Lords Sitting of 12 April 1858

MINUTES.
Took the Oaths.—The Lord Teynham.

SCOTCH UNIVERSITIES.—QUESTION.
LORD CAMPBELLsaid, he wished to ask the noble Earl at the head of the Government the question of which he had given him notice, respecting the intentions of the Government as to the improvement of the Scotch Universities during the present Session. It was a subject in which he took a lively interest, being himself an alumnus of one of these Universities; but he would not then refer either to their merits or their defects, because he believed the noble Earl was in possession of full information on the subject. It was no party question, and he doubted not but the noble Earl would do what was just in the matter, and what any Government ought to do. The late Government were not without intentions on the subject. The late Lord Advocate stated, in answer to a question, that the subject had been under his consideration, and that he was then preparing a Bill with regard to it; he (Lord Campbell) trusted that the noble Earl would not abandon it. He would now content himself with simply asking his question, namely, whether it was the intention of Her Majesty's Government to introduce any measure for the improvement of the Scotch Universities during the present Session?
THE EARL OF DERBYsaid, the subject had been under consideration during the recess, and he was happy to say that his learned Friend the Lord Advocate was having a Bill prepared, which, he hoped, would be introduced in a short time.

TRANSFER OF ESTATE SIMPLIFICATION BILL—REPORT OF AMENDMENT.
Amendments reported (according to Order).
LORD CRANWORTHsaid, that his noble and learned Friend proposed, by this Bill, to introduce important alterations into the law of real property; for, by certain of the clauses, it was provided that the title of any purchaser, without notice of adverse claims, should be absolute at the end of twenty years. This would have the effect of destroying interests not in possession, such as the interests of an unborn child. It was true that he provided for the existence of disability, such as insanity, by prolonging the time of limitation for ten years; but then, at the end of thirty years, his title would be absolute, against all the world. The purpose of limitations was not to destroy existing rights, but to prevent a person from lying by an unreasonable time, and then, at any period he pleased, to come in and assert his rights, without regard to the inconvenience which might thereby be occasioned. In the quaint terms of our law, vigilantibus non dormientibus leges subvenient—the law would not yield any assistance to those persons who slept upon their rights. If it could be shown that some great advantage would be derived from an infringement upon the vested rights of property, he would offer no objection to it; but, practically, no benefit would accrue to the purchaser by the provision of this clause. It was altogether illusory to suppose that a purchaser would give a shilling more for an estate from the fact that, at the expiration of thirty years, he would have a perfectly safe title. What a purchaser wanted was, that he should be able to buy an estate with the same security as he would buy a horse or a watch. The measure, therefore, would yield no practical advantage to purchasers; and, on that ground, he begged to move the omission of the 1st Clause.
LORD WENSLEYDALEsaid, he entirely concurred in the observations of his noble and learned Friend.
LORD CAMPBELLalso expressed his agreement in those views.
LORD ST. LEONARDSsaid, that the evil which it was proposed to remedy by this Bill was a very serious one. As the law at present stood, in order to provide against a chance which might not arise in 10,000 cases, every man who purchased an acre of land must incur a great expense in investigating the title, in order to guard against a possible claim. The object of the Bill was to bar the claim after a period of thirty years. At present the bar was
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in words forty years, but practically it was a hundred years. This Bill, for the first time, would make it criminal for a man who was selling an estate to an honest purchaser, either by himself, his agent, or solicitor, to conceal or withdraw any document relating to the title to the lands in question.
LORD ABINGERsaid, the experience and ability of the noble and learned Lord (Lord St. Leonards) were so well known that he thought their Lordships might safely adopt any provision of this kind recommended by him.
THE LORD CHANCELLORsaid, that if he had stood alone against his noble and learned Friend who had devoted so many years of his valuable life to the law of real property, he should have felt great hesitation in encountering him on ground so peculiarly his own; but as his opinion was strengthened by so many of his noble and learned Friends, he felt he could venture to state his objections to the new principle of limitation which his noble and learned Friend proposed to introduce into the law of real property. Their Lordships were considering the first clause of this Bill, hut upon this clause some six or seven others might be said to depend. Now, although he would admit that there were clauses in the Bill which it might be desirable to pass into law, yet it appeared to him that the principle which his noble and learned Friend proposed to establish by the first clause, was one which would be most mischievous and dangerous. The present Statute of Limitation, which was passed about twenty-five years ago, after very great deliberation, was not in every respect free from objection. There were in it various provisions which were difficult of construction, and which had given rise to many questions; but he (the Lord Chancellor) thought the principle of limitation which was then established was a safe one. That principle was this, that persons should bring their actions or assert their claims within twenty years after their right accrued. Now, if the right was a right in possession, there was no reason why persons should not assert the right within that time; and if it was a future right, the party had no reason for asserting it until it became vested in possession; and therefore the statute provided that persons who were remaindermen or reversioners should have twenty years for asserting their right after their right had accrued in possession. Now, what did his

