SECOND READNG. (Hansard, 23 May 1873)

§ LORD CAIRNS
said, that this Bill was such an important one, and any step in the wrong direction would be so dangerous and so difficult to retrace, that he trusted their Lordships would pardon him if for a short time he called their attention to the present position of the measure, and to some of the features in it that he thought required alteration. He did not rise to oppose the second reading of the Bill; on the contrary, its general scheme and aim had his most hearty support, for he had always enter- 342 tained the conviction that the only practical mode of simplifying the title of land in this country and facilitating its transfer was by establishing a registry of title in the proper sense of the word. As various speculations had been made respecting the comparative failure of the Act of 1862, he might state his conviction that the cause of that comparative failure was that, although styled an Act for the Registration of Titles, it was, when looked at closely and properly understood, a measure for the registration of assurances, and that was a kind of measure which in this country always had failed, and, in his opinion, always would fail. The present Bill, however, he recognized as a measure for a Registry of Titles, and in that respect it had his warm support. But it contained some novel features which required grave consideration. It was necessary that he should comment both on the present measure and the Real Property Limitation Bill, which was placed after it on the Paper for a second reading. The latter Bill was for shortening the period of prescription; and though that might appear but a small matter, yet it required very careful consideration. He did not mean to say there was in our present periods of limitation anything which should make us superstitious and lead us to say that they could not be reduced. Great changes had been made in the period of prescription. From 60 it had been reduced to 50, and next to 20 years, and now his noble and learned Friend (the Lord Chancellor) proposed still further to reduce it to 10 years. This was a decided step to take; but he felt still still more strongly respecting that part of the Bill which dealt with cases of disability, and to which, as at present advised, he could not agree. The law at present allowed an infant 10 years to assert his title to land, and that period was by this Bill cut down to three years. Considering the complexity of land titles and of boundary lines, which many of their Lordships knew from experience, three years was a very short period to allow for the assertion of his rights to a person who, by hypothesis, knew nothing about them until he attained to full age. This proposition was the more remarkable when they remembered that the present law, which the Bill did not propose to alter, allowed a full-grown man six years within which to assort his 343 claim to arrears of rent. Another provision in this Bill which filled him with apprehension was that with regard to the period of prescription in favour of persons who were beyond the seas. This Bill proposed to alter the law, and, instead of allowing an absent person a period for his return to this country, to say that such a person should be dealt with just as if he were in this country. He could easily imagine the case of a man in Australia, on a sheep farm or at the gold diggings, who might acquire an interest in land, by descent or otherwise, who might not hear of it for some time, and who might, on returning to this country to assert his claim, be debarred from doing so. Reference had been made to what had been done in Australia and in India, and it was desirable to look at what had been done abroad; but the other day it was stated by a correspondent, who wrote with some authority, that in South Australia the reduction of the period from 20 years to 10 years had been found to work so inconveniently and to give such openings to fraud that the Legislature had returned to the old period of prescription. The period of prescription had also been shortened in India, but that country was not analogous to England. There land was held from the Government upon payment of a tribute or impost, and if land became unoccupied there were soon inquiries to find out who ought to be in possession so that the person would probably be soon found out. Now, there was nothing analogous to that in England, so as to make a shorter period of prescription suitable. He believed that the wisest mode of shortening the period of prescription would be by holding out such shortening as a boon in the case of lands that were put upon the Register, instead of making it applicable to all land in the country, because one of the great difficulties in the way of a measure of this kind was to induce persons to register, and it would be well that they should be induced by some boon or temptation to place their land in the first instance on the Register. Coming to the larger measure—the Land Titles and Transfer Bill—he said it was a Bill which ought to be seriously considered by all who were interested in land. The Bill proposed that after the lapse of two years all sales of land in this country should be made in such a way as to bring 344 the land sold upon the register of titles, or, otherwise the sale should not be valid in law; but this compulsion was not applied to land that was not sold. He did not think that their Lordships would do well to impose as a matter of compulsion registration on landowners. If a good system of registration were introduced, and it became so acceptable that a large portion of the land was voluntarily put upon the Register, then they might go a step further, and say that all other land should be registered also; but they must begin tentatively. A good measure would commend itself to the people of the country as suited to their wants; but an unsuitable one would not, and an attempt to enforce it would provoke dissatisfaction, resistance, and failure. Very little would be gained by the contemplated compulsion, because comparatively little land changed hands in a year or in a few years. Dealers with large estates could take care of themselves; but in sales of an acre or two there would be hardship involved in compulsory registration, particularly if resort must be had to a London office. As the Bill stood compulsory registration was not to apply where only an undivided share in land was sold; and even a simple country attorney would know how to evade such an enactment. If he had a client who did not wish to register he would advise him merely to sell first one undivided share of the land and then the other; and in that way he would be entirely out of the scope of the section requiring registration. In the next place, he would refer to a very serious question—the machinery by which the Bill was proposed to be worked. That would be found in the 146th clause. The