THE LORD CHANCELLOR
My Lords, in calling your Lordships' attention to the state of the law relating to the title of land and the transfer of land I know that I am addressing an Assembly which has a great interest in the matter, and the majority of whose Members must have a very considerable practical knowledge of the evils which any improvements of the law on this subject would be intended to remove. I therefore feel that, in travelling over the ground which to some extent I must traverse in introducing the measures which I have to propose to your Lordships, I shall be going over a route more or less familiar to all those who have given any attention to the matter—and include in that number most, if not all, of your Lordships. I may consequently feel warranted in touching some points with that comparative brevity which is allowable when one is addressing those to whom the subject in hand is not altogether strange. My Lords, most of your Lordships are owners of land, and nearly all owners of land, on some occasion or other, buy or sell land. Most of your Lordships may have had occasion both to buy and to sell, and therefore know something of the nature of the titles by which land in this country is held, and the process which has to be gone through when a transfer of land is proposed. I shall not, therefore, deem it necessary to do more than simply to point out the condition in which the law is, and what steps have been proposed from time to time to improve upon the existing system. In 1859 my noble and learned Friend (Lord Cairns) took a leading part in respect of a measure for remedying evils affecting the present 1117 system of land conveyance, which he described in a manner which I cannot attempt to rival. The effort then made by him marked an epoch in the history of this question. A cumbersome, dangerous, and expensive process has to be gone into upon every occasion when there are to be dealings with land. First of all you must have a contract; and, in making a contract there are innumerable pitfalls, so that if a man have not all his wits about him, and do not very carefully guard himself against difficulties, he may make a contract which subsequently he may find himself unable to perform, and any attempt to perform which may possibly involve him in questions which may entail infinite trouble and pecuniary loss, and, perhaps, even raise questions as to his title. The next step is the abstract. This is a very formidable matter. The abstract must contain the whole title concisely as regards every dealing, while as a whole the document is anything but concise, because if the contract is to give the purchaser a perfectly good title, the abstract must go back for 60 years; and all the transactions, all the deeds, all the charges, all the mortgages, all the family settlements, and all the devolutions and descents for that period have to be deduced. Next there is the examination of all deeds, and searches have to be made in public offices to find out every charge that affects the lands. Then there are all the objections that practised legal intellects can devise. All those objections have to be answered, much time is occupied, questions of doubt and difficulty arise, litigation not unfrequently ensues; and as a final result very large costs are incurred, even if no dangers in respect of the title have been discovered during the process of objection and inquiry. I cannot compare this system to anything better than to what a surgeon does when he amputates a limb. As he has to take up every vein and tie them all one after another, so the conveyancer has to deal with all the points, difficulties, and questions which arise in the course of tracing these titles. Some persons might, perhaps, suppose that if what I have been describing in respect of land has been done once, it has been done for ever. But this is not so. It has all to be done over again whenever the owner for the time being mortgages, or sells. The difficulty, delay, danger, and expense 1118 which beset the owner every time he attempts to deal with his landed property are not only injurious to him, but operate as a serious obstruction to the commercial transactions in land. Long ago—though not longer ago than most of us who are not very young can remember—it struck some reformers that an improvement on this system was not only most desirable, but would be of great public advantage—that there were other kinds of property which were dealt with in a very different manner, and with a facility, simplicity, and absence of expense which, if they could possibly be applied to dealings with land, must greatly enhance its value. It struck them that, as in the sale of stocks in the public funds, shares in public companies, and shipping, there were no deductions of title, no abstracts, no objections, no requisitions, no suits for specific performance, and no long bills of costs coming after, but only a simple entry in a public Registry, it was worthy of consideration whether, while recognizing the difference between the nature of the things themselves, it might not be possible to establish approximately the same simple system in the case of dealings with land. And I think, my Lords, I may say that all who have carefully inquired into the subject have come to the conclusion that, though you cannot in every respect come to an identity of system in dealing with these different kinds of property, you can approach very nearly to such a result. The real points of difference in the things themselves are these. When you are dealing with stocks in the public funds or shares in public companies, you are dealing with abstractions—with aliquot parts which bear an arithmetical proportion to the whole thing, which is a homogeneous whole, capable of