THE LORD CHANCELLOR
My Lords, I have to ask your Lordships' indulgence while I call attention to some subjects which certainly cannot be made interesting, and I think I shall deserve your indulgence by making the statement I have to make as short as possible, consistently with the importance and the difficulty of the subject. I propose to lay on the Table for first reading four Bills; three of them are mentioned in the Notice Paper, but I propose to add a fourth, in order that your Lordships may have before you all the propositions in regard to the changes in the law which Her Majesty's Government desire at this time to make. In point of form, a statement on each of these various Bills might be made separately; but I think I shall here again consult your Lordships' convenience by saying at once all I have to say on all the Bills, in order that you may have before you in one view the whole of the changes which would be effected should these Bills pass into law. The first of the Bills to which I refer is one "For facilitating sales, leases, and other dispositions of settled land, and for promoting the execution of improvements thereon." On a title of that kind I might very naturally be able to enter at large on the whole question of the policy of entails and settlements in this country. But I do not intend to do so. I should be quite prepared at any time, if it is 1165 thought desirable that there should be a discussion on the subject, to state to your Lordships the reasons which, at all events, satisfy me that, whatever objections may be pointed out to our system of settlement, the advantages of that system greatly preponderate over those objections, and are in themselves so important that there is no good reason for altering the system as a system. I have seen it stated that our system of settlements was a creation of the law of this country. That, I think, is a misapprehension. Our system of settlement is not a creation of the law. It sprang out of freedom of contract, and it is merely the result of adjusting the natural rights of property by the arrangements which have been found desirable in their own interest by parties interested in the ownership of land. The law has done nothing more than protect the system; and I do not think that a greater proof of the advantage and suitability of our system of settlement to the wants of the people and of the country can be found than this—that the system itself is the result of the experience of 300 years. During that time the forms of settlement which are now generally adopted have been growing up, and have gradually settled down into their present shape; and the circumstance that they are, as a general rule, found in that shape, when they might have assumed any other shape, is the strongest proof that the form in which we now have them is the form most suitable to the interests of the country. I have had myself, on more than one occasion in this House, to say that it appeared to me that, desirable as our system of land settlements was, there was one condition which, in my judgment, must be complied with in order to maintain that system in its integrity. I think the system of settlements cannot be looked at merely as an affair of family compact. The settlement of land in this country must be looked at also as affecting the land of the country and the interests of the country. The interests of the country are connected with the mode in which the land is used—with the leasing of land, with the building upon land, with the mining under land, with the improvements generally which may be effected and ought to be effected on land, and with the freedom of buying and selling land. And the condition which appears to me 1166 to be necessary to be secured in order to justify the maintenance of a system of settlement is this—that there should be connected with settlement, in the person who may be the owner of the land for the time being—whether tenant for life or not—I say there ought to be in him all the powers which a prudent and reasonable owner would exercise for good purposes connected with the land, while there ought not to be the power of using the land for any purpose destructive of the settlement. Everything that a prudent and reasonable owner, if he were absolute owner of the land, would be able to do with it, in my judgment, a limited owner ought to be able to do, and nothing more. I believe that if that condition had been complied with—if that condition is now complied with—there will be nothing whatever in the system of settlement of land which could possibly interfere with the best interests of the country. It would be quite possible that the end which I have mentioned might be attained by powers given in the settlement itself to the limited owner or tenant for life; and it is the case that in many settlements, and more especially in modern settlements, extremely large powers of the kind I have mentioned are given—powers which enable the land to be utilized for every purpose for which a prudent and reasonable owner would utilize it. There is no reason why these powers should not be contained in any settlement, and in every well-drawn settlement they are, in a