HL Deb 23 March 1858 vol 149 cc559-72

LORD CRANWORTH, in moving the second reading of the first of these Bills said, that it must be considered in some degree as the result of proceedings which had been commenced in their Lordships' House so far back as 1846. Immediately after the abolition of the Corn Laws, a Select Committee was appointed to inquire into the burdens affecting landed property; and that Committee reported that the value of land was seriously decreased by the expense attendant upon its transfer, and they recommended the adoption of a system of registration of title as being essential to any attempt at simplifying the conveyance of real estate. In the year 1847 a Royal Commission was issued, directed to several persons of great eminence, among whom were the late Lord Langdale, the late Lord Beaumont, Mr. Bellenden Kerr, and other conveyancers, and a few solicitors; and that Commission, in its Report, in the year 1850, recommended the establishment of a system of general registration of deeds relating to the transfer of real property. The subject continued to occupy the attention of both Houses of Parliament; but no result hail as yet been arrived at. In the year 1853, soon after he had the honour of receiving the Great Seal, he felt it to be his duty to bring in a Bill to give effect to the recommendation of that Commission, and after considerable discussion and opposition that Bill passed through their Lordships' House; but it was not equally fortunate in the House of Commons, by whom it was referred to a Select Committee, who recommended a new Com-mission to inquire into the possibility of establishing a system of registration of title as distinguished from the registration of deeds. That Commission was issued to Gentlemen of great eminence, including among their number the right hon. Gentleman the present Secretary of State for the Home Department, and the subject was considered with great attention, and in May last year the Commission issued a report which recommended an elaborate system of registration, having for its object to convert the whole system at present in use for the transfer of real estate into a system bearing a close analogy to that by which shares in public companies, such as railway shares, were transferred. He felt it to be his duty to consider that Report with the utmost attention, and he confessed that the result had been that he had come to the conclusion that such a course would not be safe or prudent, even if it were practicable, which he very much questioned. He then felt it to be his duty to endeavour to provide any substitute which might effect the object sought for by that Commission, and he therefore caused to be prepared the two Bills at present before their Lordships for a second loading, (the Transfer of Law Bill, and the Tenant for Life, Trustees, &c, Bill.) He felt considerable difficulty in making himself accurately understood, as he was not addressing an assemblage of lawyers; but he would endeavour, as shortly and in as popular a form as possible, to state what were the evils which existed, and how the Bill proposed to remedy them. The great evil which existed was the great expense which attended dealing with land either by way of sale or mortgage, and it would be a great benefit to the landholder if a cheap and expeditious mode could be devised for conveying real estate. At present, if a man wished to purchase an estate he was provided with an abstract of title, and that had to be laid before counsel, to advise upon the validity of the title, and if that were found good the conveyance was prepared. The whole process was very tedious and expensive. Under the present system, of transfer the purchaser regarded the probable expense of the conveyance as part of the cost of the property. If the expense of investigating the title occurred once for all, the evil of the present system might be tolerable;" but the misfortune was that as soon as the purchaser who had obtained his costly conveyance wished to sell or mortgage the estate the proposed purchaser or mortgagee naturally enough said, "I must have the title looked to by my lawyer," for no prudent purchaser or mortgagee would depend upon the assurance of any conveyancer who might have investigated the title on behalf of the vendor or mortgagor. And that costly process of investigating the title was repeated every time that the estate was sold or mortgaged. He proposed to remedy the evil by an enactment that would prevent the necessity of any further investigation of the title for at least a considerable number of years. He believed that the course he was about to propose was pursued in some of the countries of Europe on the sale of land. That course, which was a very natural one, was as follows:—When a person wished to sell his land he might say that the sale should be conducted not by himself or his agents, but through the instrumentality of a court of justice, which should investigate whether his title was good. If the title were found to be good, the Court gave a conveyance, which in point of validity was equal to what we knew under the name of a "Parliamentary" title. The very sanction given by the Court stamped the title to the land as good to all intents and purposes. No person could doubt the great advantage of that course. An objection might be raised that the interests of third parties not before the Court either as seller or purchaser, might be prejudiced by its adoption; but the chance of any prejudice to them was so infinitesimally small that he thought that for the sake of the great advantages of the proposed course there should be no fear of running the risk of prejudicing those interests. An outcry, he knew, might be made against his proposal to effect sales by the machinery of the Court of Chancery; but he did not propose that anything like a suit in Chancery should be commenced. All that he proposed was, that if a person wished to sell his estate he might (For this was not a compulsory, but merely an enabling Bill) present a short petition to the Court of Chancery, praying that his estate might be sold through the medium of the Court. The purchaser would pay his money into court, and the title would be investigated by the conveyancing counsel of the Court, just as was now done in the case of sales directed by the Court of Chancery. It might be said that the purchaser would be leas alive in discovering objections to the title if he knew that the Court was about to give him an unimpeachable title; but that objection was rather technical than real. What reason was there to suppose that there would be less vigilance on the part of the counsel of the Court of Chancery than any other counsel? Sales of land had been effected by the Court for very many years, and perhaps not oftener than once in twenty years did any error occur on the part of those who had been directed by the Court to investigate the titles to estates sold under its sanction. But the plan that he proposed would increase rather than diminish the security against error in the investigation of titles; because he proposed that whenever a sale should take place under the Bill, notice of the sale should be inserted in the newspaper published in the locality of the property intended to be sold. That notice would warn all persons who had adverse claims to the vendor to bring their claims before the Court; which, if it should think proper, would have the power of ordering their costs to be paid by the vendor. The Lord Chancellor would be empowered by the Bill to frame, with the assistance of other Judges, rules to secure the rights of all parties; and among other rules, one, that the vendor and purchaser, and also their respective solicitors, should make affidavits stating that everything they knew about the title of the property had been disclosed, and that they had no reason to believe or suspect that any deficiency in the title had not been made known. And when to this course was added that prescribed by one of the Bills of his noble and learned Friend opposite (Lord St. Leonards) which would make it a misdemeanour to attempt to impose upon persons by concealing, upon the sale of property, anything that affected that property, he thought we should have greater security than we ever had against frauds upon the transfer of property. With the example of the Incumbered Estates Court in Ireland, it would be a reproach to this country if they longer suffered the law of real property to remain in its present state. Property to the amount of many millions had changed hands, and in no case had there been any complaint as to title. Some auctioneers had stated that the adoption of the plan of transfer proposed by this Bill would have the effect of increasing the value of estates to the extent of two years' rent thereof.

