HL Deb 27 April 1847 vol 92 cc3-7

The LORD CHANCELLOR moved the Second Reading of this Bill. The noble and learned Lord, who was imperfectly heard, said he anticipated that this measure, if carried out, would have the effect of relieving to a considerable degree many landlords in Ireland. He had heard from all quarters that it frequently happened that landed property in Ireland was incumbered to its full value and to the entire amount of the rent. The person who had such a property was nominally in possession of a considerable estate; but he derived no benefit from it, and he was unable to perform the duties that were expected from him as a landlord. The mortgagee or incumbrancer had no interest in the land either, as it was quite immaterial to him how it was managed provided he got the interest of his mortgage. He had no motive for interesting himself in the welfare of the property, while the real proprietor was left in charge of the management of the estate without deriving any income from it. This was undoubtedly a great evil to the individuals, but it was also a great national evil. The difficulty was, however, not only great, but the way out of it was extremely hard. Unless the party who had the first incumbrance on the estate, and in whose possession the title-deeds remained, consented to give them up for the purpose, it was im- possible for the owner to get any third party to clear off the incumbrances, or to purchase the estate. The person who was to advance the money could have no security for it, as he could not get the title-deeds until the money was paid to the first incumbrancer. The latter party could, in such a case, continue the incumbrance, and throw the greatest obstacles in the way of clearing the estate of it. His position was in fact actually that described by Lord Eldon, who on being asked for advice by a first mortgagee, told him to put the title-deeds in a box and to sit on it, and that he might then set the world at defiance. These were the difficulties which existed even in this country. In England the incumbrancer who was desirous of obtaining payment of a mortgage could only do so by filing a bill to foreclose the mortgage, but he had no power to compel the mortgagor to direct a sale of the estate or to pay the money. In Ireland the incumbrancer was enabled, on going before a court of equity, to obtain a decree for the sale of the estate; but the mortgagor could not do so. Their Lordships might be aware that the expenses of proceedings in the Court of Chancery in Ireland were very heavy; and the expenses incident to proceedings with regard to estates bore no sort of relative proportion to their value. Where the estate was large and of considerable value, the expenses were relatively small; but where the estate was small, those expenses bore ruinously heavy upon it. He was very anxious to provide some plan by which the expenses in Chancery with regard to proceedings in cases of incumbered estates should be lessened; and it was therefore proposed by the Bill before their Lordships to do away with all the preliminary machinery of filing bills and answers, and all the other forms that had to be gone through at present, and to permit the litigating parties to apply at once to the Lord Chancellor, stating the fact that the estate was incumbered, and praying that it be referred to the Master in Chancery, that he might inquire into the whole circumstances, and arrange to bring the property to a sale. It was proposed that any incumbrancer might apply; but as there was danger lest, in cases where the owner of a settled estate was no more than the nominal owner—the estate being incumbered beyond its value, and he being therefore only ostensibly the owner, without having any real interest in the property, he might join with some one of the incumbrancers who might have a mortgage for a small amount—it should be referred to the master to examine and see whether the estate was worth more than the incumbrances. He would propose that when it was proved to a Master in Chancery that the estate was worth more than the incumbrance, then the estate should be sold, and the money paid into court, and, in the mean time, all litigation should take place with reference to the money, and not to the estate. The object of the Bill was to promote the speedy sale of estates, and to provide that, pending all proceedings, the lands could be let and the tenants attended to properly.


thanked the noble and learned Lord for having introduced such a measure; but he could not help thinking that when the noble Lord should come to consider it further in Committee, he would find some means by which the expenses might be still further considerably diminished. He thought, also, that when a case should come before a Master in Chancery, the mode of receiving viva voce evidence in open court might be adopted, instead of the present doubtful as well as expensive and tedious system of receiving testimony by interrogatory. He thought that the Bill would be of considerable benefit to Ireland.


thought that nothing could be more likely to prove eventually beneficial to Ireland than the measure proposed; and he could not help saying, that he was surprised at finding no such recommendation in the report of the Commission at the head of which had been the Earl of Devon; for it appeared to him, from much of the reasoning and of the evidence in that report, that some such measure was pointed out as being absolutely necessary. He begged, however, to call attention to the 7th Clause of the Bill, the operation of which would be, as it appeared to him, directly against the principle of the measure, and calculated to prevent the useful working of it. That clause provided that where only one incumbrancer upon any estate should object or refuse his consent, the court should not, without the consent of that incumbrancer, permit the sale of the land. Now, for the very reasons given by the noble and learned Lord himself, persons holding mortgages upon an estate might not be willing to assist the sale. The great object of the measure ought to be, to free property now incumbered so far as to prevent the owners from performing the duties of landlords; and he feared the effect of the clause would be to obstruct the setting of it free.


made some observations on the measure which were inaudible in the gallery.


said, that it was a matter of everyday occurrence in Ireland to find cases in Chancery handed down year after year, and from generation to generation, until the whole value of the estate which formed the subject of litigation was swallowed up. He himself (Lord Monteagle) lived in a part of the country surrounded by estates in the condition of being, to use a phrase perfectly well understood in Ireland, "under the courts;" and they were mere dens of pauperism, there not being one single individual connected with them who could be pointed out as standing in the position of owner, or whose business it was to look after the tenants. The immediate effect, he thought, of the Bill would be, that the quantity of land which would be brought into the market would diminish the value of land for a time. The provision for effecting sale brought him to the consideration of a most important matter. He trusted, most sincerely, that, under the working of the Bill, estates would be sold in smaller parcels than had generally been the case in Ireland hitherto. He feared that some of the evils dreaded by the noble Lord who had just spoken (Lord Ashburton) might occur, unless great care were taken. He meant by the purchasing of estates with borrowed money. That had been one of the causes of selling land in Ireland in large masses; and it was, in fact, only exchanging one incumbered estate for another. But if anything could raise the condition of Ireland more than another, it would be the raising a class of smaller proprietors. There was no one who knew anything about the condition of Ireland who did not grieve to think of its condition from the absence of a middle class of proprietors; one that should stand between the larger class and the lower, or cottiers. Such a middle class formed the strength of a country. He did not know whether the Bill before them would effect any change or improvement in the system of registration; but a greater good could not be done to the landed proprietors than by the improvement of the system of registry. Through the difficulties that had been cast around it, the last state of the landed proprietors of Ireland had been made, under the Registration Act, worse than the first. But he thought, in any case, that the Bill before them would be of the very greatest benefit to the country.


explained the effect and object of the 7th Clause.

Bill read a second time.

House adjourned.