§ Amendments reported (according to Order.)
THE LORD CHANCELLOR
said, he had given Notice of some Amendments on this stage of the Bill; but of these some were merely verbal, and in others changes intended to give effect to Amendments of his noble and learned Friend (Lord Selborne), which he was ready to accede to. He believed the only Amendment on which any discussion would arise was that of which his noble and learned Friend had given Notice, and which, if adopted, would follow Clause 10.
§ Amendments made.
§ LORD SELBORNE
, in moving to insert the Clause of which he had given Notice, and which provided that when, after three years from the passing of the Act, there was a sale of land in fee simple, registration should be compulsory, said, that he might have contented himself with the protest he made on the second reading against the omission from the Bill of a compulsory clause, if his noble and learned Friend on the Woolsack had not been so good as to say, that he would willingly hear the reasons for and against compulsion stated, and to encourage him to take this opportunity of raising the question by a distinct proposition. In approaching the question he wished to point out that compulsion in this case differed very much from compulsion in any case where conscience was concerned, or in which noncompliance was punished with any personal penalty. There was no man in their Lordships' House who had a stronger leaning in favour of liberty or against compulsion in those spheres of human action which were proper subjects for free choice than himself. But this was not a question of personal liberty, whether public or private. The subject with which their Lordships were asked to deal was one in respect of 1777 which the law prescribed an effect which was to arise from certain things, done or omitted to be done. Therefore there could be no interference with personal liberty in making the registration required by this Bill compulsory. All he proposed to say to the landowner was this—"If you put your property on the register, you will get a legal title with certain rights and incidents. If you do not put it on the register you will not get a legal title, but you will have an equitable title with other rights and incidents." In all the existing modes of conveyance and assurance, certain legal solemnities were required to be used for the purpose of producing certain effects: the entire system being technical, and the creature of positive law. That was just the same sort of compulsion which would be applied, rendering necessary, instead of those solemnities, others of a simpler and more convenient kind, if his Amendment were adopted. Well then, if their Lordships were satisfied that their legislation was proceeding in a right direction and on sound and accurate lines, the presumption was that the legislation ought to be compulsory rather than otherwise. The object was, as far as possible and as soon as possible, to substitute a better system for our present complicated system of land titles and land transfer; and if the plan by which it was proposed to do this was a good one, manifestly public policy pointed to the importance of having it made as general as possible. They ought to leave themselves as little as possible at the mercy of the prejudices and interests generated by the system they intended to supersede, in order to give the best chance possible to the measure which they wished to succeed. That being the general principle on which he desired to proceed, he had next to consider whether in a case of that kind such experience as we had was in favour of a general and compulsory or of an optional and voluntary system of registration. The answer was, that all our practical experience in similar or analogous cases was in favour of compulsion. What had the advocates for reform in the transfer of land been constantly placing before their Lordships as practical arguments in its favour? Why, they had always brought forward the examples of systems in which compulsory registra- 1778 tion had already received the sanction of the Legislature, and always with the best results. Take the case of the transfer of stocks, and of shares in ships—was registration in these transactions optional or compulsory? It was compulsory. Registration was compulsory in respect of deeds in Middlesex, in the several Hidings of Yorkshire, in the Bedford Level, and in Ireland; and the Legislature had given its sanction to compulsion in these cases with the express object of avoiding a part only of the evils of our system of conveyancing. There was also the case of dealings in shares in Joint Stock operations. And in our Australian colonies, and in various foreign countries, in which the title to land was evidenced by public registers, registration was compulsory; and the system worked easily, and with satisfactory results. All these examples showed that there was nothing new in the principle of compulsory registration, and that in every case in which it was enforced it had been found effectual. If, by the present measure, their Lordships and the other House of Parliament did not make the registration of title compulsory, he feared there was serious danger of the new system being warped and embarrassed by those habits and those interests which were opposed to it. When he spoke of interests, he did so in no invidious sense; because he believed that in very many instances at least those interests would be brought to bear unconsciously. Their Lordships were aware that in 1869 a Royal commission was appointed to consider the working of the system of land registry under Lord Westbury's Act. Some of the evidence taken by that Commission was very instructive. He found that a member of a very eminent firm of London solicitors, when being examined by the Commission, stated that as to the neglect of registration he did not believe hostile feeling had much to do with it—he thought it was to be attributed to an indisposition to change and a dread of the unknown. He might cite to their Lordships the testimony of a number of witnesses to the effect that, in their opinion, nothing but compulsion could overcome the dislike to registration. According to his own observation, that opinion was a well-founded one—he believed there would be a vast amount of vis invertiœ opposed to the working 1779 of the Bill now before their Lordships. When that was seconded by those interests to which he had before referred—for it was a matter which, after all, was very much in the hands of the lawyers—it was difficult to feel at all sanguine of success if the system was to be an entirely voluntary one, both now and in the future. He would now call their Lordships' attention to one or two things which ought to be borne in mind when the