HL Deb 16 March 1858 vol 149 cc232-9

On the Motion for going into Committee on this Bill,


said, that its object was to simplify titles to real property, and thus to save great expense both to the purchaser and seller. The law of England had varied very much as to the time at which all suits should be barred and a title might be acquired good against all the world. In the reign of Edward I. a year and a day was the limit, but this was found to lead to great inconvenience, and the law was repealed in the reign of Edward III. There was then no limitation at all, which was found to be equally inconvenient, and ultimately in the reign of Henry VII. a fine, with proclamation, was made an absolute bar, but with a saving of five years for persons under a disability, having a present right and a further saving for persons entitled in remainder of five years after their right accrued. These bars were effected by what was termed a fine which was a fictitious suit which terminated by a supposed agreement, and which was proclaimed so as to give notice to all. This mode of assurance was recommended by Sir Edward Coke, as being with respect to land a sale in market overt, in a great measure similar in its binding operation to a sale of chattels in a like market. This bar remained unaffected until the reign of the late King William IV. when this great prop and support of titles was taken away. So long terms of years were for centuries kept on foot as a protection to purchasers against intervening incumbrances, but such terms with the protection they afforded have recently been swept away. It should never be lost sight of that by these changes, purchasers were left exposed to many outstanding claims against which for ages they might have defended their possessions. Besides these remedies a statute in the reign of Henry VIII. made sixty years a bar; that was altered by a statute of James I., which made twenty years a bar to all rights of entry. The existing law passed in the reign of William IV. declared that twenty years from the time when the right of possession accrued should he a common bar. That statute also saved the rights of persons labouring under disabilities and of remainder-men, and gave them a term of ten years after their rights had accrued. The whole period was limited to forty years, and after that time the statute meant to give a title good against all the world. Up to the time of the passing of that Act all abstracts of titles were required to be for sixty years, and when the time was reduced to forty years it was thought that a great been would be conferred on purchasers and sellers by limiting abstracts to forty years also. But the longer time continued to be retained, for, though forty years would ordinarily be a bar, yet as a tenant for life might live beyond forty years, it was thought necessary to go at least to sixty years; so that in order to meet a case which did not occur once in 5,000 times every man in England who sold land was forced to furnish an additional twenty years' title and every purchaser was compelled to incur the great expense of examining it. This additional twenty years to the forty years adds enormously to the expense upon sales. The object which he had in view was to shorten the time of limitation for the benefit of purchasers, and to shorten abstracts. He proposed to start from the time of purchase, and to say that twenty years from that time should be a common bar against all the world. To persons who might be entitled, but were under a disability, he proposed to allow five years from the time when that disability ceased. He had to deal with the difficulty of the remainderman, whose right did not accrue until after the death of the tenant for life. He proposed that at any time within twenty years any person having a right in remainder, or any person on behalf of a lunatic, infant, or children unborn, having similar rights, might obtain a decree from the Court of Chancery, establishing their rights whenever the property should fall into possession. He believed that would meet every contingency. He proposed also, that in future abstracts of titles should only be for forty years instead of for sixty years, according to the present practice, unless the parties should specially contract for a longer abstract, or the Court should be of opinion that there was some special contingency which ought to be provided against. In all his experience he had never known the case happen of a tenant for life selling the fee, and it was very improbable that it would happen, because it was very soon known whether the person in possession held the fee or only the life interest; and the way in which he dealt with the property, in granting leases, &c, showed at once whether he was owner in fee simple or not.


mentioned that Mr. Preston, the conveyancer, had bought a property where the settlement was concealed.