subdivision, but no particular part having a value greater or less than another; and which no one can possess in specie. It is easy to deal with abstractions such as these. You can do so by simple book-keeping. It is not quite the same thing with ships. A ship is a specific thing—it is a real thing, and so far it is more like land than stock or a share; but while one ship differs from another, and one is of different value from another, each ship is a unit in itself, all the parts of it contributing to the use and value of all the others; and though you may fix on particular parts 1119 into which it may be divided, all parties having an interest in the ship have it in her as a whole, and none of them have a separate interest in any particular part; and it is therefore capable of subdivision, so that you can fix upon a certain numerical quotient by which the interest can be divided among any number of owners, so that, after all, it will be found that property in shipping is not very dissimilar to that in public funds or in shares in public companies. But there is this difference in land—that each particular part of the land has its own particular qualities, and is therefore capable of specific subdivision. There is not a uniformity of value throughout the land, and each person entitled to a portion of it desires to possess that portion as a specific thing. These distinctions exist in the nature of the several things; but, allowing for these differences, there is no reason why an attempt should not be made to approach, in respect of dealings with land, that simplicity and facility which exist in respect of the transfer of stocks, shares, and ships. Before I advert to the history of the question—its political and Parliamentary history—I wish to say something with reference to public interests as distinct from those which are private. I do not agree with some theories of which I have heard and read with respect to the possession of land. The possibility of a universal or general distribution of land among the citizens of any country I regard as out of the question. In my opinion such a scheme is altogether delusive—it is a mere chimera, which could never be realized; and if it could be realized I much doubt if its results would be satisfactory. But, setting aside all such sublime and visionary notions, I think it is most true, that it is for the interest of the community to facilitate to the greatest extent dealings with land—to facilitate the acquisition of land by all who may desire to acquire it and have the means to do so, be they rich or poor, great or small. The public have a very clear interest in facilitating all kinds of dealing with all articles of value on which the wealth of the nation depends; and as land is the basis of all property, in one shape or another, there cannot be any doubt that to facilitate commerce in land is as important to the public as to facilitate commerce in any other kind of 1120 property. This was felt long ago, and steps were taken to work out these interesting and important problems. Without dwelling on what Mr. Stewart, Mr. Wilson, and other legal gentlemen wished to accomplish, I may refer to the effort made in 1853 by Mr. Henry Drummond and Mr. Headlam, who in that year prepared a short Bill on the subject. This was followed in 1854 by the appointment of a Royal Commission, composed of eminent men, who took three years to consider the matter, and reported in 1857. In their Report they stated that the problem to be solved was how, consistently with the preservation of existing rights, we could obtain such a system of registration as would enable the owners of land to deal with it in as easy and simple a manner, as far as title is concerned, as we could now deal with moveable chattels or stock. The Commission thought it was practicable to obtain this object, and to approximate very nearly to the simplicity that belongs to a transfer of stocks, or shares, or ships. In recommending means to carry out this object the Commissioners stated that the principle of simplicity must be kept in view, and that they must deal only with those interests which are simple in their legal character, and at the same time subjects of commercial contract. They proposed that only fee simple estates, leases, charges, and mortgages should be placed on the Register, and that none of the other complicated modifications of property which have sprung up under our real property law should be placed upon it. They proposed that when once these interests came upon the Register they should always remain on it, and should be capable of being transferred only by a simple form of transfer on the Register itself, and that those persons who had unregistered interests might save them by caveats, which would entitle them to notice before any dealing with the registered title was permitted. Your Lordships know that stock always stands in the name of some person, and in ordinary cases that person has an unlimited power to transfer the stock standing in his name and to give a good title to the person to whom it is transferred; but if the stock is held in trust by the person in whose name it stands, the beneficial owner may have a distringas, which will entitle him to 14 days' notice in case of 1121 an intention to transfer the stock by the person in whose name it stands. If within those 14 days the beneficial owner takes no steps to prevent the transfer, the person to whom it is transferred by the nominal owner obtains—assuming there to be no fraud—a good title in equity as well as in law. The Commissioners proposed a caveat in the case of land somewhat similar to the distringas in the case of stock. The Commissioners also considered the question whether the Register should be open only to titles