Lords Sitting of 5 May 1862

MINUTES.
Sat First in Parliament.—The Lord Lilford, after the death of his Father.
PUBLIC BILLS.—1a Courts of the Church of Scotland.
3a Declaration of Title; Security of Purchasers; Transfer of Land; Real Property (Title of Purchasers).

DECLARATION OF TITLE BILL.

  THIRD READING.
  LORD CRANWORTH, in moving the third reading of the Declaration of Title Bill, said, he desired to state for the information of those noble Lords who had not been members of the Committee that this Bill, together with the Security for Purchasers Bill, and four others relating to land, had been referred to a Select Committee. The object of these two measures was to facilitate the transfer of land by a mode which appeared to him to be extremely simple and inexpensive, and little calculated to cause inconvenience. His noble and learned Friend on the Woolsack had introduced a Bill with a similar object, but of a much more extensive character than his (Lord Cranworth's), being one of those which had gone before the Select Committee. Two other of these Bills had been introduced by the noble and learned Lord opposite (Lord Chelmsford), having for their objects the more easy conveyance of land and the registration of the same. The fifth Bill, that introduced by Lord St. Leonards, was of a totally different character to the other measures. All those Bills had been carefully considered by the Select Committee. It was impossible that all those five Bills should pass, for some of them were inconsistent with each other. and therefore His noble and learned Friend opposite (Lord Chelmsford) withdrew his Bills. The Committee, however, came to the conclusion that his (Lord Cranworth's) Bills were consistent with that of his noble and learned Friend on the Woolsack. Both were permissive, and the object of his (Lord Cranworth's) Bill was, first, to enable persons to obtain from the Court of Chancery a declaration of title. The first of his Bills was founded on the principle of the Encumbered Estates Court, now the Landed Estates Court, in Ireland, of which they had had about fourteen years' experience, and during that long period, no error, or next to none, had been discovered in the title of any estate dealt with by that Court, and he thought that

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  what had answered so well in Ireland could not answer ill in this country. It would establish no new tribunal, but leave to the Court of Chancery to deal with those questions of title in the same way as it dealt with other questions that came before it. The Bill could certainly do no harm; he believed that it would do much good. The measure embodied in the second Bill further provided for the continuity of title once it had been established in the way pointed out. The noble and learned Lord concluded by moving that the Declaration of Title Bill be now read 3a.
  LORD CHELMSFORDsaid, he was not disposed to object to the third reading of his noble and learned Friend's Bill, although he did not approve of all the provisions which it contained. There was no doubt that it was exceedingly desirable that some measure should be passed whereby an absolute and indefeasible title to land should be given to purchasers. The only question for consideration was, what tribunal or authority should have the power to secure that title. He should not himself have supposed that the Court of Chancery was the best tribunal for the purpose. As had been stated by the noble and learned Lord opposite, the Irish Encumbered Estates Court had been found to answer most admirably the purpose for which it was created. Property to the amount of £20,000,000 had passed from one hand to another through the medium of that Court, and about one-seventh of the whole area of Ireland had been transferred. It was considered by the public very desirable that a somewhat similar tribunal should be established in this country. He (Lord Chelmsford) accordingly introduced a Bill with that object; but the Committee to whom it was referred came to the conclusion that the amount of business likely to be transacted would not warrant the establishment of a distinct Court. A Bill was then introduced by the noble and learned Lord on the Woolsack which he (Lord Chelmsford) could not but think was open to a serious objection—namely, that it would be productive of great expense. If the business to result from the Bill now before the House was not large, there was no necessity for such a measure. If, on the other hand, it proved to be not only large, but increasing, it would be impossible for the Court of Chancery to discharge the duty to be imposed upon it. He was, however, extremely desirous that some measure of the kind should be tried,
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  and would therefore support the Bill, although it differed so essentially from that which he had introduced.
  Motion agreed to.
  Bill Read 3a, and Amendment made; Bill passed, and sent to the Commons.

SECURITY OF PURCHASERS BILL.

  THIRD READING.
  Order for Third Reading read.
  After a few remarks from Lord ST. LEONARDS,
  LORD CRANWORTHbriefly explained the object of the measure. It provided that every purchaser of land as to which a declaration of title shall have been obtained under the "Declaration of Title Act, 1862," shall be entitled to cause a memorial of the conveyance to him to be endorsed on the conveyance to his grantor; and it provided for similar endorsement on every subsequent alienation of the property to which they relate. He should, indeed, have preferred a general registry of all deeds, but that had been rejected by the other House. He thought, however, that the present scheme would present almost the same advantages.
  Moved, That the Bill be now read 3a.
  LORD ST. LEONARDSmade a few remarks, in which he was understood to object to the Bill.
  Motion agreed to.
  Bill read 3a accordingly, and passed, and sent to the Commons.