question of compulsion was considered. The present Bill, as well as the two previous Bills, differed in an important respect from the Act of Lord Westbury. The difference was this. In accordance with the recommendation of the Royal Commission of 1869, it was proposed in this, as it had been in the Bill of last year and the Bill which preceded it, to enable persons to register, not only absolute titles—titles that had been examined and certified by the Registrar—but possessory titles also. That was to say, every man in possession of land might, under the Bill as it stood, register the title which he claimed to that land; and if the Bill were amended by the clause he proposed, he would be compelled to do so, after the expiration of throe years from the passing of the Act, in the event, and upon the occasion, of its being brought into the market for sale. The difference between this Bill and Lord Westbury's Act in that respect was, no doubt, very important. It would have been impossible to make registration compulsory under Lord Westbury's Act; because under it, the only titles which could be registered were those which were made out as absolute. What was known as a Parliamentary title was to be made out when a title was put on the register under that Act. Now there were not many estates with such a title in this Kingdom; and the reason was this—It had been customary to sell land with special conditions, and the consequence was that the greater part of the land which had passed through the market was held on titles qualified by those special conditions. But to clear those special conditions off would require a considerable time; and until they were cleared off, the title of land to which they attached could not be registered under Lord Westbury's Act. Again, even where special conditions did not interpose as a difficulty, the expense of making out an 1780 absolute title would be, in many cases, an expense which could not be thrown on owners of moderate means. Well, most wisely, this Bill, like its two predecessors, was so framed that it would enable persons, who would not go to an expense which they might not be able to afford, to place their titles such as they were, with all their imperfections, on the register. This provision at once removed a hardship which would otherwise exist if owners were compelled to register whenever their land was brought into the market. The. Commissioners of 1869 pointed out that the titles would increase in validity by progress of time from the period at which they were put on the register. They pointed out that recency of date was no objection; because if the purchaser was not satisfied with the title registered, he would require proof of title in the same way as though there had been no registration; after the title had been on the register for five years, they thought it probable that the purchaser might frequently require less proof, and so on; and that, after 30 years, none, or very few, would go beyond the register—while, in respect of the period which had elapsed after the title had been on the register, no one could go beyond the register at all. The lapse of time made the title stronger and more marketable every year; and they said we ought thus to lay the foundation of a system which would become, year by year, more beneficial than the systems it would gradually supersede, and would ultimately substitute a good one for a bad one. The Commissioners compared the process, by which all titles put on the register would be cleared, to that which water underwent in a filter. As the water descended the purer portion was constantly increasing in volume, though that which was yet above remained mixed with mud or other impurity; but when all the water got down below a certain mark, it was all pure. So it was with titles placed on the register. In process of time they were completely cleared. That would, he thought, be an object of high public policy, even if there were no advantage from the very date at which the registration commenced. He admitted it was a drawback that the present generation would not live to see all properties pass through the registration filter; but he was not 1781 one of those who thought that the Legislature should have no care for posterity; and a not remote posterity would enjoy the full advantage of the system. Some, however, of its good effects—and those of no trifling value—would be immediate. The expense of the change ought not to be great—for if the title was put upon the register without being completely made out and certified, the cost could not be serious—and, from the very moment of registration, so far as related to the mere operations of charges and transfers, as distinguished from trusts and settlements, all future expense of conveyancing would be got rid of. In our Australian colonies, where the system had been adopted, as far as transfer was concerned, it seemed to be carried out with extreme simplicity and inexpensiveness. Such success as the system had met with in the colonies—and it was generally spoken of as a great success on the whole, though, perhaps, there were some points on which some of the Colonial Acts might be improved—had not resulted from its being optional, but from its being compulsory. If his memory served him rightly, there was some difference among the Commissioners of 1859 on that point—as to the extent to which compulsion should be carried—but the question had been considered by them with respect to a scheme very different from that before their Lordships. Compulsion had, since that time, been applied in the colonies, and had been attended with success. We had also had considerable experience of the working of Lord Westbury's Act, and of what had been done in Ireland under the Incumbered Estates and the Landed Estates Acts, and he thought their Lordships were now in a position to decide as between a voluntary and a compulsory system. Their Lordships had heard from his noble and learned Friend on the Woolsack what were the reasons which had led him to withdraw the compulsory provision contained in his Bill of last year, and to make his present measure one for voluntary registration only. The practical objections relied on by his noble and learned Friend appeared to him to resolve themselves into two—one, the difficulty as to expense in the case of small properties, and the other the difficulty arising from the number of local registries which would be required if Regis- 1782 tration were made compulsory. As to the first of these, he might refer to a printed document which had been placed in his hands, and, no doubt, also in the hands of his noble and learned Friend, and the contents of which were similar to those in a Petition presented last Session to the other House