hon. Member for East Sussex (Mr. Gregory) for having brought a question of such importance on so early a date before the House. The Bills introduced by the late Lord Chancellor dealt with the tenure and transfer of land; but the question now before the House, as it seemed to him, related more to title and transfer than to tenure. He felt sure that any measure which had for its object the simplification of the transfer of real property would not tend to the detriment of the members of the Legal Profession, as it was clear that the number of transactions would be considerably multiplied. The time, he hoped, would come when remuneration to conveyancers would be made on the principle of an ad valorem payment on the value of the property assigned. A small instalment of reform would be obtained if the system of registration at present existing in Middlesex and Yorkshire were extended to the rest of the Kingdom. Again, a properly authenticated system of maps having the sanction of the Government would greatly simplify questions as to the boundaries of real estates. While in France lately, he had an opportunity of witnessing a transfer of land there. The operation was very simple. A gentleman who desired to add a small portion of land to an estate he already possessed called at an office in connection with the French Government. He paid a small fee—1 franc he (Colonel Makins) thought—and obtained the fullest information respecting the property of which he desired to become the possessor. For a small additional fee of 3½ francs he obtained a certified map, which showed the boundaries of the property. He went to a solicitor, or notary, who also acted, he (Colonel Makins) thought, as a surveyor, as the Government map was held to be correct, and who also acted for both parties. It might be desirable for Her Majesty's Government to take into their consideration whether the professions of solicitor and surveyor, with reference to the transfer of land, should not in some way or other be amalgamated, so as to facilitate the transfer. The gentleman to whom he had referred then employed a solicitor and surveyor, and his fees were on the most moderate scale. He was informed by his adviser of the proper amount he ought to give for this property, and by the solicitor of the time when he ought to get the title registered. Having paid his fees, he had to make up his mind whether he would or would not purchase the property. Having done that, he gave instructions to carry out the purchase; and within six or seven days, he believed, he became the possessor of the property at an amount of cost, excluding the Government ad valorem duty, almost inappreciable. If that system were adopted in this country, it would probably tend very much to that which hon. Gentlemen on the Ministerial side of the House had so much at heart, the sub-division of landed property in this country. The question of the desirability of sub-division was a very large one. The right hon. Gentleman the Member for Birmingham (Mr. John Bright) had lately outside the walls of that House gone very fully into that question. He believed the right hon. Gentleman's remarks had more special reference to the question of land tenure and peasant proprietorship in the sister country of Ireland.

MR. GIVAN

rose to Order, as he thought it premature to discuss that subject at such a moment.

MR. SPEAKER

said, he could not hold that any remarks made by the hon. and gallant Member for South Essex were irrelevant.

COLONEL MAKINS

said, on many occasions the right hon. Gentleman the Member for Birmingham had given views of startling novelty with reference to the question of land tenure. He believed that, in the opinion of the right hon. Gentleman, it was desirable that land in Ireland should pass out of the proprietorship of its present owners, whom the right hon. Gentleman described as a small knot of men, into the hands of the present tenants of Ireland, who were a large number. Now, he (Colonel Makins) ventured to think that before any policy of that kind could be carried into execution it would be necessary that several changes in the law, to which he had already referred, should have taken effect; for it was obviously impossible that the present tenants could be in a position that would enable them to purchase any considerable portion of property. Before the dream of the right hon. Member for Birmingham, who was also Chancellor of the Duchy of Lancaster, could be realized, it would be necessary that some measure to reduce the cost of the transfer of land should be passed. Therefore, if hon. Members opposite had this question of peasant proprietorship so deeply at heart as they had declared on the hustings during the last few months, he must exhort them to give this question their deepest consideration. As the House had nothing particular to do that evening, he should like to hear the opinions upon the subject of some of the hon. Members who had only recently obtained seats in it, especially those who came from the sister isle, where this question excited an especial interest. Of course, he felt that, to a certain extent, he was speaking in the dark in reference to it. He had hoped that the House would have had the assistance of the Government on this matter; and he regretted to see that the only occupant of the Ministerial Benches was the right hon. and learned Member for Denbighshire (Mr. Osborne Morgan). It was, no doubt, desirable that a very large portion of the inhabitants of any country should have a direct and binding interest in the soil of that country; and hitherto such interest had existed in England and Scotland, but rather in the form of a common interest shared by owners and cultivators than in the possession by a large number of proprietors of infinitesimally small plots of land, according to that scheme which had been suggested by the right hon. Gentleman the Member for Birmingham. The question of the sub-division of land both in England and Ireland was one of great importance—

MR. SPEAKER

reminded the hon. and gallant Gentleman that the Question before the House was not the opinion of the right hon. Gentleman the Member for Birmingham on this subject, but whether the Motion of the hon. Member for East Sussex should or should not be withdrawn.