which had been examined and proved to be unimpeachably good, or to all under which property was held by persons claiming to be in the position of owners of fee simple in land. They came to the conclusion that it was indispensable that it should be an open or unfettered registry, and that all persons in that position should, without any inquiry into the title, be enabled to register. Of course, in the case of titles which were not investigated, they would notwithstanding the registration be subject to all outstanding claims which other persons might be entitled to set up in point of law—they would not thereby be made indefeasible, but they would be dealt with only on the Register; and after the lapse of a certain period the registered title would become evidence of so high a character as to exclude all prior and competing claims. Those owners of land who wished to have their titles examined and placed on the Register as ascertained and guaranteed titles were to be at liberty to do so, and machinery was proposed for such examination. The Commissioners also recommended a guarantee fund, but that recommendation has not been followed in any of the Bills based on their Report. It has, however, been adopted in the Australian Colonies, though I do not know that in practice resort has often been had to the fund. All who have considered this subject with a view to legislation have to acknowledge their obligations to the Royal Commissioners of 1857 for the contribution which that Commission made towards a solution of the problem. The next step after the Report of the Commission was taken in 1859 by my noble and learned Friend (Lord Cairns), who was at that time Solicitor General. The measure which he introduced in that year may be described as one, though it was contained 1122 in two Bills—one for the clearance of title, and the other for registering the title so cleared. My noble and learned Friend departed in one or two points from the recommendations of the Royal Commissioners. He did not propose to register any titles but those which had been investigated and found good. The mode in which he proposed to investigate titles was also different from that suggested by the Commissioners—the Royal Commissioners had in view an investigation by a Registrar; but my noble and learned Friend proposed that it should be made by some such tribunal as the Landed Estates Court which exists in Ireland. My noble and learned Friend did not propose, even when the title was investigated, to give an indefeasible title to the person who obtained the registry, but only to any person who purchased from him for valuable consideration; so that the owner effecting a registration would have no better title than before, unless he went into the market and sold the estate. The Bills of my noble and learned Friend were interrupted—and I think it is to be regretted that they were interrupted—by one of those political events by which the best measures are sometimes liable to suffer. There was a Dissolution of Parliament and a change of Ministry, and the Bills were not again brought forward. But in 1862 Lord Westbury and Lord Cranworth introduced two other Bills, both of which became law. They were intended to accomplish the same object, though in different ways. Under Lord Westbury's Act the investigation was to be by a Registrar; under Lord Cranworth's it was to be through the medium of the Court of Chancery; but the object of both Bills was the same. Lord Westbury's Bill contained a clause, intended to authorize registration without an indefeasible title; but it was fettered with conditions almost as onerous as if the title were to be guaranteed; so that, practically, by neither of these Bills was any provision made for that larger and more unfettered registration of title which the Commissioners recommended. In Lord Westbury's Bill in the case of indefeasible registry strict proof of title was required, and this part of the Bill was encumbered by conditions so stringent as to render its general adoption impracticable. Lord Westbury's general plan aimed at what, if practicable, offered 1123 considerable attractions; because by it not only fee simple and leaseholds, but every species of interest in the land was attempted to be made commercially marketable; but, as I have stated, the strictness of proof, rendered necessary in order to obtain an indefeasible title, was greater than under the ordinary conditions of English titles it was possible to obtain—the title required to be made out was such as the Court of Chancery could compel a purchaser to take who had bought in open market. In like manner Lord Westbury's Bill required that in every case notices should be affixed on the land, and that not only all persons who had interests in the land themselves but all persons who had interest in the adjoining properties should have notice, in order that they might come forward and be present at the settlement of the boundary of the estates. Notices of this kind may often raise dormant questions of difficulty, and may lead to litigation, and this has been felt to be a serious obstacle to the working of the measure. In short, this system, as the event has proved, is encumbered by conditions so difficult and so severe, as to take away the inducements from the owners of property to avail themselves of it. Under Lord Westbury's Bill all kinds of assurances might be registered; and there was also this peculiar feature in the plan—that when land was once on the registry it need not of necessity remain there, because power was given to any owner who had placed his land on the registry to take it off again. In 1865 there was passed for Ireland an Act which in many respects was like Lord Westbury's, but which contains some provisions