of Parliament. It was drawn up by a numerous and highly respectable body of gentlemen who were solicitors practising in Lincolnshire. It would appear from the document that the county of Lincoln abounded in small freeholds, which were made the subject of transfers, and that these transfers were carried out with much expedition, simplicity, and economy, under the present system. He was very glad to hear that in Lincolnshire there was such a large number of those small freeholds, and he hoped that Lincolnshire was not the only county in England thus favourably circumstanced. If it were demonstrated that a system of registry would not benefit those small freeholders, and would not tend to facilitate the transfer of that class of property, he confessed he should have a much less strong opinion than that which he now entertained as to the advantages to be derived from any Bill of this kind. If such a Bill were only good for the rich, it would be of much less value than he took it to be. But let their Lordships see the conditions which, according to the authors of the document to which he had been referring, made those transactions so simple, cheap, and expeditious; and let them further see whether those conditions would not equally tend to make registration practicable, without any additional cost in those cases. The gentlemen who drew up the document stated that in their part of the country the solicitors and the clients were known to each other, and were acquainted with the land. If that were so, it would much facilitate registration. Then they said that the same solicitor often acted for both vendor and purchaser. That circumstance would be quite as advantageous in the case of registration as it could be in the case of a transfer without registration. Again, they stated that in some instances the purchase money was to be secured, wholly or in part by mortgage on the property, and the same solicitor acted for mortgagor and mortgagee. This, again, would be a saving of money in the preparation of 1783 deeds: the transfer and the charge could be simultaneously made upon the register. They urged, further, that in those small cases there were no complications arising out of settlements:—that the titles were simple and well-known, that the assistance of counsel was rarely required, and that the contract was made and the whole transaction completed within a very short time. Every one of these advantages would operate exactly in the same manner, and have exactly the same value, under a system of compulsory registration. The petitioners relied much on the cheapness of the present system; and to illustrate their experience in that way they gave a summary of the costs in 127 cases. Of these 5 were under £50, 17 under £100, 33 under £200, and 14 under £300. He would not go further than £300, because that was the limit in the Bill of last year. The lowest charge for conveyance, including stamp and payments, was £2 8s. upon a £40 transaction; and the highest was £20 upon a £1,000 purchase. The average cost for a conveyance for under £50 was £2 9s. 2d; for a conveyance under £100 it was £2 18s., and for a conveyance under £200 it was £4 3s. 2d. The charges upon the whole 137 cases gave an average of £6 9s. 4d. in each case. Now, what reason was there for believing that the charges under a system of registration would not be equally small? Excluding the stamp duty, the average charge for conveyancing in the cases to which he had referred to was for transactions under £50, £2 9s. 2d.; under £100, £2 18s.; and under £200, £4 8s. 3d. Everything higher cost proportionately more, which, for the mere operation of registration, need not be the case. It would not require more than 5s. for registration, and 5s. for the affidavit, of which the sole object would be to prove possession, and which might, and would be, in a short and simple printed form. The margin for the solicitor's travelling expenses, and fair profit, would be at least as great as now, without any additional charge; and it must be borne in mind that after registration all future transfers would cost comparatively nothing. He thought, therefore, that by fixing the fees at a low rate, as they ought to be fixed, it would be quite practicable to adopt the system of compulsory registration with- 1784 out increasing in the case of the first transfer the cost of those small transactions, and with a great diminution of expense in all subsequent transfers. He observed that the Birmingham Law Society said—"We observe with great satisfaction the omission of all compulsory clauses from the present Bill," The only thing he gathered from the report of those gentlemen from Birmingham was that they were willing to contemplate with complaisance the possibility of a system of registration coming into operation some 20 years hence. It was quite true, as stated by one or more of the witnesses examined before the Commission of 1869, that the system of registration under Lord Westbury's Act was expensive, but the one he now proposed was totally different in its operation. Writing to him on this subject, a gentleman of great local experience, as a solicitor and conveyancer, in the county of Essex had stated his conviction that if registration was not made compulsory, instead of being a benefit, the Bill would be an injury, because it would render it necessary in all cases that country solicitors should employ their London agents to search whether the property was registered or not, and he was of opinion that the views which he (Lord Selborne) had advocated were sound and practical. If they combined an optional system of registration with an optional system of ordinary conveyance, they would add in all cases of optional conveyance an additional expense for searching to see whether the land was registered or not. In Middlesex and Yorkshire and Ireland they had long had experience of registration of a very different, less useful, and far more costly kind; and even such registration, though it might cause some expense, did not check small transactions in land. This brought him to the second question, as to district registries, which he would assume to be necessary; not, indeed, for the examination or verification of title, but for the registry of—at all events—possessory titles by those to whom it might be more convenient to transact that business in the country than in London. This was the opinion of the Commissioners of 1869, who thought that the expense of registering the titles to small properties might be much diminished by having local registries. It was a point, however, on which 1785 opinions were divided. Sir Robert Torrens said that in Australia the system of one central registry worked with great facility, and Mr. Smee, of the Bank of