TRANSFER OF LAND BILL.

  THIRD READING.
  Order for Third Reading read.
  THE LORD CHANCELLOR moved, that the Bill be now read 3a.
  LORD ST. LEONARDSsaid, the view which he took of his noble and learned Friend's Bill was, that it was in disguise —though he was sure no disguise was contemplated by his noble and learned Friend—a Bill for a general registry of assurances. When upon a former occasion a Bill to effect that object was before their Lordships, he divided the House against it, though without any hope of being able to prevail upon their Lordships to agree with him. The Bill then went down to the House of Commons, and was referred to a Select Committee; and after a most elaborate investigation the most competent persons upon the Committee made a Report, in which, after showing all the advantages and disadvantages of a

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  general registry, they came to a clear and unanimous resolution against such a registry. Now, there was one thing which was quite certain with regard to this Bill. It would involve a considerable expense, would require a considerable establishment, and that establishment, no doubt, would have to be paid for—to a great extent at least—by the country. The establishment which the Bill would require would in effect be a Registrar's Court, with a Chief Registrar, three Assistant Registrars having about £1,500 a year each, an Examiner, a Conveyancing Counsel, and so forth. What would be the practical working of all this costly machinery? The Bill was, no doubt, permissive in its character, but it held out encouragement to persons to seek to obtain that which it was its object to give, and which, if obtained, would involve a degree of trouble and annoyance beyond what could be conceived. If a person desirous of having his title registered had not an absolutely good title, such a title as the Court of Chancery would compel an unwilling purchaser to accept, he would not go to the Registrar at all. If a man were not insane, he would not go to the Registrar until he had his title previously examined, because otherwise he would be exposed to the danger of having his title found open to objection, and having a blot discovered which would render it impossible for him ever to get a title. He would, therefore, not go before the Registrar until he had had his title previously examined and found perfect; and he would therefore have, in the first instance, to undergo the very trouble and expense it was the object of this Bill to avoid. He would apply to the Registrar, who would send the title to the Conveyancing Counsel, by whom, perhaps, some objection might be raised. When this was got over, fresh expense would have to be incurred. It would be necessary to give in a description of the whole of an estate, the settlements and encumbrances upon it, and its boundaries. A copy of the map proposed to be registered was then to be served upon every adjoining owner. If the latter objected, they were told they were at liberty to show cause against the boundary. Three months were allowed for this purpose, but the owner of the adjacent estate might be in Paris, he might be ill, or he might be a minor whose guardian was absent. Unless the owners concerned showed cause within the period
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  allowed, the disputed portion of their estate was gone for ever. But, suppose issue was joined in due time, and that, at much trouble and an enormous expense, a declaration of title and boundary was obtained; that declaration of indefeasible title was of no benefit whatever to the owner unless he was going to sell. Otherwise he and his children gained nothing whatever by it. After the declaration of title was once obtained the chain of title must be carefully preserved. Every mortgage, every deed of settlement, every will must be registered. If the owner married, his marriage and his marriage settlement must be registered; if he had a son born to him, the birth must be registered; if the son died, the death must be registered. These entries, indeed, would be so incessant, and the consequences of neglecting them so fatal, that, instead of the landowner receiving the visits of his medical man every morning to feel his pulse, and ask him two or three questions, he would stand much more in need of a daily visit from his attorney to see if anything had happened on the previous day that ought to be put upon the register. The expenses of the office were to be provided by registration fees, which were to be proportioned to the value of the estate. This appeared to him to be a very unfair arrangement. There were three books to be kept. One was the registration of landed estates, and all estates entered therein were to have an indefeasible title. The estate was to be fully described. Now, although the estate might be small, the description of it might occupy several sheets. He was aware of small estates of that kind. The danger which appeared to threaten from the registration in the first book was that several men possibly would get a title to the same plot of ground. The second book was to contain a record of matters connected with the title; and the third, a list of all mortgages and incumbrances on the property. The record of title which this Bill provided for was to contain every single circumstance relating to the right under which a particular estate was held; and a list was also to be kept of all mortgages and encumbrances affecting the property. It was impossible to conceive a more comprehensive record; but, unlike all other Registration Bills, the present measure carefully provided that no one should have a right to inspect the register except the owner, or person authorized by the owner, the encum-

