§ Order of the Day for the Second Reading read,
LORD CAMPBELL moved the second reading of the Registration of Assurances Bill, and in doing so begged leave to remind their Lordships that this was a Bill brought forward by Her Majesty's Government in pursuance of a recommendation in
the Speech from the Throne at the commencement of the Session. He had been asked by his noble Friends who were Members of the Government to take charge of the Bill in its passage through the House; and as the measure was wholly unconnected with politics, he hoped their Lordships would be of opinion that he was justified in so doing. The subject was one with which he had been long acquainted, and in which he felt the deepest interest. He was fully convinced that the measure was calculated to produce the happiest results, and he should be most highly gratified if he could in any way contribute to its adoption by Parliament. He begged leave shortly to remind their Lordships of the history of this measure, and he ought to begin by paying a compliment to the common law of this realm, which abhorred secret conveyances, and always sought publicity. Even in the Saxon times a deed conveying lands was executed before the county court, and was afterwards registered in the chartulary of some neighbouring abbey. A fine on alienation was not valid without proclamations, and a feoffment could not be made effectual without livery of seisin. Afterwards, when mortgages became common, measures were very early taken for the purpose of making a record of them accessible to all the subjects of the realm; a star, or mortgage, was obliged to be registered in the Star Chamber. Afterwards, however, chiefly, as it was supposed, by the efforts of ecclesiastics to evade the statutes against mortmain, secret conveyances were introduced. The Statute of Uses was passed to put a stop to secret conveyances, but the construction put upon its terms led to the contrary effect. The evils of these innovations were much felt in the time of the Stuarts, and Lord Bacon, when Lord Chancellor, attempted to provide a remedy for them. By his own authority, he issued a sort of edict, whereby he required that all deeds should be registered in a particular office; but after his fall, that measure fell along with him. Things continued in this unsatisfactory state till the Commonwealth, when there flourished some of the greatest jurists who ever adorned this country. During that period a Bill, which was framed by Lord Hale, was brought into Parliament for the establishment of a general registry of all deeds affecting real property. That Bill was opposed by those who thought that their private interests would be injured by its passing into a
law; but there was the less reason to regret the success of that opposition, because he believed that the measure could now be more effectually and beneficially carried into effect than at any former time. The Bill in question went to establish a registry office in every county in England, as it would have taken weeks, and even months, to communicate between the remote parts of England and the metropolis. The Bill, however, having failed, nothing further was done till the reign of Charles II., and then it so happened that there was great agricultural I distress complained of, as was the case at the present day. Rents having fallen, and the value of lauded property being much depreciated, a Committee of that House was appointed to consider what was the cause; of this, and what should be the remedy. The Committee reported that "one cause of the decay of rents and of the value of lands is the uncertainty of titles to estates; and the remedy would be that there should be a Bill of registry," meaning, thereby, a system of registration; but unfortunately, Parliament, instead of passing that measure, passed a Bill to prevent the importation of cattle and corn from Ireland, which they declared to be a common nuisance. In that reign, however, a Bill was passed to establish a register of titles in the Bedford Level, and that had continued to the present day, giving greater security of title, and more facility of transfer, than any other part of the kingdom. Nothing more was done on this subject till the reign of Queen Anne; and then Bills were passed for the establisment of a registry in each of the three ridings of the county of York, and in the county of Middlesex, which, though not on the best or most approved principles, had turned out, notwithstanding all their defects, highly beneficial. Other attempts were made to have a general system of registration for the whole kingdom; and in 1740 a Bill for that purpose actually passed through their Lordships' House, and went down to the Commons, where it perished. In the reign of George III., Mr. Justice Blackstone wished to draw the attention of the public to this subject; but it was then supposed that the law was absolute perfection, and the great bulk of the nation were optimists, so that no attempt was made to improve conveyances till 1815, when Mr. Serjeant Onslow brought a Bill into the other House of Parliament for the establishment of a general registration of deeds. The Bill was warmly