England, advocated the same theory. Now, they had already district registries for the County Courts, for the Probate Court, and also local Admiralty registration; and one or other of these systems might be employed to register possessory titles. He would go further, and say that this district registration might be done by any respectable practising attorney. He ventured to think that they would be sufficiently remunerated for this service, whether the business were much or little, by the fees, which might be fixed. If it were much, those fees, though small, would be a substantial remuneration; and, if it were little, there would be no occasion for more than a small remuneration for little work. The whole of this part of the question was matter of detail, and need not involve any practical difficulty or expense which ought for a moment to be put in competition with the great objects they had in view. The noble and learned Lord concluded by moving, after Clause 10, to insert the following clause—When, after the expiration of three years from the commencement of this Act, there is a sale of land in fee simple in possession, or subject to any prior estate for life or for years, and whether subject or not to any incumbrance (there not being already a registered proprietor), and the purchaser might apply for registration under this Act, some person shall be registered under this Act as proprietor thereof, either with a possessory title only or with an absolute or qualified title: and any deed or instrument of conveyance of the land shall operate in equity only and not be effectual at law to pass the legal estate in the land.The application for registration may be made either by the purchaser (with the consent of the vendor) before the execution of any deed or instrument of conveyance, or, after the execution of any such deed or instrument, by some person interested, beneficially or otherwise, under the same; and if in such deed or instrument any person or persons is or are specified as the person or persons to be registered as proprietor or proprietors of such land, the registrar shall register such person or persons accordingly thereto. If no person shall be so specified the person or persons to be registered as proprietor or proprietors shall be the purchaser, or some person or persons to be nominated by him in that behalf, when the application is made before or without the execution of any deed or instrument of conveyance; and when any such deed or instrument of conveyance has been executed then such person or persons entitled under such deed or instrument as herein-after mentioned; (that is to say,) 1786
- "(a.) The person (if any) entitled beneficially in possession to the fee simple of such land:
- "(b.) In case of there being persons beneficially entitled under such deed or instrument for successive estates, the person or persons (if any) in whom, if registration were not required, the land would be by such deed or instrument vested in fee, as trustee or trustees; and if there be no such person, the person or persons having the first beneficial freehold estate under the same; or (at his or their request), any person or persons having under such deed or instrument a power of sale over such land, whether with or without any consent, request, or direction."—(The Lord Selborne.)
THE LORD CHANCELLOR
said, he could not help rejoicing that, even at the expense of some encroachment on their Lordships' time, his noble and learned Friend had brought the present question fully under their consideration. It was important the House should know on what principles legislation with respect to it should proceed, and it was also desirable that there should be no misunderstanding on the subject out-of-doors. Having heard his noble and learned Friend, their Lordships might, he thought, congratulate themselves on having heard every possible argument in favour of compulsory registration submitted to them in the most forcible manner; but he (the Lord Chancellor) should, he believed, be able to show them that the noble and learned Lord had underrated some of the difficulties which stood in the way of the proposal which he advocated, while there were others which seemed not to have presented themselves at all to his mind which were absolutely insuperable—when he had done that their Lordships would have the opportunity of deciding on the question after having heard both sides. He might at the outset observe that nothing would be more satisfactory to the Government than to propose legislation on the subject which would not leave it to chance or even to the future to determine whether a measure such as that under discussion recommended itself to the good will of the country, but which would at once make it obligatory. He, as well as his noble and learned Friend, was fully alive to the vis inertiœ which existed in relation to questions of the kind, and he would gladly overcome it by legislation if he could deem it expedient or practicable to do so. It was, however, because he believed it to be both inexpedient and impracticable in the present instance, 1787 that he must ask their Lordships not to give their assent to the proposal which had just been submitted to their notice. He would, in the first place, point out how the question of authority with respect to it stood. His noble and learned Friend had referred to two Commissions, one of which made its Report in 1857 and the other in 1869. Now, he thought it right to mention that the former had under their consideration only the system which involved the examination of titles, although they, in point of fact, clearly recommended that registration should not be compulsory. With regard to the Commission of 1869 the case was altogether different. It was appointed especially for the purpose of finding out why it was that Lord Westbury's Act had failed, and how that failure could be remedied. Before that Commission those witnesses were examined to whom his noble and learned Friend had referred, and there were only two or three of them who suggested anything about compulsion. That, however, was not all. The Commission had before them the project of the registration of mere possessory titles—they had it before them, for the Bill which he (the Lord Chancellor) had introduced in the House of Commons had been amended so as to include titles of every kind; and, on their own Report, they strongly recommended that any system of registration should be founded mainly on the registration of mere possessory titles, and yet declined to recommend a compulsory scheme. They recommended, indeed, that once a title was placed on the register, it should not be taken off; but beyond that they made no recommendation. So much for the weight of authority. He wished, in