HL Deb 03 March 1862 vol 165 cc897-912

Order of the Day for the Second Reading read.


in moving that the Declaration of Title Bill be now read a second time said, he trusted that this question, which was not new to the House, would not be dealt with as one exclusively of a technical nature, but would be regarded as one in which the owners and purchasers of land were deeply and directly interested. He sought to deal with a practical grievance, and to diminish the difficulty, expense, and complication which at present existed in the transfer of land. The best remedy, therefore, would be that which provided the most expeditious, cheapest, and simplest mode of transfer. This subject had been brought under their Lordships' attention in 1846, and a Select Committee was appointed which came to the conclusion that there were unnecessary burdens in transferring land from hand to hand, and they recommended as a remedy the institution of a register for all deeds affecting land. He need not tell their Lordships that the mere fact of being in possession of laud afforded almost no evidence of title. Even where the deeds were of the briefest and most explicit character, there was sometimes great difficulty in proving the title, because it was necessary to show that the land had not been dealt with by the owner or some of his predecessors in a way that would prejudice the title. The advantage of a register of deeds would be, that it would disclose what settlements had been made of the property, and generally how it had been dealt with. In 1853 he introduced a Bill into their Lordships' House with a view of carrying out the recommendations of the Committee which had considered this question, and which proposed the establishment in England, as in Scotland and Ireland, of a general register of deeds. The proposition was very strongly opposed in that House by his noble and learned Friend (Lord St. Leonards), and he (Lord Cranworth) confessed, that, although theoretically he believed that such a measure afforded the best means of securing titles, he felt the force of the remark of his noble and learned Friend, that the system would throw great expense and cost upon those dealing with small properties. The Bill went down to the House of Commons, which did not concur in the proposal, but recommended an inquiry as to whether there might not be established a register of titles, which would show on the face of it who was the owner of every piece of land in the kingdom. Her Majesty consequently, January, 1854, issued a Commission, consisting partly of lawyers, and partly of non-lawyers, to inquire into the subject. The Committee reported in May, 1857, recommending an elaborate system of first ascertaining a good title, and then putting it on the register, by means of which it should thenceforth be transferred like stock or scrip. Early in 1858, in conformity with a part of what was so recommended, he introduced a Bill to enable the title of purchasers to be established against all the world in analogy to the procedure of the Encumbered Estates Court in Ireland. He must confess that when his attention was first directed to the subject he was startled at the possible establishment of a tribunal for the declaration of a good title in England; but the difficulty was one only of a practical character, and the Irish Encumbered Estates Court had then been in existence eight or nine years, and had disposed of property to the amount of millions. Indeed, so great were its advantages, and so satisfactory its operation, that estates were actually encumbered for the purpose of enabling them to be sold under the Court, the sellers finding, it was said, that they could get at least two years' more purchase-money in consequence of their being sold under the Court more than if they were sold in the ordinary way, notwithstanding that there might be a perfectly good existing title. Well, then, he thought what was so good for Ireland could not be bad for England; and accordingly in the measure he introduced in 1858 he had extended the principle to England. Very soon afterwards the noble Earl opposite (the Earl of Derby) came into power; but his noble and learned Friend opposite (Lord Chelmsford) gave every facility to the Bill, which after having been referred to a Select Committee passed their Lordships' House, but went down to the House of Commons too late to become law that Session. It was, however, during that Session that the Landed Estates Court (Ireland) Bill was passed, superseding, or rather making permanent, the Encumbered Estates Court; and a new power was introduced which enabled that Court to make a declaration of good title even when the estate was not about to be sold, such declaration being made after due investigation at the request of the party interested. To that clause he objected at the time; and although he admitted that the Bill had worked well, he still thought that clause objectionable in principle, and a blot on the measure. In the next Session, his hon. and learned Friend Sir Hugh Cairns, then Solicitor General, introduced two Bills on the subject of the transfer of land, founded upon the report of the Commissioners of 1857. This Bill divided the subject into two heads—and no doubt in principle the subject ought to be so divided. The question considered in the first place was how to obtain safely a declaration that a title is absolutely good against all the world; and in the second, how to continue the effect of that declaration, making it operative for all time, and thus preventing any further necessity for the investigation of title. In order to effect the first object, my hon. and learned Friend proposed to establish a Landed Estates Court for England, as in Ireland, and to give facilities for making the title good by registration, due care being taken that such notice should be given that there could be little probability of the existence of any person who conceived himself in any way entitled to the estate not having due warning and ample opportunity to come in and oppose the declaration of the title. That Bill was exceedingly well framed for the purpose, and although it adopted the principle of the Act of 1858 that a person not selling might obtain a declaration of title, it contained a provision that that declaration should be of no avail except when he sold: so that, so far as he was concerned, it would be perfectly waste paper; but if he were selling, it would be valuable in favour of the purchaser. He (Lord Cranworth) was of opinion that that was a great improvement upon the Bill which he had