supported by that illustrious man Sir Samuel Romilly; but nothing was done till his noble and learned Friend opposite delivered in the House of Commons, in 1828, a memorable speech on the state of the law, which would always form an epoch in the history of legal reform. Inconsequence of that speech, a Commission was issued by Lord Lyndhurst, who was then Chancellor, for considering the state of the law of real property. He (Lord Campbell) had the honour of being placed at the head of that Commission, a distinction of which he was very proud; and since that time, he believed he might say without distinction of party, a constant and sincere desire had been manifested to improve every branch of the law. The Commissioners, several of whom were most eminent conveyancers, examined many witnesses, and were anxious to take the opinions of those who were best qualified to pronounce a judgment, and they agreed with one voice that it was desirable to establish a general system of registration. In 1829 a report to that effect was presented to His Majesty, and soon afterwards, when he had the honour of a seat in the other House, he moved for leave to bring in a Bill for that purpose. The Bill was introduced into the House of Commons in 1830. It was not, properly speaking, a Government measure, but it had received the sanction of his noble and learned Friend opposite (Lord Brougham), who at that time occupied the woolsack. Their Lordships would recollect that the period was not favourable to reforms of this kind, and before he could move the second reading of the Bill, Parliament was dissolved, in April, 1831. At the meeting of the new Parliament, the Bill was again introduced, but before it was read a second time their Lordships having rejected the Reform Bill, there was an immediate prorogation. In the Session of Parliament which began on the 6th of November in that year, the Registration Bill being again introduced, was referred to a Select Committee, which, after sitting twenty-nine days, and examining many witnesses, reported unanimously (notwithstanding that many of its Members were opposed to the Bill at its outset) in favour of the measure. But it so happened that a most influential body—he meant the country solicitors, whom he really believed to be the most powerful body in this country'—took it into their heads, unnecessarily, that the Bill would bring all the business to London, and that they would lose their
conveyancing, which was the most profitable branch of their practice. Petitions against the Bill consequently poured in from all parts of the kingdom, and it was alleged that this was a scheme for enabling the Government to lay on an additional land tax. The people were literally infuriated against the measure; and since Mr. Pelham's Jew Bill, popular opinion had probably never been so warmly aroused on any subject. The opposition to the measure was so strong that he was finally obliged to abandon it. This was in the beginning of 1832. Soon afterwards he had the honour of being selected by Lord Grey to fill the office of His Majesty's Solicitor General, the only condition annexed to his appointment being, that he was not again to bring forward his Registration Bill. In making this stipulation Lord Grey showed himself a wise statesman, since it was evident that the Bill could not pass unless public opinion was in its favour, and the Government would only have incurred useless unpopularity by bringing it forward. In 1833, however, a desperate attempt was made by Mr. William Brougham, but the. Bill was rejected on the second reading; and a similar fate befell it, with a yet larger majority recorded against it, in 1834. It was certainly a very mortyfying thing to him (Lord Campbell) to find that the first great act of a reformed Parliament was to crush a measure which would have been so beneficial to the people. It had been said that when a good Bill was once started it was sure to be carried at last; and he hoped it would be the case in this instance. Nothing more, however, was done after 1834, till, in 1846, a Committee of their Lordships' House was appointed to consider the burdens on land. This Committee was presided over by his noble Friend behind him (Lord Beaumont) with energy and ability, and a large proportion of its Members consisted of Protectionists and Conservatives. The report of that Committee stated the conviction of its Members that the marketable value of real property was seriously diminished by the tedious and expensive process of the transfer of land, and that a registry of title to all real property was essential to the success of any attempt to simplify the system of conveyancing. But the Government, with proper caution, would not act till another commission was appointed, consisting of Lord Langdale, Lord Beaumont, Mr. Bellenden Ker, Mr. Coulson, and
other conveyancers of eminence, who, after taking infinite pains to inquire into the merits of the system, reported to Her Majesty that they had come to the same conclusion as the former Commission. This report was made to the Crown in July last; and at the opening of the present Session of Parliament, Her Majesty said, in the Speech from the Throne—
A measure will be laid before you, providing for the establishment of a system of registration of deeds and instruments relating to the transfer of property. This measure is the result of inquiries which I have caused to be made into the practicability of adopting a system of registration calculated to give security to titles, and to diminish the causes of litigation to which they have hitherto been liable, and to reduce the cost of transfers.
