§ LORD ST. LEONARDS
, in rising to draw attention to the measures proposed for facilitating the transfer of land, and to lay on the table a Bill for simplifying titles to land, said that every owner of property must feel deeply interested in the subject. What their Lordships were desirous of accomplishing, as far as he understood it, was to unite the simplicity of the common law of the transfer of property with the benefits in the complications which had been introduced in later times in the ordinary settlements 97 of property. The problem to be solved was whether that could be done. He believed it would be found quite impossible to avail themselves of common law simplicity of transfer, and at the same time to preserve that power which this beyond all other countries enjoyed—namely, that of settling property upon their children, of providing portions for their younger children, of giving power to sell, exchange, or lease that property, and at the same time to retain to themselves (the settlers) the ownership of that property during their lives, without any man interfering with that power. There was no other country which possessed the same power; there was no other country in which a man could settle his property upon himself and upon his family, and yet enjoy that property without impediment during the whole of his life. The question had been raised in the Report of the Royal Commissioners, to which he should presently draw their attention, whether, if there were any incongruity between the marketability, as it was called, of estates and that right of settlement, the latter should give way. It was said that there was no incongruity, and that even if there were, looking at the old rule of law which required that there should always be a tenant in possession to answer the feudal service, and considering that that was a necessity required under the feudal law, the spirit of commerce now required for its own purposes that there should always be a representative of the fee of every man's estate, to enable him to carry it into the market. That idea had been carried so far that it was proposed that a certificate of title should be as negotiable as a bill of exchange, but he trusted that no title to land would ever be put on that footing. There was an essential distinction between real and personal estate which it was impossible to remove. The owner of a quantity of stock, if he required a sum of money for a given purpose, had only to sell a part of his stock; whereas the owner of real estate could not sell off a part of the property, but must raise what money he wanted by mortgage upon the whole of the estate. In the case of land, therefore, as the owner went on borrowing the encumbrances increased, and the difficulties of transfer necessarily increased with them. If, then, they preserved to the owners of land the power of dealing with it in the manner he had described, it was impossible they could extend to land the same facilities for immediate and simple 98 transfer as existed in regard to the sale of stock or shares. The common law applicable to this subject was simplicity itself. No land could be transferred at common law without a charter of infeoffment and livery of seisin where the possession was vacant, or where there was a tenant in possession, a deed of grant with the attornment of the tenant. Having described the formalities incident to the delivery of seisin, the noble and learned Lord referred to the expedients formerly adopted by those who wished to dispose of their land secretly and not to make their titles public. The practice grew up of leaving the legal right to an estate in one man and the beneficial interest in another. Hence the doctrine of uses. Many statutes were passed in early times to meet the evils which this system engendered, and finally a statute was passed in the reign of Henry VIII. to restore the principle of common law; it was provided that where one man was seised for the use of another the seisin of the man so seised should go to the person who had the use. Another Act was passed requiring all bargains and sales of the freehold to be enrolled. The intention was to have a legal tenant only, and to allow the property to be transferred solely by deed enrolled. But this statute, however wisely designed, literally fell to the ground, and it had no other operation than as a simple mode of conveyance. By an ingenious contrivance the principle was transferred, by a deed executed in chamber, without the necessity of livery of seisin, of attornment, or of enrolment. What were in old times called uses became the same as trusts, and equity executed those trusts which could not have effect given to them by law as uses. This result should teach the Legislature how vain it is to attempt to run counter to the general wish and determination of the people. Men were determined to transfer their estates privately, and to vest the legal estate in one person and the beneficial interest in another, and this they accomplished in direct opposition to a statute which intended to abolish uses and to require transfers of estates to be enrolled. In regard to the safety of purchasers both the Judges and the Legislature were in every period anxious to protect them. Many ancient rules of property law were said by the Judges to have been instituted to protect the rights of purchasers. Several statutes were passed to protect purchasers from fraudulent deeds. So great was the anxiety of men to secure their right to 99 their landed possessions that, in order to obtain a good title, it was not an uncommon thing for a person to raise an action at law with a view to bring his title before a court, and then to compromise the matter with his antagonist. This