founded principally on the experience which had been obtained in the Colonies. And here I should like to state to your Lordships something about what has been done in the Colonies. The Australian Colonies have adopted legislation founded on the recommendations, and perhaps in some respects on the Report of the Royal Commissioners appointed in 1857. Sir Robert Torrens may be, I think, regarded as a public benefactor to those colonies in respect of the efforts he made for the introduction of this system. The first colony to adopt the new system was South Australia in 1861; New South Wales in 1862; next came Tasmania in the same or the following year. Vic- 1124 toria followed in 1866, and New Zealand in 1870. The main difference between the scheme at work in those colonies and that recommended by the Royal Commissioners is this —that the Colonial Acts followed the plan proposed by my noble and learned Friend (Lord Cairns) in 1859, inasmuch as they do not admit any title to the registry without examination. An indefeasible title is guaranteed in every case, but only after an examination. Therefore, the registry is not generally accessible, but accessible only to those who are willing to go through a careful examination of their titles. There are other points on which the Colonial differ from the English Acts. They do not follow Lord Westbury's Act, but rather the Bill of my noble and learned Friend (Lord Cairns) and the recommendations of the Royal Commissioners. There is one important provision in the Colonial Acts to which I should call the attention of your Lordships. It is this—that the rights of persons actually in possession of land are saved, so as not to be affected by the registry. I will not go into questions of detail. There are some things which I have thought it right to adopt in consequence of the experience of the working of the Colonial Acts, but these chiefly relate to matters too technical to be dealt with in a statement such as I am making to your Lordships. I believe, my Lords, I may say that these measures have been completely successful in the Australian Colonies, and that the results have been of a most satisfactory character. It is stated that in Melbourne and, I believe, in almost an equal degree throughout those Colonies, the success has been perfect, and that the Acts enable persons, often without the intervention of attorneys or solicitors, for only a few shillings and with wonderful despatch and facility, to transfer large estates. It has been asked why, as the Australian Colonies have adopted this system, we should not put ourselves in an equally advantageous position. But it is not to be expected that an old country like England can put herself exactly in as advantageous position in this respect as new countries like the Australian Colonies. The Australian Colonies have considerable advantages in respect to title to land which we do not possess; but I want to point out that the experience of 1125 the Australian Colonies does prove two things which are equally applicable here —first, the great public benefit and the great private benefit which arise from a ready transfer of land; and, secondly, that whenever such a change as has been there effected is well established here we shall want time only to get out of the groove in which our English system has placed us, and have a system of title which can be worked with facility, simplicity, and cheapness. The advantage possessed by the Australian Colonies is that they have not to struggle with the traditional difficulties and perplexities in which our titles, being of a much more ancient date, are involved. In this country a sixty years' title is a thing which almost everybody who sells land guards against being obliged to prove; and almost everybody who buys land is content to take a great deal less. This difficulty did not exist to any great extent in Australia, and, consequently, to fulfil of the requirement of proving an absolutely marketable title was, comparatively speaking, easy. These are the main causes which have contributed to the success of the system in Australia. I now come to the inquiry which has recently been made into the working of the legislation of 1862 in this country. First of all, I may state what has been the operation of the statutes passed in 1862. The Commissioners, appointed in 1867, reported in 1869. I find that in the period over which the evidence taken by them extends, from the 15th of October, 1862, when the Registrar under Lord Westbury's Act was appointed, to the 9th of January, 1869—a period of six and a half years—there were 547 applications to have estates registered, in all cases with indefeasible titles. Of these, 274 estates had actually been so registered, the aggregate value of which is stated in the evidence at £3,550,761, and other titles had been accepted ad interim, although not perfected, comprising 75 estates of the value of £885,590. Adding these figures, the registered and accepted titles were at that time 349, and the value of the land under them £4,439,351. Besides these, there were 54 other applications pending at the time that Return was made. We have not got the acreage of the entire quantity, but the acreage of what was valued at £4,068, 372 was 39,911 acres, exclusive of buildings. Subsequent 1126 dealings with the land are thus stated—there had been transfers and mortgages completed, 968, amounting in value to £2,362,974, and pending, 81—in all, 1,049. There were 585 separate estates on the Register, and in ten instances persons who had registered had been so much dissatisfied with the result that they removed their estates from it. The Commissioners took the evidence of experienced solicitors and others who had tried the Register, and collected other