In consequence of this recommendation of the Royal Speech the present Bill had been prepared, and he hoped he had stated enough to induce their Lordships to give it a favourable reception. He would now advert to the practical evils which had been experienced from the absence of a system of registration, and which the Bill sought to remedy. These consisted of the insecurity of titles, the expenses and delays of conveyances and mortgages, and the loss and inconvenience occasioned from there being no repertory where deeds were deposited, and where they might be accessible to those who wanted to inspect them. With regard to the insecurity of titles, that was an evil of the greatest magnitude. Their Lordships were aware that in this country, and, indeed, in every civilised country, the title to land must be evidenced by written documents. A mere chattel passed from hand to hand upon parole transfer. The apparent owner was held the real owner, and no difficulty was experienced. But with regard to land, the party in possession might be tenant-at-will, or he might be tenant for years or for life, or be tenant in tail or in fee simple. Again, if he was tenant in fee simple, he might have taken the estate encumbered with the payment of portions to his brothers and sisters, and the jointure of his mother, or he might have encumbered the estate himself to the last farthing, and yet remain in possession. But when a deed was relied on, he who produced it must prevail, according to the priority of the deed. It often happened at present that a deed of prior date was brought forward to defeat a purchaser after he had paid the purchase money, the whole of which was
consequently lost: or there might be a will, and though the heir-at-law might have suppressed the will, yet if the will was produced after his death, the purchaser lost the estate. There was no caution which he could exercise which would make him absolutely sure of his purchase. With respect to mortgages, the inconveniences were still greater. Land was mortgaged, but no record of the mortgage was preserved, and, therefore, it frequently happened that a person who thought that he was the first incumbrancer, found out that a prior mortgage existed, and consequently that the security upon which he had advanced his money was of little value. What was more, he not only ran the risk of having a prior mortgage preferred to his own, but even a subsequent mortgage, by the operation of what was called "tacking," or "squeezing." Allowing even that losses by purchasers or mortgagees were comparatively rare, the expenses of transfer were enormous. Every one who had had occasion either to buy land or to borrow money upon it, must be well aware of the expenses and vexations attending these transactions. For example, it was absolutely essential that the purchaser should, upon every occasion, take every precaution with the view of rendering himself secure. At the time of sale, the solicitor for the vendor gave what was called an abstract to the solicitor for the purchaser. This abstract was sometimes half a mile long, and presented a history of the title for a great many years; and, as he should show their Lordships presently, not one title only, but many, titles to the same land. The first thing which the solicitor for the purchaser had to ascertain was, the identity of the property sold. Clerks were sent into the country to examine old men about the boundaries of the property, and county histories were looked into. When the identity of the property was made out, he had next to inquire whether any terms had been created to attend the inheritance. A term of 1,000 years was generally carved out of an estate for the purpose of providing for younger children, or the like; and when the purpose for which the term was created was satisfied, it did not cease, but was kept on foot for the purpose of attending the inheritance. The expenses of tracing a title were therefore enormous, the more so in consequence of a term being a chattel, and going to the executor; so that probate had to be taken out. Then,
as there were at present 370 courts in which probate was granted, there was a risk that the probate might be void, which it would be unless taken out in the proper court. These attendant terms were found so unnecessary, that, about seven years ago, his noble and learned Friend (Lord Brougham) passed a Bill through Parliament, by which they were, generally speaking, annihilated. When this supposed protection was removed, a general register of deeds became more necessary. The case of a gentleman who wished to borrow upon the security of his estate was particularly pitiable, and he seldom, all expenses included, paid less than six or seven per cent. The market rate of interest falling, he enjoyed no relief, and it was much better for him to pay the price demanded than again subject all his title-deeds to inspection. Cruel inconveniences arose, where the same set of deeds represented property in which a variety of persons had different interests; and this state of things may often have existed without a subdivision of property existing. In these instances, if a person wanted to sell his interest, the inconvenience of not being able to get his deeds was enormous. They were sometimes lost. Yet, if he wanted to sell his property in parcels, he was bound to give attested copies of the deeds, and to covenant to produce them when required; and, if he did not do so, he was liable to heavy damages. The expense of these attested copies was enormous, which would be entirely avoided if there were a regular depository where all deeds were required to be registered. When he was on the Commission of Inquiry, a case was brought before the notice of the Commissioners, in which a gentleman sold a small property which he had subdivided, and he entered into the usual covenants that he would give attested copies of the deeds, and produce the originals. He soon found this to be an alarming burden which he had taken upon himself. The purchaser was an attorney, who filed a bill in Chancery to compel him to produce the attested copies. Upon examination it was found that they would amount to more than the whole sum of the purchase money. The generous attorney then consented to waive all right to the attested copies, if the gentleman waived all right to the purchase money—a proposition to which the latter was obliged to consent. Evils of this description would be entirely avoided if a registration office were in existence, to which the parties in-