greater or lesser degree, contained. But, at the same time, there are many settlements of which it cannot be said that they are very carefully or judiciously prepared; and, in addition to that, there is a considerable amount of land which is brought under settlement, not by settlement properly so called, but by disposition by will, very imperfectly framed, in which there are no powers of the kind to which I have referred. It Is also the case that even in settlements prepared with considerable care, the powers for utilizing land are very often—indeed, I may say very generally—conferred upon trustees, and not upon the tenant for life; and the experience of mankind shows that the trustees are very often persons—one does not wonder at it—of some timidity. They have little or no interest themselves in the exercise of the 1167 powers conferred upon them. They are anxious to avoid responsibility, and they consider that they avoid responsibility so long as they decline to exercise those powers. The result is that in a great number of settlements which contain carefully prepared and well-drawn powers, the circumstance that these powers are conferred upon trustees and not upon the person who is interested in using them—namely, the tenant for life—leads to the powers being actually unused. Now, in default of the internal powers of utilizing land under settlement, I want your Lordships to observe what I may term the external powers of utilizing land—that is to say, powers which are independent of what may be contained in the settlement. Now, these external powers may really be stated in a very few words. For very many years in this country—indeed, for some centuries—the only power external to a settlement for utilizing settled land was a power given by a Statute of Henry VIII. for leasing the land; but that power was not given to the tenant for life, but was only given to the tenant in tail. Next to that, there was, for a great number of years, one power only external to a settlement which could be obtained in this country—namely, the power which could be obtained through the medium of a Private Act of Parliament. I have seen a statement—which I believe to be authentic—that in the first half of this century no less than 700 Private Acts of Parliament were obtained for the purpose of conferring powers for utilizing settled land. As your Lordships know, the obtaining of a Private Act of Parliament is a very expensive proceeding. I believe no Private Act costs less than £300, and I have heard of some which cost as much as £3,000. Next to these powers, other powers external to settlements are given under Acts of Parliament, with which many of your Lordships are familiar, by which a tenant for life borrows money, for the purpose of executing improvements, and creates a rent-charge for repayment. Under these Acts, improvements are executed at an average cost of 7½ per cent to the tenant for life. Beyond this, the greatest alteration of the law for the purpose of giving powers to utilize settled land is contained in the Acts called the Leases and Sales of Settled Estates Acts. The first of those 1168 Acts was passed in 1856, having been introduced by my noble Friend the late Lord Chancellor Cranworth. That Act was subsequently amended by several additional Acts; and, finally, in 1877, there was a consolidating Act, which now contains all the powers of the Leases and Sales of Settled Estates Acts. The object of these Acts is to enable the provisions which were previously obtained by means of a Private Estates Act to be communicated to a particular estate through the medium of the Court of Chancery on an application to the Court. The proceedings, in the first instance, are very cumbrous. The petition has to be presented to the Court, then advertisements have to be issued in certain newspapers, then notice has to be given to all persons concerned, and then, when publicity is secured, and every person is represented before it, the Court proceeds to decide whether a power of leasing or a power of selling can be given to a particular person with reference to the particular estate before it. If the land is to be leased, the Court settles the form of the leases—at all events, the principle on which they are to be framed; and if there is to be a sale of the settled estates under the immediate direction of the Court, the conveyance has to be settled by the Court. Although certain simplifications have latterly taken place in the procedure under the Act, still the procedure is a cumbrous one, and not one extremely well adapted for the easy utilizing of land. Further, there is this difficulty with regard to the Settled Estates Act. Sales can only be made for two purposes—for re-investing the money arising from the sale of one estate in the purchase of another, and for paying off incumbrances upon settled estates. Moreover, the powers which are given are generally given to the trustees of the settlement, and, therefore, are open to the observation I have made with regard to the powers of trustees; and above and beyond all the difficulties of the case, the Act enables any person by the settlement to evade the operation of the Act altogether. The