Lords Sitting of 5 May 1874

MINUTES.
PUBLIC BILLS—Second Reading—Courts (Colonial) Jurisdiction * (48); Game Birds (Ireland)* (49).
Committee—Real Property Limitation * (39); Land Titles and Transfer (re-comm.) (40–54); Real Property Vendors and Purchasers (recomm.)*(41–55).
Committee—Report—Marriages Legalization (St. Paul's Church at Pooley Bridge) (102); Marriages Legalization (St. John the Evangelist's Chapel in the Parish of Shustock)* (101); Hertford College, Oxford * (46); Public Works Loan Commissioners (Loans to School Boards) * (23).
Third Reading—Harbour Dues (Isle of Man)* (34), and passed.

LAND TITLES AND TRANSFER BILL.
(The Lord Chancellor.)
LAND TITLES AND TRANSFER BILL.

  (NOS. 40–54.) COMMITTEE.
  Order of the Day for the House to be put into a Committee (on Re-commitment) read.
  Moved, That the House do now resolve itself into a Committee.—(The Lord Chancellor.)
  LORD HATHERLEYsaid, that not having addressed the House on the second reading, he wished to take that opportunity of saying that the principle of the Bill had his hearty concurrence, and he thought its passing would take this country out of the anomalous position in which it now stood of being the only nation in the civilized world which had no registration of the titles to and transfer of land. In two counties only—Middlesex and Yorkshire—had we even a register of deeds. But he wished to point out one or two points in which he thought the Bill was not satisfactory. In the transaction of selling and buying land the ordinary procedure at present was this—the vendor engaged to sell for a given price a given quantity of land, and to sell it out and out. He bound himself to show that he had a complete title to the land, and the purchaser could refuse to perform his contract unless the vendor did what he so bound himself to do. But the Courts had always held that this transaction was strictly confined to the two parties—the vendor and the purchaser. If the vendor found himself in any difficulty as regarded the title he must make the best of it. He could not bring in a third person, whose title might be attacked. That being the case, if the Bill followed the analogy of the present mode of selling, the vendor, having made the best he could of his title, would make a declaration, on which the Registrar would proceed to register it. But the Bill went considerably further than that. First, it provided for the case in which a person would simply put on the register the property respecting which he made a declaration that it was his property; but it provided for the registration of two other classes of property. A proprietor might apply to the Registrar to register him as proprietor with an absolute title—the effect of such a registry, when accomplished in a way prescribed by this Bill, would be to give the person so registered a title of absolute owner as against all the world. Again, a proprietor might have himself put on the register as proprietor with a limited title—that was to say, with a title guaranteed as good for a limited time previously to the date of registration. Thus a man might register in 1874 land of which the title was guaranteed from, say, 1840. In both those

  1669
  latter eases the purchaser might apply to the Registrar to make out a full statement of title; and thereupon the Registrar, exercising for such purposes the functions of a Judge, might summon third parties to give evidence as to their title. More than that, Clause 111 conferred on him the formidable power of calling on third parties to produce deeds. The Registrar had the power of deciding whether such persons had or had not a right to refuse to produce their deeds. Now, he regarded this as hazardous. Let their Lordships consider the case of contingent interests, respecting which those who would be affected by them had no wish to raise a question till the contingency arose. The Registrars under this Bill would have power to call those persons before them, and the question might be raised long before the contingency could arise, and that to the great inconvenience of the parties interested. By Clause 117 power was given to the Registrar to alter the register in certain cases; but that might give rise to a similar examination, and the inconvenience to which third parties might be subjected did not stop with proceedings before the Registrar. There was an appeal to the highest Court of Judicature, which would be an additional source of hardship and expense to those parties. If a man was selling land which had formed a small portion of the estate of another person, this other person might be obliged to come into court and prove his title to the whole estate. The Bill was drawn with such care that he did not think there could be much objection made to it on the clauses. He therefore thought it right to state that he wished the scope of the Bill had been confined to a simple registration of title.
  LORD SELBORNEsaid, that if there was not such a registration of title as that to which his noble and learned Friend (Lord Hatherley) objected, successive sales of land could not make the title good. The title could only become good by the operation of the law of Limitation, if the registration was merely such as his noble and learned Friend wished to sec. He thought no Bill would be of much use without such a system of registration; but he also thought that any Bill would be very imperfect, which did not offer to those, whose titles were in such a state as to enable them to take advantage of it, the
  1670
  means of clearing those titles once for all, so that, on all future transfer, they might be relieved from the present laborious and expensive process of investigation of title. As it now was, a man transferring his land on sale had to make out his title to it to the satisfaction of the purchaser, and he might therefore just as well make out the title, as far as he could, to the satisfaction of the registrar and register it. Of course the declaration of a sound title from a certain date would exclude persons from coming forward under titles of later date and making adverse claims; but he thought that if a man was in possession under a bonâ fide title such as an officer of the Court would pass, the registered owner ought not to be in a worse position than if any person had a claim against him which was barred by the statute of limitations; because all laws of limitation excluded those who were outside the limitation from coming forward and making claims. What was really wanted was to establish, as far as possible, a complete verification and simplification of titles. He did not believe, that under this Bill, titles would as a general rule, be made out in a manner much differing from the present mode between vendors and purchasers. What would happen was this—that where a purchaser objected, or the registrar thought there was an objection that ought to be cleared up, he would call upon the registered owner to supply the defect, just as a conveyancer or Chancery barrister did now.
  LORD O'HAGANsaid, he warmly approved the object and character of the Bill, and he wished to make a few observations in support of its provisions, founded on his own knowledge of the Landed Estates Court and the Record of Title Office in Ireland. Under the Landed Estates Court, property of the value of some £50,000,000 had been dealt with, and although the Court gave an indefeasible title in all cases, and many of the transactions were delicate and complicated, the mistakes had been so few as to be scarcely worth notice. He thought, therefore, that the successful experience of that Court was a complete answer to any doubts as to the safety and propriety of granting indefeasible titles. The Bill for the establishment of the Record of Title Office passed in 1865. It was not a very liberal mea-