terested might repair, and there become possessed of the true facts relating to the property. Having gone sufficiently at length into the principle of the Bill, he would next shortly state the machinery by which he proposed to carry it into operation. Because, with regard to registration, every thing depended upon the details; if they were defective, the registry office would become, instead of a benefit, a serious nuisance. The Bill proposed that there should be one registration office for the whole of England and Wales. He had no doubt that was greatly preferable to having a number of provincial offices; for, in his opinion, a multitude of registration offices would constitute a great evil. When he was a Member of the Lower House of Parliament, there was an offer made to him, that, if he would allow his Bill to be changed into a Bill for establishing registration offices in every county in the kingdom, all opposition would be withdrawn. He objected to that proposition for many reasons; for not only would the expense be infinitely greater, but the business would not be nearly so well managed—there would not be the same uniformity of system. They must either have had large districts, and then the inconvenience was just as great as if they had but one, or they should have small districts, and then the number of officials would be multiplied to such an extent as to leave no chance of uniformity, besides encumbering the county with a heavy expenditure. Then with regard to the mode of registry. In Yorkshire, in Middlesex, and in Ireland, the registration is made by giving a short synopsis, of the deed, stating the parties to it, and sometimes the operative part of the deed; this was found ineffectual, and did not answer the whole purpose of registration; it did not give the necessary information. The Bill required that the deed itself, or a copy of it, should be deposited. This would be less expensive, as a copy could be made by any person, whereas an abstract would require the services of a professional man. The next point was with regard to an index. Although there was to be but one registration office for all England and Wales, there should not be only one index. The country should be divided into districts, and it was suggested that the poor-law unions should be adopted as the basis of that division. Then came a very important point, on which the Commissioners were divided, namely, the mode by which the
entries should be made in the index, in order to secure an easy reference to the exact deed. The Bill which he had introduced in the lower House was chiefly drawn by one of the most accomplished and able lawyers in the profession—Mr. Duval. He would relate to their Lordships an anecdote which was illustrative of his entire devotion to his professional pursuits. A gentleman one day said to Mr. Duval, "But do you not find it very dull work poring from morning until night over those dusty sheep skins?" "Why," said the other, "to be sure, it is a little dull; but every now and then I come across a brilliant deed, drawn by a great master, and the beauty of that recompenses me for the weariness of all the others." Mr. Duval invented a system for the indexing of deeds. Before his time the only mode of reference was by means of an alphabet of the names of the grantors, but this was found to be extremely unsatisfactory—for instance, where, in Middlesex, they had 100 Joneses and Smiths executing deeds of all descriptions every day, the only way you Could be quite sure that Jones or Smith had not executed a deed prior to yours was by looking at every deed that Jones or Smith ever made. To obviate this difficulty Mr. Duval devised the following plan: The first deed affecting the property was put on the register, and to that he gave a symbol, which symbol was put upon the index, and when you wished to know what deeds were made affecting the property, you looked to the symbol, and you found that they were all registered under that symbol. There was this difficulty—to identify the property described in the deed so symbolised on the index. Although he concurred in the value of the plan, he had some misgivings respecting it, and he had a longing after maps. It was then objected that efficient maps were not easily obtainable, and would be very expensive. That difficulty had been greatly supplied by the Ordnance survey. Maps had also been made for the Tithe Commissioners, and there had been also maps made for the poor-law assessment valuation. In fact, there were public maps for the larger portion of the land of the kingdom. Inasmuch as this Bill proposed that maps should be used as auxiliary to the symbol, he considered it a great improvement. It was true that Mr. Humphrey, whom his noble Friend upon the woolsack had promoted to a Mastership in Chancery
—which appointment, he begged to say, met with the unanimous approbation of the profession, and was an earnest of the manner in which his noble Friend would bestow his patronage—it was true that he and Mr. Broderip were averse to this arrangement; but, having paid a great deal of attention to the subject for many years, he was a convert to the maps. This public map should be divided into compartments, and then there would be a corresponding reference in the index to those maps. All the persons making inquiry had to do was to go to the map of the district, and see the marks of the land, and then go to the number of the index, which would tell him whether there had been any deed registered affecting the land. The next great question was with respect to notice. At present a person is affected by an unregistered deed of which he is supposed to have had notice. He believed that to be a great evil. No such rule existed in France, nor did it prevail in Scotland. But in England Lord Hardwicke had laid it down that a person who claimed under a registered deed was to have that claim postponed in favour of a prior deed unregistered, if it could he shown that notice had been given of its non-registry. More uncertainty and more litigation had been caused by this doctrine than almost by any other; and the Bill, therefore, enacted that no person should be affected by any deed which is not registered, and that the doctrine of notice shall be exploded. With