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noble and learned Friend propose to introduce? This—that there should be no right asserted after twenty years from the time when a conveyance had been made to a bonâ fide purchaser for valuable consideration. His noble and learned Friend said his Bill was one for shortening the period of limitation; but he (the Lord Chancellor) believed that instances might be suggested in which the provisions of the Bill would extend the time instead of shortening it. For instance, at present a remainderman was bound to bring his action within twenty years after his right had accrued; but if this clause passed, a man might be unlawfully in possession of property for nineteen years; and then if a conveyance were executed, the remainder man would have twenty years after that to assert his right. But that was not the great objection which he had to the Bill, but it was this—that the Bill placed the remaindermen entirely at the mercy of tenants for life. Suppose, for instance, the tenant for life were to make a conveyance in fee, absolutely disposing of the property and live more than twenty years after the conveyance, where would be the remainderman and his title? It was preserved to him by the law as it stood at present, but if this clause were passed a remainderman might have his right taken away from him by reason of the conveyance by the tenant for life and the tenant for life surviving the conveyance. The noble and learned Lord proposed to meet such a case by giving the remainderman the right of instituting a suit in equity to secure his interest; but this, in his (the Lord Chancellor's) mind would be no remedy against the danger that might arise under the clause. He might, for instance, know nothing whatever of the execution of the conveyance, and what remedy would he have then? It appeared to him that the old principle was the safest, as it gave each party the right to assert his claim after he had obtained a right in possession. Holding these views, he felt bound, though with great reluctance, to oppose the new principle laid down by the noble and learned Lord, and to vote against the clause.
EARL GREYthought that this clause was only a clumsy substitute for that general system of registration to which we must sooner or later come, and which he regarded as the first step towards a sound reform of our system of conveyance. He had great doubt whether the clause, if
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carried, would work all the benefit the noble and learned Lord expected; but if the objections stated to this clause were allowed to prevail they would go far to prevent any reform in the law of real property altogether; for those who opposed the clause did so with the view to protect uncertain and future rights, at an admitted inconvenience in the restriction of free action of vendors and purchasers of property. But it should be remembered that there were many persons whose authority was entitled to great weight, who maintained that it was not desirable to continue the power at present given by the English law to tie up real property for long periods. It must at any rate be conceded that the rights enjoyed under the present system were artificial rights created by legislation; and he must say that he did not think it reasonable that that system should be allowed to stand in the way of practical improvements. He thought that his noble and learned Friend opposite (Lord St. Leonards) had succeeded in showing that it was most unlikely that a contingent remainderman would suffer by the misconduct of a vendor; but if he did, was his the only interest which they ought to consider? Suppose a man having a life interest, only sold a title to an estate as in fee, and that the fraud was not discovered for thirty years afterwards, the question then was, which of the two innocent parties ought to suffer the loss arising from the fraud, consistently with the principle of natural justice? Whether should the bonâ fide purchaser suffer the loss, or the remainderman, who had only a contingent right. He was of opinion that the greatest injustice would be to make the loss fall on the bonâ fide purchaser; the loss in such a case, he thought, should be thrown on the shoulders of the remainderman, Therefore, the probability of the remainderman being barred did not weigh with him, especially as the Bill contained provisions which rendered more than ever unlikely the commission of the fraud suggested.
LORD CAMPBELL (who spoke amid interuption)said, what I wish to say is this —that vested rights would be altogether defeated if this clause was adopted.
LORD CRANWORTHwished to assure his noble and learned Friend that he only meant by his Motion that the first clause should be rejected, and those which hung upon it, namely, the first thirteen clauses of the Bill. He thought, however, that it would be a great loss to the public if they

