LAND CHARGES BILL [Lords]. (Hansard, 6 April 1900)

§ *MR. CALDWELL (Lanarkshire, Mid)
This Bill relates to England only, and is of a highly technical character. Although consisting of only six clauses and a schedule, it deals with and repeals, in a greater or lesser degree, no fewer than ten different Acts of Parliament. The present Bill was a great improvement on the Bills introduced by the Government in former years, thus illustrating the advantage of not rushing legislation, but of having a preliminary discussion in one session, and of framing and passing a new Bill in a subsequent session, in the light of the criticism which a former Bill may have received. Whilst the Bill of last year left the transference of the business of the registrar of judgments to be carried out by Order of the Lord Chancellor, by the present Bill, Parliament makes the transfer itself, leaving to the Lord Chancellor, by Order, to make the necessary changes. Consequently, the schedule contained the abolition of the office of registrar of judgments. A question might arise whether the new arrange- 1489 ments under Clause 1 do not involve an additional burden on the Exchequer, requiring a money resolution in Committee, and whether an addition to Clause 1 is hot required that the expenses are to be provided out of moneys to be annually voted by Parliament. The Bill of last year dealt also with charges on land in respect of land improvement, but the present Bill does not deal with these, the same having been dealt with in the Land Improvement Act of last session. Clause 2 of the Bill deals with the operation of a judgment or recognisance as a charge upon land. In considering the effect of this clause, it is necessary to review the law on the subject which existed prior to the passing of the Land Charges Registration and Searches Act, 1888, and as the law presently exists consequent on the changes made by that Act. Section 18 of the Judgments Act, 1838, enacts that all judgments entered, or to be hereafter entered, in Her Majesty's Supreme Courts at Westminster, shall operate as a charge upon all lands which the debtor shall at the time of entering up such judgment, or at any time afterwards, be seized, possessed, or entitled for any estate or interest at law or in equity, and the same shall be as binding as against the person against whom judgment is entered, and all persons claiming under him after such judgment, as also against the issue of his body, and all other persons whom without the consent of any other person, he might cut off or debar from any remainder of such lands. The judgment creditor is to have such and the same remedies in a Court of Equity against the lands as if the persons against whom judgment was entered had by writing agreed to charge the same with the amount of such judgment debt, and interest thereon. There are two provisoes—first, that proceedings in equity are not to be taken until the expiry of one year from the time of entering up the judgment; and, second, that the judgment is not to operate as a preference in bankruptcy unless such judgment shall have been entered up one year at least before bankruptcy. By Section 18 of the Act of 1838, decrees and orders of the Court of Equity are to have effect as charges upon land in the same way as judgments; by Section 21 of the same Act, the like effect is to be given to judgments of the Court of Common Pleas of the Counties Palatine of Lancaster 1490 and Durham; and by Section 2 of the Judgments Act, 1855, the like effect is conferred upon the decrees and orders of the Court of Chancery of the Counties Palatine. Judgments of the inferior Court when removed to the Supreme Court also have the like effect. The foregoing sections of the Acts of 1838 and 1855, so far as the effect has been described, were not repealed by the Land Charges Registration Act, 1888, nor are they repealed by the present Bill. Whilst judgments and decrees and orders of the Supreme Courts of Law and Equity in England, including those of the Counties Palatine, had and are still to have the effect mentioned of a charge upon land, it was provided by Section 19 of the Judgments Act, 1838, that no judgment, decree, or order was to affect real estate, otherwise than as before the Act, as against purchasers, mortgagees, or creditors, until the same had been registered. Registration is proscribed as the entering of certain particulars in a memorandum or minute which is left with the Senior Master of the Court of Common Pleas at Westminster, who enters the particulars in a book arranged in alphabetical order in name of the person whose estate is to be affected. A similar registration in a book to be kept by the Senior Master of the Court of Common Pleas was necessary under Section 8 of the Judgments Act, 1839; the Law of Property Amendment Act, 1860; the Judgments Act, 1864; and the Crown Suits, etc., Act, 1865; in order to make effectual as against bonâ fide purchasers for valuable consideration, or mortgagees or creditors, any judgment