HL Deb 19 June 1890 vol 345 cc1312-20

Order of the Day for the Second Reading, read.

LORD HERSCHELL

My Lords, I need detain your Lordships but a few moments in moving the Second Reading of this Bill, because it is so much a matter of detail that no doubt it will have to be considered in Committee. I should imagine there will be no objection to the Second Reading of the Bill. It has been prepared by the Incorporated Law Society, and is the result of the experience which has been obtained in the working of the Settled Land Act. Certain questions have arisen which it is desirable to settle, and it is considered expedient to give several powers which were not given in the first instance; but none of them are matters of very great gravity, or make any considerable change in the law. I do not propose to take your Lordships through every clause in the Bill, but merely to mention its principal provisions. Doubts have arisen where a rent-charge on the disentailment of an estate is created in favour of an eldest son when he is a disentailing party, whether that instrument is to be considered for the purposes of the Settled Land Act as constituting one instrument, together with the settlement proper, or whether it is to be regarded as an incumbrance. I think there is no doubt it was intended to be treated as part of the settlement; but doubt has arisen, and the 1st clause to which I will refer, Clause 4 of the Bill, removes that doubt, and provides that it shall be treated as one instrument. Under the Settled Land Act there is power on a sale under the Act to reserve an easement, but there is no power to do so when it is an exchange or partition, and not a sale. The same power is now reserved equally in that case. The next provision is to enable a tenant for life to carry out a contract which has been entered into by his predecessor in title. Before the transaction can be carried out under the contract, a sale may be made; but, pending its completion, if the vendor dies the proceedings would at present have to be taken all over again. Under this clause power is given to continue the proceedings and to convey the estate. Then the next provision makes this alteration: At present a lease can only be granted by the tenant for life after notice has been given to the Trustees of the settlement. The 7th clause in the Bill enables a lease, if it is for 21 years or less and at a rack-rent, to be made by the tenant for life without notice to the Trustees. Then there is a provision relating to the mansion house. Your Lordships are aware that there is an exception from the power of the tenant for life to sell under the Settled Land Act in that respect: he is unable to sell the mansion house. The 9th clause leaves that generally untouched, but it provides— Where a house is usually occupied as a farmhouse, or where the site of any house and the pleasure grounds and park and lands (if any) usually occupied therewith do not together exceed one hundred acres in extent, the house is not to be deemed a principal mansion house within the meaning of this section. The next provision is one on which some question may possibly be raised. At present the tenant for life can sell land that is settled for the purpose of expending the money for which the land is so sold upon improvements as defined by the Settled Land Act. The 10th clause of the Bill proposes to enable a tenant for life to raise money by mortgage for those same purpose instead of selling a portion of the estate. Sometimes the sum required is very small, and the difficulty of selling a small portion of the estate for the purpose of raising the necessary money is great. It would be a very considerable convenience to the tenant for life, and an advantage to the estate itself if such sum could be raised by mortgage, instead of by the sale of a portion of the real estate. It does not alter the mode in which the money is to be applied. It would be useful also for another purpose. At present, if there are mortgages and charges upon an estate, a tenant for life may sell for the purpose of paying them off, but he could not re-mortgage the estate for the purpose of consolidating the mortgages and, perhaps, raising the money required for the purpose at a lower rate of interest than that payable under the existing mortgages. Your Lordships are aware that many estates may be charged with mortgages bearing interest considerably in excess of the rate at which borrowing could now take place, nevertheless the tenant for life is precluded from making a fresh borrowing for the purpose of paying off mortgages, though he could do so at a lower rate of interest. This clause is intended to give him that power. Then, the next provision is merely a matter of machinery, and I need not trouble your Lordships with it. The 12th clause extends in some measure the improvements upon which settled money may be expended; one is the construction of bridges which are necessary for the purpose of the estate, which are not now included; and the next provision enables the money to be expended in putting the estate into a condition in which it may reasonably be let to the best advantage. Then the 13th clause enables the Court, if it thinks fit, where money has been paid into Court, to order payment of it out to the Trustees. At present, when money once gets into Court, it cannot be got out again; whereas, under this provision, the Court may order it if it thinks fit. There is only one other clause with which I need trouble your Lordships. That provides that where there are no Trustees of the settlement within the meaning of the Act the persons here named shall be the Trustees. The persons named in the Bill are those who, when application is made to the Court, are the people who would be appointed. This provision is only to save the necessity of applying to the Court in each case to appoint Trustees, and it does not make any substantial change. It is only for the purpose of avoiding the expense of an application to the Court. Now, those are all the provisions of the Bill with which I need trouble your Lordships. No doubt they will have to receive more consideration when in Committe, and I trust your Lordships will give the Bill a Second Reading.