He would now proceed, with the permission of their Lordships, briefly to describe the provisions of the second measure which stood in his name—the Tenants for Life, Trustees, &c, Bill. Its main object was to get rid of a great deal of the prolixity with which many estates were at present incumbered. It had often been attempted to accomplish this end by giving forms of conveyances; but the endeavour had always failed, from a variety of causes, into which he need not enter; but he thought it probable all similar attempts would fail, because it was impossible to provide forms which might in all cases be safely and properly acted upon. Under the present system there were introduced into all ordinary deeds a vast number of clauses relating to tenants for life, which he proposed to render unnecessary by making the powers which they were intended to confer incidents in law to the estate. Until two years ago, upon a marriage settlement, for example, a tenant for life had no power, independently of any special power that might he given to him, to lease, except for his own life. That power had since been materially extended, and in most well-drawn settled estates the tenant for life had powers to lease upon building leases. He merely proposed an extension of that principle; and, in place of introducing a multitude of clauses in every deed to confer those powers, to make them incidents to the estate of every tenant for life, unless the instrument which created the tenancy for life excluded them. He did not propose to make the power of sale incident to the estate of a tenant for life; but he thought if the settlement gave the power of sale or exchange, that all that mass of matter which was usually inserted for the purpose of conferring it might be omittéd, and that the power might be considered as an incident of the estate. So, also, with respect to mortgages. Conveyancing deeds of that description were very complicated and prolix instruments, and contained a great number of powers which he proposed to make mere incidents of the estate of a mortgagee. The Bill included also a similar provision with respect to the mode in which the ordinary trust funds of a personal estate were to be invested. He purposely abstained from going into the minute details of the measure, because they would be readily ascertained from a perusal of the Bill itself; but if their Lordships did refer to the measure, he begged particularly that they would look over the appendixes, in which he had given specimens from the best conveyancing authorities; and the parts which might be omitted, if the Bill passed, he had had printed in italics.