information; they also had the evidence of the Registrar, and of the officers who assisted him in the Office. Before I state the effect of that evidence, I may say that, although the quantity of land I have mentioned, and the value, is by no means unimportant, yet, looking to the number of years over which the operation of the Act has extended and the whole area and value of the landed estates in this country, the utility of the Act has fallen very far short of what every one must desire who wishes to see a really general and valuable simplification of title and facility of transfer. The evidence enables us to understand what are the real causes of the comparative want of success of that system. Some persons have supposed that the system is unpopular with the legal profession for reasons not of a public kind. The whole evidence taken by the Commission went to negative that supposition, and tended to show, I believe, on good grounds, that if the legal profession generally were once satisfied that the system was safe for their clients and convenient to be worked, they would be by no means indisposed to assist in bringing it into operation; but, of course, if they were satisfied that the tests to which titles were subjected and the operations which had to be gone through to get them authenticated were of such a kind as might possibly endanger titles—might bring forward and expose any latent defects, might lead to litigation, and cause an amount of trouble and expense without facilitating future transactions in a degree necessary to obtain the desired advantage—no one could blame them for any dislike to the system which they had shown. The main cause of failure was, that to get on the Register the title must be a strictly marketable title, such as the Court of Chancery would compel an unwilling purchaser to accept—or, in other words, a 60 years' title, 1127 The result is to exclude the great majority of titles if you require strict proof of that kind; and, therefore, you must relax it in some way or other, if you really intend the system to become of general utility and in general operation. There is a good deal of evidence to show that the notices as to boundaries, provoking questions between adjoining proprietors, were disliked, were the subject of fear and uneasiness on the part of some who otherwise might have registered their lands, and in some cases did actually lead to the revival of dormant claims and active litigation. Then it was also the opinion of some solicitors, and of the Registrars themselves, that the provision which required that all the several interests from time to time created should be put upon the Register was, and would more and more become, cumbersome and inconvenient, and that if a good system were to be introduced, it would be necessary to revert to the original recommendation of the Commission of 1857 and confine it to the register of simple titles—that is, fee-simple titles. In substance they advised a return to the principles of the Report of 1857. Two things, above all, they they recommended—first, that any person claiming a fee-simple or a power to dispose of the fee should be enabled to present his title for registration, and that the recency of the date should be no objection, precaution being taken against bringing in merely fictitious titles by requiring affidavits and notices or inquiries on the spot, but the title being investigated only as from the date to which the owner desired to have his title fixed; and, second, whatever might be the period of investigation, that the Registrar should be empowered to accept titles commonly known as good titles, though not technically marketable. These I may call their cardinal recommendations. They also recommended that lands once on the Register should not be permitted to be taken off, and that all transfers should be on the Register. At the-same time they recommended that the Acts of Lord Westbury passed should still remain in operation in favour of such as might wish to acquire an indefeasible or Parliamentary title. A Bill was laid on the Table of your Lordships' House in 1870 by my noble and learned Friend (Lord Hatherley) but it was not proceeded with. It did not in all points 1128 follow the recommendations of the Commissioners, though it did adopt several of the most important of them.
I will now proceed to state the substance of the measures which I shall have the honour to lay on your Lordships' Table. I propose to revert to the recommendations of the Commissioners of 1857 on these main points. First of all, to permit and, as your Lordships will see hereafter, to some extent to require an unfettered registry of all existing fee-simple titles under such safeguards merely against fictitious claims as the Commissioners of 1869 recommended. Secondly, to allow them all to be registered without any certificate of title, unless the parties seeking registration desire to have certified titles; but, at the same time, it is proposed to give all persons the option if they think fit to apply for registration with certified titles. It is proposed that in all cases the registered estates should be either fee-simple estates, or leases, or charges, and that all other trusts or similar interests should be protected as it was proposed to protect them in 1859 by notices or caveats, but that they should not be entered in the Register. It is proposed that those interests once registered should in every case carry with them an absolute power of sale, no notice of trusts in the absence of fraud being a bar to the purchaser, and that they should never afterwards be withdrawn from the Register. A very important part of the provisions of this Bill consists in the option given to be registered with or without a certified title.