Settled Estates Act, and the Acts under which borrowing powers are given, the Government do not propose to alter. We leave them as they are, and if any person finds that they will be useful he will be at liberty to use them; but the Govern- 1169 ment desire to proceed upon a different and larger principle. The principle we think should be adopted is this—that the powers which can be obtained under those Acts should not be given as a boon or as an exception in particular cases, but should be part and parcel of the enjoyment of the estate by the owner for the time being, as legal incidents of his ownership, and that those powers should be given, under proper safeguards, not to the trustees, but to the persons naturally most interested in the exercise of them—the tenants for life. I will now proceed to lay before your Lordships the provisions of the first Bill to which I refer, avoiding at this stage any details which can be avoided. The Bill is altogether one of 53 clauses. I will omit at present the distinctions which the Bill makes between existing and future settlements—that is to say, settlements which have already been executed, and those which will be hereafter executed. I will also postpone, in laying before your Lordships the powers we propose to confer on the tenant for life, the question as to what will be done with the monies produced by sales and partitions. I will state now the powers we propose to give to the tenant for life as an incident of his estate. We propose, in the first place, that he should have a power of sale—that where there are copyholds held of a manor he should have the power to enfranchise for the purpose of selling the inheritance in fee simple; that he should have a power of exchange, giving or receiving in the usual way money for equality of exchange; and that he should have a power of partition, giving or receiving money for equality of partition in the same way. The Bill proposes that these powers should be guarded in the usual way adopted to secure the obtaining of the best price at sales by auction. Some of these powers are powers which would naturally be contained in any well-drawn settlement. They would be given sometimes to a tenant for life, sometimes to a tenant for life with the consent of the trustees, and sometimes to the trustees with the consent of the tenant for life. We propose that, subject to certain checks, the powers to be given to the tenant for life should be incident to his estate. So also with regard to leases. We propose that the tenant for life should have power 1170 to grant agricultural leases for 21 years-There is a longer term with regard to Ireland, because, at present, under the Settled Estates Act, the term for agricultural leases in Ireland is a term of 35 years, and this will remain the same in the Bill. The Bill will also give power for granting building leases for 99 years, and mining leases for 60 years. Further, it is proposed that, with the consent of the Court, where in any part of the country there is a special custom with respect to building and mining leases, as is the case in some parts of England, power should be given to conform to that special custom in those places where it prevails. There will be the usual provisions with respect to rent and covenants, the usual provisions as to building and mining leases, as to streets and open spaces in connection with building leases, and so forth. We also propose that the tenant for life should have correlative powers as to the surrender and granting of new leases, and also the power, in case of copyholds, of granting licences to the copyholders to make such leases as the tenant for life of freeholds would have leave to make. These, again, are powers which in any well-drawn settlement would be given either to the tenant for life or to the trustees, or to him with the consent of the trustees, or to the trustees with his consent; and we propose that they should be given to the tenant for life as incidents of his estate. With regard to what is to be done with the purchase money. The purchase money in the case of sales, and, indeed, in all cases in which the powers given by the Bill are exercised, is to be paid, not to the tenant for life, but to the trustees, not being less than two, or into Court; and as to the purposes to which the monies may be applied, I will take the enumeration of them from the Bill. They are—payment of incumbrances and redemption of land tax to the rent-charge, and other rents affecting the settled land; payment for any improvement of the estate authorized by the Act; payment for equality of exchange or partition payment for the enfranchisement of copyhold land which is settled; payment for the purchase of fee simple of leasehold land which is settled, so as to merge the leasehold interest in the reversion; purchase of leasehold lands and copyholds to be settled; purchase of freehold land and of mines and 1171 minerals and easements; payment to any person becoming absolutely entitled, or having power to give an absolute discharge; payment of the charges incident to the exercise of the powers of the Act. Until these payments are made the money is to be invested on