himself introduced in 1858. That Bill dropped when the change of Government took place in 1859, and the subject was now revived by his noble and learned Friend on the Woolsack. His noble and learned Friend now proposed to establish a class of functionaries called Examiners of Title, who, if they found the title submitted to their investigation to be good, were to place it on the register. He also proposed that instead of going before the Examiners, if the parties thought proper, they might go to the Court of Chancery, and have the title declared by that Court. The Bill also contained provisions for giving due publicity, so as to enable all parties who might be prejudiced by such declaration of title to come in and dispute it. The first Bill which he (Lord Cran- worth) had laid upon their Lordships' table was precisely similar in its object to that introduced in 1859 and to that of the present Lord Chancellor; but the difference in the two Bills was, that he proposed that for the purpose of obtaining the declaration of a good title reference should be at once made to the Court of Chancery, and that the declaration should be made exactly in the same manner as if the party bad obtained a decree for the performance of a specific contract and there was a difficulty in making out the title. Objection might be taken to the quantity of business that this would bring into the Court of Chancery, and illustrations would probably be given of the enormous amount which was thrown upon the Irish Encumbered Estates Court; but he wished to point out to their Lordships that the condition of landed estates in the two countries was widely different. The chief reason for establishing the Encumbered Estates Court in Ireland was the deeply encumbered condition of a large portion of the landed property in that country; in England, however, it was a rare thing for property to be so encumbered as to make it necessary that it should be sold before the knot could be cut; and consequently, in all probability, such declarations could be obtained by means of the existing machinery at a much cheaper rate and in a much more satisfactory manner. The questions which would arise as to title were just those with which the Court of Chancery was now continually dealing, and there could therefore be no necessity for establishing new machinery. The Court of Chancery, he believed, had never yet passed a bad title; and he appealed to the noble and learned Lord opposite whether, practically speaking, the report of the conveyancing barristers, who were now investigators of titles under the Court, was not invariably accepted as satisfactory and acted upon. The next and most important point was how a good title, once declared, could be made perpetual; for even in the case of the Irish Encumbered Estates Courts, after a declaration bad been made, the same questions would arise as existed now, and in fifty years' time there would be the same difficulty in dealing with such cases. The great object in view was how to prevent ambiguity of title arising after it had once been declared. In legislation of this sort Parliament was to some degree legislating for posterity, and the great object was, to prevent the questions which had once been settled arising again after lapse of time. In facilitating the transfer of land they must not create impediments to the rights of dealing with land. To guard against fraudulent dealings with land on the register, it was proposed by the Bill of the Lord Chancellor to establish a system of cautions, inhibitions, and injunctions. This did not appear to make the process more simple. In cases of bank shares, stock, and other property, it was necessary to have a name on the registry, to whom payments of dividends might be made. But how could such trustees be placed on a registry for every small landed property? There would be the greatest difficulty in obtaining anybody to be trustee for it. The proposal was that every owner of an acre of land must have a name on the registry. In cases of the sale of parts of a property, instead of the whole, there would be an increase of difficulties. Endeavouring to meet this, his noble and learned Friend proposed to have a record of titles. This was valuable, if it could be done; but the Bill of his noble and learned Friend on the Woolsack was open to the same objections as those which he had already pointed out. By the latter Bill, if a person wished to register, he would have to get his deed printed. Now, he quite agreed that a greater improvement than that effected by printing the proceedings in the Court of Chancery could not he well conceived; nothing could more tend to simplify and shorten the proceedings than that, and so far as that principal could be extended he would always cordially support it; but to force a man to print his deed seemed to him to be compelling him to incur an expense for no possible purpose. To the plan which was proposed in his own Bill he confessed that he had never heard any practical objection. Suppose a person was entitled to an estate in fee simple. He would get a declaration of title. Twenty years afterwards he might die, and perhaps twenty years after that his son, who succeeded him, might wish to sell the property. He would show first the official declaration of title. Then the purchaser would say, "But how do we know that there have been no mortgages, or settlements, or other dealings with the property?" To meet this objection, he provided that no purchaser should be bound by any mortgage, settlement, or trust deed, unless a memorandum of it appeared on the back of the declaration of title. This could be readily done; forms were annexed to the Bill, and thus from time to time the title would always appear. There was another provision of his Bill which he regarded as valuable. In the second part of his Bill he proposed that the measure should operate from the first of January, 1863. This would operate in favour of every owner of land; whether he sent for a declaration of title or not, he would remain as he was, but there would also be an endorsement on the back of his deed showing the dealing with his property for all time to come. These were his views on this subject. All the Bills relating to it, he understood, were to be referred to a Select Committee; and should their Lordships think that the views he had taken were not the best, they should have his assistance in endeavouring to put into the most practical and most useful form whatever was proposed. The noble and learned Lord then moved "that the Bill be now read the Second Time."


