ENCUMBERED ESTATES (IRELAND) ACT CONTINUANCE BILL. (Hansard, 21 June 1853)

The LORD CHANCELLOR

, in moving the Second Reading of this Bill, said, their Lordships were aware that the original measure passed the House of Parliament in 1849, and was appointed to continue for three years. Its object was to enable persons having encumbrances on estates, or the owners of encumbered estates, to apply 502 to a Court thereby constituted, entitled the Encumbered Estates Court, and upon such application the Commissioners proceeded to sell such estates, disposed of the money obtained by the sale in a summary way, and gave to the purchaser what was called a Parliamentary title. The Act remained in force till the end of July last year, when another Act was passed, continuing the Court for one year more. He now proposed the second reading of a Bill which was intended to continue that Court for four years longer, but applications for sales to be made within two years. When his attention was first called to this subject, he felt that it was hardly consistent with good legislation that this Court should continue side by side with the Court of Chancery, to whose proper functions the duties of this exceptional Court seemed properly to appertain. He had communicated with the Lord Chancellor of Ireland on the subject, who quite concurred with him, as did the other Members of the Government, that it was extremely important that the functions of the Encumbered Estates Court should ultimately be transferred to the Court of Chancery in Ireland, and be made part of the ordinary business of that Court; but before that could be done, it was essential that the Court of Chancery in Ireland should be reformed in the same way as the Court of Chancery in England, by the discharge of the Masters in Chancery from the duties they had been wont to discharge, and leaving them to be executed by the Judges themselves, thus making Chancery proceedings in the two countries as nearly alike as possible. But until that was done, it would not be consistent with the interests of the Irish public that any alteration should be made in the constitution of the Encumbered Estates Court; and therefore it was considered that the best course would be, still further to continue the Court for a limited time, and with that view he asked their Lordships to concur in the present Bill. The Bill contained a number of new clauses, which had been suggested by the Commissioners—men of great learning— and it was impossible to conceive that the functions of the Court could have been discharged more efficiently than they had been by them; and they had found, in the course of their experience, several defects in the existing Act, which it was found desirable to remove. For instance, in the original Act the Commissioners had only power to sell leases of sixty years and up- 503 wards: it was now proposed to enable them to sell leases of any length of time. At present they could not sell an estate unless the incumbrance amounted to a given proportion of the rent: it Was now proposed to allow them to sell irrespective of the amount of the incumbrance. Then their Lordships were aware that an Act passed some time ago to give the holder of a perpetual lease the fee-simple of the land, but at the same time securing to the owner what interest he might have in the land. When these leases came into Court to be sold, the conversion could only take place through the Court of Chancery: it was now proposed to give the Encumbered Estates Court the power of making the conversion at the time of selling the lease. There were a number of other alterations of a technical nature, into which he would not enter; he might only mention that one great inconvenience had been felt, in consequence of the building where the Commissions met being situated about a mile from the other Courts of Law: that inconvenience the Government now proposed to remedy. He would move the second reading of the Bill.

§ LORD MONTEAGLE

said, he had always been a warm supporter of the principle of this Bill. He thought such a measure to be necessary, on account of the peculiar circumstances of Ireland; but he went further still, for he saw no reason why the principle on which the Court was founded should not be permanently interwoven with their legal system. Cheap and expeditious justice and the creation of a clear Parliamentary title were not luxuries to be confined exclusively to the owners of Irish Encumbered Estates. He rejoiced, however, that the present Bill had been introduced, for he knew that many persons — apprehensive that the Bill was not about to be renewed—were forcing on sales of property, that they might have the advantage of this Court before its extinction. He was also glad to hear that his noble and learned Friend not only introduced this Bill, but that he promised Ireland a large measure of Chancery reform, such as had lately been given to England. But what he chiefly wished to call their Lordships' attention to was the desirableness of getting rid of the limited application implied in the title of the Bill, and applying its principles to all estates, whether they were encumbered or not. It had originally been recommended to them as 504 a measure for the relief of encumbered estates; but its practical operation was at present to inflict a severe penalty upon the owners of estates that were not encumbered. Suppose an encumbered estate, and one that was free from debt, were both to be sold, the owner of the free estate would find that he offered it for sale at a grievous disadvantage, because he would not be able to convey a title so clear and satisfactory as the simple Parliamentary title created for the encumbered estate—an advantage which gave a considerably increased value to the latter. The owner of the free estate could not go into the Encumbered Estates Court, for the single reason that his estate was not encumbered; he must, therefore, submit to the operose and expensive process of the Court of Chancery, instead of getting a speedy judgment and sale in the Encumbered Estates Court. He thought, therefore, that the present state of the law operated as a great disadvantage to persons whose estates were free from encumbrance. What was the principle of the Act? It was to give speedy justice and a secure title. He wanted to know what reason there was why these benefits should not be given to landowners who were free from debt, as well as to those who were encumbered? He remembered when the Bill was first introduced, he suggested the propriety of giving to the purchasers of these estates a simple and clear title by Act of Parliament; and by a short and simple conveyance set out in the Statute. His proposition was not entertained, and on high legal authority, that of the Chief Justice (Lord Campbell), he was told that such a suggestion only showed the danger of unlearned persons meddling with the law, as such a proposal could not be carried out without violating all the principles of equity. But when the second Bill was introduced in the following year, to his astonishment and delight, he found that the very principle was introduced which the year before he was told was so dangerous. He must confess that the Encumbered Estates Court had been unpopular in Ireland, in consequence of the distress of the country having forced land into the market in great qualities and prematurely, and so depressing its price; but the same thing would have happened though no Encumbered Estates Court had been in existence—with this difference, however, that instead of the money being distributed among the owners at little expense, the 505 greater part of it would have gone in the costs of law proceedings. He hoped, therefore, that this Bill would hereafter be interwoven with the general law of the country, that it would be made permanent, and that so useful an example would not be thrown away upon England.