HL Deb 17 February 1862 vol 165 cc351-72

My Lords, I rise to claim your Lordships' indulgent hearing for a few observations I am desirous to submit, that your Lordships may be enabled to follow with greater facility the provisions of a Bill relating to the transfer of land that I propose to lay before you. A measure more important to the landed interest has never been presented to Parliament; and therefore it is that I have been desirous it should originate in your Lordships' House, not only because it is largely interested in the question, but because it includes so many competent to discuss it, to consider and to judge of it. I wish the question to be accurately stated, and that the measure should be most deliberately considered; and then, should it be thought worthy to receive your Lordships' approbation, it will go down to the other House with greater authority and a great claim to consideration. The measure is one to give a certainty of title to land. The word "title" here is not intended to signify the right of possession or enjoyment of an estate; it is intended to indicate that evidence which it is incumbent on the owner of an estate to produce, according to law, whenever he makes that estate the subject of a sale, mortgage, or alienation. According to natural law, possession and enjoyment would be a sufficient title or evidence of the right of possession; but the mere possession and enjoyment of a real estate are no evidence of a right to dispose of it. With any ordinary subject of property the actual possession, either by your- self, or by another from whom you have derived it, is accepted by the law; but in the case of a real estate of which you have been possessed for ten or twelve years, if yon seek to sell, that is no proof of title; and if you urge that the estate was bought ten or twelve years ago from a former owner, still the question is, "But how did that former owner acquire it?" The answer is, perhaps, by will, ten or twelve years previously. But the exigency of the law is not even then satisfied. It requires to know how that owner came into possession of the estate;—and the inquiry goes back by requisition on requisition until it has exhausted the whole period of sixty years, during which you yourself, or those from whom you claim, must not only have had a beneficial enjoyment and possession, but must account for every transaction and explain every disposition and act of ownership, and show that during this period nothing has occurred that can, by any possibility, interfere with the present title. Now, this is a great evil. I know not that anything similar exists under any other system of jurisprudence. It is a great hardship; and how has it been created? It has been created by the infirmity and imperfection of the law; it has been created because the law has provided no mode of giving certainty to a title it is the result of having no system or institution by which the title to an estate can be recorded with certainty. Therefore, these obligations have been thrown on proprietors, simply for want of something that would more easily, more perfectly, and more economically demonstrate the right and title of the individual in possession. Why the particular limit of sixty years was first proposed, I cannot say with certainty; but the rule was probably adopted, because that period is so long that, ordinarily speaking, all the transactions that may occur in two generations might be supposed to be included. But nothing in the world can be more fallacious than this rule; your Lordships will perceive it by an example. Suppose a title is produced in 1862, commencing by a purchase made in the year 1802. It may happen—and it may most easily happen-that the individual of whom the estate was purchased was a young man of twenty-three years of age, and who may live more than sixty years after the sale. On his death it may be discovered that in 1802 he was only a tenant for life of the estate under the will of his father; and on his death the purchaser may be surprised by finding that some other person is entitled to the estate. Then, notwithstanding these difficulties of satisfying all the requisitions of the inquiry into the title, the purchaser would be turned out of his possession; on the death of the seller another person becomes actually the legal possessor. Fifty other cases might be adduced for the purpose of conveying this conclusion—that, injurious and oppressive as the rule is, it fails to accomplish its object and is capable of being easily eluded. But the oppressive duty thrown upon owners of real property in being obliged to make a title for sixty years might be more easily performed if the state of the law were easy and simple in itself. But I am sorry to say the original simplicity of the common law is lost, and that the law has become very complicated and intricate, entirely from the vast variety of interests which in the course of time have been called into existence, and which have now fastened themselves on the land. Thus in proportion to the extent of the interests which have been created in the land is the difficulty of deducing them down, and of explaining the manner in which they have ceased or have become vested in the person under whom the vendor claims. Now, in the original state of our law nothing could be more simple than the title to real estate. The transfer of real property took place in the most open manner—generally before the Earl's or the Sheriff's Court—when a feoffment, that is a conveyance, was made, accompanied by a symbolical delivery of the property in the presence of the assembled freeholders, who were witnesses of the transactions. Then, in truth, property and possession were seldom divided from one another; because the common law, generally speaking, admitted only of such modifications of ownership as were indicated by tenancy for life with remainder to another. The tenant for life was the individual in possession, and the remainderman through attornment of the tenant for life was also in possession in the eye of the law. Thus all trans actions were carried on with great simplicity. But in after-years a device was found out which introduced great complexity and difficulty. This device was borrowed from the civil law: by it, in the language of lawyers, the use