And here I should like to put your Lordships in possession of the reasons which the Commissioners of 1857, or some of them, gave in favour of the main recommendation of theirReport—namely, that titles should be registered without requiring that they should be indefeasible, or submitted to any other conditions than such as may test the bona fides of the application. They say—We concur in the opinion of one of the witnesses who has given evidence before us that to make a judicial or quasi-judicial examination of title an indispensable preliminary to admission on the register would greatly narrow the benefits of registration. The expense alone of the examination would exclude nearly all small properties, and the trouble and expense combined would exclude many others. Defective titles would necessarily be excluded; and we do not see why a defect in the title to land, anterior to the introduction of registration, need deprive 1129 that land of the benefit of an improved mode of transfer subsequently. We think that a registration founded on ostensible or possessing ownership should be permitted in the first instance; and that on such registration the antecedent title might be left to be the subject of investigation, until by lapse of time, or otherwise, that investigation should become unnecessary.In the meantime the titles would be as good at least as they are at present, every year would tend to bring nearer the time at which the Register alone would be sufficient to prove the title, and every transfer from the Register would be unattended with at least a considerable portion of the present expense. I propose in this Bill to retain the substance, with some extension and enlargement, of the provisions of Lord Westbury's Act, and also of the Bill of my noble and learned Friend (Lord Cairns), which give the benefit of registry with an indefeasible title to titles under judicial sales, and in certain cases to titles ascertained by judicial proceedings. Following the recommendations of the Commissioners of 1869 and the precedents of most of the Australian Colonies, I propose not to require that questions of boundaries should in all cases be settled between registered owners and joint proprietors, and also not to make the Register conclusive in any case against persons who, not having had notice of the application, and not having intervened, shall be in actual possession of the land, or of any part of the land. I propose to proceed through the Register-office and not to establish any Court. I will not trouble your Lordships with any matters of mere machinery; but I come now to a very important part of the advantages which this Bill proposes to offer by means of registration to the owners of land for the greater security and clearance of their titles. I have said that an option would be given to register with or without a certified title. If without a certified title, the owner will not be obliged to submit his title to any retrospective investigation. All that the Registrar will have to do is to ascertain that there is such a state of possession as to show that the application is bonâ fide and not fictitious. But if a registered title is sought then it may be certified either as absolute or limited. The absolute title will not exclude everything, because there are some charges on land, such as tithe rent-charges, rights 1130 of way, easements, and so on, to which all the plans of Registration, both here and in the Colonies, have made the registered titles subject. An absolute title will be a title good, subject to those interests which are noted on the Register, and subject to that class of charges which I have just mentioned. A limited title will certify that from a particular date the title traced backwards has been sufficiently proved to be good. Everything prior to that date in the way of adverse claim will remain as before. But with that exception the title will be absolutely secure, and in the course of time it will become secure altogether. And in the case of a title not certified, or certified as limited, power will be given at any subsequent time, when the means of satisfying every possible requisition have been acquired, to obtain an absolute certificate. I confess I see no reason at all why registration by persons who do not want to sell their land should give them no immediate benefit, or why the benefit of a certified title should be postponed until they proceed to sell. If we wish to have a good working system we must, in my opinion, give the benefit of registration to the person who registers, and not postpone it until he sells his land. The next question is this, how are we to deal with the difficulty which has been pointed out by all the witnesses before the Commissioners—namely, the difficulty which is involved in the present requirement of a 60 years' title strictly made out? I propose to deal with it in accordance with the recommendations of the Report of 1869. It was foreseen, when the Commissioners of 1857 were inquiring into this matter, that unless some considerable helps and inducements towards the clearance of titles from doubts and difficulties, from outstanding claims, were afforded under the new system, it would probably fail. There is a passage in their Report to which experience has given weight, which with your Lordships' permission I will read. The Commissioners say—It has been strongly urged upon us that if the provisions of the Registry should operate upon the subsequent title only, and if the old title should be left open to investigation for the full period during which it is now liable to be affected by latent rights, the utility of the Registry would be wholly lost to the present generation.….The question hence arises, whether the principal benefit of the proposed system, which is the avoiding the necessity for 1131 retrospective investigation of the title, may not be secured by fair and reasonable provisions at some period earlier than the full time when all possible claims existing anterior to the Registry would, by the existing law, have expired or become barred. We have been reminded (by Mr. Dobbs) that if the Legislature should adopt such a rule, it would be only following an analogy furnished by their predecessors. A statute of Henry VII. gave to a fine levied with proclamations, after five years, a conclusive effect. The proclamations were nevertheless in practice a mere fiction, and gave no real notice to others; and the period of five years was adopted at a time when communication was difficult and intercourse confined.