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  brancer, or the Court of Chancery. The great object of the existing registry was to put a purchaser or mortgagee upon his guard, and for that purpose it was essential that everybody should have the fullest access to it. It contained all that it was essential that a mortgagee or purchaser should know; and. therefore recorded only the date of the deed, and the description of the estate, and that was all. It did not describe the nature of the transaction. But if estates were to be fully and minutely described, he wanted to know what was requisite to complete a general register of assurances. What particulars remained to be put upon the file? They had the name of the estate itself, of the owner, a statement of the circumstances under which he held, and an exact copy of every instrument which he executed. It would be found impossible to keep the contents of these documents secret. Everybody would know the amount of a wife's pin-money, of a widow's dower, and Jews would very soon find out what the nature of a young man's estates was, and would be prepared to advance him money accordingly. When the registration of bills of sale was first rendered compulsory by Parliament, what was the result? Why, that weekly lists of bills of sale were sent round amongst merchants, in order that everybody might know by whom such instruments had been executed. He observed, also that if an owner who was upon the register wished to sell, a land certificate was given him, which it was supposed might be contained in a man's waistcoat pocket; but yet it was to contain a notice of every dealing with the estate. If it was to be a short abstract, he should be glad to know what was to be gained by that? On the whole, this was a measure of the highest importance, and his only object in making criticisms upon it was that it should be free from objections as possible, and he was sure that any objections which might proceed from that side of the House would be dictated by no other motive.
  THE LORD CHANCELLORsaid, that a discussion of considerable importance had been raised on this occasion. When their Lordships sent these Bills to a Select Committee, they had before them Bills which had been laid on the table by other noble and learned Lords besides himself, all of them having the common object of establishing a registration of
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  title One of these Bills was introduced by his noble and learned Friend (Lord Cranworth), one of the objects of which was to provide for a registration of title. Other Bills were introduced by the noble and learned Lord below him (Lord Chelmsford), which actually proceeded to make a registration of title; and in introducing the Bills to which he had last referred, his hon. and learned Friend. (Sir Hugh Cairns) distinctly stated that they were designed to accomplish a registration of title. To these were added the Bill which he (the Lord Chancellor) had the honour to introduce. Their Lordships determined to refer all these Bills to a Select Committee. They determined so to do because they took it as an accomplished fact, beyond dispute, that a registration of title was a thing in itself desirable. Great care was used in the selection of the Committee; he (the Lord Chancellor) had the honour of being called upon to preside over it; and he might further say, he never had the honour of being in the company of gentlemen who manifested more anxiety or greater intelligence. Besides those who were usually designated "noble and learned Lords," they had the attendance of noble Lords who were distinguished in every sense, and who manifested as great an acquaintance with the subject as could be shown by the law Lords themselves. Their Lordships committed to their care the necessary details of the measure; and though he was the last person to deny that their Lordships thoroughly understood the measure before them, he must say, with great humility, that it was rather hard they should be called upon now to enter upon a consideration of matters of details which, from the testimony of all who had spoken, had been most diligently and carefully sifted by that Committee. The Committee commenced its labours by contrasting the Bill which he introduced with those which were brought in by his noble and learned Friend (Lord Chelmsford), and which he might call Sir Hugh Cairns's Bills. These latter measures were found to be open to the objection, not only that they created a new court, but that they did not propose to put upon the record the actual title, but created a fictitious title, and an imaginary ownership, for the purpose of registration, and sought to provide for a real ownership by a system of caveats and prohibitions which was thought to be too artificial, and not likely to attain the de-