securities on which the trustees are authorized to invest the trust money with power to vary the investment, but subject to the directions given by the settlement. These are the general purposes to which the monies are to be applied. With regard to improvements, the second of the purposes named, I will not go into them at any length; but I may state that they are 20 in number. I believe that they comprise every improvement which it would be desirable to execute upon any land; and your Lordships will understand that they are not merely improvements upon particular land, but improvements upon almost any part of the land subject to the settlement; so that the money, although arising from one portion of settled land, may be employed upon any other part of the land. The next provision in the Bill is one relating to improvements of a different kind. In some cases it may be more convenient that the tenant for life should execute the improvements with his own money; and we propose that if he does so he may charge the land with the money so laid out, to be raised after his death, so that he may dispose of it in any way he thinks fit by his will; but in that case we propose that there should be a certificate of the Inclosure Commissioners to the effect that the improvements have been properly executed, and are worth the money expended on them; and, further, that they are continuing improvements on the land. The mention of the Inclosure Commissioners reminds me to state the provision made in one of the Bills with respect to them. The Inclosure Commissioners are at present a Board having three names under different Acts of Parliament—they are Inclosure Commissioners, Copyhold Commissioners, and also Tithe Commissioners; and I am not sure that any one of those names represents properly the greatest amount of business they now discharge. We, therefore, propose to get rid of all those three names, and that the Commissioners shall in future be called Land Commissioners. The next provision is one relating to settled money which at present is in the Court of Chancery. 1172 There is in that Court a very considerable amount of money subject to settlement trusts—money which has been lodged when land has been taken for railways and other public undertakings, and which is the subject of settlement, and is liable to be re-invested in land, but has not been re-invested. We propose that wherever there is settlement money of that kind it may be utilized for any of the purposes for which, if it had remained settled land, the money produced by the sale of such land might be applied. I will now state the qualifications or checks on the powers conferred by the Bill on tenants for life First of all, with regard to the mansion-house or any settled land usually occupied therewith, we propose that it should not be sold or leased without the consent of the trustees of the settlement or an order of the Court to that effect. There will not be, as a matter of course, the right to sell or lease under the Bill. The mansion-house or land occupied therewith cannot be dealt with by lease or sale without the authority of the trustees or of the Court; and wherever the Court is to be invoked a summary application may be made, and the Court is required to communicate, if necessary, with the Land Commissioners, and not to give its sanction to the lease or sale of the mansion-house without notice to the parties interested. With regard to improvements, it is proposed that none of the capital money arising under the Act shall be employed in paying for any improvement without the certificate of the Land Commissioners, certifying that it is an improvement authorized by the Act, and that it is properly executed. As to the differences between existing settlements and future settlements, what we propose with regard to the former is that the powers to which I have referred should not be exercised without an order of the Court, the Court acting with due regard to the interests of all parties concerned, and due notice being given to afford the parties interested an opportunity of being heard. We propose, in the first instance, that the tenant for life—or the trustees, as the case may be—should go to the Court for power to do what may be required, and that the Court should decide the matter, after hearing objections. The check with regard to future settlements is this. We propose that 1173 the tenant for life, when about to exercise any of the powers, shall inform the trustees of the settlement what he is about to do. If the trustees make no objection, the power may be exercised; if, on the other hand, they object, the Court, under a summary proceeding, will decide the question. Such is the general effect of the powers we propose to give by this Bill; and your Lordships will see that if this Bill passes into law you will have in every case an owner who is able to represent the land for all purposes of good, and that the Government desire to remove every obstacle to the beneficial use of land that could arise out of the fact of there being a settlement, without, at the same time, trenching on the principle or practice of settlements as arranged by the members of a family.