….It has been further urged (by Mr. Clifford Lloyd) that, if provision be made for the due publication of the registration, or the application to register, the registration ought to be allowed to attain its conclusive effect, after the lapse of some period shorter than is now required by the general Statutes of Limitation to extinguish dormant rights—in other words, that the title, if not impeached in a given time, say a short term of years, after the title is put upon the Register, and full notice of it published, might pass into an absolute and unimpeachable title, at least for the purpose of sale, and thus retrospective investigation of the title avoided, in the case of sale to a purchaser.The Commissioners were not all agreed in opinion as to whether those views should or should not be adopted; but, with some difference of opinion, they concluded it was best to abstain for the present from any measure of that kind, allowing at the same time registration with a guaranteed title, but not in any way shortening the investigation of title. All available evidence tends to show, not only that something less that 60 years may safely be accepted, but that much shorter titles are practically accepted, in all the transactions of mankind. Mr. Drummond and Mr. Headlam in 1853 felt that what is commonly described as a "safe holding title" might be accepted; and it will be found in the Bill which I shall submit to your Lordships that its 32nd clause directs the Registrar to accept and certify as absolute a good holding title, according to which possession has been held for not less than 20 years under a conveyance for value made not less than 20 years back by some person claiming to be entitled to dispose of the fee-simple in the land. This will do no injustice to anyone who may think he has claims to an estate, because there is no sounder principle than that of limitation in favour of possession, and against dormant and long outstanding claims. Good and not evil will result from getting rid of dor- 1132 mant claims. The Bill, of course, proposes to reserve the existing remedies in all cases of fraud.
I also propose, my Lords, to go further, and to accompany this Bill with another much shorter, but hardly less important, designed to shorten the periods of limitation now allowed by law for bringing forward adverse claims to land. By the Statute passed in the 3 & 4 Will. IV., c. 27, a period of 20 years is given to any person dispossessed, and who is under no disability, to bring an action or suit for the recovery of land or rent. A like period is given in the case of land held under any disentailing assurance not effectual to bar remainder-men, commencing from the time when the person entitled under the entail was capable of effectually barring it. A like period is given to a mortgagor seeking to redeem as against a mortgagee in possession when there has been no acknowledgment within that time of the right to redeem. A like period is given to recover any legacy or principal sum of money charged upon any land when there has been within that time no acknowledgment of the subsistence of the charge and no payment of interest. It is proposed, in all these cases to shorten the period one half—to substitute the period of 10 years for 20. The longest period allowed by the recent Indian Act of 1859, in any corresponding case, is 12 years. I should state that these periods of limitation do not apply to all as between trustee and cestui que trust, and in case of concealed fraud the time only begins to run from the discovery of the fraud. There are two other provisions in the Bill dealing with similar matters. By the Act of William IV. a reversioner becoming entitled to possession after the tenant for life preceding him has been dispossessed is allowed the full period of 20 years from the time when his own right to possession accrues to bring his action or suit, however long the previous dispossession may have lasted; and it is possible, that by a succession of several life estates, perhaps created under resettlements made after the dispossession, successive rights of action for 20 years each might go on accruing in this way during an extremely long period of time. It is proposed to give any such reversioner either 10 years from the time when the preceding tenant for life was dispossessed, or five years from the time 1133 when he himself became entitled to the possession—whichever of those periods may be the longest—and no more. And, if the right of any one such reversioner is barred, it is proposed that the bar should also extend to any subsequent reversioner whose title is derived from any deed, will, or instrument executed or first taking effect after the original dispossession commenced. The other provision relates to another clause in the same Act of William IV., under which if any person is under any legal disability when his right of action accrues, five years are allowed from the time when that disability ceases, or from the time of his death, whichever first happens, for an action by him or by anyone claiming under him to recover land or rent, subsequent disabilities not being regarded; and the same effect is given to absence beyond the seas as to a legal disability. It is proposed to allow in such cases three years only from the cessation of the disability, instead of five. Three years are allowed for the same purpose by the corresponding provision of the Indian Act of 1859. Absence beyond the seas is no longer to be reckoned as equivalent to a disability. Upon the construction of 3 & 4 Will. IV., c. 27, it has been judicially held that the period of six years, limited by that Act for the recovery of arrears of interest on a mortgage or charge, does not apply if a term of years in the land has been vested and is still subsisting in a Trustee for the creditor as part of his security, although such Trustee may not have been in possession or in receipt of any interest whatever for a longer period than six years. It is proposed now to declare that the limitation of 10 years as to principal and six years as to interest shall henceforth apply in all such cases. It is proposed, in order that any persons having claims which would be barred by the shortened periods of limitation may have a full opportunity of prosecuting them before this Act comes into operation, to postpone its commencement till the 1st of January, 1876.