Moved, That the Bill be now read 2a.


regretted that his noble and learned Friend had not con- fined himself to proposing one Bill at a time, because it was difficult to discuss the merits of two distinct and independent measures at the same moment. He was sure, however, that they owed a debt of gratitude to any one who brought forward a well-considered plan for effecting an amendment in an important branch of the law, and they must all agree that the first measure, which was intended to facilitate the sale and transfer of land, was one which demanded their most serious consideration. The main object of that Bill was to establish a tribunal which should give a warranty of title as against all comers, and it appeared to be founded upon the measure which had established the Incumbered Estates Courts in Ireland. It must be remembered, however, that the circumstances of the two countries, which were supposed to call for these respective measures, were entirely different. In the case of Ireland, where estates were so desperately encumbered that it was impossible to effect a sale of them, the Act which instituted those courts was, no doubt, a very wise one; but whether we were to have these courts in England, where no such difficulties existed, and where the only object was to obtain a tribunal that should give a warranty of title, was a very different question. Estates were not so encumbered in England that it was impossible to make a sale of them, there was no such difficulty, but the difficulty with which they had to cope, and for which they had to provide a remedy, was the complication of title arising out of the rights which all men reserved over their property. The question was, could a tribunal be established to carry out the sale of land by giving a Parliamentary title, and what was to be the nature of that tribunal? His noble and learned Friend suggested the Court of Chancery, but if this extra amount of work were thrown on the Court of Chancery its energies would be paralyzed. The business now was quite as much as it could got through, and if it were called on to discharge any additional duties the machinery which had been established in 1852 with so much labour and expense would be destroyed. If the chief clerks were examined, they would, he believed, one and all declare that their present work was quite as much as they could do, and that it was perfectly impossible for them to undertake this duty without throwing the whole course of business into confusion. The equity Judges, too, he was sure, would tell their Lordships that it was impossible to give more time to chamber business. Would the legal profession endure to see the whole conveyancing business of the country made the monopoly of half-a-dozen gentlemen? For the six barristers appointed as counsel of the Court would monopolize the whole business of the country. His noble and learned Friend was always for throwing new duties on the Court of Chancery, and it was with great difficulty that that Court had been saved last year from the divorce and matrimonial business. Clearly, however, the Court of Chancery would not do in this instance. Were their Lordships prepared, then, to establish an entirely new tribunal? If that were done it was not necessary to import into it all the expensive machinery of the Court of Chancery. If a judicial body is to decide upon the validity of men's titles so as to bind the whole world, there is no reason why they should establish an auction mart and become great estates agents: their certificate of title would answer all the purposes contemplated, and the owners of the estates could then manage their sales in their own way. His noble and learned Friend argued that these sales could be effected quite as efficiently by a court of justice as in the ordinary manner; but it was absurd to think that a public functionary, who had no interest either one way or another, would exercise the same caution and vigilance as the parties themselves. Titles would not be one-half so well sifted and examined by such a tribunal as they were now. In a recent discussion upon a Bill which he had introduced for facilitating the transfer of land, his noble and learned Friend (Lord Cranworth) put the case of a noble peer selling an estate which was in settlement, having three daughters and no son by his first wife, and subsequently, by a second marriage, having a son more than twenty years after the sale. Now, in all probability, the settlement which was forgotton he supposed did not provide for the sons of the second marriage, and if it did, was no doubt void against a purchaser, for as a settlement upon the second marriage it would be a voluntary one, and void by statute against a purchaser. But how could such a case happen. Noble lords of great estates do not forget settlements made upon their marriage, and although there was no son, there were daughters, for whom, no doubt, portions were provided through trustees, so that the settlement must have been brought to the noble Earl's recollection. Besides, on the second marriage, of course, the settlement on the first marriage would be called for, and then the supposed mistake would have been apparent. The second wife's friends would not have allowed the provision for her and her issue to remain upon an estate sold by her intended husband many years previously, and still in the possession of the purchaser. He could not see across the House whether his noble and learned Friend blushed, but no doubt he did when he attacked his (Lord St. Leonard's) mild Bill, and advocated his own sweeping measure. By his Bill persons born within twenty years, or any person entitled to sue for them, might protect their rights by application to the Court of Chancery; whereas, by this Bill, from the moment of the sale being authorized by the Court of Chancery the claim of such persons would be totally excluded, without any reservation of twenty years, or of any time whatever. The only object of the Bill which he had submitted to their Lordships was to facilitate the transfer of land, by saving expense, by removing obstacles in the way of titles, by enabling safe purchases to be made, and by such alterations of the law as would afford no reasonable ground of objection without any of the violent changes which this Bill would necessitate.