plan of levying fines used to be a great protection to purchasers, because every man having a present right must have claimed it within five years after proclamation, or, having a future right, within five years after he became entitled, or be debarred from it for ever. However, the system of fines had been swept away by legislation. The protection afforded by terms of years had been also removed, as it led to expense in conveyancing and on soles, and in other respects caused great difficulty and dissatisfaction. He must ask the House to bear in mind that by recent acts of the Legislature purchasers have been deprived of the speedy means of barring adverse rights by a fine with proclamations, and also of the protection from concealed encumbrances still in force, which was afforded by an old term of years, assigned to a trustee for the purchaser to protect and defend the inheritance. The courts of equity had established a rule very conducive to honest dealing, but which led to a great difficulty—viz., the doctrine of notice. If a man had notice of an equitable right at the time of purchasing an estate, he was not to be defended against that right. Where a notice was express, few would desire to see the law altered. But courts of equity held that an implied notice was just as powerful as an express notice, and he could give their Lordships many instances of the injurious extent to which the doctrine of implied notice was sometimes carried against a purchaser. The legal difficulty that pressed most heavily upon purchasers was the possibility of concealed settlements. From his large experience, however, he could say with confidence that a concealed settlement very rarely occurred, and yet to guard against such cases great and permanent injury was sometimes inflicted. Then, if a suit in equity were pending relative to an estate at the time of its purchase, the purchaser, although he might not know of the suit, was bound by everything that took place in that suit, upon the ground that every man was supposed to know what was taking place in a court of justice. And yet a decree which finally settled all rights is not deemed implied notice. At this time of day nothing would be more absurd. The expense of making out a title to land proceeded 100 in a great degree from the circumstance that men were indisposed to place confidence in the respectable legal advisers by whom an abstract of title might but a few months previously have been investigated for the person from whom the purchase was about to be made. If men were to place more reliance upon the abstract thus prepared for the party by whom the sale was effected they would be under no necessity of consulting legal advisers of their own, and a considerable outlay would thus be avoided. He might add that he himself, acting upon that principle, had sold several lots of land with respect to which he had declined to enter into any contract for title with the purchasers, and had simply presented them with the abstract of title which he himself had originally obtained, and on the faith of which he had purchased the property, and the purchases were all completed without delay, and without putting him to a shilling of expense. But it was urged that there might be concealed encumbrances to which lands were liable, and in order to obviate the injustice to which the want of knowledge that such encumbrances existed might give rise, it had frequently been proposed that a system of general registration should be adopted. The promoters of that scheme, however, had never been able to carry it into effect, and he must, for his own part, say, that any such plan would be likely to be productive of much greater mischief and expense than the law even as it now stood. The subject was one which a Commission had been appointed to consider, and, if he were at all disposed to object to the recommendations which were embodied in the Report of that Commission, he begged at the same time to assure their Lordships that nobody could entertain a higher respect for its members, of whom his right hon. Friend (Mr. Walpole) was at the head, or for the ability and learning by which the Report was characterized. The last Bill for establishing a general registrar went down from this House shortly after his noble and learned friend on the woolsack took his seat there and was introduced by him. The same Bill had in a former Session or two passed this House. When last introduced he had the misfortune to differ from all his noble and learned friends. But in the other House, the Bill met with no favour, and a Commission was issued to consider the subject. It is a simple question of profit and loss. The establishments, maps, &c.—for after all there were 101 to be maps although the Commissioners report against them—would cost millions. The maps for the tithe Commission have already cost £2,500,000. Let noble Lords bear in mind that whatever share of the expenses may fall on any individual, the landed interest, as a body, must bear the whole of the vast expense of the proposed register if established. The Report of the Commissioners advocated the adoption of what was called a register of titles, under the operation of which system it was provided that there should be always upon the register of lands a registered owner, who was to have the power of selling or mortgaging the estate. Now, a person wishing to have his name placed upon the register, in accordance with the plan which he had just mentioned, but who did not feel satisfied with his title and was anxious to secure it, would be enabled to do so by means of an officer of the Crown, who would be empowered to examine into the title, and, if he considered it to be correct, to insure it. He (Lord St. Leonards) however, should contend that it is extremely inexpedient that the Crown, through its officer, should be able to secure to a man his title to property upon that which, after all, could amount to nothing more than an ex parte statement. The effect of the Report in that respect would be, that in the case where an estate had been thus insured a rightful owner to it might appear; but, as the Crown had already insured it to another person, that person would keep the estate as purchaser, and the real owner would be compensated in money. Now, that was a system of which he certainly could not approve. A person registered as owner of the fee and not buying a title of the Crown would of course still be subject to all the objections which might be made to his prior title, and would upon a sale have for a long period to deduce his prior title in the usual way. Another effect of the proposal of the Commissioners would be to strike at the root of all settlements for family purposes; for, from the very nature of the case, no settlement could ever find a place on the registry. In order to guard against fraudulent sales a system of caveats had been invented, by which the person who was put upon the registry might be prohibited from acting as owner of the property until the caveat had been disposed of, either by order of the Court of Chancery or in some other way; but the result of such a system would be in every case of a settlement to call in the aid of the Court of Chancery, 102 thereby greatly adding to the expense. The real history of the transaction was that, in order to render land saleable with as great facility as stock or railway shares, it was proposed to sacrifice all the advantages derived from the power of making family settlements. Again, in addition to its being impossible to include settlements in registrations, the effect of the registration would be to take away the authority of exercising powers created under the settlement; for if the whole fee simple of an estate was vested in the person who was registered, it was impossible that any one else could concurrently claim the exercise of any powers connected with that estate by settlement, so as to carry the legal estate. The charges, that is the mortgages of the registered owner and his leases might be registered, but not the charges or leases of the real owners under a settlement. If even a volunteer got upon the register as owner, he might sell and make a good title. As between a registered owner not having the beneficial interest and the persons entitled to it, these charges would bind him and might be enforced in equity; but if he sold or mortgaged, all rights would be barred and the real owners would have only a personal remedy against the registered owners. Johnson tells us that "sham" is a vulgar word, but still he must say this plan of placing a stranger on the register as the real owner is a sham, and yet with a terrible reality, for this sham owner may sell or mortgage the estate. Let any noble Lord imagine his estate to stand in a public registry as the property of Thomas Jones or William Smith, and his own rights and those of his family under his settlement ignored. Registration was not to be compulsory in the first instance, but if once on the register, the plan would for ever find the property. No man on the register as owner of the fee could make a settlement entitling the parties to be placed on the register without transferring the legal fee to some person to be registered as owner. If he were left on the register as owner, he would be able to sell or mortgage as owner notwithstanding his settlement. A caveat could no doubt be entered, but this might not be agreeable to the settler and none would like to show any distrust in him. Estates already in settlement can take no benefit from the proposed register, for the first person registering must be seised in principle. The system, also, would prevent persons purchasing land for purposes of 103 speculation as tenants in common, for the registrar would say that there must be no division, and the land must be held subject to survivorship. The Report of the Commissioners had been laid before Parliament, and his noble and learned friend (Lord Brougham) had introduced a Bill which, to a certain extent, carried out the system of registration. This Bill was admirably calculated to try the system. It began with dividing any county in England and Wales and establishing districts in every division. Buildings, maps, and all other requisites were provided for on a large scale, with of course powers to borrow money. There was to be a chief register in London, and a recorder in every division, and a registrar in every district, and also a treasurer, with powers to appoint deputies and with retiring allowances, and all were to have the necessary aid of secretaries, clerks, messengers, and other officers. As regards the establishments everything was perfect. As regards the plan of the register it had all the vices of the plan of the Commissioners with some variations, of which he could not approve. The noble and learned Lord was proceeding to comment upon the plan in Lord Brougham's Bill, when—
suggested that it would be better to wait until the Bill was explained by its author in moving its second reading.
was much flattered that his noble and learned Friend should take the trouble to explain his Bill, to which he would, no doubt, except in one particular, do more justice than he could himself. The only objection was that his noble Friend would accompany his explanation with an answer at each step, and it would be most inconvenient if ho (Lord Brougham) were to get up and reply to his noble Friend's account of this Bill.