I have now to ask your Lordships' permission to state the character of the second Bill, which has for its title "An Act for simplifying and improving the practice of conveyancing, and for vesting in trustees, mortgagees, and others, various powers commonly conferred by provisions inserted in settlements, mortgages, wills, and other instruments; and for amending in various particulars the law of property, and for other purposes." Some of the alterations we propose to make are extremely technical, while others are of a more popular nature. The general object of the scheme of the Bill, which contains 64 clauses, is to shorten very much the present cumbrous system of conveyancing, reducing it into a narrower compass, and so lessening the expense. The first part of the measure deals with questions of contract and conditions of sale. Under the present practice, where land comes to be sold under proper advice, it is always sold under certain conditions of sale. Now, a number of these conditions are of such constant occurrence that they may be said to be regular. It is proposed, to save expense, that these ordinary conditions of sale shall in all cases be part of the bargain. The Bill next relates to what are called searches. Various searches are at present required to be made as to incumbrances at different offices, and they have to be repeated from the very beginning in every dealing with the land. It is proposed to follow the course found very useful in Ireland and elsewhere—that the person who wishes that any search 1174 should be made should state on paper to the officers what the search is, stating what fact he wishes to ascertain, as for instance, whether there are any judgments against A. B.; the office is thereupon to answer that question, the answer is to become a certificate of title, and the office will be relieved from further trouble. The search will be made by the office, and the certificate will be evidence for the purchaser. The Bill next proceeds to deal with the question of notice. That is a matter of great complexity. We propose that a purchaser of land shall not be prejudicially affected by notice of any instrument or fact unless it is within his own knowledge or has come to the knowledge of his solicitor while acting as such, or would have come to the knowledge of the purchaser, or of his solicitor as such, if they, or either of them, had made such inquiries as they, or one of them, ought reasonably to have made. A number of further sections in the Bill, taken together, will regulate the composition of deeds in sales and mortgages. An attempt has been made in a former Act to obviate the repetition of words which occur in deeds. The idea is a good one; but it has not been successfully carried out. After the best advice that can be obtained, this Bill adopts a new set of forms, which will be found useful in this point of view. There are some clauses which deal with the technical difficulties that have arisen with reference to receipts, and the Bill provides that receipts for the purchase money shall be endorsed on the deeds. The Bill nexts deals with the question of the production of title deeds; and in order to put an end to the controversy which has long existed on this subject, it provides, once for all, that a covenant for the production of title deeds shall always run with the land. I now come to a subject which has excited a good deal of attention lately, the subject of covenants and the forfeiture of leases. The law as to the forfeiture of leases stands in this way. There are in every lease a number of covenants on the part of the lessee; and in case any of those covenants are broken there is a right of re-entry on the part of the lesser to avoid the lease. As regards the covenant for the payment of rent, the doctrine of the Court of Chancery always was that the proviso for re-entry was only inserted in order to enable the landlord to enforce pay- 1175 ment, and not to enable him to avoid the lease in case of non-payments; and the Court would, on application, relieve a tenant against forfeiture on payment of the arrears of rent and the cost; and by an Act of 1860 the same power was given to the Courts of Common Law. This doctrine, however, was not held applicable in other cases of breach of covenant. For example, breach of a covenant to insure was formerly held to entail a forfeiture, although no fire had occurred, and, consequently, no loss had been sustained. Some years ago, however, a measure was introduced into Parliament by Lord St. Leonards (then Lord Chancellor), which authorized the Courts of Equity to give relief in cases when no loss had been sustained by such a breach of covenant, and this power was, in 1860, extended to the Courts of Common Law. But no such power at present exists in case of the breach of any of the other covenants usually contained in leases; and these covenants, and the consequences of the breach of them, have really become matters of great importance, there of ten being inserted in leases great numbers of covenants of the most trifling description, the unintentional breach of any one of which may involve forfeiture of the property to which they relate, notwithstanding that large sums of money may have been laid out upon it by the tenant. I should be very sorry to propose to your Lordships to pass any measure which would interfere with any contract actually entered into; but the Bill I now lay before you will not touch any individual contract, but will merely determine the manner in which the Courts of Equity shall deal with a particular point of law. The Courts of Equity have for generations held that where money is concerned the provision for a re-entry in a lease was only a sort of security for the payment of any