was severed from the possession—that is, one man might be the visible and common law owner, another being the beneficiary; one man was re- garded as holding "to the use" of another, and thus the use, or the beneficial estate, became separated from the common-law ownership. Great difficulties resulted from this introduction of a secret system of uses, and accordingly Parliament came to the aid of the landed interest by a statute passed in the reign of Henry VIII., and called the Statute of Uses. By this statute it was enacted that the possession and the use should always go together—in other words, that there should be no difference between the visible and the actual ownership, and that the one should always accompany the other. This was the step taken, after great consideration, in order to redress the evil which had grown up; and it was supposed that the statute would annihilate the evil. I am sorry to say that the object which Parliament had in view was defeated here, as in many other cases, by what I may be permitted to call the pedantic and narrow-minded interpretation of the Judges of the hind. You will find that in the English law nothing has been more fertile of results to be regretted than the attachment of our lawyers to the mediaeval logic—the pedantries and puerile metaphysical disquisitions which distinguished what was called the learning of the time. Accordingly, the Judges held that, although the statute transferred the possession to the use, yet if the form of the deed created two successive uses—that is, if the land was given to A, to the use of B, to the use of C—the statute executed only the first use and left the other unaffected. This, of course, left the evil in all its integrity, and opened the door to the entire evasion of the statute by the simple introduction of three words grafting a use upon a use. It is baldly possible to conceive a more puerile device for the purpose of preventing the beneficial operation of the statute. The result was, that we had the legal seizin, then the use, and then a second use grafted upon the first, which was held equivalent to a trust. Thus there arose a worse state of things than before; for, instead of annihilating uses, the only effect of the statute was that they were thenceforward employed in a more formal and complicated manner. Nor did the evil rest there, for the Courts of Equity intervened and enforced these trusts just as they had been previously in the habit of enforcing the use, the consequence being that we got an unfortunate distinction between the legal and the equitable estate, between the jurisdiction of courts Of law and the jurisdiction of courts of equity. The result of the state of things which I have thus imperfectly described was to create two burdens upon the landowner, and to cast upon him two obligations—because he was forced thenceforward to trace the descent and transmission both of the legal and equitable estate; and that which was introduced to relieve the landed interest became the cause and origin of a double burden. Moreover, the Courts of Equity, which undertook the duty of enforcing trusts in real estates, held—not as they might have held, that the trust attached to the person of a trustee, but—that the trust attached to the land itself; and even where there was a trust to divide the produce or to raise money for the portions of younger children, or for the benefit of other individuals, they held that the right to receive so much money was an equitable interest attaching to the land. Now, observe the consequences of that unfortunate doctrine. The owner of land, in travelling back over the 60 years which he has to cover by his evidence is compelled to trace every single case of a portion or a money charge directed to be paid and satisfied out of the land—to trace the individual entitled to it, to produce the release of it, and prove that the land is emancipated from the charge. Your Lordships will easily understand the operation of this doctrine, that a trust attached to the land and not to the person. If you create a settlement or disposition by a sum of money invested in Consols, which you invest in the names of trustees, the trust affects only the person of the trustees, and does not fasten upon the Consols. The difference is great indeed. The title to the stock is manifested by the possession and by the entries in the books of the Bank of England; and although the stock may be held upon 100 trusts, the concurrence of no one of these beneficiaries is necessary for the transfer of the stock. Now, in a trust of land the concurrence of all the beneficiaries is necessary for its effective transfer. A great burden is cast upon the owner of real property by this unfortunate course of procedure. It would seem as though the Legislature were deterred from any further attempt to remedy the evil, seeing their efforts had been baffled in the manner I have described. From that time the landed interest has crouched down and bent low under the double burden which was cast upon it; and that is the position in which things stand at the present moment.

The extent of the evil, however, does not rest there; because a landed proprietor being obliged to demonstrate his title for sixty years, if the law bad benevolently provided any mode of doing this efficiently, or of recording the result of that investigation—if any machinery had been contrived to stamp his title, when once ascertained, with the sterling mark of being valid and good—the evil might then have been easily borne. But unfortunately nothing of the kind is known to our law; and therefore if a landed proprietor disposes of a farm, the title to which is thoroughly investigated and is accepted by the purchaser, and next day wishes to sell another farm which he holds under exactly the same title, he gains not one particle of benefit from the expense of the first investigation, but the same inquiries must be made by the second purchaser, and the same expense must be borne before the title to the second farm can be perfected. And so on ad infinitum, nothing being gained by the labour and expense to which you have been subjected, save only that you may have in the second case more ready means of repeating the process, and of complying with the requisitions made, than you had before.