COLONEL MAKINS

begged to apologize for having digressed from the subject. He would not pursue the question of sub-division any further. [Ironical cheers.] These cheers showed that hon. Gentlemen on the Ministerial Benches had not sufficiently studied the question. In conclusion, he begged to tender his thanks to the right hon. and learned Gentleman the Member for Denbighshire for his speech, and to express a hope that the Government and the House would speedily take the matter under discussion into their earnest consideration.

MR. BYRNE

agreed with hon. Members in thinking this question one of very great importance, and suggested that, as far as registration was concerned, it was not necessary to go further than the Isle of Man, where he had seen many titles which did not cover a larger surface than that of a sheet of note paper; the survey, which had been competently made by authorized persons, being taken as the basis of transfer by all parties concerned. He would suggest, further, that in any measure introduced in reference to the matter facilities for transfer should be combined with a low scale of law charges. He happened to be a proprietor in a small way of some soil in Ireland, and also in several English counties, and therefore did not speak on the subject without knowing something about it; and he knew that as low a sum as three guineas had in some instances been paid for a conveyance, whilst in some cases the law charges had amounted to as much as 300 guineas. In Ireland, in many-instances, the charges were fixed at a very high sum indeed. He once knew a small property in the county of Dublin sold in Dublin where the purchase money did not exceed £300, and the law charges came to so large a sum as 15 guineas. He thought the House would agree with him that that was a most excessive charge, considering the amount of the purchase money, though he did not for one moment say that the solicitor who acted in the case charged more than any other gentleman would have charged for similar services. He would also suggest that there was another system of registration on the Statute Book which might be considered in relation to the transfer of land—namely, the registration of shipping. He found that under the Merchant Shipping Act, if a ship was sold, the registration fee was 1s.; and any person wishing to transfer or mortgage the ship by the payment of another shilling, and placing a penny receipt stamp on the document, could get it registered, and that was recognized in any Court in England as a first or second mortgage as the case might be. When the ship was sold that registration was the only record looked to. He did not wish to enter into the various topics which had been raised by the hon. and gallant Gentleman who had just spoken (Colonel Makins), but only threw out these suggestions in the hope that they might be of some practical use.

MR. BERESFORD HOPE

said, he should not have taken part in this debate—believing it to be one proper to be confined to hon. Members professionally conversant with the subject-matter of it—but for the fact that the hon. and learned Member for Lincoln (Mr. J. Hinde Palmer) had imported a totally different tone into the discussion by bringing in the question of primogeniture. Primogeniture was a long word, very useful for a hustings speech in that its meaning was not generally known, and that it had a sonorous ring; but it should not have been used in so vague a way in the House of Commons by so old and experienced a Member as the hon. and learned Member for Lincoln. When he talked of primogeniture he meant real estate intestacy. He had himself more than once led the opposition to the change, and with varying success; and then he well remembered the Attorney General of the day rushing in from one of the Courts and addressing the House in his wig and gown for the purpose of making an impassioned protest against the alteration. That hon. and learned Gentleman was now Lord Chancellor; and until Lord Selborne answered Sir Roundell Palmer he must continue to regard the question as an open one. That being so, what right had the hon. and learned Member for Lincoln to speak on the question as though he were spokesman on behalf of the Government? His speech might be regarded as the little whistling wind which came before the great storm and warned the traveller to wrap his cloak around him. The hon. and learned Member lectured his hon. Friend the Member for East Sussex, and the hon. and learned Member who seconded the Motion; and, in effect, asked them how they dared to raise the question when a paternal and beneficent Government were sitting on and hatching it, intending to produce something wonderful next year? As to his hon. and gallant Friend the Member for South Essex's (Colonel Makins's) Algerian experiences, he must point out that there was no profession in France exactly analogous to our solicitor.

MR. HOPWOOD

rose to Order.

MR. SPEAKER

pointed out that the Question before the House was that the Motion be by leave withdrawn. The right hon. Gentleman was entitled to speak on that Question, but was bound to confine himself to the substance of it.

MR. BERESFORD HOPE

would only add to what he had already said, that he could not admit that cheapening land transfer, whatever might be its advantages, would be certain to promote the sub-division of estates; for, as a rule, the broad estate would follow the heavy purse. The poorer proprietor in many cases held on to his land because its transfer was expensive and difficult; if the transfer was made cheap and easy, the temptation put in the way of the small proprietor to part with that land would be irresistible.

Motion, by leave, withdrawn.