damage that might result from a breach of covenant. We do not propose to deal with insurance, we leave that on its present footing; but where there is a breach of any other covenant giving aright of re-entry, we propose that the landlord shall not proceed to reentry or forfeiture till he has given notice to the tenant, requiring him to remedy the breach and to make satisfaction for any damage which has occurred. That, my Lords, may lead to a settlement of such questions between landlord and 1176 tenant; but if the landlord, notwithstanding, should proceed by action or otherwise, then the Court may grant or refuse relief, according to circumstances. The operation of the section, however, does not extend to a covenant against assigning, underletting, or disposing of the land leased without licence, or in the case of a mining lease to a covenant for allowing the lesser to have access to and inspect the books, &c, or to inspect the mine, or in the case of an agricultural lease to a covenant relating to cultivation. In the case of mortgages, where the mortgagor is entitled to redeem, power is given to require the mortgagor to assign the mortgage debt and convey the mortgaged property as the mortgagor may direct. Power is also given to the mortgagor to inspect the title deeds, and there is a restriction imposed on the consolidation of mortgages. Leasing powers are also given to mortgagors and mortgagor in possession. Power is also given to a mortgagor to sell and to insure, and to appoint a receiver. I now come to a part of the measure which relates to the devolution of trust and mortgage estates, under which such estates are, on the death of the trustee or mortgagor, to devolve upon his personal representative. Then comes a clause relating to the appointment of new trustees. Then we propose to make a change in the law as to the acknowledgments of deeds by married women. That is a ceremony introduced some years ago, in which married women are examined by a solicitor, called a Commissioner for taking acknowledgments of deeds by married women. This is a ceremony which everyone who knows anything of the subject admits has proved idle and useless, and we propose to abolish it altogether. Then come a number of clauses as to sales and leases on behalf of infant owners in fee, and as to the management of infants' estates. Then, as to powers of attorney, we propose to give a power of extending them absolutely for one year. At present, if a power of attorney is given to act, say, on the other side of the world, by the time it arrives the giver of the power may be dead, and the power will thus have expired. We propose, therefore, to allow all such powers to be made invocable for a year. Certain technical words in deeds for the conveyance of land are rendered unnecessary, 1177 and long terms are rendered convertible into fee simple estates. Finally, the name of the Inclosure Commissioners is changed to that of Land Commissioners. There is added to the Bill a Schedule of forms of a mortgage deed with further charge, of a conveyance on sale, and of a marriage settlement, all of which are printed on two sheets of paper, and which will be a great improvement on the old cumbrous forms. I could not have ventured to propose these two Bills, which contain so great a number of details of a technical kind, if I had not had the assistance of several very able and experienced practitioners, amongst whom I may mention Messrs. Wolstenholme, Burrell, and Reilly; and I wish publicly to express to these gentlemen the great obligations I am under for the immense trouble they have taken in the preparation of these measures. I also wish to express my thanks to almost every conveyancer in Lincoln's Inn for criticisms and advice, not on the Bills themselves, but on heads of the Bills which I submitted to them.
The next Bill to which I ask your Lordships' attention is not on the Notice Paper; but it is closely allied to those I have already described. The result of the second Bill, if it becomes law, will be to alter, to an immense extent, the length of legal instruments with respect to real property. The remuneration of solicitors in such cases depends, strange to say, very much on the length of those instruments. It is as if physicians were remunerated according to the quantity of medicine they can persuade you to take. The only wonder is that so little evil has been produced by this system; and I must acknowledge that I have never seen, on the part of solicitors, anything but an earnest desire to save their clients all the expense they could, and not to benefit themselves from the state of the law as it exists. I do not, however, think it fair to take away the length of instruments which fixed their remuneration, and provide nothing in their place. We therefore propose in the third Bill that there shall be a power given to the Lord Chancellor, the Master of the Rolls, and the three Chiefs of the Common Law Divisions, to make rules for the remuneration of solicitors in non-contentious business—that is to say, leases, sales of property, settlements, and the like—and to allow them payment by a 1178 commission or percentage, in the same way that brokers are remunerated for the transfer of stocks. That, I believe, will not only be satisfactory to the solicitors, but beneficial to the public. Nothing can be more satisfactory to the person who is going to buy an estate than to know that if it costs £50,000 he can tell beforehand what he will have to pay a solicitor for his costs. The Bill also provides that solicitors and their clients may agree upon the remuneration to be paid for non-contentious business; but if it is to be a percentage such percentage is not to exceed that fixed by the authorized scale.