said, that during his long intimacy with Mr. Preston he had never mentioned the circumstance to him, and he repeated, that in his large experience he had never known an instance, and it was therefore a very rare case. But he proposed that such a person should forfeit his life interest, and that the purchase-money should be in his hands trust-money to be invested in another estate to be settled to the former uses, but excluding his own interest. He had also introduced a more stringent provision, which had been much approved by the profession, that if a vendor, or his attorney or agent, should, upon a sale, suppress a settlement or deed, or alter or falsify a pedigree, they would commit a misdemeanour, for which they might be fined or imprisoned, or both fined and imprisoned with or without hard labour, He thought, with those precautions against what undoubtedly was a great social crime, the case never could arise. It was said further, what would he do when a child was born after the twenty years? Would he exclude him? His answer was, "Yes." He would prefer the claim of an honest purchaser who had paid his money and enjoyed the estate for that long period to a claimant under a concealed settlement, born twenty years afterwards. But there was little danger of such a case, for to every settlement there are two parties and trustees for the wife and children of the marriage. It is indeed seldom that a life estate is sold, and no man attempts to sell the fee immediately after his settlement. Where a settlement is concealed, and the tenant for life fraudulently sells the fee, it is long after the marriage, when, it may be, the interest of the wife and children have been lost sight of. The probability of the birth of children, therefore, will not date from the time of the purchase, but from the marriage; and there is but little chance of children being born whose right would not be known and could not be established within twenty years from the purchase. It is said there may be an issue of a second marriage. But that would not endanger a purchaser, for, in general, settlements are confined to the children of the marriage contemplated; and if they fail, the settler has still the fee to dispose of. If even children by a second marriage were provided for, they could not attack the purchaser. For the consideration of the first marriage, which would make the settlement on that marriage binding on purchasers, would not, as against purchasers, support the settlement on the children of a second marriage. As to them, the settlement would be voluntary, and, under a statute in the reign of Elizabeth, would be void against purchasers; and, of course, any settlement made after the sale would not affect a purchaser. After all, contemplate the case of an honest purchaser having to wait twenty years, nay, thirty years in possession before he is sure of his title. If he had the power, he would make twenty years, without any saving, a bar against any claim adverse to an honest open purchase for full value. It might defeat some claims, but no statute of limitations was ever passed which was not open to the objection that it destroyed some rights for the sake of the general good. With regard to judgment, he had been the means of inducing their Lordships to pass Bills to facilitate purchases with respect to judgments. He now proposed that no judgment should affect any land as to a bonâ fide purchaser for valuable consideration, unless a writ or other due process of execution of such judgment or other charge should have been issued and executed before the execution of the conveyance and the payment of the purchase-money. There was no reason why judgment should be held to be continual charges as against purchasers, and he proposed that if a man had not issued execution upon a judgment at the time an honest man came in and paid the purchase-money, such judgment should not be a charge on that particular estate; but in other respects he left judgments to have their full power. It should be borne in mind that when a man sells he receives the value of his estate in money, which enables him to meet his engagements. Their Lordships all desired to offer facilities to the transfer of lands, yet he could hardly offer any measure for this purpose to which half a thousand objections could not be made. He wished, however, to sweep away all impediments in the way of title and conveyancing which might safely be dispensed with, and thereby to save an immense amount of delay and expense. He proposed that no lis pendens should bind an honest purchaser unless he should have actual notice of it before the execution of the conveyance and the payment of the purchase-money. All men were formerly supposed to be attending in courts of justice, and therefore were bound by what was passing in the courts. The absurdity at the present day of the rule in equity is, that when the suitor has actually established his right and obtained a decree, the decree is not notice to a purchaser, although the pendency of the suit before a decree is. Further, as the law at present stands, a purchaser, wholly unconscious of any adverse right, may be held to have what is termed constructive notice of it—for example, notice to his agent or solicitor. This has led to extensive litigation and great hardship, and he proposed by this Bill that a purchaser henceforth should only be bound by express or direct notice. He further proposed that a purchaser should not be bound to see to the payment of the Succession duty. No fiscal law ought to impose additional obligations on purchasers. The next point was a very simple one. The Courts of Equity, where persons were appointed as trustees with power to sell, drew a distinction as to the liability of the purchaser to see to the application of the purchase-money. If, for example, an estate were sold by trustees under a will, and if the money were to be applied in payment of legacies, the Court of Equity might hold that the purchaser was bound to see to the application of the money; and if he did not he might be held liable to the extent of the purchase-money. Now, if a man left property to trustees with power to sell, he thought they ought to be competent to receive the money and to exonerate the purchaser from any further liability. He therefore proposed that the bonâ fide payment to and the receipt of any person to whom any purchase or mortgage money should be payable upon any trust should effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary should be expressly declared by the instrument creating the trust or security. He believed that such a clause would meet with general approbation. Lastly, he proposed a clause which declared it to be a misdemeanour in the vendor of laud fraudulently to conceal any deed or to falsify a pedigree. He trusted that their Lordships would now consent to go into committee pro formâ on the Bill.