There is another grievance of which we have now to complain, but which I hope from this day we may see some chance of removing. I can hardly denominate it by any other name than the tyranny of parchment deeds. The wonderful invention of printing rendered the extension of information a matter of great facility in every branch of knowledge but the law, for the lawyers repudiated it altogether. If, when the art of printing was introduced, deeds had been permitted to be printed, as they might well have been, one effect would have been that we should have got rid of much perverse obscurity and the constant repetitions with which parchment deeds are encumbered. Not only so, but all deeds would have been brought into a simple and readily accessible form. Instead of requiring large and expensively-constructed muniment rooms, all titles to estates might have been bound up in a few volumes, the liability to error that now exists would have been entirely avoided, and I may venture to add that a great part of the litigation which has been produced from the difficulties of discovering the meaning and effect of deeds would have been prevented. Not only so, but a great' part of the expense attending an alienation of land would have been got rid of. For what is now the practice? When you sell an estate, you are obliged to have all the parchments relating to it collected together, first for your solicitor to examine, and then to prepare an abstract. That abstract is handed to the purchaser, who, however, also must see the original parchments, to ascertain whether the abstract contains a faithful and true account of all transactions. This is an expensive and tedious process, and I put it to your Lordships whether much of these inconveniences would not have been avoided if title deeds to estates had been printed upon simple pieces of paper. There would have been no difficulty in perusing them or in ascertaining the meaning—it would have been the easiest, the simplest, and the most economical proceeding, as I think must be obvious to every one. It is surprising that this, which is so obvious, has never been attempted. Deeds might be printed at one-half the expense at which they are engrossed. Not only might deeds be printed, but, as I have ventured already to observe, they would then be reduced one-half in size. There is nothing in my professional life to which I look back with so much pleasure as the efforts I made, and successfully, to introduce into the Court of Chancery the practice of printing bills and proceedings; but so great was the prejudice, that when I ventured to propose it as a thing most necessary to be done, there was not a single one of my colleagues upon the Commission who could give me the slightest hope that the thing could be done, or that it would produce any benefit. It was at length partly recommended out of consideration to myself. I think, however, now I may venture to say that that change has been productive of the greatest possible benefit in the Court of Chancery; and I may refer to it as evidencing what I said just now concerning deeds, that it has got rid of the cumbrous, prolix, and tautological repetitions in bills, and has reduced the size of those bills at least one-third, while the statements contained in them are couched in plain and intelligible language. I refer to this because you will find that one of the provisions by which I propose to work the measure which I shall have the honour of submitting is that in future all deeds relating to estates shall be printed.

The question, and it is a most important one, is in what way shall we meet the evils which I have described. In the first place they are to be met and removed, I think, without making any material change in the law. I do not want to introduce any alteration in the system of legal rights of ownership. I want only to introduce alterations in the mode of perfecting and manifesting titles, to facilitate the disposition of estates, and to bring them as near as possible into a condition of easy alienation, so that land may he dealt with with almost the same facility as ships or railway property, or shares in public companies, or the enormous amount of wealth invested in Government securities. I approach this subject with great confidence in the present day, because of our experience of that very great and beneficent measure that was passed some years ago for the sister country, and which has been attended by so great success. Your Lordships know that when the Encumbered Estates Court was instituted it was upon the principle that the Court should examine the titles of those who had recourse to it for the sale of estates, should put up the lands for sale, and should give to the purchaser a clear title, writing the name of the owner upon a piece of paper, which was to start him anew, and give him a complete title—a statutory title against all the world without the necessity of any retrospective investigation. Well, now the success that has attended the operations of that Court is so far an assurance to us that the first step of obtaining a statutory title is a feasible and a beneficial proposition. The great difficulty still remains of providing an instrument that shall not only provide a statutory title, but shall also contain within itself the means of recording and preserving the evidence of the title, so that it may be reproduced at any time whenever it may he required. The purchaser from the Landed Estates Court takes, it is true, a statutory title; but when he proceeds to deal with the land it is in the same position as before, and in the course of a few years the title he has obtained becomes obscure from a great number of subsequent transactions, and the law has provided no mode of keeping up a record, preserving the proof of the tide, and of the subsequent transactions, so that at any time the exact state of the title to the estate could he ascertained and reduced to a simple statement upon a piece of paper, which might be given to the owner, and thus enable him to dispose of the land. I want to construct a legal instrument that shall not only enable a man to obtain a statutory title at the present time, but which shall enable him to give from time to time entries of the results of all future transactions and dealings with the land; so that the owner of the estate may at any time send to the registry, and if he wanted to sell might obtain a special certificate of title. He can then go into the market with that certificate, and a purchaser may safely deal with the estate, the simple certificate obviating the necessity for the difficult and cumbrous and expensive investigations that are now required.