§ LORD ST. LEONARDS
was under stood to accede to the suggestion of the noble and learned Lord and to desist from any further reference to this measure. The noble and learned Lord proceeded to explain the provisions of a Bill of his own for facilitating the sale and purchase of land, which he concluded by laying on the table. He said that his plan was to avoid the necessity of establishing a register, and to facilitate sales by simplifying titles an giving to purchasers further protection to supply that which they have lost by the abolition of fines and of attendant terms. In the first place, he proposed to limit the rule as to creating a perpetuity, and no 104 longer to allow lives in being and twenty-neo years as a term in gross to be taken as the limit. That term of twenty-one years and the time for gestation were allowed originally by analogy to the common limitation to one for life, remainder to his unborn son, for until the birth and majority of a son the estate would be inalienable, and he proposed to restore the true rule, and thus to prevent any unnecessary creation of a perpetuity which of course prevented all alienation. His next proposition was, that a bona fide purchaser's title should be unimpeachable after twenty-five years. At present he may be attacked within forty years. The twenty-five years is a great advance upon the five years allowed in the reign of Henry VII. It would cover the right of any issue under a concealed settlement. But in order to effectually guard against any such wilful concealment, and against any falsifying of a pedigree, he proposed to make such acts, whether by the seller or his solicitor, or agent, a misdemeanor punishable by fine or imprisonment, or both, and yet to preserve to the purchaser his right to recover damages from any loss which he may sustain. These provisions would justify him in proposing what would be a great boon to both sellers and purchasers, viz., confining abstracts of title to forty years instead of, as at present, extending to sixty years. Sixty years was the limit for recovering an estate under the old statute of limitations, and when the time was reduced to forty years under the new statute he thought that in general abstracts of title might be reduced in like manner. But the contrary was held, as under some settlement a life estate might endure for more than forty years. He proposed, however, that the Court should have power to enforce the production of an earlier title if there should be reason to suppose that some settlement, or will, prior to forty years may have been executed, which might prejudicially affect the purchaser's title. Judgments, crown debts, and the like, although now brought into one register, which is a great saving and safeguard to purchasers, yet still find the estate in the hands of a purchaser and therefore must be discharged, Now he would leave to judgment, &c., creditors all the rights which they now possess until the estate was conveyed to a bona fide purchaser for value. This would at once induce creditors to execute their judgments and relieve purchasers from considerable difficulty. As a seller would get the value 105 for the estate, the creditors would have a better chance of the payment of their debts. As he had already intimated, he proposed not to make a lis pendens binding on a purchaser unless he have express notice of it at the time he purchases. And as regards notice generally he proposed that no bona fide purchaser for value should be bound by any other than express notice, the disregard of which would amount to a fraud, of any charge, or any other act, matter, or thing, affecting the title to the estate purchased. It remained only to provide that trustees for sale should always have a power to give receipts for the purchase money, and to enact that no purchaser shall be bound to pay or tone to the payment of succession duty not charged on himself; with these observations he moved that the Bill be read a first time. The noble and learned Lord then presented a Bill to simplify the Transfer of Real Estates, and to relieve Purchasers, and moved that it be read 1a.