said, that although it was understood that all these Bills were to go to a Select Committee, he thought it desirable that this stage of the Bill should not pass without some expression of opinion from noble Lords on this most important subject. It was a subject of very great interest as well as of very great difficulty, and, until this debate, they had only heard the very clear and lucid statement of the noble and learned Lord on the Woolsack in presenting his Bill to their Lordships. He had not the slightest doubt that the Select Committee would consider the question fully and dispassionately; but as the Select Committee would probably return a Bill resulting from a careful consideration of all the Bills which had been submitted to their Lordships, and consequently as to which there would be a perfect concurrence of opinion, there would be no discussion on it in the House; so that, unless they took advantage of this stage of the Bill, the public would have no information whatever as to the views of noble Lords on these important measures. They had now six Bills presented to their Lordships, all of which would go to the Select Committee. One which was presented by the Lord Chancellor had astonished him, but it appeared that it was the Bill of a noble and learned Friend who was absent, and was necessarily presented to the House on his behalf with the name of the Lord Chancellor upon it, who was not therefore answerable for what it contained. There were two Bills of the noble and learned Lord opposite (Lord Cranworth), and he ventured to smile when he heard that noble and learned Lord, in introducing them, so highly vaunt his own goods. No doubt it was reasonable that noble Lords should look with parental affection on the measures which they introduced; but his (Lord Chelmsford's) own Bills, although they bore his trade mark, were not of his own manufacture, but were the same as those introduced by his hon. and learned Friend Sir Hugh Cairns, under the auspices of the Government presided over by the noble Earl behind him (the Earl of Derby). He (Lord Chelmsford) was fully prepared to maintain most of their provisions, because they were founded upon the able Report of the Commission which was issued in 1854, and because many of them coincided entirely with those in the Bill of the noble and learned Lord on the Woolsack. The subject divided itself into two distinct heads—the declaration of title and the registration of title; the declaration of title for the purpose of establishing the validity of titles to laud, the registration of titles for the purpose of facilitating the transfer of land. Now, with regard to the declaration of title, it was a question which appeared to him not to be, within itself, one of very great doubt or difficulty; but as to the machinery that was to be provided to secure a declaration which would give an indefeasible title there was greater difficulty. The more important part of the question, and the more difficult one, was that with regard to the registration of title. On that subject the Bills which he had presented were founded almost entirely on the recommendation of the Commissioners under the Commission of 1854. His noble and learned Friend (Lord Cranworth) had spoken disparagingly of these recommendations; but he apprehended that if they were to have, not a registration of assurances, but a registration of titles, no better or simpler mode could be adopted than that which was recommended by the Commissioners. They recommended that there should be merely a registration of the fee simple; and that there should be a register merely from time to time of any transfer of that simple title. That title would then appear on the register unclouded by any encumbrances or trusts. The interests of persons who might have dealings with the property being guarded by caveats of two descriptions. There was a premonitory caveat which any person interested in the land could enter, and which would entitle him to notice of any application to register the land. There was also another caveat, which, when the land was registered, any person could enter, and thus prevent any transfer of the land without notice. Those were protections which the Commissioners had recommended, and which he had introduced into his Bill. Provision was also made for encumbrancers putting themselves upon the register by entering a certificate of the encumbrance. The distinctions between his Bill and that of the noble and learned Lord on the Woolsack were of various kinds. In the first place, the Bill of the noble and learned Lord appeared to him to provide rather for a registry of assurances than a registry of titles. Among other provisions in that Bill was one, that an owner of land entered upon the register, who might be desirous of selling or mortgaging his land, should furnish to