The fourth and last Bill is one relating to an entirely different subject. Its purpose is to shorten, in certain cases, the periods of limitation of actions. In 1874 your Lordships passed a measure which made a considerable change in the periods of limitation with respect to actions for the recovery of land. Up to that time the limitation of time for the recovery of land was 20 years, or, where the person entitled to recover the land was under any disability when his right first accrued, 10 years after the termination of the disability. In place of that, it was fixed at 12 years and six years. I do not wish to shorten those terms any further; but I now propose to make similar alterations in other cases. I propose to reduce the period of limitation in the case of claims against administrators in respect of intestate estates from 20years to 12; and in the case of specialty debts—such as actions arising upon instruments under seal—also from 20 years to 12. I also propose a change as to simple contract debts. It is a strange thing, but six years has been the limit with respect to simple contract debts since the reign of James I., and it has never been proposed to alter it. A great deal has happened since that time. There are greater facilities of communication, and also for the recovery of debts by legal proceedings; and I propose, therefore, that that limitation shall be reduced to three years. There are other provisions with respect to frauds, acknowledgments, and other like questions with which I need not detain your Lordships. These are the measures I have to lay before your Lordships, and I hope you will give them a first reading. If so, I propose to fix the Second Reading of the first two 1179 on Thursday week, and of the other two on this day fortnight.
§ Bill for facilitating sales, leases, and other dispositions of settled land, and for promoting the execution of improvements thereon.
§ Bill for simplifying and improving the practice of conveyancing, and for vesting in trustees, mortgagees, and others, various powers commonly conferred by provisions inserted in settlements, mortgagees, wills, and other instruments; and for amending in various particulars the law of property; and for other purposes.
§ Bill for making better provision respecting the remuneration of solicitors in conveyancing, and other non-contentious business: And
§ Bill for amending the law relating to the limitation of actions.—Presented(The LORD CHANCELLOR.)
§ LORD SELBORNE
said, that even a less clear and able speaker than the noble and learned Earl could hardly have failed to impart interest to a subject of such great importance to many of their Lordships, and he did not think that a more interesting statement could have been made than that they had just listened to. If there were any matters connected with the Law of Settlement which required attention on economical grounds, they might expect to hear of them in the Report of the Royal Commission which was appointed last year; and he would touch upon the point only so far as to say that he concurred with the noble and learned Earl in thinking that it would require very great consideration on the part of their Lordships before they adopted any of the Continental principles prohibiting those arrangements of property, which, in this country, were called limitations, and on the Continent substitutions; or of cutting down estates by some rule of great simplicity, and altering the power of disposition of property by deed or will, which owners of property now possessed, or materially encroaching upon it. It would require great consideration before any measures of that kind could be adopted; and it was not wise or prudent to indulge in vague generalities on such a subject until the particulars of a measure were before them. On the other hand, there appeared to him to be no 1180 necessary presumption against some revision of the existing law, and some consideration whether, either as to real or personal estate, some alteration might be for the public advantage in the direction pointed out by the noble and learned Earl. This was entirely a practical subject, not dependent upon abstract disquisitions, but upon the experience of the country and the interests of owners of both descriptions of property. He had no hesitation in saying that the measures proposed appeared to him to be extremely well adapted to meet and remedy a great number of practical inconveniences in which the public, as well as particular owners of property were interested, arising out of the imperfect state of the present law as to the disposition of land by will and by lease, and the forms of conveyance. Subject to the examination of particular clauses, the plan of the Bill appeared to him to be one likely to commend itself to the judgment of their Lordships; and he was confirmed in that opinion by what was stated as to the assistance obtained and the care taken in the preparation of the measure. As no reference was made to sales and leases by charity and other Corporations, he supposed the Bill made no change in the law on the subject; but the noble and learned Earl might find it desirable to consider whether the law was