THE LORD CHANCELLOR
said, there was no Member of their Lordships' House more entitled than his noble and learned Friend to call attention to this very important and very difficult subject. With all branches of the law, but more especially with this, he was pre-eminently conversant, and their Lordships and the country owed him a deep debt of gratitude for laying this Bill upon the table. Having said thus much, he (the Lord Chancellor) hoped his noble and learned Friend would not think him wanting in courtesy if he did not presume or pretend to give any opinion upon the details of the measure. To say the truth, he could not distinctly follow his noble and learned Friend; but, independently of this, it was usual among their Lordships to discuss Bills of this description upon a future stage, when more time had been given for consideration and they were better able to form an opinion on their details. He should stop here if it were not for the allusions made by his noble and learned Friend to the Report of the Royal Commission, upon which subject he thought there was some little misunderstanding on the part of his noble and learned Friend. It would be in their Lordships' recollection that in 1853, very soon after he had had the honour of receiving the Great Seal, he brought in a Bill for the Registration of Assurances. That Bill was much discussed by their Lordships; it was opposed by his noble and learned Friend; but ultimately, went 106 down to the other House, where it was referred to a Select Committee, who thought the subject of such importance that they recommended the appointment of a Royal Commission to inquire into the whole subject of registration of titles. The recommendation was thought by the Government to be a reasonable one, and a Commission was therefore issued. The very learned persons of whom it was composed, directed their attention to this subject from the beginning of 1854 until the busy time of the present year, when they made their Report. Upon receiving this Report he was not ashamed to say that, although he read it through, he could not, consistently with his other avocations, pretend to make himself master of its details or of its various bearings; and he thought that if anything was done with regard to so complicated a subject it must be in another Session of Parliament. Before this Report was made he had framed the heads of a measure extremely small with reference to the subject considered by the Committee, but which he thought would lead to extremely beneficial results. One of the great impediments in the way of the transfer of land arose from previous mortgages or transfers made—sesecret transactions of which the purchaser could not easily become cognizant. His Bill had for its first object to replace the complicated form of modern mortgage by a simple deed received by the lender from the borrower something to this effect:—"I have borrowed £5,000 which is to be repaid on such and such a day, with such and such interest, and is to be charged in favour of the lender upon such and such lands," describing them as shortly as possible. Then, in order that no man might lend his money upon lands which were already charged, he proposed that, in lieu of the cumbrous machinery of a register-office, these charges should be in the simplest possible form, registered in the Court of Common Pleas, where judgments were now registered. Then he proposed that judgments as a mere security upon land should in future be done away with; anybody who wanted security would take it in the form of one of the mortgages he had described; and, if the money were not paid at the stipulated time the mortgagee would have the power to sell the land just as he had at present. This was certainly a small measure, as compared with the large scheme contemplated by the Commission, but he did not like to lay it before 107 their Lordships pending the consideration of the Report, or until it was seen whether anything was to be done with respect to that Report. On this subject he thought his noble and learned Friend was mistaken as to what had occurred in the other House of Parliament. He did not mean to say that the Government might not in the next Session of Parliament act upon the Report of the Commission, though they would not be justified in doing this until it was better understood. Long before the Commissioners made their Report he had a communication with one or two of them, and stated that he thought their Report would be extremely imperfect and of very little value unless it were coupled with a Bill to show how their Report could be carried into practical effect; and therefore he had no doubt that the announcement of his hon. and learned Friend the Attorney General, in the other House of Parliament, referred to that Bill. He thought that it was extremely proper that the Attorney General, not so much the organ of the Government as of that Commission, should lay upon the table of the House a Bill, by way of appendage to the Report, showing how it could be carried into effect. That was all that he knew of any Bill which had been introduced by the Attorney General on this subject. He did not profess to follow his noble and learned Friend throughout his very able statement. It was of great importance that their Lordships should discuss the subject, but he did not feel that he could do more at the present moment than express his thanks to his noble and learned Friend for the pains he had taken in framing a measure which he (the Lord Chancellor) trusted might prove to be a useful measure. or which might at all events serve as a useful suggestion in some future Session of Parliament. He would therefore simply confine himself to putting the question that the Bill be now read a first time.
thanked his noble and learned Friend for the attention which he had bestowed on the subject, and for having introduced the Bill.
said be would content himself by entering his protest against what his noble and learned Friend had said against a general system of registry. He entirely agreed with his noble and learned Friend that unless it could be shown to be profitable to the landed interest the question of a general registry ought not to be debated; but, instead of 108 its being a burden upon the land, his belief was that it would be one of the greatest reliefs to it. It would simplify the transfer of property beyond conception. It had answered well in Scotland, in the Colonies, and in every country in which the experiment had been made. In no country where there had once been a registry established had it been abandoned. His firm belief still was, that until they resorted to that they could not lay a foundation for the improvement of the law of real property.
§ Bill read 1a.