Your Lordships will now allow me to explain what is the form of the machinery of this Bill, and in what manner the instrument may be expected to work, in order to accomplish these several objects—first, to ascertain whether there is a good statutory title; second, to preserve the proof of all subsequent dealings with the land, so that the nature of the real existing interests on the estate may at any time be ascertained; and thirdly, to provide a mode by which all those dealings with land which the convenience or the necessities of mankind require may be most easily and readily transferred to the record of the Court, and kept there for future reference. I propose in the Bill to establish a registry, which is divided into two parts; one is a registry of guaranteed titles—that is statutory, indefeasible titles; the other is a registry of titles not guaranteed, which are to be put upon the registry with a view to become Parliamentary and indefeasible when by a course of long enjoyment they may become so entitled. Now, what is to be done by a proprietor to entitle himself to place his land upon the register, in order to obtain a Parliamentary title? There must, of course, be a most rigid examination of the title, but it will be an examination once for all. Instead of the process having to be gone through repeatedly, it will be gone through once for all. And it will be done not in a manner that will divulge to all the world the results of the investigation, but by officers of trust, sworn to their duty, and performing it under a great sense of responsibility. Therefore, precisely the same steps which you would have to take if you Sold a farm or a particular estate to a purchaser, you would have to take when you submit your title to the registrar with the view to having it recorded on the register. The registrar will, if requisite, have the aid of the, Court of Chancery to enable him to examine the title. And when I speak of the Court of Chancery, your Lordships will recollect that I do not mean that to obtain the assistance of that Court it will be necessary to have recourse to a suit for that purpose. A great part of the business of that tribunal, by the improvements previously effected in its procedure, is transacted by the Judges of that Court sitting in chambers; and so, if any question of difficulty arises in the investigation of a title, resort will be had at once not only to the public court, but to a Chancery Judge sitting in chambers. Well, Supposing the registrar to arrive at the conclusion that the title is a marketable title and one fit to be placed upon the register, it will then be necessary to attend—and it is a most important duty—to the description of the estate which is to be put upon that record. And here I admit that there is great difficulty and great nicety. The difficulty—and I do not shrink from the statement of it—is this:—If I describe on this sheet of paper an estate as belonging to a particular owner, and represent that his title to it is demonstrated, and therefore to be made statutory, it might so happen that in the description of that estate I might include part of his neighbor's property. I might, in fact, include in the description something that did not belong to him. Now, I beg your Lordships to remember that this same difficulty occurs in regard to all the proceedings of the Irish Encumbered Estates Court; and although that Court has effectually sold and conveyed more, I believe, than one-third of the whole area of Ireland, yet I have never heard a suggestion of any error of the kind we are bow considering having been committed by that tribunal, except in one isolated instance. But I have sought to devise with the greatest possible care—and it will also be for your Lordships if you permit this Bill to go into Select Committee to devise—proper safeguards against this danger. The description is to be given to the registrar, and if he approves of the title, he will advertise that description. Nay, more, I require that a copy of the description shall be served upon every one of the adjoining owners. Each adjoining proprietor, therefore, will have an interest in checking its accuracy. Attention will be drawn, by public advertisement, to the fact of land described in a particular form being proposed to be put upon the register, and the safeguards that now exist in Ireland, and which have there been found effectual for their purpose, will be as no thing compared with the precautions which I believe this measure will create. Assuming, then, that the description has been settled, and that it is entered on the register; the peculiarity of the Bill which I now present lies, among other things, in this—that I do not require the estate so described to be entered in any particular name, or at all to be registered in the names of trustees. And this brings me to a distinguishing feature of the measure, to which I solicit your Lordships' attention, and which I will endeavour, as far as I can, to make clear to all who hear me. My Lords, when the notion of a register of titles was originally broached, it was thought to be necessary that the estates should be registered merely in the names of trustees; in other words, we all at that day thought that we could not do other than follow the analogy of stock in the public funds. If stock in the public funds be held upon the trusts of a marriage settlement, it must be registered in the names of the trustees of the settlement; but then the beneficial owners have no security for their property except by a practice which exists at the Bank of England of entering what is called a caveat—that is, a notice to the Bank not to permit a transfer of the stock without giving information of the intention to effect such transfer to the beneficial owners. Accordingly, down to the present time, the only attempt at establishing a registry of titles has proceeded upon the principle of entering the land upon the register in the name of trustees, and of then depending for the security of all the actual owners upon a system of caveats or inhibitions, which were to be served upon the registrar, in order to prevent any improper dealing with the property. When, in 1846, your Lordships appointed a Select Committee of your House to consider the burdens upon land, among the