the registrar a statement of the amount of the purchase-money or of the mortgage, and a deed should be prepared of which an original should be handed to the person disposing of the interest, and the duplicate should be entered upon the register. In cases where property registered passed by will or deed, it was provided that a printed copy of the will or deed should be handed to the registrar, The noble and learned Lord had referred to the advantage that had accrued in Chancery from the introduction of printed proceedings, and inferred that a similar practice in respect of the transfers of land would be equally beneficial. But there was this difference, that in Chancery several copies of the Bill or Answer were required, while a single copy of the will or deed under which the land passed would be necessary, and the cost of printing a single copy would exceed that of engrossment. What he (Lord Chelmsford) proposed in his Bill was, that there should be a slight, entry upon the register of one or two particulars of the instrument, whilst his noble and learned Friend proposed a registration of the assurance itself. There were two important points which were dealt with in till the Bills—the declaration of titles and the registration of titles. With respect to declaration of titles, the only difference between them was as to the machinery to be employed. The Bill which he (Lord Chelmsford) had introduced proposed to establish a new Court—a Landed Estates Court, composed of eminent conveyancers—persons well fitted for the discharge of such important functions. His noble and learned Friend opposite objected to the creation of a new Court, and thought that it would be better to leave matters to be decided by the Court of Chancery. He did not think that the Judges of that Court, eminent as they were, were the persons best qualified to undertake those new duties. It was not in the usual way of their business to take an abstract of title, go through it in chambers, and say whether or not there was a good title. Relying upon the experience acquired in Ireland of the working of the Landed Estates Court, he submitted that his own proposition was, under all circumstances, the best. He did not propose to begin with an expensive staff. At first a single Judge might be sufficient, and the judicial staff might be extended as necessity arose. It was proposed by his noble and learned Friend's Bill that the registrar should examine the title, and that if he felt any difficulty, he should refer the matter to a Judge of the Court of Chancery. Who, however, was to raise the question? The registrar might not be a very learned man, but he might not choose to refer his doubts to the Judge, but might take upon himself to decide the question finally as to the existence or non-existence of a defeasible or indefeasible title. He should have thought that the better course would have been to have required the parties to go in the first instance to the Court of Chancery to get a declaration of title, and then to have empowered them to go to the registrar and have it put upon the register. The Judges of the Court of Chancery were not, in his opinion, well qualified to deal with such things as abstracts of title; but if the whole question was left to the registrar he could see no difference between such an officer and a Landed Estates Court, except that he would have neither the importance nor experience of such a Court. He could, indeed, see no intermediate cause between the establishment of a Landed Estates Court and going to the Court of Chancery, to which latter course many and serious objections had been raised. Another part of his noble and learned Friend's Hill required very serious consideration. It was proposed that there should be two classes of titles, one with a guarantee and the other without. If upon a guaranteed title a person should he improperly registered as the first proprietor, any one having a better claim is to obtain compensation, not from the purchase-money or from the land itself, but from the Consolidated Fund. The public is thus to become an insurer of titles. Provision is to be made to indemnify the public against loss which may thus occur by enacting that where a registry has taken place in consequence of the fraud or negligence of any person, that person should immediately become a debtor to the Crown. Now how was the negligence to be traced and proved? And who was the person who was to be answerable? Was it to be the registrar or the Judge of the Court of Chancery? He presumed that the purchase-money would have to be retained by the Court of Chancery for a certain time, in order that any person who had been defrauded might resort to it. He hoped that the Select Committee to which the various Bills were to be referred would succeed in constructing a satisfactory measure.