I have now to explain that I propose to make registration on every occasion of a sale of land in fee-simple compulsory after the lapse of two years from the commencement of the Act. Before sale, no one will be compelled to register a title or submit it for registration, but in each case when the land is sold 1134 the land will be brought on the Register. I need not say why it is desirable to make the system universal. The benefits are obvious, and certainly no harm will be done, because we do not propose to compel owners to submit titles for examination. I will mention only one other point of considerable importance before I sit down. In the case of lands held in trust the Trustees only will register, and the person for whose benefit the land is held will have nothing to do in the way of proof of title except to trace that title to the Trustee.
I will not trouble your Lordships with further details, I may say that great pains have been taken to perfect the machinery of the Bill, and I hope that what I have said will be enough to gain for the Bill your favourable consideration.
Bill to simplify Titles and facilitate the Transfer of Land, presented by The Lord Chancellor.
§ LORD ROMILLY
said, he did not rise to discuss so large and complicated a subject, but he desired to point out that many of the proposals of his noble and learned Friend seemed to be taken from a Bill applicable to Ireland which he had the honour to introduce as Solicitor General in 1850–13 & 14 Vict. c. 72. That Act provided that great care should be taken with respect to maps, but a direction from the Treasury was necessary upon this point, and, as the direction was never given, the Act never came into practical operation.
§ LORD CAIRNS
said, he was glad that the subject of the registration of titles and the simplification of the transfer of land, after being allowed to slumber for several years, had been taken in hand by his noble and learned Friend. No doubt the measure or measures which his noble and. learned Friend had now laid on the Table would meet with the fullest consideration; and he hoped that in some form they might become law, and enable the land of this country to be dealt with with much greater facility than it had hitherto been. Of course, it would be impossible at present to express any opinion upon the details of the measure which his noble and learned Friend had explained; and he only rose for the purpose of saying that it appeared to him most essential that a proposal of this kind, abounding as it did in details, 1135 should be a considerable time, not merely before the House, but before the country. It would have to be examined with great care in all parts of the country by those who were in the habit of dealing with land; and though he should be glad to see reasonable progress made with it, he feared there was not much prospect of its receiving the sanction of Parliament during the present Session. At all events, he hoped that an ample period would be allowed before the Bill or Bills were read a second time, and he suggested that not less than a month should intervene before the second reading.
§ LORD HATHERLEY
said, that if his noble and learned Friend were able to carry his present proposals he would remove a great blot from the land laws of this country, which were of a most discreditable character. Throughout the civilized world there had not for a long time been any civilized nation which did not possess a general system for the registration of land. In this country we did not possess such a system, and though attempts had been made to introduce one, such attempts had not proved very successful. He trusted that his noble and learned Friend would prove more successful. On this subject two points of considerable practical difficulty had always arisen in this country, though they were not insuperable. The first was the length of time required for the perfection of title—the result of which was that, largely as proprietors of land were interested in this question, it had been extremely difficult to create in the public mind sufficient interest to carry a Bill through the Legislature. If you produced a measure which would have no considerable effect for 60 years, few persons would take a lively interest in it; and the difficulty would still be felt even if the time were limited. A second practical difficulty had always arisen with regard to the parcels, not only in tracing the title, but in attaching that title to specific portions of land. The question of a map or no map had been a long litigated question among reformers of the land laws. He did not understand clearly whether his noble and learned Friend intended to have a map of the land or a simple description.
THE LORD CHANCELLOR,
referring to the remarks of his noble and learned Friend (Lord Romilly), said, he had 1136 not, perhaps, directed his attention so much to the history of this question in Ireland as he should have done, and had, therefore, not referred to the particular Act which had been mentioned, and which appeared not to have produced the effect anticipated from it; but no doubt the present Bill was based on the same principle as that of the Bill introduced by his noble and learned Friend when Solicitor General. In answer to his noble and learned Friend who had just sat down (Lord Hatherley), he did contemplate the introduction of a map as a rule; though there would be some cases, as for instance cases of incorporeal hereditaments, to which maps would not be applicable.
§ Bill read 1a; and to be printed (No. 85.)