HL Deb 11 May 1858 vol 150 cc418-26

Order of the Day for the Third Reading read.


, in moving the third reading of this Bill, referred briefly to the history of the question, and stated that, after the Report of the Royal Commission which inquired into the subject, he felt it to be his duty to introduce a measure the object of which should be to give a Parliamentary title to purchasers of land, but which should at the same time be of such a character as not to lead to the creation of expensive offices, or to prevent the possibility of retreat in case it should not work satisfactorily. He then had to consider to what Court, whether a new or an existing one, he should give the power of conferring such titles; and, after much consideration, he came to the conclusion that the most satisfactory and efficient tribunal would be the Court of Chancery. In that course he thought he was well warranted by the facts that it would cause no additional expense, and that the commission which two or three years ago inquired into the Irish Encumbered Estates Courts recommended that its powers and functions should be transferred to the Court of Chancery. The noble and learned Lord on the Woolsack concurred in thinking that this would be a very beneficial Bill, and the Secretary of State for the Home Department was also of the same opinion, though he wished to accompany it with another measure bearing on the same subject. The Bill would establish a safe system of Parliamentary title, and would materially facilitate the sale and transfer of land, without risk to the interests of any third party. He trusted, therefore, that their Lordships would have no difficulty in giving the measure a third reading.

Moved, that the Bill be now read 3a


said, he regretted that he was obliged to oppose the Bill. It would, in his opinion, be worse than useless to impose this new business on the Court of Chancery which already had as much business before it as it could transact; and if this Bill were passed that Court would not only be unable to exercise the new powers proposed to be conferred upon it, but the throwing of such an additional burden upon it must have the effect of producing obstruction and delay in the discharge of its proper functions. He knew it for a fact that the Court of Chancery had not the means of disposing of a greater amount of business than now was before it. The Bill proposed to give the Court of Chancery the power of granting Parliamentary titles to every estate in England. No doubt such titles would be very eagerly sought for, and therefore such a power, supposing it were desirable, would afford ample employment for a new court. Al- ready in Ireland £18,000,000 worth of property had been sold under the Incumbered Estates Act; and the establishment of a similar jurisdiction in England would require and ought to have an entirely new Court to work it, with a competent staff of Judges, clerks, and officers. It would be a delusion to throw these duties on the Court of Chancery, and then to create a new Court, because the present Court could not perform those duties. There could, besides, be no greater mistake than to suppose that the proposed arrangement would offer any facility for procuring a Parliamentary title, for without a good title already it would be of no use going to the Court. The Bill had been attempted to be justified by the Incumbered Estates Court in Ireland; but their Lordships ought to remember the desperate circumstances in which Ireland was at that time placed, which could alone justify the measure. Those circumstances did not apply to England. It was said that the late Sir Robert Peel was the author of the Incumbered Estates Act; but he could state that Sir Robert corresponded with him (Lord St. Leonards), and sent him what he thought would be a good measure for Ireland. In reply he (Lord St. Leonards) informed him that his plan would be found impracticable, and at the same time he sketched out a plan which in its main features was afterwards carried into practice; at the same time adding that, though the peculiar circumstances of Ireland, as they then existed, would justify the measure, yet he considered that it would bear the same relation to the security of property that the suspension of the Habeas Corpus Act did to the security of personal liberty; and that, if such an exceptional measure were to be carried, it ought to be on the understanding that it should be repealed as soon as the exceptional circumstances came to an end. His great objection to the present measure was that it afforded no security for the proper investigation of titles. At present a purchaser took great pains to examine the title before he accepted it, because he was responsible for any defect; but if a Parliamentary title were to be conferred by the sale, then no one had an interest in the investigation: it would be left to the examination of one of the Chief Clerks in the Chancery Court, and the Parliamentary title would cover all defects. He could only consider the measure as one for the abolition of the Statute of Limita- tions, and for establishing the Court of Chancery as the great auction mart for the whole land of England. The House refused recently to shorten the time of limitation on his proposition in favour of purchasers, yet was now asked to supersede the statute of limitations altogether, although on private sales the interests of absent parties would be carefully ascertained, whilst in sales under this Bill, there would be no one interested in protecting their rights. There was, he thought, no probability of this Bill passing in the other House. He was further informed that the staff of officers in Chancery was altogether inadequate to the new duties that were sought to be imposed upon them, as the clerks had informed him that they were quite incapable of undertaking more business than they already had. He was sorry to find himself in opposition to his noble and learned Friend on this Bill; but he could not assent to it, and would move that it be read a second time this day six months.