advised their Lordships to accede to the second reading upon the understanding that the Bill should be referred to a Select Committee. If the operation of the measure were a purely speculative question, he should entertain very great doubts on the subject; but they were proceeding on the safe ground of experience. There was, however, a great distinction between the powers of the Incumbered Estates Court and the powers sought by this measure. Incumbered property was compulsorily brought into the Incumbered Estates Court and forced to a sale, by which he feared, in a great many instances, injustice had been done. But his noble and learned Friend proposed to give a voluntary power to the owner in fee simple, who was about to sell an estate, to sell it through this medium, by which he would greatly benefit himself, and probably the purchaser. With great deference to the noble and learned Lord (Lord St. Leonards), almost all the objections which he had urged might be disposed of in a Select Committee. They might there decide whether any assistance would he required by the Court of Chancery, and if so, what assistance should be given. The only objection to the principle of the Bill was the danger of doing wrong to third parties, because a Parliamentary title would exclude all who had not come in and made their claim. With regard to the Act establishing the Incumbered Estates Court in Ireland, it was first taken up by Sir Robert Peel, at the suggestion, very likely, of his noble and learned Friend (Lord St. Leonards), and was cordially adopted by the Government of which he had the honour to be a member. He had the credit of that measure, and he had encountered difficulties in passing it, particularly from the objection that there would be danger of persons being robbed of their estate. He argued that confidence might be reposed in the officers of the Court, and that justice would be done to all Her Majesty's subjects. Their Lordships gave weight to that argument and passed the Bill. What had been the result? Of estates to the amount of many millions sterling, disposed of under its operation, there was not a single instance of a mistake being made or any person being wronged.


was understood to intimate that there Were such instances.


thought the Transfer of Land Bill likely to be beneficial, but confessed he had great doubts about the second Bill. The first Bill was a substitute for a register, but to a register, he believed, we must come at last, notwithstanding the strong opposition made by a numerous body of the profession. Common sense and reason would bring us to adopt a similar system to that which prevailed in Scotland. Whether such a Bill as that now before the House would encumber the Court of Chancery with more business than it could discharge he was not so competent to pronounce an opinion upon as his noble and learned Friend (Lord St. Leonards). His belief was, however, that the Judges of the Court of Chancery were not sufficient in number to transact all the conveyancing of the country. His chief objection, however, was that the Bill would afford the means of selling an estate behind a person's back. It was said that the Irish Incumbered Estates Act had succeeded, and he believed it had; but it was not true that no one had ever complained of his property having been sold behind his back. He believed such things had occurred. No doubt the Court of Chancery would make excellent rules for carrying the Bill into effect, and would provide the machinery for investigating titles; but the Bill did not seem to provide the means for getting all the objections to a title. The Court could only rely upon having two parties before it, the purchaser and the vendor, whose interests were both concerned in converting a bad title into a good one; and therefore, with all respect for the vigilance of the officers of the Court, they had not the same motives for inquiring into a title that a private practitioner had. He trusted that the Legislature would ultimately come to the more reasonable mode of transferring property by a public register.


said, that he was quite willing that these Bills should be read a second time, on the understanding that they should be referred to a Select Committee. If the operation of the measure were purely speculative, he should have had very great doubts about it; but they were proceeding on the safe ground of experience. It was true, that when the Irish Incumbered Estates Act was first proposed, he had great doubts about its working, and had opposed the measure in several of its stages. Nevertheless he was bound to admit that the experience of the Incumbered Estates Court had so far answered his objections, and had worked so successfully, that the fears he then entertained had proved unfounded. He therefore saw no ground for refusing to support a measure embodying the same principle. It was true that the measure of his noble and learned Friend did not go the entire length of the Irish Act—if it had, he must have opposed it—for that Act gave to an encumbrancer a Compulsory power to bring an estate before the Court, and sell it, as it were, behind his back—as he was afraid had been sometimes done. What the Bill of his noble and learned Friend proposed to do Was, to give merely a voluntary power to the owner of the estate himself of applying to the Court. As to the question how far the Court of Chancery was likely to be embarrassed, and its action paralyzed by an influx of business in consequence of this Bill, he confessed he really entertained no apprehension of the sort. Provision had been made to afford additional assistance in the event of the Court being overcrowded; but it was not to be supposed there would be the same amount of business brought into that Court as was brought into the Irish Incumbered Estates Court, for that Court was a temporary measure to meet a temporary evil; and he firmly believed that there would be found but a moderate proportion of business coming to the new Court, if one should be established, or to the Court of Chancery, compared with what was brought into the Incumbered Estates Court in Ireland, regard being had to the different nature of the two tribunals. He agreed with his noble and learned Friend (Lord Wensleydale) that the Bill stopped short and halted between two principles, and that, after all, we must come to a system of registration. Objections to a registration at one time were very general. He well recollected, when coming through Yorkshire in October, 1831, immediately after the first Reform Bill, which was thrown out, that there were more placards, and a sensation more universally and intensely prevailing among the good people of Yorkshire, connected with the Registry Bill that had just been brought forward in connection with the Ministry, by an hon. and learned relative of his—a Master in Chancery—and more active canvassing taking place with respect to it, than there was upon the subject of the Reform Bill, which at that period had occupied the entire attention of the rest of the country. All the professional men in Yorkshire objected to it because that was a registration county, and they were afraid the Bill would tend to the system of centralization—to which they applied an epithet much stronger than he would venture to repeat—by transferring the business to a central registry in Middlesex. That feeling existed to a certain degree still, but it was very much less than it was thirty years ago. Nevertheless he hoped that the measure which he introduced last Session, but which did not proceed beyond a first reading, founded, as it was, on experience in the northern counties of copyhold conveyancing, would get rid of the great objection to centralization. He should again present that Bill to their Lordships, and he trusted that, after giving it a second reading, they would refer it to the same Select Committee to which were to be referred the measures now under consideration. He hoped the cheap and expeditious mode of conveying copyhold tenures would be extended to land held under all other species of tenures. It had been found of such inestimable benefit in the counties of Cumberland and Westmoreland, that a learned person (Mr. Fawcett) a conveyancer, who had been for thirty years a court keeper in a manor, in which there were 400 or 500 tenements, had stated that during the whole of that time every one of those tenements had changed hands at least once, and many of them more than once by sale, discount, and mortgage, and that in all those cases not one question had ever arisen respecting the validity of the titles conveyed in such a manner; while 160 words was the average length of the conveyance, and the total expense only 7s, No wonder, therefore, that the good people of Cumberland and Westmoreland were enamoured of such a system, and had urged upon their Lordships to extend the principle to other descriptions of tenure in the petitions which he lately presented from many of them, and which, had time been given, would, he positively knew, have been subscribed by the whole of their bodies. He was aware that copyhold conveyancing could not, without much change, be extended to lands held under all other tenures, but it was with at least a hopeful feeling that their Lordships were requested to inquire whether the principle and practice of the copyhold system might not be so extended, and the Bill which he had before presented, and should again lay on their Lordships table, was so framed as to provide in minute detail for the extension to freehold.