the next place, to touch on the question of principle. His noble and learned Friend had put forward illustrations as affording a parallel to the present case, which, in his opinion, simply tended to mislead. In adverting to that point, he wished their Lordships to bear in mind what the Bill did not propose to do. They were aware that in many countries of the Continent it was thought to be a matter of great public policy to have a registration which would reveal to the public and to the State, at all times, the names of the real owners of every piece of fixed property in the country. These nations made re- 1788 gistration compulsory, because their public policy was to have a record of real owners, so that it might be known who owned every acre of land in the country, and unless registration was made compulsory that object could not be attained. Other countries had acted on the policy—we ourselves had done it with regard to Middlesex and York-shire, Ireland and Scotland—that the dealings of mankind required that every deed which was executed with regard to real property should be placed on an open register, so that the world might know what deeds were in existence charging incumbrances, or in any way affecting such property. Now, that was an intelligible policy, though he looked upon it as a policy of the worst possible kind—but it was a policy which required compulsion, because otherwise every deed placed upon the register would fail to secure the object in view. In those two instances, therefore, there was compulsion, for it was demanded by the nature of the case. The present, however, was a Bill, which even though it made registration compulsory did not profess to make it compulsory to place the real owner on the register—because the name on the register might be that of a person who had no beneficial interest in the property—neither was it a measure to provide for placing every deed on the register, because the object was that no deed should be put upon it. The two analogies which he had mentioned, therefore, entirely failed. His noble and learned Friend next took the analogy of ships, pointing out that it was sought to make the transfer of land as easy as the transfer of ships, and that the registration of ships was compulsory. Now, he (the Lord Chancellor) was anxious to make the registration of land as easy as that of ships; but it should be borne in mind that the reason why the registration of ships was made compulsory was not to facilitate transfers but because, as a matter of public policy, it was desirable to know that every ship that carried the British flag was in truth a British ship, as she had certain privileges under that title and certain obligations. Then as to stocks, registration was compulsory, for how could there be any transfer except by a change of the inscription on a public register from one person to another? Again, it was said that in Australia registration was com- 1789 pulsory. Now, he believed there was no registration at all in Australia till 1859, when it was found that the registration scheme which he had introduced into the House of Commons might be extremely well suited to that colony. That scheme was, therefore, taken up, if he was not mistaken, by Sir Robert Torrens, and passed in opposition to the Government of the day. He thought that that registration was, in the first instance, voluntary, and was afterwards made compulsory—but under what circumstances? The title of land in Australia depending entirely on Crown grants of certain rectangular squares of land marked out by parallels of latitude and longitude, and mapped out and recorded originally in Government offices, it was found that the system of registration adapted itself without trouble to a state of things of that kind. As it consequently recommended itself to the great body of the owners of land it was largely adopted—at first in a voluntary shape, and subsequent legislation made it compulsory. He should be glad when a system of that nature could be adopted in the same way in this country, and then it might be that a further step could be taken to render it compulsory. He asked their Lordships to consider what was the foundation of this measure. He agreed with his noble and learned Friend that there was a principle of public policy involved in a Bill like the present; but it was a principle of public policy which was to be attained through the medium of a boon offered in the first instance to the landowners of this country. What he understood such a measure to offer was this. At the present day, no doubt, on every transfer or mortgage of land a very large sum was spent on law costs, and that sum had to be spent over again at the next transfer or mortgage. If, for example, they were about to sell 1,000 acres of land, there might be a stamp duty of, say, £50 payable in effecting that sale, while the law expenses connected with the examination of the abstract of title and other difficulties might mount up the bill of costs both on the side of the seller and on that of the purchaser to £450—a sum which he thought in many instances was not an exaggeration. Thus they would have an expense of £500 on each transfer, which was just so much money taken from the seller; because it 1790 would otherwise go to the owner of the land that was being sold. It stood to reason that if that £500 had not to be paid by the purchaser, as was now the case, the purchaser would be able, and they might suppose also willing, to pay £500 more to the owner of the land. Therefore, if they could devise any scheme by which a large proportion of the expense now attending the transfer or sale of land might be saved, they would offer a boon to the owner of the land, and would arm him with the power of going into the market and obtaining a higher price for his property. If that were accomplished generally throughout the country, a great public advantage would be derived; but that public advantage was to be, and ought to be, derived in the first instance through the boon offered to the landowner. That being so, he asked on what principle they were to force on the owner of land by compulsion a boon of that kind? Assuming, for the moment, that their means of compulsion were efficacious, what light had the Government—unless it adopted the principle of being a paternal Government—to say to a man—"We offer you a boon of this character; you must accept it; we leave you no choice in the matter?" Did they do such a thing in other cases? No doubt, many of their Lordships thought a particular course of husbandry was the best mode of cultivating the land; but what would they say to legislation which, even with a consensus of the men most skilled and eminent in such matters, proposed to impose a particular course