Committee's recommendations was one for the improvement of the law of real property, by the simplification of titles and of the forms of conveyance, and by the establishment of some effective system for the registration of deeds. The only idea of registration entertained for a lengthened period after the date of that recommendation was the registration of assurances—the registration of deeds, not of titles. In 1853 a Bill for the registration of deeds passed your Lordships' House. It came down to the other House, and I felt that individually I could not take any part in support of that mea- sure. The measure was referred to a Select Committee, and I had the honour of bringing before that Committee the plan which I had then formed for the registration of titles. But that plan consisted merely of this—the putting of certain names upon the registry as if they were the absolute owners of the fee simple of the estate, and letting all persons who had partial interests in the property depend for their security upon the system of caveats and checks. I have always felt that that was a very imperfect mode of proceeding, because, as your Lordships will observe, a registry so constructed gives no proof whatever of any equitable interest, nor does it in the smallest degree facilitate the proof of title to any equitable estate. It converts all the legal ownerships into trust estates, and compels you to deprive yourself of the actual legal ownership, in order to enter it in the name of trustees. It also provides no mode by which the register can give evidence of the actual state of the ownership, for if it were desired that the parties registered as owners should sell the estate, the registrar would be under the necessity of convening in Court all the parties entitled to the equitable estate before he could give authority to the registered owner to dispose of the property at all. Therefore, all the dealings with the equitable estate would still remain a mass of documents, without any means of registering them or ascertaining their effect, or of preserving the deeds, and you would have, as often as you wanted to sell or mortgage any land, to go through the same process of making an examination of the whole of the subsequent transactions, and incurring the same expense and difficulty—in a modified degree certainly—as attended the original placing of the estate on the register. Recollecting these great drawbacks to a registration of titles, I have endeavoured in the present Bill to provide a mode of producing evidence; of the actual state of the title from time to time, according as it may be affected by subsequent transactions. Let me illustrate the working of this by a familiar example. Suppose that the first investigation of a title brings you to the conclusion that the ownership of the land is vested in a tenant for life with remainder to trustees for a term of years in order to raise a jointure on the property for the wife, with remainder to trustees for another term of years to raise portions for the daughters, with remainder to the sons, &c. The Re- gistrar accordingly will place the description of the estate in one registry—namely, "The Registry of Estates. "The number under which that is entered will refer to a corresponding number in another book called "The Record of Titles;" and in the book constituting the record of titles will be entered exactly the result of the limitations and investigation which I have described. Any change of ownership existing in fact can be most easily ascertained. It will be transferred to the record. But suppose a difficulty arising in this way. Suppose the transmission of the interest on the estate is affected by a deed or by a will of difficult, ambiguous, or uncertain construction. The question may be asked, Will you make the Registrar the judge of the question? Is he to determine the effect of the will? Undoubtedly not. I provide, my Lords, immediate means of having any question stated and conditionally determined. But it may be said, why should you drive the parties to litigation for that purpose? I provide for that also. Because, if a deed or will make any alteration in the record necessary—a deed or will which is of difficult construction, and which the purchaser does not desire to have considered or determined—the Registrar will make out the record in the very language of the will, and the only result will be to leave its true construction unascertained. This, in point of fact, is a recommendation instead of an objection to the proposal. There will be a third registry, namely, a "Registry of Mortgages and Encumbrances." I hope your Lordships will follow me for a few moments while I describe the mode in which this part of the measure will operate. Suppose an estate is put on the registry, and that on the record of title an individual is described as tenant for life, another is described as tenant in remainder, and that on the registry of charges or encumbrances there is a mortgage of £5,000. The owner is desirous of Belling the estate, the purchaser agrees on the price, a conveyance is to be effected. The parties may come to the office of the Registrar, either by themselves or by their attorneys. The question is put to the Registrar whether a good conveyance can be made of that estate with a Parliamentary title. The Registrar says that a good conveyance can be made. Then I provide a statutory form of conveyance, which runs in these terms:—"We A. B. and C. D., in consideration of £5,000 paid to us, grant to the purchaser and his heirs for ever [all the lands and hereditaments described in the registry under a particular number]."The estate is transferred, and the transaction is closed, in the same way in which a transfer is made of £20,000 Consols at the Bank of England. The transfer is effected precisely in the same manner, without any more difficulty or impediment and without any greater lapse of time. But, supposing the parties do not wish to come up to the Registry Office, the owner of the estate may have a certificate from the Registrar—which certificate shall on one page contain the description of the estate, on another page the result of the recorded title—that is, a simple and clear manifestation of the existing ownership; and on the third page a description of the charges and