said, he would not prolong the present discussion by saying more than a few words. Inasmuch as there was no intention to oppose the second reading of the Bill, and as his noble and learned Friend (Lord Cranworth) had agreed that it should be referred to a Select Committee, it seemed to him that it would be much more convenient for their Lordships to defer further discussion till they saw in what shape the Bill came from the Committee. He regretted that his noble and learned Friend had only dealt with one part of a very large subject, though he had adverted to the Commission, composed of eminent and learned men, who had made a report last year of a very able and instructive kind, embracing the whole bearings of this largo question, and among others that part comprehended in the Bill of his noble and learned Friend. There was, no doubt, a strong current setting in favour of the registration of titles; but this Bill was, in fact, only dealing with a part of that great and very comprehensive question. He was not without hopes that it might be in the power of the Government to introduce some measure which would embrace all those important provisions that were re- quired by the state of public feeling, and which would so much promote the public interests. He hoped, therefore, that his noble and learned Friend, having agreed to refer the measure to a Select Committee, would postpone the further consideration of it for the purpose of seeing whether it might not be within the power of the Government to introduce a large measure, one that would comprehend the object aimed at by his noble and learned Friend, and at the same time include those other important objects to which he had already alluded. He was afraid that if his noble and learned Friend persevered in his Bill there would be raised in another place very strong objections to the manner in which he proposed to apply the machinery of the Court of Chancery to carrying out his object. He would not enter now upon the discussion of the measure, which was, after all, a discussion of details, but would consent to the second reading, on the understanding that it was referred to a Select Committee.


said, it was true that this measure only related to a portion of the subjects comprised in the report of the Commission, but considering the enormous opposition which had been hitherto made to registration, he thought that if he encumbered his Bill with a provision for registration, it would only lead to its being rejected. The Bill, however, was not inconsistent with registration. His object was to make the transfer of land, at the moment of transfer, infinitely easier and more satisfactory to the purchaser than it was at present, and he believed that a purchaser would give the value of two years more in purchasing land with a Parliamentary title than he would without it. The second objection to the Bill was that the machinery of the Court of Chancery would not be efficient for the purpose. He did not think his noble and learned Friend was right in supposing that there would be an enormous influx of business. There was an enormous influx in the Incumbered Estates Court; but this was a voluntary act. If there was a pressure, that would prove that the measure was a popular one, and then would be the time for adding to the machinery. But in the meantime he considered it to be the wisest mode of introducing reform to avail themselves of existing machinery, because if it did not answer they had to break up the machinery and give compensation.

Motion agreed to; Bill read 2a accord- ingly, and referred to a Select Committee.