for debt in favour of the Crown and other persons, and of hereditary titles or acceptance of office from or under the Crown. To be effectual as against purchasers, mortgagees, or creditors, in the case of land situate within the Counties Palatine of Lancaster and Durham, a similar registration had to be made in a book kept by the prothonotary of each county in which the lands were situated. The fee for registration is fixed by statute at 5s., and in some cases 2s. 6d. in the case of the books kept in the Court of Common Pleas, and at 2s. 6d. in the case of each of the Courts Palatine. The effect of the Bill in sweeping away the statutory limit of the fee of registration will have to be 1491 considered in Committee. Meantime, it is important to observe that, in order to make judgments of the Supreme Courts effectual as charges upon land in England, it was necessary to register the same in different books or registers in the Court of Common Pleas, and in each of the Courts Palatine of Lancaster and Durham—seeing that the judgment affected not merely any lands possessed by the debtor at the time of entering up the judgment, but also any lands or interests in land which he might thereafter acquire or become possessed of. Registration was only effectual as against purchasers, mortgagees, or creditors for five years, but there might be re-registration from time to time, which had effect for five years from the date of the last re-registration. The practical effect of registration was, and at present is, that it is notice to intending purchasers, mortgagees, or creditors. So much has registration merely the effect of notice that doubts were at one time raised as to whether registration was necessary in the case where a purchaser, mortgagee, or creditor had notice. To set these doubts at rest, Section 2 of the Judgments Act, 1840, enacted that registration was necessary, "any notice of any such judgment to any such purchaser, mortgagee, or creditor notwithstanding." It is important to observe that the efficacy of judgments in operating as a charge upon land rests upon Sections 13, 18, and 21 of the Judgments Act, 1838, and upon Section 2 of the Judgments Act, 1855, and that a judgment entered up is effectual as against the debtor himself, the issue of his body and all others deriving right from him otherwise than for a valuable consideration, without any registration whatever. Registration was only necessary under the older Acts to protect a judgment creditor against purchasers. By the Land Charges Registration and Searches Act, 1888, from and after 1st January, 1889, the commencement of the Act, there is (Section 5) to be kept at the office of the Land Registry a register of writs and orders affecting lands, and there may be registered therein, in the prescribed manner, any writ or order to enforce any judgment. Registration is to cease to have effect at expiration of five years from date of registration, but may be renewed from time to time, and if renewed to have effect for five years 1492 from date of renewal. Registration is to have the same effect as, and to make unnecessary, registration thereof in the central office of the Supreme Court of Judicature in pursuance of any other Act. Section 6 enacts that every such writ and order in Section 5, and every delivery in execution or other proceeding shall be void as against a purchaser for value (defined in the interpretation of terms to include mortgagee or lessee, or other person, for valuable consideration), unless the writ or order is for the time being registered in pursuance of that Act, the Act of 1888. Then follows a proviso that where, at the commencement of the Act, a writ or order is registered in terms of the Judgments Act, 1864, the Act of 1888 shall not affect the operation of such writ or order until the expiry of the period for which it is so registered; and, as registration is effective for five years only, this means at the very latest 1st January, 1894. The result is that, since the latter date, all registrations of judgments, to be effectual as against purchasers for value, must be registered in the Land Registry. The Act of 1888, however, as also the previous Acts, did not interfere with the operation of judgments as a charge upon land without registration in a question with the debtor himself, the issue of his body, or those acquiring right from him without valuable consideration, as enacted under Section 13 of the Judgments Act, 1838, which the Bill does not repeal. Clause 2 of the Bill, however, would seem to take away all operation of a judgment as a charge upon land, even in a question with the debtor himself, unless and until it is registered— 2—(1) A Judgment or Recognisance, whether obtained or entered into on behalf of the Crown or otherwise, and whether obtained or entered into before or after the commencement of this Act shall not operate as a charge on land, or on any interest on land, or on the unpaid purchase money for any land unless or until a writ or order