regard to the general objections to the Bill, he would shortly notice them. In the first place, it was said this was a great innovation. On the contrary, it was a return to the ancient simplicity of the common law of England. Besides, this custom prevailed in some counties in England, and throughout Scotland, and had been found, notwithstanding its defects, to be most beneficial. Almost in every country in the world they had a register of some kind or another, and in no country had it been found to work prejudicially. Then, with regard to the expense of a registry office, he remembered it had been proved in the Committee, that for a sum of 20,000l. there might have been an iron building erected which would hold all the deeds registered in a century. Then, ten or fifteen shillings would defray all the expenses of the transmission of the deed to London. It had never entered into their imaginations to make this Bill retrospective; and with regard to the exposure which it was alleged would
be consequent upon this registry, all transactions such as mortgages were generally pretty well known already in the neighbourhood of the property where they took place; but means could be taken to prevent impertinent curiosity. It was further said, that if a merchant mortgaged his property, his creditors might take alarm. What was the fact when he introduced the Bill in the lower House? It was extensively supported by petitions from merchants in the city of London, and by all the bankers of the kingdom. Moreover, there was a register of shipping transactions, and all mortgages upon ships were void if they were not registered; and wills might be seen in Doctors' Commons for the sum of one shilling. His noble Friend Lord Lyndhurst, Chief Justice Tindal, and the late Chief Baron of the Exchequer, were all strongly in favour of a registration of deeds. There was no mystery in the subject; there was not a noble Lord present who could not form as just an opinion concerning it as the ablest conveyancer, and he entreated noble Lords to judge of its merits for themselves, instead of being guided by the interested advice of their attorneys. They had it now in their own power greatly to lessen the burdens on real property, and to give more than an equivalent for what they supposed they had lost by free trade.
was sure their Lordships would concur with him in thanking his noble and learned Friend for the pains he had taken, not only at present, but for so many years, in endeavouring to obtain for this country the inestimable benefits of a general registry, and for the highly satisfactory statement he had now made on the subject. He believed there could be no doubt that the principle of a general registry would be agreed to by their Lordships without the least hesitation; but while he said so, he did not forget that the proper working out of this principle would wholly depend upon the details, for one might approve of the general principle of a measure, and yet find that, in its details, it would not work. He should not new enter on the subject of these details, as the question now only related to the principle of the Bill. There was, however, one addition, among others, that he thought might be wisely made to the measure before the House—and he had no doubt, when a general registry was provided, with the necessary staff of officers for carrying it into effect, that addi- 15 tion could easily be made—he meant the registration of instruments not necessarily connected with land. Even wills might be registered, not merely after death, as they now are, but during the life of the testators. From the want of such a registration of some place of secure deposit, no doubt many wills had been for ever lost, and many narrow escapes of such loss had been made. He might refer to a very striking instance of the latter class. A great landed proprietor died, and, as no will could be found among his papers, it was supposed he had died intestate. By accident, however, a will was afterwards found in an old carriage in an outhouse—where, by the bye, it had narrowly escaped fire—and, to the great relief of the relations of the deceased, his extensive property went as he desired it should go, and not to the heir-at-law. There was another case of a nobleman who died leaving a will involving property to the extent of 160,000l., a case of which, he (Lord Brougham) had cognisance, as it came before him judicially. Search was made for the document, but it could nowhere be found. The housemaid was eventually asked if she had seen any papers lying about his room, when she replied, "Yes; she had seen a paper drop out of the bed, and, taking it for waste paper, had put it into the grate." Had it been winter, as it was summer, no doubt the paper would have been consumed; but, fortunately, on going to the room in which his Lordship died, the will was found sticking between the bars of the grate. But for this accidental discovery of the will, the property would have gone in a totally different direction from that which the testator intended. Such improvements as his noble and learned Friend proposed were of the highest possible importance, and, if prosecuted vigorously and firmly, yet temperately, would be of inestimable benefit to the country. No doubt a general registry was of the greatest importance, yet he agreed with the Commissioners, who thought it was not by any means the only improvement of which the law of real property was susceptible; it would, nevertheless, prepare the way gradually, and therefore safely, for an improvement in that important branch of the law. In recommending those gradual amendments of the law which were necessary, he would say it was their duty to steer clear of two extremes—the opinions of those who would have no amendment, no change of the law at all; and the opinions of those whom no 16 change could satisfy. Steering between these extremes, they might go on slower, perhaps, than over-zealous and over-sanguine men could wish, yet they would proceed safely and without the danger of making any false step, which, beside its immediate mischief, would bring the cause of improvement into disrepute. Every such measure should be in its nature tentative, and we should see, after having made one step, that we had succeeded in our object, and profit by the experience thereby acquired before we tried another step in the course of legislation.