encumbrances affecting the estate; and together with the certificate of title the registrar sends this simple form of conveyance. I provide that after the certificate of title has been given there shall be no entry on the registry with regard to the estate without delivering it up, in order to prevent the possibility of fraud, which is now very easy under the existing registries. In this way there will be perfect certainty that in the interval no change has taken place which in the slightest degree affects the exact state of the ownership. I want to supersede the parchment titles to an estate; but I should be extremely sorry in the slightest degree to interfere with one of the easiest modes of raising money, in which a proprietor of an estate goes to his banker and says, "Take these deeds into your possession and advance me £10,000 on their security." That is a mortgage by the deposit of title deeds, or an equitable mortgage—a most convenient mode of raising money. Notoriety is dispensed with, and the accommodation afforded with every security to the lender. Now, I provide that in lieu of the parchment deeds, which are rendered superfluous, the certificate of ownership of the estate may, in like manner, be deposited with a banker, and to all intents and purposes give the same lien on the estate as if the whole title deeds of the estate had been deposited. If this measure be adopted, there will not, therefore, be the smallest difficulty or impediment in the way of such transactions. AH that will be done will be to supersede and dispense with the mass of useless, cumbrous, and obscure parchment deed?, and to provide a substitute of the most simple, the most certain, and the most easily accessible character. The whole machinery will be arranged, and every means tried so as, I believe, to leave no room or opening for fraud. The only possibility of danger that I can foresee may be this, that in the first investigation of title there may, perchance, be some latent right that may not be discovered till after the estate has been absolutely disposed of. I do not propose that a Parliamentary title should be given till the estate has been sold or mortgaged for valuable consideration. The object being to give greater facility of dealing with the estate, it would be unjust to give perfect immunity until the owner has made the registry the means of selling or disposing of his property. The moment he has sold it to a purchaser for valuable consideration the statutory title will arise. During the last quarter of a century I may say that a million of purchases of land hove been made for railway purposes. The railway companies are subject to the obligation I have mentioned, and if any dormant interest arises with respect to the land taken by them, which had not been ascertained and provided for at the time of the purchase, they are made liable to pay for it. Yet, so few are the instances of that kind which have occurred, that I hardly venture to mention the number, lest it should seem too inconsiderable to be credited. I believe that not more than a dozen discoveries of latent interests have been made during the last twenty-five years. It is not probable, therefore, that we shall have much difficulty in this respect. With regard to registration, I propose, of course, that it should be voluntary; but after an estate has once been; put upon the register it must remain there until, by the application of all the persons interested in it, it is desired to be taken off. At any time it may thus be removed from the register. The great benefit attending the proposed registration without a guarantee of title would be, that an accurate record would be kept of all the future dealings with the land, and after the lapse of a certain number of years, which may be defined by the judge or the registrar when the title is put upon the register, the non-guaranteed title would pass into the category of statutory titles.

There are many other provisions in the Bill which I should have liked to describe to your Lordships; but I am afraid I have already trespassed too long upon your attention, and therefore I shall only add that, in addition to the ordinary mode of registration, there are two other methods provided by the Bill. One is the registration of an estate under a decree of the Court of Chancery, and the other is a power given to that Court of selling an estate with a Parliamentary title. Either of them may be advantageously resorted to in cases where the parties may not be desirous of subjecting their titles to the examination which must take place in the case of a private registration. I propose to extend registration to freehold land, and also to leasehold estates; but to copyhold land I do not propose to extend it. One peculiarity of the Bill is, that it will be worked through the existing courts. In that respect it differs from the measure brought forward some time ago by Sir Hugh Cairns. I am afraid, if I were to adopt his proposal, there would always be conflicts of jurisdiction, and it is better, therefore, as well as easier, to work the measure by the judicial aid we already possess. The Bill, of course, will come gradually into operation; and if it should be accepted generally, it may be necessary to have local registries in aid of the metropolitan registry. Allow me, in conclusion, to entreat your Lordships to give this measure your most favourable consideration, remembering always that no reform or amendment of the law was ever perfect at first. All perfect inventions have their origin in crude designs, which are matured and completed by experience. The present Bill is directed to an end which it has been the desire of almost all who have considered the subject for the last 200 years to see accomplished. I hope, therefore, that your Lordships will address yourselves to the work, not frightened by any superstitious terror with respect to the alterations which you may be called upon to make, but with the conviction that there is a great existing evil which has grown up from accidental circumstances and from neglect, and which may be removed if there be a union of fairness and firmness, of skill and courage, such as I think will be found among your Lordships, with an earnest desire to grapple with the difficulty and to devise the remedy.