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were to be deprived of the great benefit arising from some of the other clauses, as, for example, those which made it a penal offence to palm off a fraudulent title on a purchaser.
LORD REDESDALEthought that in giving a second reading to this Bill their Lordships had, to a certain extent affirmed the provision regarding the limitation of time. On the Report, however, a question was raised prior to the Bill being sent before a Select Committee, as to whether that precise principle proposed to be laid down should be accepted or not. He was certainly not prepared to pledge himself to that principle without further consideration of the details of the measure. Under existing circumstances he was, however, prepared to assent to the clause going with the rest of the Bill before a Select Committee.
LORD ST. LEONARDSsaid, all he wished was to establish the principle as to the limitation of time laid down in the Bill. If the House be prepared to establish this principle as to the alteration of time, it would be then open to their Lordships in Select Committee to consider what that limitation of time should be.
THE EARL OF DERBY: My Lords, I do not think that the question we are now discussing is merely the principle of the first clause; it is in my opinion something more than the mere shortening of the period of limitation. There is another question of much importance before us, namely, from what time the period of limitation shall commence? Shall it commence from the period at which the property is sold, or from the time at which the right of the remainderman accrues? That, no doubt, is a question fairly open to our consideration. My noble and learned Friend, as I understood when he introduced the Bill, declined to assent to his measure being referred to a Select Committee, because he insisted upon the provision in reference to the period of limitation. My noble and learned Friend has thereby deprived himself and the House of the convenient outlet which has been provided for him by the noble and learned Lord opposite.
LORD ST. LEONARDSwas understood to say that he was quite content to have the Bill considered by a Select Committee.
THE EARL OF DERBY: My noble and learned Friend says he does not object to refer his Bill to a Select Committee;
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nevertheless, he desires the House to pledge itself "aye" or "no" to the principle involved in the first clause. The noble Earl opposite (Earl Grey) has raised a question as to the sale of fraudulent title, and has given it as his opinion that on that fraud being discovered in about thirty years afterwards it would be more consistent with justice that the loss should fall on the remainderman than upon the bonâ fide purchaser. Now, I have a great respect for the judgment of the noble Earl; nevertheless, I am compelled to say that, in regard to the principle of justice if the question be put as to which of those two innocent parties should suffer, I think that, according to all analogy, the remainderman is the party who ought not to suffer in a case of that kind, and it is the bonâ fide purchaser who ought to bear the loss. Suppose a person had bought a horse in the market which turns out to have been stolen. Now, although he purchases bonâ fide, and pays his money for the horse, I am afraid that, in the event of an action arising in the matter, he would lose his money. Moreover, it should be considered that the purchaser has full opportunity of investigating the title, which the remainderman is deprived of. The purchaser may be perfectly innocent in the affair, but at the same time be wanting in caution in accepting an imperfect or insufficient title. Therefore, on the ground of analogy, as well as upon the other grounds, I think the purchaser should be the party to suffer. Adverting, however, to the prior question as to the time from which the limitation shall commence whether it shall be from the period of the sale, or from that at which the right of the remainderman accrues, there is no man from whom I would more unwillingly differ than from my noble and learned Friend, but in my judgment it is more consistent with the principle of justice that the limitation should commence at the period when the right of the successor had accrued; and, if necessary, I am prepared to take issue upon this point. I must, therefore, reluctantly vote against the clause affirming the proposition of the noble and learned Lord opposite.
Amendment agreed to; Clauses struck out.
Clauses 2 to 13 struck out.
House adjourned at a quarter to Seven o'clock, till To-morrow, half-past Ten o'clock.