§ LORD BEAUMONT
said, that he could not refrain from intruding himself on the attention of the House, not only on account of the deep interest he had long taken in this subject, but also from the circumstance of his being the only Member present of the Royal Commission, in which the plan of registration set forth in the Bill had been devised. Although the first Real Property Commission had smoothed the way, and prepared the groundwork for a general registration, the late Commission devoted some years to the further consideration of the subject, and many were the laborious hours it spent in preparing what it conceived to be a more perfect plan. The present Bill was the result of those labours; and he (Lord Beaumont) assured their Lordships that he rose from those labours with astonishment how the country could have gone on to the present time without a general registration of instruments affecting titles to land. In all foreign countries some sort of registration had long been established, but none of the systems adopted by Continental Powers were suited to the peculiar circumstances of this country. The law of real property in the greater part of Europe, was simple, uniform, and confined, when compared with the laws which in England regulate property in land. Here the law is complicated and extensive; it admits of the creation of all sorts of interests in the land; there are remote, successive, concurrent, and contingent interests or estates rising out of land; the power of appointment and disposition is almost unlimited in this country, while the variety of incorporeal hereditaments is much greater here than in any part of the Continent. But in proportion as the law of real property was complicated and extensive, the greater was the necessity for an effective mode of registration to protect the numerous interests existing. Many of 17 these interests are not evidenced by present enjoyment; the possession of the rents is not evidence of the extent of interest which the party enjoys. The whole of these various estates and charges depend upon written documents. Written documents are exposed to falsification, suppression, and loss. But, even when the party holds his own title-deeds, the possession of them is not conclusive of his being possessed of the whole interest in the land he professes to enjoy. Other deeds may exist in other hands which may give claims to other parties. The title-deeds shown by the vendor to the purchaser may present a fair and complete title to the land, but the purchaser cannot be certain that a deed of settlement has not been suppressed, or that charges have not been created which may defeat on discovery the title under which he takes. The purchaser, in other words, has no positive security; no more has the capitalist who lends money on landed security. Both one and the other make lengthened investigations before they venture to deal; search on search; the counsel for the purchaser requires to see every possible document; many of these documents may not affect the title; others may refer to expired interests, yet lie requires that all should be produced to guard against chances; these documents may be scattered all over the kingdom, some in one attorney's office, some in another, some locked up in the family muniment room of the owner, and some heaven knows where. At last, after all possible search has been made, much delay and much expense incurred, the title is accepted, the transfer is completed; and yet the purchaser is not secure, he is not certain that he has seen all that touches the land he has bought. The process is at the best expensive, dilatory, intricate, and difficult. Where a large property is subdivided and sold in many parcels under the same title-deeds, the expenses incurred by covenants to produce deeds, and the making attested copies, are so great, that many persons are deterred from dealing in land who otherwise might be disposed to do so. Moreover, covenants to produce deeds often fail in their object; there is difficulty in enforcing them in a court of justice; and it often happens that where the subdivision is great, all trace of the title-deeds is lost. To remedy these evils is the object of a register; that is to say, a register, to be effective, must provide for a purchaser a 18 ready mode of assuring himself that no document exists which can defeat or alter the title offered to him. His noble and learned Friend had related the numerous attempts made in the past to obtain these objects; it was not, therefore, necessary for him (Lord Beaumont) to allude to the practice of livery of seizen, fines with proclamation, enrolment of bargains, and recording titles. Up to the present moment no system had been adopted which met the necessities of the case. The Commissioners, therefore, suggested in their report a new plan. The two great principles of that plan, are the deposit of the original deed instead of a memorial, and the adoption of a general instead of a local register-office. By these means they believe less expense will be incurred, and more effective superintendence obtained. Uniformity of practice will also be introduced, and other similar advantages secured. If there were reasons sufficient to induce the first Commission to adopt the principle, there are still more now in favour of it. Facilities and rapidity of communication have been increased by the network of railways which now covers the country; some hundred additional places have now got post-offices; some hundreds more have got two deliveries in the four-and-twenty hours. But what, above all, will assist the working of the plan proposed, is the electric telegraph on all the great lines verging towards London, He (Lord Beaumont) had been told, by high authority, that a central office in London would not be injurious to country practitioners. As to the other principle, namely, the deposit of the original instead of the memorial, he might quote the example and experience of Yorkshire, where a memorial alone is required. The memorials there do not show how the title is affected; they point out the existence of a