Amendment moved to leave out ("now") and insert ("this Day Six Months.")


said the Incumbered Estates Court in Ireland had a complete staff of officers for the investigation of titles, which made it certain that any flaw which might exist would be discovered. He believed that if this Bill were passed the difficulties thrown upon the Court of Chancery would be very great.


was sorry to oppose the Motion of his noble and learned Friend, but he had the most serious objections to it. He had stated his objections on the second reading of the Bill, namely, that it was a bad substitute for a system of registering titles, that it would effect a complete alteration in the system of conveyancing, and that, by a sale in the Court of Chancery, the title of an estate would be investigated by persons who had no interest in discovering a flaw, so that the investigation would be a more matter of routine, and that the Parliamentary title being indefeasible, the person who had the real title might have a chance of losing his estate. He stated these objections before the Bill went into Committee; and though some valuable improvements had been effected there, he was bound to add those objections had not been removed. The effect of the measure would be greatly to shorten the period of limitation, or rather to destroy it altogether. It appeared to him that the measure was so full of danger that the House ought to pause before passing it into a law, and that all the more because there was really no necessity for it. He asked his noble and learned Friend why he did not propose, at once, that a man with a doubtful title should go into the Court of Chancery and get his title confirmed? His noble and learned Friend he knew would say no; a Parliamentary title could be given only by a sale. But what was there in this Bill to prevent any man from having a pretended sale—from getting a friend to buy the estate from him with a Parliamentary title, and when that was once effected to have the estate reconveyed back to himself. The more he thought of the measure the more he objected to it, and he should therefore cordially support the Amendment.


said, he could not help thinking that the course pursued with regard to the Bill was very inconvenient and unusual, The time at which the principle of a Bill ought to be discussed was on the second reading, and when his noble and learned Friend moved the second reading of this Bill, he (the Lord Chancellor) was not aware that any objection was made to its principle. [Lord ST. LEONARDS observed that from the first introduction of it he particularly dissented from the principle of the measure.] He was quite aware that the noble and learned Lord said he objected to the Bill, but did not know that he made any statement whatever in opposition to its principle. It was agreed generally by their Lordships that questions of this dry and technical description could not be usefully discussed in the House, and ought always to be submitted to a Select Committee; and accordingly this, among other legal Bills, was sent to a Committee upstairs. He attended that Committee, and they had the benefit of the assistance and advice of his noble and learned Friend who last addressed their Lordships. The noble and learned Lord assisted in improving the Bill, and in amending several clauses; but he certainly did not hear from him that he was prepared to oppose the third reading. On the contrary, he thought he was endeavouring to make the Bill as perfect as possible. He (the Lord Chancellor), upon the second reading, said he approved of the Bill to a certain extent. His approbation was not very warmly expressed, but still he thought it was a step in the right direction; he thought his noble and learned Friend who proposed the Bill was touching only on a single point, a very large subject; but it seemed to him that the Measure was leading up to that which was a matter of considerable interest, namely, the general registration of titles throughout the country—and he was as extremely desirous, as far as his opinion went on the subject, to do anything which would advance that object. His noble and learned Friend (Lord St. Leonards) objected to confide these powers to the Court of Chancery; but under the circumstances he (the Lord Chancellor) thought it would be infinitely better than in the first place these questions should go to that Court. His reason for saying so was this—that he considered the whole Bill to be an experiment, and he thought it was an experiment which ought to be tried in the way least objectionable to the country. It would be impossible to begin with a large establishment. That would be a most objectionable course. The Bill did not compel persons to take a Parliamentary title, but gave them the advantage of obtaining it, if they chose, through the Court of Chancery. It was said by his noble and learned Friend that they would choke the Court of Chancery if they sent it all this business. Why his noble and learned Friend seemed to anticipate that the measure would be so popular that persons would flock to the Court of Chancery in order to obtain Parliamentary titles. Now if that were so, it was the strongest argument which could be used in favour of the Bill. His noble and learned Friend said the Court of Chancery was not popular in "another place;" he (the Lord Chancellor) wished he would tell where it was popular. He pointed that out to his noble and learned Friend (Lord Cranworth) in the second reading, and told him that if he passed the Bill in that House it would very likely meet with considerable opposition in the other House, on account of the objections entertained there—he did not know why —to the Court of Chancery. Now, the Court of Chancery had dealt with titles, and it had done so in a most satisfactory manner. [Lord St. LEONARDS: between the parties.] He meant, of course, between parties. The title was fully investigated, and the interests of parties carefully watched and guarded by that Court. But his noble and learned Friend thought there would not be that careful investigation where there were no opposing parties, if he might use that expression, who had an interest in having the title fully and thoroughly investigated. But they were not without experience in these matters. The Incumbered Estates Court had dealt with properties to an enormous extent, and only one instance could be found in which a title had been improperly obtained from that Court. He was extremely anxious that the Bill should pass by way of experiment; he believed it would be an experiment which would be eminently successful; and if it turned out that persons found the advantage of having a Parliamentary title, it would then be time to establish a Board or Court, or whatever else they pleased to call it, for the purpose of investigating and transferring titles. He thought this would lead on to that which he believed was the ultimate wish of the public, namely, that they should have a general registration of estates throughout the country. Under these circumstances he was disposed to support the third reading of the Bill.