said, he had no objection to the course now proposed to be taken. His noble and learned Friend had truly said that the Bill was a most important measure, and his fear was that important as it was, it would not receive all the attention it demanded, not from the law Lords, hut from the lay Lords, because it affected the interests of every landowner in the country. The Bill went not merely to the technicalities of the law, but to the very root of that which constituted the enjoyment of property. He would not follow his noble and learned Friend into the details of the measure, but would say at once that several of the provisions of the Bill he considered extremely advantageous. Nothing could be better, for example, than the proposal that the seller under a false title, knowing it to be false, should be punishable just in the same manner as the obtaining goods under false pretences was punishable. His noble and learned Friend (Lord St. Leonards) would do him the justice to say that when he told him of his intention to make the fraudulent concealment of deeds a misdemeanour, punishable with fine and imprisonment, he (Lord Cranworth) suggested to his noble and learned Friend that the person convicted of the offence ought to be liable at the discretion of the Court to the punishment of imprisonment with or without hard labour. He believed that ours was the only code which did not visit a similar offence with some such punishment. It was provided for by the civil law, and by the French code, and it ought to be provided for by our law. He also approved the provisions which relieved the purchaser of an estate from the necessity of looking for judgment. As the law now stood there was a limit of twenty years from the time the title accrued within which every one had a right to assert an adverse title, or failing which he must hold his peace. His noble and learned Friend proposed, not that a party who had an adverse right should be allowed to bring an action within twenty years after the time when his right accrued, as was now the law, but within twenty years after the time when the property was sold. Now, this proposal would be of no advantage to the purchaser, while it would cause monstrous injustice to persons whose rights might not be even in existence when the sale of the property took place. Suppose a person who had a reversionary interest in a property did not discover his right till more than twenty years after the sale, he would by this provision be cut off from all power of raising an action; whereas the law now gave him liberty to assert his right within a specified time after it became known to him. A person might believe he had an absolute right to sell a property, and do so under that impression; but it might happen that more than twenty years afterwards another person would arise who had a title to the estate. He would be precluded from asserting his right, however, because he had not done so within twenty years after the sale. To meet these cases his noble and learned Friend proposed a remedy which he believed would be perfect illusory. He proposed that, during the twenty years after the sale, any one whose interests were reversionary might file a Bill in Chancery similar in character to the Scotch action of declarator, and by this means get his right declared. But what protection would this give to persons who, perhaps, had no existence till more than twenty years after the sale? Take the case of the late Lord Leicester. He married young in life, and had by that marriage no son, but three daughters. He again married late in life, and had many sons, one of whom had now a seat in their Lordships' House. It might have occurred—for it was within the range of probability—that the late Lord Leicester, thinking he was the owner of his property in fee simple, having no son by his first marriage, sold it. But thirty or forty years afterwards a son came, who had an absolute right to the property. Would it have been any consolation to him to be told that before he was born any one might have filed a bill in Chancery on his behalf, declaring that he possessed that right? This and other instances which might occur would show that the remedy provided was perfectly illusory. He did not wish to prevent the Bill going into Committee pro formâ, so that it might be reprinted; but he wished to call the atten- tion of the lay as well as the law Lords to the provisions of the measure, and to ask whether, in giving a greater facility to purchasers, they were not shaking the stability of property in a way that their Lordships might at an early day have much cause to regret.


was understood to say, that the objection against the Bill deduced from the supposed case of the Earl of Leicester did not apply, inasmuch as a sale of the property must have taken place under the first marriage settlement, which could not be affected by the settlement made at the second marriage.


said, he understood that his noble and learned Friend merely proposed to go into Committee pro forma for the purpose of having the Bill reprinted. To that course there could be no objection; but he thought it only fair to his noble and learned Friend to state that, in his (the Lord Chancellor's) opinion, it would be quite impossible to discuss the measure properly in the House. The questions which it raised were not only of great importance, but were in many cases of a technical character, requiring a great deal of legal knowledge for their due consideration. Under these circumstances, he had to state that he would on a future day propose that the Bill should be referred to a Committee up stairs.

House in Committee; Amendments made; The Report thereof to be received on Friday, the 26th instant.