enforcing it is registered under Section 5 of the Land Charges Registration and Searches Act, 1888. The clause seems absolute in its terms, and not restricted, as in the case of the Act of 1888 or the previous Acts, where registration is only made necessary in a question with purchasers for value, mortgagees, or creditors. As since 1st January, 1894, all registrations of judgments, writs, and orders in order to be effectual as against purchasers for value 1493 require to be registered in the Land Register, the registers kept under the Acts of 1838, 1839, 1860, 1864, and 1865 have ceased to be effectual for registratration purposes, and the Bill proposes to repeal these statutes, so far as relates to registration in these registers. The effect of this repeal will be to leave these registers with only historical interest, and not with any validity as registers. But registration in these registers may affect the validity of existing titles to land, and, in repealing the statutes it may be necessary to reserve their efficacy so far as anything done or rights may have been acquired under them in respect of registration or non-registration there-under. These old registers being public registers, and forming an important link in existing titles, it seems a strong step to close them against search without an order of the High Court, which might mean an expensive and disputed application. Besides, a man asked to credit a landowner might wish to ascertain from the public register to what extent that landowner may in previous years have been denuded of any part of his property in virtue of any judgment, so that he might determine how far to give credit. If the intending creditor had to apply for an order of the High Court intimation would doubtless have to be given to the intending debtor, which, of course, would prevent such an application being made. There seemed no reason why what was or had been a public register should be closed against the public who had not an order of the High Court, even although the register only possessed historical interest. He thought the Bill was not clear as regards registration of lis pendens. Section 7 of the Judgments Act, 1839, prescribes that purchasers are not to be affected by any lis pendens, unless such suit is duly registered in terms of that Act. Section 4 of that Act, relating to registration every five years, is imported into Section 7, but the section so imported is by the schedule to the Bill repealed, without any reservation of the clauses repealed remaining effective as regards any enactments which may continue in force. In the Statute Law Revision Acts there is such a reservation, which, however, seems only to apply to that Act, and not to repeals in statutes generally. Indeed, if there was a general declaratory Act reserving the effect of such repeal 1494 as regards enactments which are not repealed but still continue in force, there would seem to be no reason for annually repeating the reservation in the Statute Law Revision Acts. Section 3 of the Judgments Act, 1855, is by the schedule to the Bill repealed, except so far as it relates to lis pendens, but the schedule to the Bill repeals everything in that section except the reference to Section 7 of the Judgments Act, 1839, which, as has been pointed out, can only be read by reading in Section 4 of that Act which the schedule of the Bill repeals. He thought it would be better, instead of attempting to keep lis pendens alive under the existing Acts, rather to put a couple of clauses into the Bill defining the manner and effect of such registration, and if the Attorney General found any difficulty in framing the clauses, he (Mr. Caldwell) would be glad to give him assistance. In repealing the Sections in the Act of 1855 the schedule said "Sections four to eight." He did not know whether Section eight was meant to be included in the repeal. He rather thought it was. The schedule, however, did not include it, and if it were meant to include it the word "inclusive" would have to be added. The concluding proviso of Section 2 of the Judgments Act, 1855, has been omitted to be repealed. He thought for simplification the Middlesex Registry might now be transferred to the Land Registry. These, however, and some other points were more matter for Committee. He congratulated the Attorney General on the effort which he was making to simplify and perfect the registration of titles to and charges on land. Much still remained to be done in that direction, but it was a great step to concentrate the registration of all writs and orders creating a charge upon land under one system in one register. He had gone thus technically into the subject, because he considered it was the duty of Members of the Opposition carefully to consider and criticise a measure which, although it had nothing of a party interest about it, was nevertheless a measure which had for its object the giving of greater simplification and security to the ever increasing value of land rights in the country.