Upon Lord WENSLEYDALE'S Amendment,


at first objected to the clause, as an attempt by a side wind to introduce a system of registration which never would succeed; but ultimately withdrew his objection, for if the Bill should not sink by its own gravity, his noble Friend's Amendment would surely swamp it.


said, it appeared to him to be a fallacy to compare the working of the measure now under discussion with the Incumbered Estates Court in Ireland. When an estate was incumbered, of course the mortgagee took care before he advanced his money to investigate thoroughly all the previous burdens as well as the title, and therefore it did not much matter whether the Court investigated the title or no. But the case was very different here. When you allowed the owner in fee to come before the Court of Chancery with an unincumbered estate, and ask for a Parliamentary title for the purchaser, there would be no one interested in narrowly investigating the title. The burden of doing so would rest entirely on the Court, for both the purchaser's and the vendor's object would be to smooth over difficulties, and cover all defects, till they were made good by a Parliamentary title. This objection induced him to think that the Bill would be attended with considerable danger.


, who was almost wholly inaudible in the gallery, was understood to oppose the Bill on the ground that it would subject sellers of landed estates to considerable expense, and that there were many persons who would be unwilling to submit their titles to the proposed scrutiny.


, in reply, said, he was rather unfortunate in having fixed the third reading of this Bill for that day, in consequence of the exciting nature of the subject that had engrossed their Lordships' attention at the opening of the House. He agreed in the conclusion that the measure would ultimately become popular. If it became popular, it would be desirable to extend the machinery; but if not popular, it would at any rate have done no harm. He thought, however, that eventually it would become popular, but probably not for some time, owing, in the first place, to the prejudices that prevailed against the Court of Chancery, and next to the number of persons who would be selling estates who would not wish to have their titles scrutinised or investigated by that Court. There were few titles that would bear a strict investigation, and in order to effect a sale there must be a Parliamentary title, subject to the approbation of the Court of Chancery; for the circumstance of an individual being absolutely seised in fee simple without any qualified interest affecting the estate was very rare. If a man sold his estate, he generally disposed of it by auction, and the Bill provided machinery for that purpose. When it was said that there was no one adverse to the investigation of title, it was a fallacy, for the purchaser was adverse to the vendor. In ordinary cases he put the matter into the hands of counsel, and this would be the case under the proposed Bill. He did not deal in theory on this subject, but with the practical facts that had been effected by the Incumbered Estates Court in Ireland. Whether it could be done safely or not was a matter on which he would not reason, but, a priori, he would point to what had been effected in Ireland under the instrumentality of the Incumbered Estates Court, where only £2,000,000 of property remained unsold out of £20,000,000, in which case exceptio non probat regulam, and showed that these sales could be effected without any real difficulty. He would, however, leave the matter in their Lordship's hands, earnestly believing that this measure would greatly improve the value by facilitating the transfer of land, and that it would put the system of the conveyance of land on a safe and satisfactory foundation.

On Question that ("now") stand Part of the Motion? their Lordships divided: Contents 13; Non-contents 12: Majority 1.

Chelmsford, L. (L. Chancellor.) Hutchinson, V. (E. Donoughmore.)
Carnarvon, E. Bagot, L.
Derby, E. Colville of Culross, L.
Hardwicke, E. Cranworth, L. [Teller.]
Sandwich, E. Monteagle of Brandon, L. [Teller.]
Hardinge, V. Stanley of Alderley, L.
Glengall, E. Abinger, L.
Powis, E. Crofton, L.
Romney, E. Denman, L.
Talbot, E. Redesdale, L.
Saint Leonards, L.
Clancarty, V. (E. Clancarty.) Wensleydale, L. [Teller.]
Wynford, L. [Teller.]

Resolved in the affirmative.

Bill read 3a accordingly.

Amendments made.

Bill passed, and sent to the Commons.

House adjourned at a quarter to Eight o'clock, to Friday next, Hall-past Ten o'clock.