of husbandry on the cultivator, because, forsooth, they felt satisfied it would put money in his pocket and add to the productiveness of the land. He had listened with some interest to his noble and learned Friend to find whether he would supply any precedent for legislation of the kind he recommended, but he had heard none. They often had complaints made of the length of conveyances, and measures had been proposed and carried for shortening them; but he had never heard of any Act being passed to make those measures compulsory, even although a good deal of money might be saved by it. Therefore, even as a matter of principle, he said they had no example, and he believed they had no reason in the abstract by which they would be entitled to force a measure 1791 of that nature on those who did not wish to adopt it. Then how did his noble and learned Friend propose by his Amendment to apply the principle of compulsion? He proposed, in the first place, to apply it only in the case where there was to be a sale. "Why was it not also to be applied to a mortgage, or, again, to a devise, where there was a will passing land? But, taking the case of a sale, supposing there were two farms separated by a hedge, what right had they to say because it happened that the one farm was about to be sold, that it must be put on the register, and that the other farm need not be, because it was not to be sold? It was suggested that it was desirable to give greater facilities for the passing of land from hand to hand, and to encourage more land being available for transfer than was now the case. Well, it was a singular way of attaining that end to fasten on the land which was going to be sold—which required no compulsion—which was about to pass from hand to hand—they singled out the very land which was already doing the work that they wanted to be done, and they placed that obligation against the will of the owner upon it—because he assumed that if the owner liked it he could take the advantage of that legislation without compulsion—while with the other land they did not interfere at all. He maintained that once they got the land on the register the effect would be that it would enable it to be passed from hand to hand at very much less expense than it was at present—the Bill would be an entire failure unless it secured that end. He believed it would be impossible to put land on the register in the first instance, whether with only a possessory title or with a higher title, without some additional expense for that purpose; and what they were doing by fastening on the first sale of land was to say that there must be a further expense than would otherwise be incurred in the transaction. It must not be supposed that the expense would only be a few shillings, and it must be distinctly understood that the Government were not prepared to recommend a grant of public money for the purpose of cheapening the transfer of land in this country:—the land registry must be self-supporting—for the work to be done, payment must be made sufficient to cover the cost of 1792 that work. That principle had been adopted in Ireland, and also in the case of the Middlesex and Yorkshire registries. That was the only principle which the House of Commons would be likely to sanction. Where work of that kind was to be done the fee charged for doing it must be commensurate with the work done. In this attempt to make registration compulsory, it was impossible to draw the line between large and small conveyances on any principle that could be satisfactorily maintained. His noble and learned Friend had admitted, with regard to small transactions, that unless some effective means of local registration could be secured throughout the country, it would be impossible to force registration upon the purchasers. To show what would happen in these cases he would take one instance—and one was as good as a thousand. He had received a communication, not from Lancashire or Birmingham, but from a cathedral city in the south of England. It was from a solicitor whose respectability he had inquired into, and it ran as follows:—I have for many years been solicitor for the …. Benefit Building Society, and in that capacity have had to make numerous conveyances for the members of that society of small pieces of land. The fees in such cases are extremely small, and in one instance I prepared 115 conveyances at 20s. each, and 67 at 10s. each—not, of course, including stamps,—and have made many others for about the same price. The purchase money is, of course, small, ranging from £15 to £50, and a few exceeding that sum. In the course of my practice I have made a large number of conveyances, and do so from day to day, for sums varying from £1 10s. to £4, including stamps. I have to-day engaged to prepare one where the purchase-money is £140 for £3 10s., exclusive of stamps. In such cases the title is simple, and, of course, we take this fact into consideration in the cases especially of the working classes, who generally expect a solicitor to tell them beforehand how much the conveyances will cost. I am quite satisfied that the only effect of compulsory registration would be expense and delay in all small purchases, and they are much more numerous in the country than the larger ones, and thus, instead of the Act proving a benefit to the working classes, for whose advantage it is supposed to have been intended, it will prove very injurious to their interest, and will prevent instead of promoting the sale of land. I am about shortly to prepare 110 conveyances of small pieces of land for the artizan class to build dwelling-houses on. My fee will probably he £1 each, and what can the effect of registration be but a considerable increase of expense, and rendering the whole transaction more tedious and difficult?Well, how would those cases where the 1793 fee of the solicitor was at present £1 be affected by registration? His noble and learned Friend had referred to the Middlesex Registry. In that case the smallest office fee was 5s. This, however, was but a small part of the matter. It would be necessary when land was placed on the register for the first time, whether the title was merely possessory or not, that the register should be approached by a solicitor. What was to be set down as the charge under this head? In connection with the Middlesex Registry the ordinary charge appeared to be £2 2s. But let it be taken that that was too high, and that the fee in connection with these small transactions would be the lowest which it was the practice of solicitors to charge—namely, 6s. 8d. With 5s. as the office fee, that would make 11s. 8d. to be paid for registration in addition to the charge of £1 already incurred in connection with the conveyance.