registration was to be conducted through the medium of a Board, which was called the Board of Registry in London. It was to consist of the Lord Chancellor, the Chancellor of the Exchequer, and the Registrar. The Lord Chancellor, of course, would not have leisure to attend to any of the details of registration. He would be simply available for making rules and giving general directions. He could not understand what the Chancellor of the Exchequer would have to do with the Board; except, so far as representing the Treasury, he would have an interest in the taxation to be levied and the stamps to be used; but when these were 345 once fixed the Chancellor of the Exchequer would cease to have any connection with the Board. The whole of the registration of titles must be done under and by the Registrars to be appointed under the Act. He did not observe that any definition whatever was given in the Bill as to the qualification of the Registrar. They were not told whether he was to be a barrister or not. It was only stated that when appointed he was to be one of the civil servants of the Crown. Now, he owned he had very strong opinions that if they were to have any system of registration which was to work in this country perfectly they would not accomplish the creation of that system with success unless they followed, more or less, the precedent which had worked so successfully in Ireland, in having a Landed Estates Court, which would consist of persons who were to be responsible for the passing of the title of the land which was to be registered, who would be persons of the position, the dignity, and the experience which was possessed by the Judges of the Landed Estates Court in Ireland, and who would bring to bear that amount of authority, and weight, and personal knowledge and skill which had made the Landed Estates Court in Ireland so great a success as it had been. He had endeavoured to discover what was to be the power of the Registrar under the Bill, and he found it was impossible to give to him anything like the powers which the Landed Estates Court had. By the 153rd and 154th sections, every question of law which could possibly arise before the Registrar was to be referred by the Registrar or the parties to the Court of Chancery. If that was the legislation that was to take place on the subject, he had a strong conviction that it would fail. He was convinced that it was perfectly impossible to have a system of registration unless they had some Court or authority which would decide the questions of law as they arose, and which would examine and pass and give an imprimatur to the title. He begged their Lordships to remember that one of the great difficulties would be to raise the points. Who would raise the points? There would be only one side before the Registrar, and that one side would not be anxious to raise the points, but to conceal them. This chance would require to 346 be undergone—that the Registrar would raise the point of the title, and that it be then referred to the Court of Chancery to be decided by the Court of Chancery. Well, he wanted to know with reference to this Registrar—this single man who was to decide nothing, but who was to refer everything to the Court of Chancery—what was to be the extent of his authority locally in regard to England generally. The Board of Registry was to have its offices in London, and it was to have power—lst, to divide England into districts for the purposes of registration of title, and to alter districts so made; 2nd, to declare by notice in The London Gazette when registration of title was to commence in any district and the place at which lands were to be registered; 3rd, to commence registration in any one or more district or districts pursuant to any such notice; and 4th, to declare by what assistant registrar, examiner of title, officers, and servants, the business of registration in such district was from time to time to be conducted. He wanted to know how all this was to work. Was it to be supposed that the assistant registrars were all as competent men as the Registrar? He supposed not. He supposed they were to be subordinate. Was it supposed that the land in the country had not a similar title to the land about London? Surely not. Well, how was it to be arranged that they were to have a Registrar in London and assistant registrars only in the country, which assistant registrars were to have the power of deciding the title in the country? It appeared that the Bill was going to set up all over the country a kind of subordinate officers, who were to examine all the titles, while at the same time they were to have a superior officer, whose business it was to do it in London. He must say he had considerable jealousy about the handing over from the upper or head officer duties which he alone should discharge to assistants and subordinates. He observed from the organs of information they were in the habit of daily consulting that Registrars in Bankruptcy, who never were intended to be Judges, but mere administrative officers, were attended by Queen's Counsel and other members of the Bar, and decided questions involving hundreds of thousands of pounds, and the credit of mer- 347 cantile men in the City. He said that was a very dangerous system, and one which he did not wish to see extended. He repeated that he was not satisfied with the machinery by which the Bill was to be worked. He found in the Bill a provision—namely, the 32nd —which filled him with considerable apprehension. It was a novel provision, and it ought to be carefully considered by those who were interested in landed property. According to that provision, the Registrar, after examining title deeds, if he should be of opinion that the title thereby shown was valid and good for the purpose of holding the land to which it related, after 20 years was to have the power of certifying the title as absolute. That was a provision which might be re-modelled; but as it stood it entirely overthrew everything which had been the law of the country hitherto, because no Court had ever supposed that what was described as a holding title for 20 years was a good title to land. The Court of Chancery had always required 60 years. That was too much; but 20 years was entirely nominal. An analogy had been suggested to justify this provision, and it was said that there were parties in this country who were willing to buy on the like conditions, and considered that they had a good holding title. But the analogy would not support any enactment of this kind. The person who wished to buy the land saw the conditions of sale, and it was for him to say whether he liked them or not. If he chose to run the risk the risk was his own. If the title turned out good, so much the better for him; if it did not, nobody else was injured. But that was not at all the case when the Registrar was authorized to turn himself into an absolute