The noble and learned Lord then presented a Bill to facilitate the Proof of Title to and the Conveyance of Real Estates,


said, he was sure their Lordships were thankful to his noble and learned Friend for his singularly able and lucid explanation of a very im- portant Bill. It had been his fate for the last thirty years to oppose all Bills for the registration of assurances. Opposed as he had been to the general sense of the members both in their Lordships' House and in the other House of Parliament, he believed there was now an almost universal concurrence of opinion that nothing was more mischievous than a general registration of assurances. He never had any objection to registration as such. His objection was that be saw more evil springing from it than it would remedy; that the expense would be enormous, and the benefit doubtful. If the object which his noble and learned Friend bad in view—a registration of titles—could be accomplished without its degenerating, as he feared would happen without great care, into a registration of assurances, no one would accept it more willingly than he. Indeed, one great object of his life had been to give security to purchasers. His noble and learned Friend, in treating of the origin of uses and trusts, had lamented that legal and equitable estates should have been allowed to co-exist, but in that respect he could not agree with him. Without that division the ordinary settlement upon a marriage could not be carried out. The settlor desires to keep the legal freehold in himself for life, and then to go to his sons; but he also desires to secure upon the estate a jointure rent-charge for his wife, and portions for his younger children; and these latter objects are accomplished by limiting terms of years to trustees for securing the jointure and raising the portions, so that the legal terms of years are vested in the trustees upon the trusts. His noble and learned Friend bad shown the great anomaly of requiring a sixty years' possession before a man could make a good title. There could be no doubt that that term was originally taken with a view to the probable duration of human life. But what happened in their Lordships' House two years ago, when he himself brought forward a well-matured scheme for shortening the time of limitation by reducing it to thirty years with every possible safeguard for all the interests that might exist; and this enabled him to propose that a seller should no longer be bound to produce a title for sixty years, but for forty years only. The saving to owners of property upon sales would have indeed been great. He believed, after what he had heard from his noble and learned Friend that evening, that he should have had his cordial support if he had had a seat in their Lordships' House at that time; but both sides of the House were decidedly against him, and the law remained unaltered, to the great cost of the landed interest. The law of England enabled every man to remain in possession of his estate, to have every right and power he could wish for, and yet to secure that estate in succession for his children and grandchildren. There was no system of registration by which he could be enabled to do this. They not only wanted to preserve the inheritance, but to provide for the widow and the children afterwards. This was the excellent form of settlement which prevailed in England, and which no other country in the world enjoyed besides. It was notorious that the clergy invented the doctrine of uses in order to keep trusts secret; but a Court of Equity compelled them to reveal the trusts, and when this was ignored at common law, Courts of Equity did no more than support uses under another name. Upon this particular subject there had been a great variety of suggestions. Their Lordships sent down a Bill for registration of assurances to the other House. Upon that occasion he divided the House unsuccessfully against the Bill. The House of Commons did not sanction that Bill, but a Commission was issued to inquire into registration of title. That Commission reported in favour of a scheme entirely different from that now proposed. Their scheme was to have a representative of the fee simple, and no one else, upon the register; there was to be no equitable interest on the register; so that the estates of any one of their Lordships might stand registered in the name of John Doe or Richard Roe, and the real owner appear to be entirely divested of his interest. The scheme brought forward last year by his (Lord St. Leonards') Friend Sir Hugh Cairns was a scheme which he (Lord St. Leonards) certainly did not approve, so far as it established an absolutely new court; in other words, a Landed Estate Court. The title then also, as he understood, was intended to be conferred upon a sole owner; but that owner was still subject to equitable charges, kept in a distinct manner. He referred the scheme now presented by his noble and learned Friend on the Woolsack to either of these. The present Bill was, as it ought to be, altogether permissive. Nobody must, but every man might, avail himself of its provisions. The Bill of his noble and learned Friend very properly left to every man the same power of charging, conveying, and devising his estate as be had at present. The Bill left all the law of England to operate upon the estate, with regard to encumbrances of every sort just as it found it. Therefore, it was not taking away from a man a power of any description either to devise or sell, or otherwise encumber his estate. The proposition was to enable a man to obtain an indefeasible title so as to vest it in a purchaser, and to continue that character or faculty of indefeasibility throughout; yet with a power to the proprietor, with the consent of all persons who may appear upon the register to be interested in the land to remove it from the register, and close the register altogether as respects such land. Now let their Lordships see at what expense this was to be attained. It was not a new proposition, because in the report of the Commission, they referred to the very question of insurance of title, of coming upon the Consolidated Fund for the compensation of anybody who was damnified by the operation of the Bill. There was a great difference of opinion, but the majority of the Commissioners were in favour of this proposition. His noble and learned Friend had provided that when a man desired to get upon the register he had to pay a certain sum, not now stated, but evidently upon an ad valorem scale; those sums were to be paid into the Consolidated Fund, and then there was this proviso, that if any person was damnified by the title having been declared indefeasible, so as to exclude a rightful claimant, that claimant might come upon the Consolidated Fund. In other words, the State opened an insurance office for title, throwing the burden of loss, which could not now be estimated, upon the public. Sow, certainly his noble and learned