THE LORD CHANCELLOR

My Lords, I am bound to say that, with regard to the greater part of this Bill, I am entirely in accord. I think a great many of its provisions will be useful amendments of the law. But there is one matter which I should like to refer to for a moment in regard to the 10th section of the Bill. That seems to me to be absolutely inconsistent with the whole policy of the Settled Land Act. By that Act, as your Lordships are no doubt aware, the tenant for life may, acting, as it were, for the person next in remainder, because he is improving the estate for him, sell portions of the estate for the purpose of obtaining money to enable him to carry out improvements. But the policy of allowing a tenant for life to mortgage for such purposes appears to me to raise very serious questions indeed, and I doubt whether so great on alteration should be made except upon a full discussion of the question after the Bill has been referred to Committee. It appears to me there are plenty of purposes for which a tenant for life may improve the estate, and he has power to raise money by sale for that purpose; but this Bill would give additional powers which ought to be very carefully considered before your Lordships agree that the tenant for life should be able, not only to sell part of the estate so that the next in remainder shall come into possession of an improved property, an estate increased in value, but that the next in remainder may possibly find he has come into possession of an estate encumbered by mortgages, which, if he could have been consulted, he would not have agreed to. That, my Lords, seems to me to raise a serious question of principle which your Lordships should look at and consider carefully apart from any question upon mere details; and I should think that the proper time to do so would be when the Bill comes back, if the Bill should come back from the Committee unamended in that respect. It would be then for your Lordships, sitting in Committee of the whole House, to consider that question.

EARL BEAUCHAMP

My Lords, I should like, as an ignorant and humble layman, to ask the noble and learned Lord for a little information with regard to the 9th clause, Sub-section 3. That clause appears to exempt from the restrictions originally imposed by the Settled Land Act, 1882, two classes of houses; one where a house is usually occupied as a farmhouse, and the other where the site of any house and the pleasure grounds, and park, and lands usually occupied therewith, do not together exceed 100 acres in extent. When that is the case, as I read the Bill, those two classes of houses are capable of being sold, at the will of the tenant for life. If that be the right interpretation, it appears to me this Bill strikes at the root of the restrictions imposed in the Settled Land Act of 1882. There may be great ambiguity in the words "usually occupied as a farmhouse.' The tenant for life may be on bad terms with his heir; he may waste the estate, and may cause the mansion house to be occupied as a farmhouse; and that may go on for a long period, for his life may not be a short one. So much for the words "usually occupied as a farmhouse" Then the second category seems to me to be still more objectionable. It is, I think, very insidious, because it provides that this may be done— Where the site of any house, and the pleasure grounds, and park, and lands (if any) usually occupied therewith do not together exceed 100 acres in extent. My Lords, I do not know the exact acreage of the various parks throughout the country; but there, again, it would he open to the tenant for life, as it seems to me, to reduce the size of his park, and then, when that reduction has been made and has existed for a greater or longer period, that is also to be taken out of the category of a principal mansion house within the meaning of the original Act, so as to deal with that portion of the property without consulting the wishes of those entitled in remainder. My Lords, if I am right in my interpretation of this clause, the number of mansion houses which would be left unaffected in regard to the restrictions imposed by the Settled Land Act, would be so small that it would be better to repeal those provisions altogether than to leave them in existence as provisions which are altogether illusory. I may be wrong, of course, in this: but it appears to me there is no such source of danger as there being supposed to exist a protection which is illusory. If my interpretation is correct, this clause, though it may seem thoroughly satisfactory upon paper, yet, when tested by the rapacity which does sometimes exist in the case of a tenant for life, and which must ex hypothesi exist, will really prove very mischievous, and render the protection which is supposed to be given of no value at all. I shall be very glad to hear from the noble and learned Lord that I am mistaken in my interpretation; but if I am not, then I think it would be a far more straightforward course to move at once for the repeal of the restrictions in this respect under the Settled Land Act, rather than to leave laymen under the impression that they enjoy a security which it will be found they really do not enjoy as against a hostile tenant for life.

THE MARQUESS OF SALISBURY

My Lords, f think it says very much for the humility of human nature, considering that we are all, or nearly all of us, tenants for life, to find what a deep distrust we seem to have of people in that position. We appear to consider that they are always about, or are willing, to commit some great crime, but I think tenants for life are a better class, on the whole, than my noble Friend Earl Beauchamp may think. What I wish to ask the noble and learned Lord opposite is, whether there are any means of defining what comes under the description of pleasure grounds and park. I have often, myself, seen cases where, if the grass in a man's park is not going on well, he will put it under turnips. Does it cease to be a park then? Viewing the matter in that way, the limitation appears to be one that nobody could rely upon, and, I think, might mislead.