judge whether a title was good. That threw the risk upon the real owner and not upon the purchaser, for there was no purchaser in the case. Then there were provisions in the Bill with respect to boundaries which seemed very dangerous. There was hardly anything more perplexing in large estates than the question of boundaries. According to the Bill, if a person desired to have his boundaries settled, notice was to be given to the adjacent occupiers, and also to the person in receipt of the rents of the adjacent lands. That was good as far as it went. But what security in many cases would notices of this kind 348 be? The holder might be a tenant, the receiver of the rents might be a mortgagee, and, notwithstanding the notices, very serious injury might be inflicted upon the owners of the adjacent property. He believed they never would have any satisfactory definition of boundaries upon certified titles until a survey of England existed upon a scale large enough to deal with boundaries, and then it could be done to some advantage. In the 16th clause he found that the registered owner should be taken to have an absolute power of selling the land discharged of all trusts, and persons were to protect themselves by caveats. He quite admitted that that was a proper system to proceed upon. But then he found in the 41st section that, except in case of fraud, the purchaser from such registered proprietor was not to be affected by any notice of any trust or unregistered interest. It was said it was desirable to make land as easy of transfer as ships or stocks. But they had no such enactment with regard to ships or stocks. There was another proposal which seemed to be attended with much danger—namely, that which related to the question of judicial sales. He looked upon that part of the Bill as one which would require very great consideration, and in its present form he doubted the expediency of adopting it. Any person interested might come to the Court of Chancery to prove that by reason of complexity of title, or other specified causes, it would be beneficial to the parties interested that there should be a sale. There were at present many cases in which persons partly interested in land might apply for a sale; but here was an entirely new crop of cases, in which persons interested, no matter to how small an extent, in the land, might come to the Court and say—"This land is in an unfortunate condition, the title is very perplexed, there are many persons interested, and we ask that the land should be turned into money." It might be said that the Court of Chancery would never order the land to be sold unless it was satisfied that the sale would be highly beneficial to the parties concerned. He admitted that; but objected to allowing persons with however small an interest to come to the Court and ask to have the land turned into money. Then there were provisions with respect to the Court of Chancery which seemed to show that 349 his noble and learned Friend had a higher idea of the powers of that Court than he himself had. His noble and learned Friend armed the Court of Chancery with powers to give a certified and indefeasible title upon sales which were authorized by the Bill to be made, and not upon the occasion of these sales only, but on the occasions of all sales which the Court of Chancery made in the course of its ordinary business. He was perfectly sure that the Court of Chancery was quite unfitted to give certified and indefeasible titles to owners of land, and for this reason. The Judges in the Court of Chancery could not sit down and examine abstracts of title, and say—"We are of opinion, upon our responsibility as Judges, that here is a title which is indefeasible, and we certify accordingly." They could only remit the matter to one of the conveyancing counsel of the Court, who would state his opinion upon his judgment as to whether the title could be certified as indefeasible or not. The danger of these cases was not that points would be raised and improperly decided, but that they would not be raised at all; that the difficulties would be passed over; and that the Court of Chancery would incur the extreme responsibility of certifying a title as indefeasible when in reality the Judges of the Court could not decide on the subject themselves, but must take the decision second hand from some counsel advising the Court. If we gave an indefeasible title by Act of Parliament any mistake would be irreparable. It was true there was a provision that a person aggrieved might be; re-imbursed out of any purchase money that might remain at the disposal of the Court. But surely their Lordships would not think such a remedy sufficient. He did not clearly understand the power it was proposed to give to the County Courts under the Bill; but protested against their giving certified titles. His noble and learned Friend would have gathered from what he had said that he looked upon the measure in no unfriendly spirit. Speaking generally, a measure of this kind needed very careful examination in detail; it would scarcely be possible—and certainly not satisfactory—to allow it to pass without thorough, revision in a Select Committee. The labours of that Committee would not be light; the clauses of the Bill, numbering 173, were not merely clauses of pro- 350 cedure such as those in the Supreme Court of Judicature Bill, but clauses every word of which must be weighed, because a slip might do incalculable evil, perhaps years hence. The Bill would probably not emerge from the Select Committee in time to insure its becoming law this Session, especially as the House of Commons had postponed the second reading of the Supreme Court of Judicature Bill until after the holidays. Would it not then be better to rest content with taking this stage of the Bill this Session? One of his earliest recollections of legislation was the enactment about 40 years ago of the Law for Abolishing Fines and Recoveries. It had a remarkable history. Perhaps no modern Act of Parliament had ever had so few decisions of Judges upon it, although it had been in daily operation since its enactment. The reason of this was to be found in the fact that the Bill was handed over to Mr. Peter Brodie, one of the most eminent conveyancers of that day, and was revised by him so carefully that it left his hands the most finished and masterly piece of work connected with real property ever produced. Would it not be well to adopt a similar course with this Bill? If it were handed to one or, better still, to two eminent conveyancers for revision in detail, though, of course, adhering to the main principles of the measure, the result might be equally satisfactory. It was utterly impossible for any ordinary draftsman to avoid slips in such a measure as this, and it was equally impossible for his noble and learned Friend, considering the numerous demands upon his time to do the work himself.