  1671
  sure; and the Office it created had been working steadily, though not in a very successful manner. Its partial non-success arose from the want of those very provisions to which his noble and learned Friend (Lord Hatherley) objected in the present Bill. No land for which a declaration of title had not been previously obtained in the Landed Estates Court could be registered in that Office. The result was, that from 1865 up to the present date, only 500 or 600 properties had been registered. This arose very much from the requirement of an indefeasible title in all cases. But though inthis respect the Act had been partially a failure, it had proved that it was possible, under a system of registration, to avoid the expense and complication which a transfer of land now involved. Through its machinery sales had been begun and completed within an hour. So persuaded of the advantages of the Act was his noble Friend (the Duke of Leinster), that he once proposed to put the whole of his estates under the Record of Title Office; but he found that to go into the Landed Estates Court and obtain a declaration of title would cost him £6,000. As he really needed no declaration he did not go to that large expense. Now, the Bill before their Lordships did not require that the title should be indefeasible in order that it might be registered. Sufficient liberality had not been exhibited in the constitution of the Record of Title Office. That had operated against its success, as had also the disfavour manifested towards it by the legal profession. There was no compulsion under the Bill of 1865. Something of the sort was necessary and he was glad that by the Bill of his noble and learned Friend on the Woolsack, such a compulsion was indirectly put upon vendors and purchasers in respect of the registration of titles. As to the settlement of boundaries, he thought the Bill might with advantage have gone further, and provided for such a settlement in cases where the conterminous proprietors desired it. He would also suggest that the proceedings of the Registrars should be subject to supervision. He also desired to point out that it would be well if the registers were accessible to all persons. In Ireland, since the Act of Queen Anne, the registry of deeds had been open to all the world; so had registries of wills, and no evil
  1672
  had resulted to anybody. He would suggest that there should be in this country, if not an open register, at least an index to records of title.
  THE LORD CHANCELLORsaid, that having, by the indulgence of their Lordships, explained the provisions of this Bill so fully on the occasion of its introduction, he should not have said a word on this occasion, only that he was unwilling that the observations of his noble and learned Friend (Lord Hatherley) should pass without some notice from him. Any criticism coming from his noble and learned Friend would command his attention, but he hoped that his noble and learned Friend would look at the Bill from a somewhat different point of view. The registries of which his noble and learned Friend spoke as existing in Middlesex and Yorkshire and in other counties were registries of deeds. Now, as he had stated when introducing this Bill, he wished it to be distinctly understood that what he proposed was not a registry of deeds, but a registry of land. He believed that a registry of deeds might add to the security of title, but he denied that it in any way facilitated the transfer of land. He did not understand the provisions for the proceedings of the Registrar in the same way as his noble and learned Friend appeared to do. He understood that the Registrar would examine the title brought before him, but he did not undertand that he was to summon persons before him to litigate their titles. As for the production of deeds, he himself was very fastidious on that point; and under the Bill the Registrar could only require the production of deeds where the party asking for them had a right to call for their production. The Bill created no new Court—he was bound to say that he wished it did create a tribunal something like the Landed Estates Court in Ireland—it took an existing Land Registry Office and made use of the machinery there. He felt that he should not be justified in troubling their Lordships at greater length by repeating what he had already stated at such length.
  Motion agreed to; House in Committee accordingly; Amendments made; the Report thereof to be received on Friday, the 15th instant; and Bill to be printed as amended (No. 54).

REAL PROPERTY VENDORS AND PURCHASERS BILL.
(The Lord Chancellor.)
REAL PROPERTY VENDORS AND PURCHASERS BILL.

  COMMITTEE (ON RECOMMITMENT).
  House in Committee (on Recommitment) according to Order; Amendments made; the Report thereof to be received on Friday, the 15th instant; and Bill to be printed as amended (No. 55).
  House adjourned at half-past Seven o'clock, to Thursday next, half-past Ten o'clock.