said, he could not congratulate their Lordships on the debate to which they had listened with such exemplary patience. He thought an unfair advantage had been taken of their Lordships; for he believed they all understood that the several Bills were to be sent to a Select Committee without controversy or discussion. He feared it might weaken the confidence of the public in that Committee to find the chief Members of it at the very outset entering the arena of debate, and, not content with lauding their own measures, endeavouring to undermine and destroy the works of others. He would not imitate their example. On the contrary, he acknowledged that the proposals of his noble and learned Friends were entitled to serious consideration. Nothing, however, was to be gained by their discussing them. On the contrary, it would only weaken public confidence if opinions were hastily expressed, and afterwards retracted on the further consideration to which all the Bills were entitled, and which he trusted they would receive. The Bill now before them was simplex munditiis, and if it only answered its purpose, it would be one of the simplest and plainest measures he had ever seen. He must make one little exception to that spirit of charity in which he regarded the efforts of others, and that was with regard to the unfortunate Bill which bore his name, greatly to his surprise, and very much at variance with his intentions. As a matter of ordinary good nature, he consented to lay it on the table; but when he began to examine the offspring thus fathered upon him, he was astonished at several of its features. In framing his own measure his object had been to provide a system that would answer all the exigencies of dealings in land without altering the law. All the other schemes, except that now before them, proceeded upon a material change in the law. He referred to the proposal of having estates registered in the name of trustees, without any entry of a beneficial kind. In his opinion, the title should be made the mirror of the existing interest to which all could resort who desired to ascertain what the existing interest was, and to claim from the registrar a certificate which should declare and manifest that interest. By its means every man could go forth with a certificate of his ownership, and enter the market with the evidences that he was entitled to the commodity which he wished to sell. Objection had been made to requiring deeds to be printed when submitted to the registrar. The object of that was to render them less bulky and more readily accessible than they would be if in manuscript. A very ordinary form of a family settlement was as follows:—A. B. was tenant in life of an estate, and his son was tenant in tail. A settlement was made on the estate on a jointure to the wife of A. B., and a provision for the younger branches. Subsequently the estate was disentailed for certain objects with the concurrence of father and son. If the registrar found the short statement of the result of the limitations to be correct, he would enter it in the record of title. If he had reason to doubt the accuracy of the representations, their accuracy would be sifted, examined, and determined. As soon as they were determined, the registrar would insert them in the record of title, and the record would become a history in which the effect of each successive transaction would be recorded from time to time as they occurred. No lawyer would doubt that upon a half-sheet of paper the result of the limitations and provisions in a long deed of settlement could be recorded, and in that way titles would be easily understood and easily exhibited. For greater security he required the deed to be sent to the registrar. It was a great objection to the registration of assurances that a man was required to part with his deeds of title. It was alien to the feelings and wishes of the people that he should do so, and, instead of the registrar keeping the deed itself, he would have a printed copy of the deed, and return the deed to the owner. He had been told that the printing of deeds would he expensive, but he had satisfied himself that almost everything used in the Court of Chancery could be printed for even less, and certainly for not more, than the charge of making a single written copy. Instead, therefore, of imposing upon owners a heavy charge, it would be one of the greatest measures of economy, and his ultimate object, by exhibiting its facility, was to supersede by printing all other forms of pleading. As to the difficulty of keeping up the record, their Lordships would recollect that the Bill provided the simplest forms of conveyance; and if resorted to, when an estate was on the register they would all be in a printed form, each occupying a piece of paper perhaps as large as the palm of the hand. As to the possibility of resort ultimately to the Consolidated Fund, that was a feature in the Bill which, no doubt, required great consideration and caution. It was a provision which was introduced because it was part of the recommendations contained in the Report of the Commission. But it was wrong to say that in every single case there would be a power of resorting to the Consolidated Fund. It was only provided in cases where no proper person could be made responsible, and where the overlooking a latent interest was attributable to its not being discovered, by some inadvertence, by the intelligence and care of the persons employed to investigate the title. It could only occur after an estate had been sold to a purchaser; and although the provision appeared in the Bill, it was merely to obtain their Lordships' approval of it, as it could not be transmitted to the other House without a violation of its rules. He was ashamed to have detained their Lordships so long by a discussion which could lead to no practical result, as the real discussion was to take place in Committee, and he would end by expressing an earnest hope that many of their Lordships who had not been professional lawyers would be members of that Committee, and bring their good sense and general knowledge to bear upon the subject.