LORD HERSCHELL

My Lords, with reference to the question which has been asked by the noble Earl, I would first state, generally, what the object of this section is. The language of the Settled Land Act is, that "it is not to apply to the principal mansion house (if any) or the settled land." That, obviously, was not intended to cover every house, however small, but was to be applied in the spirit of it to the residence in connection with the land. However small it was, that was the principle of it. It was supposed to apply to cases of an estate of some considerable character or size having such a house upon it. Now, the scheme of this section is, that where in reality it does not come within the spirit of the Settled Land Act, where you have a house occupied with only a small portion of land attached, that then it should not be regarded as a principal mansion house within the meaning of the Act. Of course, it may be considered that the area of 100 acres taken here is too large, and that it ought to be reduced. That is a matter of detail which I will not go into at present; but I will say, in answer to the question of the noble Earl, that I do not think any tenant for life, by altering the character of the holding, and by saying that any portion of the property had been usually occupied in a particular way, could' bring himself within the section and so entitles himself to sell. I think, in considering for what purpose that portion of the property has been usually occupied, you would have to look to the period during which, and the purposes for which, the land had been held with the house in the past, and not how it happened to be occupied at the particular moment. With regard to the question of the noble Marquess, I would point out that the provision is not with regard merely to pleasure grounds and parks, but that it is land usually held with, the house; that is, throughout. If a portion 0f what had been a park was turned into something which was not strictly park, yet, if it was part of the land which had been usually held with the house, it would still come within those words, although it had ceased to be park and then filled some other character. The provision is that, notwithstanding the Act of 1882, The principal mansion house (if any) on any settled land, and the pleasure grounds and park and lands (if any) usually occupied therewith, shall not he sold, exchanged, or leased by the tenant for life without the consent of the trustees of the settlement or an order of the Court.

THE MARQUESS OF SALISBURY

Then, if a man farms the whole of his land, he cannot sell it.

LORD HERSCHELL

In that case, if it exceeded that amount, he could not sell without the leave of the Court. It would come under the restrictions of the Settled Land Act. At present the mansion house can only be sold under the order of the Court. The power of the tenant for life is limited if the lands usually held with the house exceed the 100 acres, as provided, for whatever purposes they might be occupied. That case would come within the scope of the Act and not within the exceptions.

EAUL BEAUCHAMP

Do I understand the noble and learned Lord to say that a tenant for life, having let his park, which is not at all unfrequently the case, for a term of years, as he is entitled to do, the principal mansion house and the whole estate would be then exempted from the restrictions of the Settled Land Act, but little land being actually occupied with the mansion house, so that he might sell the principal mansion house of a very large and ornamental estate without consulting the remainder-man?

LORD HERSCHELL

I do not think he would. It certainly was not intended that he should. However, after what the noble Earl has said, I may say that I shall take care, if possible, to see that that point is made clear.

Bill read 2a (according to order).

LORD HERSCHELL

I now move that this Bill be committed to the Stand- ing Committee for Bills relating to Law, &c.

EARL BEAUCHAMP

My Lords, this is, I think, a matter which your Lordships ought to consider in Committee of the whole House. Of course, there are technical points to be dealt with; but I would point out that this is a matter which concerns your Lordships as landowners. Is it not a matter in which, before the details are settled, your Lordships should agree upon the principle involved in the clauses of this Bill? I hope your Lordships will send the Bill to a Committee of the whole House, and then it can afterwards, if necessary, be referred to the Standing Committee on Law.

LORD HERSCHELL

Surely that is hardly necessary. Nine-tenths of this Bill refer to technical matters of detail in which there is no question of principle involved, and surely it would be better to consider the Bill in Standing Committee, and then, when it comes back to your Lordships, it will be in the form in which it has been finally settled. The noble Earl himself has already suggested that even if this 9th clause be right in principle, it ought to be altered in form. Surely the measure ought to be put in the best form for the consideration of the House, and then, when it comes back to the Committee of the whole House, it will be for your Lordships to omit any of the clauses or amend them. That seems to be a more reasonable course than to consider it now in Committee of the whole House. Your Lordships will then have a carefully-prepared draft before you.

EARL BEAUCHAMP

I do not know that I have any right to reply; but, as far as the drafting is concerned, I have that confidence in the noble and learned Lord that I do not know that whatever may be done in this Committee will improve his handiwork.

Bill committed to the Standing Committee for Bills relating to Law, &c.