entirely what it ought to be. Some provisions of the Bill appeared to him to be quite as fit to be applied to Corporations as to private persons. The giving of the powers mentioned to owners of life estates, and especially the power of sale, appeared to him to be the right thing to do, and the proposed way of doing it was, in the main, correct; but what was to be done with life estates that were incumbered with rent-charges and mortgages? He gathered from what had been stated that the mortgagor would have the power of making leases. It would be important to know whether under a mortgage the power of sale would be exerciseable; and, if so, whether it would be under the same conditions as in other cases. Some practical men well acquainted with the subject considered that much greater impediments were thrown in the way of the sale of lands in which the public had an interest by mortgages than by settlements. If, as he understood, a difference was proposed to be made in the powers 1181 given under existing settlements and under future settlements, he would be glad if the noble and learned Earl should re-consider that point, as he thought it would be very undesirable to postpone the benefit of such a measure by excluding all existing titles. These subjects had been considered by him; and the result of his deliberations was that if these powers would be of great advantage to owners of life estates they should not be postponed to an indefinite period, but be applied to existing settlements. As to the second Bill, he thought the changes would be advantageous; but he would not exclude the covenants in regard to the cultivation of land as they were of force now, and not of much practical value. In regard to the limitations of actions, he entirely agreed with the noble and learned Earl. As regarded the question of solicitors' costs, as something was proposed to be done by an external authority, it would be impossible now to express an opinion upon the subject. He must express his great satisfaction with the Bills considered as a whole; and he thanked the noble and learned Earl for the time and attention which he had given to them.
THE LORD CHANCELLOR
said, he was very glad that the proposal of the Government had met with the approval of his noble and learned Friend; but there was one point on which he appeared to be labouring under a misconception, and that was with regard to the powers proposed to be given under existing settlements. He quite agreed with his noble and learned Friend that if the powers proposed to be conferred by the Bill were good it would be very much to be regretted if they were not communicated to those holding under existing settlements; because a great portion of the land of this country was held under existing settlements, and much of it could not come under new settlements for many years. But the fact was, that under the Bill, tenant for life under an existing settlement would have exactly the same power as the tenant for life under a future settlement. The difference between the two was not in the powers, but in the checks on the exercise of the powers. The tenant for life under an existing settlement, when he wished to exercise the powers conferred by the Bill, would have to apply, by summary proceeding, to the Court, and to obtain the 1182 consent of the Court. In that case, if the Court considered it desirable that any person in remainder should be heard he might be heard. But the tenant for life under future a settlement would only have to inform the trustees, and if they consented he might exercise the powers given by the Bill. With regard to life estates incumbered with mortgages, it was perfectly true that the Bill conferred on tenants for life no power to sell such estates discharged from the incumbrancer; but he was afraid he could not put the owner of an incumbered life estate in any better position in this respect, than an owner of an incumbered estate in fee. With regard to incumbrances on the inheritance, what the Bill proposed was that such incumbrances might be paid out of sale monies; but there was a provision that the tenant for life might agree with an incumbrancer to charge the incumbrance on another part of the land; and if the incumbrancer was a reasonable man, and saw that what was going to be done would improve the estate, and would not injure his claim, he might agree to what was proposed. If neither of these courses was adopted, the only course would be to sell the estate subject to the incumbrance; and so in a case where a life estate was incumbered the only course would be to transfer the incumbrance to another part of the estate to provide for the payment of the incumbrance, and of the portion of the purchase money attributable to the life estate, or to sell subject to the incumbrance; but he did not see what else could be done. With respect to lands in the hands of charity trustees, he quite agreed with his noble and learned Friend that the law was not in a satisfactory condition; but this was a Bill which related to settled land, and anything done with regard to the other matter must be done in another way.
§ Bills read 1a; and to beprinted.(Nos. 14, 15, 16, and 17.)