§ MR. BOND (Nottingham, E.)
asked the Attorney-General to give the House 1495 some explanation of Section 3 of the Bill. There was an apprehension that the changes introduced would have a prejudicial effect by making the registration of these charges different to what it was at present, and that a fresh burden of expense might be imposed.

§ *MR. HERBERT LEWIS (Flint Boroughs)
said the Bill was of a very important character, and in order to understand the proposals it was necessary to refer to a large number of old statutes. The hon. Member for Mid Lanark had given the House a very clear explanation of an obscure and complicated measure.

§ THE ATTORNEY GENERAL (Sir RICHARD WEBSTER,) Isle of Wight
I do not think I need apologise to the House for not having spoken first upon this Bill, for the reason that it has already been twice before the House, and I thought it would be better that I should wait until my attention was called to those points on which elucidation was required. This is not at all a case of legislation by reference, but a case of repealing and simplifying the process. In the Bills of 1896 and 1898 there were provisions for the simplification of the mode of enforcing judgment against land, and it was thought better, because this is partly a Registration Bill, to leave those provisions out. We do not propose to affect the operations of judgments, we simply deal with the land charges, which include judgments. The hon. Member for Mid Lanark drew my attention to the fact that we are closing the register, and raised a question of some importance as to whether the fact of closing the register and repealing the Act under which the registration is made would have any legal effect which would prevail upon the subject of interest in the registration. We do not consider it will. With regard to the closing of the register itself and requiring an order for a search, I think, where it is for any reason desirable to give facilities for search, although the register would become in a few years obsolete, there is no reason whatever why it should not be given. The Bill carries out and improves the land charges which are already made subject to registration by the second part of the Act of 1888. The only 1496 effect of this Bill is to facilitate by transferring the whole matter to one office. The hon. Gentleman also pointed out that we had omitted from the operation of this Act the Middlesex Registry, and he evidently thought that that registry existed independently of the land register. That is not so. It was transferred to the land register by the Act of 1891. It is not usual where it is a question of repeal to incorporate the Acts or sections which are repealed, but if it is thought that it will be an improvement I shall be glad to put in the schedule a short résumé of the repealed sections, and show that they are no longer required when this Bill is passed. In this particular case there is no idea of keeping the Acts alive for any purpose, nor any idea of legislating by reference. Ail these sections are repealed in order to simplify the procedure. At this stage I might notice the point put by my hon. friend behind, me. There is no danger of any difference arising with regard to the point he raised. The reason why Section 3 was put into the Bill was that there are certain charges which affect the land through private and local Bills. Those have not been recognised as land charges by the present Bill, but it was thought ready these inquiries had to be made by a solicitor. The hon. Gentleman thinks it may result in extra expense. I do not think there need be any such apprehension. I think if there is any charge at all it will be of a very nominal character. Everyone will agree that where encumbrances do exist there should be a ready means of finding them out with as little expense as possible. I am quite sure from the observations that have been made that the Bill is a considerable improvement on those which have gone before it. The great object of it is to simplify, so far as we can, at once the mode of registration, the Acts under which registration takes place, and the system whereby the searches for charges should be carried out. We have brought into this Bill certain charges not previously land charges in order to make the registration as complete as possible. I shall be happy to consider any Amendment put down, and I am quite sure if we are able to get this Bill passed through the House it will be a security and protection to those who desire to purchase property.

§ MR. LLOYD-GEORGE (Carnarvon Boroughs)
I think the object of the Bill is extremely desirable. At the present time you have two or three different registers to which you have to refer in order to discover charges on the property, which makes it both difficult and expensive; but I am not certain that there is absolute confidence in the registers established a year or two ago. Solicitors have not absolute confidence in the registers as they are being worked at the present time. The legal profession is exceedingly conservative, and it may take years to establish confidence in this Act. There is no doubt that the registration of the courts does give complete satisfaction. It never creates difficulties, is worked with great care, and there is never a mistake.

§ SIR RICHARD WEBSTER
I think the hon. Gentleman is confusing two registries. The Land Registry has been in existence many years.

§ MR. LLOYD-GEORGE
That being so, I shall make no further observation.