deed, but do not show what is in the deed. They sometimes even disguise the nature of the deed, and never tell you where it is to be found. A correct copy of the original would cost less skill in drawing up than a memorial; besides, memorials do not dispense with the necessity of attested copies and covenants to produce originals. Where deeds are deposited in perpetuity, conveyances may be shortened by reference to the deposited deed, which cannot be the case when a mere memorial is enrolled. He (Lord Beaumont) would not entertain the objection of publicity; he did not think it would be a necessary consequence of the proposed plan, and even if 19 it were, he was no friend to concealment. He did not think it mattered much if all the world knew whether he had a life-estate or a fee-simple—was subject to a rent charge, or encumbered with a mortgage. He ought and must make these things known to the party he was dealing with, should he wish either to sell or to raise money on the security of his land. A general register would do no more than give such information to a purchaser or lender; so let them hear no more of the bugbear of publicity. He would now refer to some important provisions of the Bill, which had not been alluded to by his noble and learned Friend. The Bill enabled the registrar, under certain limitations, to remove from the register interests or estates which had expired by lapse of time, or had been otherwise satisfied. Securities for money when the money was paid, mortgage-deeds when the mortgage had been paid off, and similar transactions, would by these means no longer encumber the register, or lengthen the search when they ceased to affect the title, or have any actual existence. This process was called by the Commissioners, cancellation of instruments. Their Lordships would perceive how much labour and time would thus be saved in conveyancing, and what facilities would thus be afforded for shortening forms. It was further provided by the Bill, that a deposit department should exist in the register office for the safe custody of documents and deeds executed prior to the establishment of the register. By the deposit of title-deeds in that department, existing covenants to produce the deeds would be satisfied; and in dealing with property the title to which was derived through deposited title-deeds, no further covenants to produce them would be necessary. Of course, the deposit of deeds in this department was not to have effect as to priority, or to the exclusion of notice; in other words, they would not have the full advantage of the register. Another important provision in the Bill, which had not been alluded to by his noble and learned Friend, was the system of Caveats. The Commissioners described a Caveat as a document executed by the owner of an estate, preventing registration within a limited period from having effect as against an instrument to be registered within such period by the party in whose favour the Caveat was given. A purchaser would thus be secured against any transaction which might be effected previous to the 20 completion of the transfer. By entering a Caveat when he made his search for the title-deeds, he would know that nothing could intervene between such search and the registration of his assurance, which could affect the title he had been offered by the vendor. Their Lordships were aware that it was the habit to raise small sums of money for limited periods by the deposit of deeds; thus temporary accommodation was useful, and would be, under the proposed system, easily obtained by simply entering a Caveat. In other words, a Caveat would act as, and in fact would be, an equitable mortgage. A Caveat would always be a registered notice. It must never be forgotten that their object was to protect purchasers; the whole doctrine of notice, constructive and actual, would, therefore, be simplified to the one rule, that nothing was notice but what appeared on the register. Unregistered deeds would be still binding as between parties, but would not be produced against purchaser or mortgagee. If a registered deed refers to an unregistered deed, the unregistered deed would not affect purchasers, but it would be at the discretion of the parties interested to bring the deed alluded to on the register. It was expected, that by allowing trust deeds to be kept off the register, the title would be simplified, and the overloading the register prevented. Another important and very difficult question arose as to the force to be given to a will against a purchaser from the heir at law. An heir at law might sell an estate which he believed himself to be the owner of, and after the sale a will might be discovered, materially altering the destination of the property, or limiting his interest in it. In that case, what was to be the effect on the honest purchaser? The Commission had proposed a limit to the time in which the will should have effect against the purchaser: if the will was not produced within two years, then the transfer from the heir at law to a bonâ fide purchaser for valuable consideration would be held good, and the purchaser secured. A noble Lord had stated many instances of wills being misplaced, or put by by the testators themselves in out-of-the-way places. Provision was therefore made for a place where testators might during their lifetime deposit wills and codicils for safe custody. A system of registration, to be complete, must have a department for the proper record of grants of administration, of succession, and means 21 of proving pedigree. It had, however, been well said that the whole merit of a register depended on the form of the index adopted; for if one was not provided which would furnish a full, ready, and certain means of at once obtaining access to every document, and acquiring correct knowledge of every charge touching the land dealt with, the main object of a register would be defeated. The Commissioners gave, therefore, much of their time to the consideration of various forms of indexes; but neither an alphabetical index of names of parties, nor of places, nor even