THE LORD CHANCELLOR
maintained that upon the first transfer—the transaction which was to lead to the title being put on the register—no man in his senses would dispense with a deed. Once get the property registered, and then, he was delighted to think, it might pass by a single change of name upon the register, without any deed. The registration expenses he had mentioned would, he contended, be a very serious additional cost in the small cases to which he had referred. In the larger cases also there would be the same objection. Compulsory registration of the kind proposed would simply be a tax on the transfer of land, and would be felt most heavily by those whom it was desired to encourage as much as possible to become owners of land. Next he came to the very important question as to where the registration was to be done. It was true that the Commission of 1869 had said that it would be desirable to have district Registrars; and in the most cheerful way possible they added that they did not think it necessary to enter into details on the point. There was no doubt that it would be impossible to require persons to come up to London from remote parts of the country—from Devonshire, Cornwall, or Northumberland—for the purpose of registering small purchases in a central 1794 office; but his noble and learned Friend said there would be no difficulty whatever in registering possessory titles in the country, and that existing Registrars—those of the County Courts, for example—might be employed for the purpose. This proposal seemed to him to be based on a mistaken view of the necessities of the case. If a district was taken away from the jurisdiction of the London office, it must be taken away wholly, and all the registration for that area must be carried on in the local office. Otherwise, it might commonly happen that land on one side of a hedge, in regard to which it was desired to register a possessory title only, would be registered at the local office, while land on the other side, which had a guaranteed or qualified title, would have to be registered in London. He certainly did not think such an arrangement could work. It would be practically impossible either at the London office or the local office to ascertain what charges there might be upon the land. It would not do for a man to be told at the London office—"You must wait till we have communicated with the local Registrar before getting the information you want." It was scarcely necessary for him to point out to the noble and learned Lord that it would be impossible to have one kind of title registered by the County Court Registrar in the country and another kind registered by the Registrar at the head office in London; and to enact that one acre of land in Devonshire was to be registered by the Registrar of the County Court of Devon, and that another acre, perhaps adjoining it, was to be registered in London. If that were so, who was to conduct the registration of titles in the different localities? Their Lordships must remember that it required equal skill and legal knowledge to enable a Registrar to judge of a Devonshire title as of a Middlesex title; and it it must not be supposed that because Devonshire was at a distance, that therefore the work would not require to be executed with as much exactness as would be necessary in London. But what would be the result of the adoption of the noble and learned Lord's proposition? Why, that in Devonshire, almost any person would be able to act as Registrar; but in London, the duties of the office must be discharged by a barrister of 15 years' standing, receiving 1795 a large salary. The noble and learned Lord had stated that he had received a communication from a solicitor in Essex in favour of the establishment of district registries; but, for his part, he (the Lord Chancellor) had received a score of letters every day on the subject from solicitors and others who were not only in favour of the establishment of district registries, but who were also willing to undertake the duties of those offices; they were not only anxious that there should be district registries, but they were anxious to be appointed district Registrars. He did not doubt that every one of those gentlemen, if appointed to discharge those offices, would do their best; but if they could discharge the duties efficiently, what necessity was there to have a head office in London merely to discharge similar duties? Speaking with all respect of the existing County Court Registrars, he did not think they possessed any special qualifications or training for investigating the titles to land. The County Court Registrars were chosen by the County Court Judges, and they were selected chiefly on account of their skill in the forensic litigation which usually came before a County Court, and they were just the very class of solicitors who would not have any special experience of conveyancing. His impression, indeed, was that the County Court Registrars did not require any qualification at all, and that they need not even be solicitors or barristers; all that they had to do being merely to receive wills, and to see that they were properly attested and to send copies of them to London. But he had not even yet exhausted the difficulties that would arise in the event of the noble and learned Lord's proposal being adopted. It was important to determine under what circumstances access to the register of titles should be admitted, and, in his opinion, the registers should not be open to any one who could not show a primâ facie interest in the property the title of which he sought to inspect. But the noble and learned Lord now proposed to throw open the register of all the titles of a particular county to a particular solicitor practising in that county—because the County Court Registrars were not required to give up their private practice—who would thus have placed in his hands the key to all the titles to 1796 the property in his neighbourhood. Such a provision was not, in his opinion, likely to commend itself to their Lordships. But it might be asked, if all these difficulties to which he had referred were to be anticipated from the proposal of the noble and learned Lord, what was the boon that this Bill would confer upon the owners of small properties? Taking the case of a large estate purchased by a Benefit Society, with the view to its being cut up in order to sell it in small lots, numbering, perhaps, 800 or 1,000, for the erection of small houses, all that would be necessary to do under the Bill would be to register the property in the lump, and then to print some 800 or 1,000 tickets or pieces of parchment of limited size—with perhaps a little map at the corner—and to have written upon them the terms of the transfer of each lot at the office of the Registrar, which could be done at a very small expense. He confessed that he should rejoice to see such a proposal carried into effect, because he was certain that it would confer a great boon upon the holders of small properties. He was afraid that the proposition of the noble and learned Lord, that this Bill should be made compulsory could not be carried out, and he was sorry to inform their Lordships that, in his judgment, the compulsion proposed by the noble and learned Lord was absolutely no compulsion at all—or, at any rate, would not operate as such in nine cases out of every ten. The noble and learned Lord had said that he did not intend, in the event of non-registration, to make the purchase and sale of an estate void, but merely to enact that any instrument of conveyance of land should operate as a conveyance of the equitable estate only, and not of the legal estate, and that the title of a non-registered estate could, therefore, only be perfected by going to a Court of Equity. Such a proposal might have had terrors for an intending purchaser some years ago; but by recent legislation to which the noble and learned Lord had been a party—he referred to the Judicature Act of 1873—the whole of those terrors had been done away with, because by that Act every division of the new consolidated High Court of Justice was bound to take judicial notice of all equitable estates and rights, and to give them equal force with legal estates and rights. Therefore, for the 1797 future, under the provisions of that Act, equitable titles would be just as good in 99 cases out of every 100 as legal ones, and so the proposal of the noble and learned Lord would be no compulsion at all. If it were necessary in the hundredth ease to get in the legal estate, the emergency would probably not arise until some 20 or 30 years afterwards, when the holder of the legal estate might be in Australia or in the backwoods of America, where nobody could find him, and, consequently, the legal estate could not be got in.