§ THE EARL OF POWIS
suggested Amendments with regard to dealings in mines and tithes. In the case of enclosures also, there would be an important class of title, for which he did not see any provision in the Bill; and he suggested that the tenant for life should be put upon the Register as well as the trustees, so as to provide an additional safeguard against any fraudulent dealing with estates.

THE LORD CHANCELLOR
said, he would endeavour to show that he could be concise in his reply to the points which had been raised, though he would willingly have devoted more time to their elucidation. First, with regard to the period of limitation, his special object in shortening that period was one in which 351 he understood his noble and learned Friend to concur—namely, to afford an assistance and an inducement to the clearance of titles placed upon the Register. He did not now propose to enter upon the particular period which should be fixed. His noble and learned Friend was less accurate than usual in stating that the period of limitation after disability ceased was now ten years. It was really five years, and the Bill would limit it to three. As to the case of people beyond the seas, he hoped, when this case came to be considered, duo regard would be paid to the great increase in the facility of communications between all parts of the world. Formerly there were strong reasons for including absence beyond seas as a cause of disability; but these reasons had of late years been much weakened, and their Lordships would, he thought, come to the conclusion that they might safely be disregarded altogether. No doubt that principle had been adopted in the colonies; but in this country an Act introduced by Lord Campbell had already abolished this saving with respect to actions for debt and other personal actions. As to the letter in the newspaper, he was himself ignorant of the Australian Act for shortening the period of limitations, nor could he throw any light upon the question whether the letter was accurate or not. If, however, the period of limitation had been altered in Australia to 10 years, and then back again to 20, he should have expected that the fact would have come to his observation in some way or Other. The principle on which this Bill proceeded was that possession, bonâ fide acquired and long enjoyed, was entitled to more respect than claims of which persons were ignorant, or which had been knowingly and deliberately delayed. The great object was that there should be a clearance of titles, and security to those who availed themselves of the system of registration. He regretted that his noble and learned Friend should object to the 32nd clause, for enabling the Registrar to accept as absolutely good what were there called "good holding titles;" for it was, he believed, the opinion of most persons who had considered the subject of Registration that, at all events, something less than the strictness of the present legal requirement was absolutely necessary. The instances where "good holding 352 titles" wore disturbed were very rare; and it appeared to him that there would be nothing unsafe or unjust if their Lordships determined that, for the purpose of facilitating Registration, and for clearing titles, they would adopt the principle of the 32nd clause, whether or not they adhered to the precise language. As to the question of Boundaries, he would not touch upon it further than to say that these provisions of the Bill were entirely open to consideration and might, if necessary, be amended. So with respect to the machinery of the Bill. He quite agreed that the Registrar should be a person able to discharge functions substantially of a judicial character; and it was open to consideration whether his name should be altered, and some of the powers of the Court of Chancery intrusted to him, following in this respect the lines of some former Bills. With regard to judicial sales in the case of complicated titles, the clauses in the Bill were substantially the same as clauses which his noble and learned Friend himself formerly considered proper; and as to County Courts, he agreed that their assistance should not be resorted to, except mainly for ministerial purposes. He trusted, however, that their Lordships would not dissent from the principle that good holding titles might be certified. With regard to the suggestion of the noble Earl (the Earl of Powis), there might be some advantage in re-considering the provisions to which he had referred. He must acknowledge that the suggestion of the noble and learned Lord to refer the present Bills to another Select Committee did not hold out much prospect of their becoming law this Session. If this should be impossible, it might deserve consideration whether some such reference to competent persons as that stated by his noble and learned Friend to have been made in the case of the Fines and Recoveries Bill might not be followed with advantage. He did not understand his noble and learned Friend to ask him to give any pledge on the subject; but he would undertake, between the present time and the next meeting of Parliament, to consider his recommendations.