objected to the Bill introduced by the noble and learned Lord near him (Lord Chelmsford), on the ground that it proposed to create a new Court. He thought that there were Courts enough already in existence. The judicial powers of the Court of Chancery were sufficient for the purposes contemplated by the measure. The great difficulty was to establish a title in the first instance, where there was no one to scrutinize it adversely as between vendor and purchaser. He was sure that their Lordships would go into Committee on all the Bills with the single desire to frame a really useful and efficient measure.


said, he was quite willing to bear his part of the censure which had been passed by his noble and learned Friend on the Woolsack on those who had taken part in this debate. Though the Select Committee might be the proper place to discuss the machinery by which the Bills were to be worked, it was on the second reading that their Lordships were called on to express their views on their principle. The discussion which had taken place on this and the previous occasion had had the advantage of bringing them pretty much to an agreement as to the evils which were to be remedied. These evils were delay and expense. The delay would be diminished by every means which simplified the nature of the title and facilitated the transfer. The expense, however, was a very different thing, and the only real way of diminishing the expense would be by altering the principle by which the payment of costs was at present regulated. This present mode of having solicitors and counsel according to the length of instruments, had the effect of spreading over a number of skins of parchment that which might be stated in three lines. All of the Bills before the House agreed in this, that if their provisions took effect, a man would have to go through just as much trouble and expense to prove his title to the Court as he would have to prove it to a purchaser; but when he had once proved it, he might have a title which would he good for all purchasers. A system of registration was not necessarily connected with a declaration of title; a system of registration might or might not be advisable, but it certainly would not diminish complication or expense. What it was supposed to be likely to remedy were the evils arising from the suppression of instruments of which the purchaser had had no notice, If they wished to satisfy the public—and that was the most important object—he believed they could not do anything so likely to set it against these changes as increasing the number of courts and officials, and adding to the large sums paid to legal officers appointed at one time, and removed or superseded at another. They must take the Chancellor of the Exchequer into their councils, for they might talk as they pleased of the expense of the transfer of land, a large portion of that expense was caused by stamp duties. A man might transfer £100,000 in the funds without paying a farthing to the Treasury; he could not transfer an acre of land without paying a stamp duty. The extent to which this had been carried was extravagant. In conveyances by lease and release, the ordinary form of passing the title to land, the Legislature had done away with the lease, which was quite useless; but had nevertheless provided that the purchaser should pay a stamp duty upon it as if it were still in existence. There was an essential difference between land and property in the funds. One £100 in the stocks was exactly like another £100, and the purchaser knew exactly what he bought. But one acre of land was not the same as another acre. In dealing with land it was the very essence of the matter that the parcels should be identified. It was impossible, therefore, that land should ever be transferred from hand to hand like chattels or like stock, even if it were desirable that the same facility of transfer should prevail, which he did not think that it was. It was proposed to refer these Bills to a Select Committee; but on this occasion, when they were being read a second time, he thought their general principle and the extent of the changes ought to be distinctly stated.

Motion agreed to.

Then Security of Purchasers Bill; Transfer of Land Bill; Title to Landed Estates Bill; Registry of Landed Estates Bill; and Real Property (Title of Purchasers) Bill; severally read 2a, and referred to a Select Committee.

And on Thursday next the Lords following were named of the Committee:—

Ld. Chancellor E. Derby
Ld. Privy Seal E. Clarendon
D. Marlborough E. Carnarvon
Ld. Steward, (Earl of St. Germans) E. Powis
E. De Grey
E. Ellenborough L. Cranworth
L. Wodehouse L. St. Leonards
L. Harris L. Wensleydale
L. Wynford L. Chelmsford
L. Stanley of Alderley L. Kingsdown
L. Overstone

Transfer of Real Estate Bill:—Second Reading (which stands appointed for this day), put off to Monday next.

House adjourned at Eight o'clock, till To-morrow, half-past Ten o'clock.