§ LORD PENZANCE
desired to point out that the safer and more prudent and more reasonable course would be to leave the Bill in its present form. He was satisfied that if the noble and learned Lord on the Woolsack had found it possible to make the registration of titles compulsory, he would have been only too glad to have done so; but considering the various circumstances under which property was held, it was almost impossible to say what injustice might not be done, if the Bill were altered as proposed by the Amendment of his noble and learned Friend (Lord Selborne). The most prudent course would be to pass the Bill in its present shape, and try how it would work. If it were found in the course of a short time that it was desirable to have compulsion in the case of small holdings, it could easily be enacted.
§ LORD O'HAGAN
wished to say a word as to the working of a measure, similar to the present Bill, which had been in operation for the last 10 years in Ireland. Since the year 1850 the Landed Estates Court had dealt with properties of the value of over £50,000,000 sterling, while under the Record of Titles Act, which was similar to that now under consideration, properties to the value in all of £2,000,000 sterling only had been dealt with. The Landed Estates Court gave to every purchaser an indefeasible title, the recording of which was free from any difficulty; and it was plainly the interest of every one who had such a title to put it on record. The want, however, of such a record, which was mainly owing to the absence of a compulsory clause in the Act, left things, in many respects, as they were before the Landed Estates Court was established. Every year created new complications, and made new and expensive searches unavoidable on every 1798 fresh transfer, which would have been wholly unnecessary if the machinery of the Record of Title Office had been put into action. He feared that if the clause proposed by his noble and learned Friend were not adopted, the same unfortunate result would arise in England, where the record would be more difficult, and the temptation to avoid it perhaps greater than in Ireland.
§ LORD SELBORNE
, in replying, observed that in small transactions a deed of conveyance would not be necessary, as under the Act the entry on the register would operate as a transfer of the fee-simple. He altogether demurred to the notion that district registries, for all the purposes of the Act, would be indispensable, merely because they might be so for some, and these very simple purposes. The investigation of titles would go on in the central registry. There need only be local agencies connected with, and subordinate to, the central registry, the functions of which would be to receive and record simple transactions, within their local limits, which did not involve the investigation of title, and to transmit to the central registry, with as much promptitude as might be necessary for the purposes of search, duplicates of all the entries made in their books, just as was now done with respect to wills proved, and administrations taken out in the country by the District Registrars of the Probate Court. Then, with respect to the legal estate, the universal experience in transactions of sale and purchase showed that it was part of the solicitor's duty to obtain a conveyance of the legal estate to his client, and no prudent purchaser would be satisfied with less.
§ On Question? Their Lordships divided:—Contents 15; Not-Contents 39: Majority 24.
§ Resolved in the Negative.
§ Amendments made.
§ Bill to be read 3a on Friday next; and Bill to be printed as amended. (No. 40.)
|Lansdowne, M.||Boyle, L. (E. Cork and Orrery.)|
|Ripon, M.||Carlingford, L.|
|Granville, E.||Crewe, L.|
|Kimberley, E.||Monson, L.|
|Card well, V.||Rosebery, L. (E. Rosebery.)|
|Aberdare, L. [Teller.]||Selborne, L. [Teller.]|
|Abinger, L.||Thurlow, L.|
|Cairns, L. (L. Chancellor.)||Hawarden, V. [Teller.]|
|Buckingham and Chandos, D.||Brodrick, L. (V. Midleton.)|
|Richmond, D||Chelmsford, L.|
|Hertford, M.||Clinton, L.|
|Salisbury, M.||Ellenborough, L.|
|Winchester, M.||Foxford, L. (E. Limerick.)|
|Abergavenny, E.||Headley, L.|
|Beauchamp, E.||Manners, L.|
|Carnarvon, E.||Rayleigh, L.|
|Clonmell, E.||Redesdale, L.|
|Derby, E.||Ross, L. (E. Glasgow.)|
|Harrowby, E.||Saltoun, L.|
|Lauderdale, E.||Searsdale, E.|
|Malmesbury, E.||Skelmersdale, L. [Teller.]|
|Nelson, E.||Stanley of Alderley, L.|
|Pembroke and Montgomery, E.||Stewart of Garlies, L (E. Galloway.)|
|Shrewsbury, E.||Templemore, L.|
|Waldegrave, E.||Ventry, L.|
|Gordon, V. (E. Aberdeen.)||Winmarleigh, L.|
§ House adjourned at a quarter before Eight o'clock, till To-morrow, half past Ten o'clock.