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  sired end. Upon those two grounds these Bills were laid aside by the Committee. Not only were they objectionable on account of the expensiveness of the tribunal which they created, and which applied in a minor degree to his own measure, but there was also this further objection to the creation of a new court, that it might be brought into collision or antagonism with existing tribunals. He therefore could not but think that these Bills were rightly rejected. The great object of a registration of title which their Lordships had in view, would also be accomplished by the Bill which he had the honour to introduce, and which was now under discussion. He was told that it provided simply for a registration of deeds. This was but a repetition in their Lordships' House of an objection which was raised before the Committee, and which was then shown to be entirely unsound and unfounded. A clamour had, however, been raised out of doors upon the subject. That question had, however, quite gone by, for the House of Commons and a Royal Commission had very wisely decided that in the former state of the law a registration of deeds would be an objectionable measure. His noble and learned Friend who spoke last (Lord St. Leonards) embodied the objections to such system in a very able pamphlet, which he published in the year 1852. The system then proposed was, that a vast number of parchment deeds should be brought into the Registry Office, and should be put away in heaps, without any attempt being made to examine them, and to ascertain what was the result and effect to be extracted from the mass of matter contained in these deeds. Their Lordships were often called upon to sign masses of parchment which were now denominated deeds; and when they asked for the result of the instrument, they were told its effect in a few words; and a few simple words were expressive of the result and effect of what was hidden under a mountain of phrases. The system which he proposed to establish by this Bill was, that the effect of instruments as they now existed should be ascertained by the most careful scientific investigation; that the practical result of that investigation — namely, the existing ownership — should be recorded in a few words; and that for the purpose of perpetuating and perfecting that record, there should be entered from time to time the legal result of every subse-
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  quent transaction. Instead of throwing a deed into the registry, there to have it entombed under heaps of similar parchments, he proposed to register the facts as to the estates created by the deed—as, for instance, that John Smith was tenant for life, and Edward Smith tenant in fee in remainder. These few words entered in a book would become the registered title. Every noble Lord had to go through this process whenever he purchased an estate, or upon any transmission of property. If he entered into a contract with A. B. to purchase an estate, he was told by his solicitor, after investigating the title that A. B., together with C. D. a trustee, and E. F. an encumbrancer, were able to alienate the estate. Upon this result of a scientific investigation purchasers paid sums of £20,000 or £30,000 or more; and this it was that he wanted to have recorded in the registry, or the book which would be denominated the "Record of Titles." This record, when once made, would be substituted for all antecedent parchments, which might thereafter be safely destroyed. He was sorry to find that one of the objections raised to the Bill was, that it would involve a registration of deeds; whereas the first step proposed by the Bill was to sweep away and render unnecessary all those masses of parchment under which they now laboured. One of the greatest evils under which the owners of land at present groaned was, that it became necessary to have those masses of parchment investigated again and again. It was said that this system must, in fact, be one of a registration of deeds, because it was necessary that every deed should be brought to the registrar. The noble and learned Lord (Lord St. Leonards) said that this would be a registration of deeds, because it would be necessary to have future deeds brought into the registry. But if you started upon the basis that there ought to be a registry of title, how could you keep up and continue that register without subsequent deeds being brought to the registry? A man might be the actual owner of property to-day, but to-morrow he might alienate some portion of it, and, in order to complete and continue the registry, it would be necessary that the registrar make the requisite alteration in the register, and to enter the fact upon the record. For that purpose alone the deeds must be brought in. What was proposed was already the law of nearly

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  every civilized country in the world. The State was greatly interested in the ownership of real property, and the community was not lest interested in having a simple, cheap, and safe mode of transferring land. To attain that, all that was necessary to do was first to ascertain who was the real owner, and then to register each successive change of ownership. One of the chief objections which had been raised to the plan, was a fear that a knowledge of the contents of the register might be obtained through the instrumentality of a printer's devil, a compositor, or a corrector of the press. He did not think their Lordships would attach much weight to that objection. The most important State papers were printed in the usual way, and he was not aware that their contents had ever been divulged; and exactly the same objection might be raised against the present system, for the deeds had to be drawn in an attorney's office and then sent to a law stationer's to be copied. His noble and learned Friend had dilated on the alleged expense of the register. There was no end to the vexation, delay, and expense of the existing system. The cost attending an estate being put upon the register was exactly the same as now attended a sale or a mortgage; but after an estate had once been put upon the register the expense would never again have to be incurred. His noble and learned Friend had said that the Bill would be of no utility unless in the event of an actual sale of land. That was not a correct representation of the effect of the measure. If a proprietor put his estate upon the register, it was left liable, as long as it remained in his hands, to any just claim that might be made against him. There would be a great dereliction of duty and a great departure from justice if anything else were done. A landed proprietor never ought to be able to emancipate himself from any just claim to which he was liable by having his title investigated in such a manner as to render that just claim apparent. The object of the Bill was to provide an easy mode of proving a right to the ownership of an estate, and of transferring that ownership to a purchaser, a mortgagee, or any other person to whom it was desired to transfer it. The indefeasible title did not arise, and ought not to arise, until some step had been taken under the registry, by virtue of which some person having a just and equitable title as purchaser or mortgagee
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  became possessed of the estate. It was also to be remembered that the Bill created machinery which, while it was suited to the largest estate, was at the same time capable of being applied to the useful purposes of the smallest property. The changes which his Bill proposed in the Law were as nothing compared with those which the boldness of his noble and learned Friend had suggested in a Bill he had himself brought in for the security of purchasers. He did not know that there was any other objection advanced against the measure by his noble and learned Friend to which he need refer, except that which related to the onus which it would throw on the landed proprietor. Now, what was the extent of the obligation which was thus imposed? Nothing beyond that he should not attempt to alienate the estate without having recourse to the register and there recording any occurrences which might affect the title. The only real objection to the Bill proceeded from those who had hitherto been engaged in the investigation of titles, and whose labours it would supersede. He could see no reason why the transfer of land should be more cumbrous and expensive than the transfer of funded or shipping property, and he had no doubt that in a few years it would be a matter of surprise that any resistance should have ever been offered to the abolition of the present much lauded but most unsatisfactory law of real property. The present complicated and expensive system of investigating titles to land could not, he contended, be obviated in any other way than by first of all ascertaining in what the title consisted, and then by finding a mode of keeping up the record of it when thus ascertained. When a new system of that character was once established a few years would, he would venture to say, establish beyond doubt its great advantages. On every occasion of the sale or mortgage of lands or of the drawing up of family settlements the owner of the property involved would, he confidently anticipated, be glad to place his title on the register, so that he might have the assurance that any disposition which he might make of his estate might not be defeated. For his own part he could only say, that while he believed that the Bill was one calculated to be of the utmost benefit to the owners of land when he introduced it, the searching ordeal through which it had gone before the Committee led him to look for-