Mr. Duval's plan as originally proposed, seemed to them to meet the case. Ingenious and able as was Duval's plan, it required an index of names of grantors, which involved all the objections arising from the constant repetition of the common names of Smith, Jones, &c. &c. His idea, however, of classification of deeds, and of the registration of the head deed under a symbol, was so admirable that the Commissioners have not hesitated to adopt that part of the plan in their recommendation. But in lieu of Duval's index—of roots of titles, and to avoid the confusion arising from names, they proposed a map index. They considered that as the most efficient mode of connecting the subject matter with the documents. By these means a purchaser would be able to get directly at every charge affecting the land. He would see at once every distinct interest created in or rising out of the land. It was the only way of effecting a complete register of fee-farm rents, easements, and other charges in the nature of incorporeal hereditaments. There were many other points in the Bill on which he (Lord Beaumont) would have fain enlarged if he had not already occupied so much of their time; but at this hour he would content himself by saying generally that he conscientiously believed that this measure would greatly tend to increase the value of all kinds of real property. It was an error to suppose that large properties alone would benefit by it; the expense of the transfer was greater in proportion in small properties, and the titles were generally more complicated; they were oftener dealt with, and delay in their case was often fatal. Small landed proprietors felt this, and as an illustration of their feeling, the copyholders on more than one manor had expressed their desire to oppose the commutation and enfranchisement of copyholds if the consequence should be to destroy the simplicity of their titles. They 22 liked the surrender in open court, and the security of the copy of court roll; in other words, they preferred to be subject to fines, and even arbitrary fines, rather than be deprived of their imperfect registration. Should this measure pass into a law, all titles would be what they professed to be; good titles would be known to be such, and as ninety-nine out of every hundred were good, land would become more marketable, and real property more available in a commercial point of view. Dealings with it would be easy and quick; temporary embarrassments would not be so severely felt, and temporary accommodation would without difficulty be obtained. The last point to which he (Lord Beaumont) would allude, would be the advantage which traders possessing land, and purchasers from traders would derive from the measure. The Commissioners had to consider what would be the effect of an adjudication in bankruptcy on a purchaser when the bankruptcy of the vendor was caused by acts done prior to the sale. On consideration they decided that a conveyance should not be effected by subsequent adjudication in bankruptcy, or by reason of notice of the Act in which it is founded; but the creditor should be enabled to protect himself by being allowed to register notice of commencement of proceedings. At present no one liked buying from a trader, because he did not know how the land might be affected by the acts of the trader, and by notice of such acts. His property in land was therefore depreciated, and it might happen that an honest purchaser suffered unjustly. The Bill remedied that evil; in fine the object of the measure and the great principle for which he (Lord Beaumont) contended was, that a bonâ fide purchaser for valuable consideration should be assured that the title offered him truly represented the property, and that he had nothing to fear from unforeseen contingencies.
§ LORD CRANWORTH
said, he did not intend to detain their Lordships, but there was one observation, and one only, which he wished to make. The Bill had been so fully, fairly, and ably brought before their Lordships by his noble and learned Friend, that to attempt to go into it would be as wearisome as it would be useless. At the same time, he thought their Lordships ought not to argue from the readiness with which they received and adopted the second reading of the Bill, that it would be passed through both Houses of Parliament with- 23 out a great deal of opposition. The observation which he wished to make had reference to what was said by his noble and learned Friend (Lord Campbell), that this was not a matter of any legal mystery, or one that any Member of the Legislature ought not to be perfectly able to apprehend. It was most important that that truth should be understood, in order to the eventual success of the measure. It would not, perhaps, be useless to those who were not of the legal profession to point out what the legal advantage was which this Bill, if passed, would confer. It was this, that for the future, if a registration were instituted, the proposition which it would be necessary to have established upon the sale of an estate, would be a positive, and not a negative, proposition. Now, every person selling land had to prove a negative: that there were no other deeds affecting the title to that estate. But when the sale should come under the registration, the obligation would be on the other side, to prove a positive: that there was another deed in existence as would appear from the register. That ought to be impressed upon the mind of every one of their Lordships.
expressed himself highly pleased at the very pithy description of the effect of the Bill laid down by his noble and learned Friend. As the principle of the Bill had been assented to, all that remained to be considered were the details. These were still sub judice, and open to consideration on all sides. After the few remarks made by his noble and learned Friend, he should feel that he would be best discharging his duty by proposing that the Bill be referred to a Select Committee.
§ On Question, agreed to; Bill read 2a. accordingly, and referred to a Select Committee.
§ House adjourned till To-morrow.