Friend, must have much more influence with his colleague, the Chancellor of the Exchequer, than he (Lord St. Leonards) believed he could have, if he persuaded him to endeavour to get the consent of Parliament to this. Some of their Lordships might be aware that their existed a society which professed to guarantee titles. This society knew that a title which was a very bad marketable title was yet a very good holding title, and they offered accordingly for so much per cent to guarantee the title. Thus there was already a mode in existence of insuring a title without having recourse to the Consolidated Fund. He was not till I this moment aware [the Lord Chancellor; so intimated to the noble and learned Lord] that the Bill invited men settling their estates on marriage to have recourse to the register. Suppose the settlor's attorney to advise him to apply to the Court for a title, he would naturally say, "What! do you doubt my title?" "Oh, no," would be the reply. "Then why apply to give me a title when I already have it?" "Ay," the attorney says, "but you may want to sell." "To sell! "says the owner. "I never mean an acre of my estate to be sold from my sons and my sons' sons, to the latest generation, as far as the law will permit it to remain in settlement." There were two classes of persons who were invited to avail themselves of this registry. The first comprised those persons who had such a title as the Court of Chancery would compel a purchaser to take. The second was I of those who could show no such title; but who were only required to show a ten years' possession, and to prove their descent, or to produce the last deed or will under which they claimed. Let their Lordships take the first class. If any man wished to have the benefit of this Bill, the first thing he would do would be to lay an abstract before counsel, in order that counsel might tell him whether or not he had such a title as the Court of Chancery would compel a purchaser to take. But if he went and heedlessly asserted his own ability to make such a title as the Court would enforce, and he failed, observe how he damned his own title. Everybody would know that he was not in a position to sell. But suppose, on the other hand, counsel was satisfied with his power of making a marketable title, the registrar would not be satisfied with that opinion I of counsel, and the inquiry must be made over again. For every new transaction a fresh investigation must take place into the title, in order to see what was the nature of the title to be put upon the record. At every change of I ownership the same process must be gone through as if a man were then first putting! his title upon the register. His noble and learned Friend would understand him as not speaking against his Bill, but pointing out the difficulties which stood in its I way. The principle of the scheme might be right, but whether it was possible or not to be carried out it was difficult to say. In fact, the continuance of an indefeasible title was almost impossible. If a man bought, he paid for the insurance. Soon afterwards he sold; the purchaser took the same title, but had the same duty to pay for his insurance; and thus the State became the insurer of title, to an enormous amount. The other class of persons to whom he had referred was one to whom the power of making use of the Bill was, as it should be, equally permissive. They were not bound to take the benefit of it, and they could not do so unless they were standing in a very peculiar position. They were only required to have ten years' possession, and to prove their title by descent, or by production of the last deed or will. But that class was not guaranteed—they were put upon the register unguaranteed; but in course of time they might claim to be guaranteed, and it would be found, he thought, impracticable to fix the proper period. In conclusion, the noble and learned Lord said, he willingly undertook to give his best assistance in Committee to render the scheme as perfect as possible, but he reserved to himself the unfettered right, if the Bill came back to the House, to take such course in regard to its future progress as his duty might seem to him to require.


said, the state of the House was not very encouraging to any discussion of the noble and learned Lord's Measure. With regard to the first part of the noble and learned Lord's Bill, which related to procuring a Parliamentary title, he was disposed to concur; but with regard to the latter portion of the measure, though the noble and learned Lord had made his statement in a singularly clear and lucid manner, yet, notwithstanding, he was unable then to enter into any discussion of the Bill, because he could not comprehend it. He was convinced that if anything could have made the subject clear the noble and learned Lord's statement would have done it, but to discuss the Bill they must have the details before them. He had himself proposed a measure that had the first object in view, that of procuring a Parliamentary title, just before he quitted the Great Seal. He had often had the question before him, and he had employed the leisure of the recess in preparing two measures in reference to it, which he would ask leave to lay on the table. By the consent of the noble and learned Lord he should have an opportunity of explaining the provisions of these Bills before the second reading of the present measure.


thought the state of the House was accounted for by the fact of those noble Lords who had an interest in the Bill having been satisfied with the noble and learned Lord's statement, and knowing that the proper time for discussing its principles and details had not arrived. He was not opposed to any measure for the simplification and registration of titles, as contradistinguished from the registration of assurances. From what the noble and learned Lord had stated, he understood it to be his intention to refer his Bill to a Select Committee. On a question so difficult and important it was desirable that every plan should be laid before that Committee, that it might adopt either one of them, or a union of several that might produce a satisfactory measure. With that intention he proposed also to lay on the table the two Bills introduced by the Government of which he was a Member. These, with the two Bills of the noble and learned Lord opposite, and the measure of the noble Lord on the Woolsack, might all be considered by the Committee. He was most anxious that some satisfactory measure should be adopted.


, in reply, thanked their Lordships for the reception which had been given to his statement, and said he was glad that his noble and learned Friends intended to lay their various Bills upon the table. With regard to the Bill of his noble and learned Friend (Lord Chelmsford), there was very little antagonism between that Bill and his own, both being derived from one common source—namely, the Report of the Commission.

Bill read 1a.