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  ward still more sanguinely to the advantages by which it was likely to be attended. That being so, he trusted their Lordships would not refuse to the measure their assent.
  LORD KINGSDOWNsaid, this Bill was founded upon a system of registration of titles. He had before expressed the great objection he felt to any such system. It was attended with great expense, and did not produce corresponding advantages. The noble and learned Lord on the Woolsack said, that by means of a system of registration, it was possible to get into four lines the effect contained in a dozen skins of parchment. That might, and in many cases no doubt would be, the case; but it would mainly depend on the learning, on the accuracy and judgment of the individual who had to give effect to those larger instruments. As the Bill was originally proposed by his noble and learned friend it contained a clause which he (Lord Kingsdown) considered to be one of great importance; but it was struck out by the Select Committee, not because they objected to the principle involved in it, but simply because it partook of the character of a money clause, and was therefore one which it was not competent for their Lordships to introduce. The clause in question went to provide that in the case of a mistake being committed by the Court, and of an individual being deprived unjustly of his estate, the Consolidated Fund should be required to compensate him. His chief object in rising was to appeal to his noble and learned Friend (Lord St. Leonards) not to divide the House upon the Bill. The country expected that some such measure as the one before them should be passed into law this Session, and the principal objection to the present Bill was the expense of a new tribunal; but that was a question which might well be left to be determined by the other House, to whom it more properly belonged. Under these circumstances he thought it would not be wise to oppose the third reading of the Bill.
  LORD WODEHOUSEsaid, that as he had had the honour of being a member of the Select Committee to which these Bills had been referred, and as this was a measure which concerned all those Members of their Lordships' House who were landed proprietors, he would state why he desired it should be passed into law. The noble and learned Lord who had just
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  spoken (Lord Kingsdown) had given a reason why some Bill should be passed this Session. During the past few years there had been many inquiries and many Bills upon this subject, and after so much discussion the public naturally expected that some attempt should be made to agree upon a measure of this kind, and he thought his noble and learned Friend on the Woolsack had produced a measure which was safe, and which need not alarm the most sensitive proprietor of land. The main objects of the Bill were to provide that a declaration of a good title might be obtained, that a record of it should be kept up continuously, and that incumbrances should be registered. He thought also that his noble and learned Friend on the Woolsack had fully explained to their Lordships the possibility and advantage of keeping up a record of title. As the law stood, whenever a person was desirous at different times of selling portions of land forming part of one and the same estate, he must on each occasion go through the investigation of the title, frequently at great expense; and what the present Bill effected was to enable, after all that investigation had been once gone through before the registrar appointed for the purpose, the record of the title to be kept up afterwards. Many noble Lords on the Select Committee who were favourable to the Bill feared that, if passed, it would not come into very extensive operation. Such might possibly be the case; but, at all events, it would be productive of immediate good whenever a large estate was to be sold in small lots, and especially where the land lay in the neighbourhood of towns, and the proprietor was desirous of disposing of it in building lots; for the Court having been applied to in the first instance for one sufficient declaration of title for the whole estate, considerable expense would be avoided in the subsequent transactions of transferring the lots. Whether the Bill would extend itself generally to estates throughout the country could only be known by experience, but he thought the experiment made by the present Bill a safe one, and he trusted that the Bill would, after due consideration in the other House, ultimately become the law of the land.
  LORD ST. LEONARDSintimated that it was not his intention to divide the House against the Bill.
  Motion agreed to.
  Bill read 3a accordingly; Amendments made; Bill passed, and sent to the Commons.
  Real Property (Title of Purchasers) Bill read 3a, and passed, and sent to the Commons.
  House adjourned at a quarter before Eight o'clock till To-morrow, half-past Ten o'clock.