§ 1. Freehold and customary land assimilated to chattels real, and repeal of the Statute of Uses.
§ Legal Estates and Equitable Interests.
§ 2. "Legal estates" and "equitable interests" distinguished.
§ 3. Shifting of equitable interests so as to take effect either behind a trust for sale or under a settlement.
§ 4. Creation (after this Act) of equitable interests by means of a trust for sale or a settlement.
§ Legal and Equitable Powers.
§ 5. Legal and equitable powers distinguished.
§ 6. Shifting of equitable powers so as to take effect behind a trust for sale or under a settlement.
§ 7. Creation of equitable powers so as to take effect behind a trust for sale or under a settlement.
§ Estates, Interests, and Powers.
§ 8. The getting in of bare outstanding legal estates.
§ 9. Enforcement of equitable interests and powers.488
§ 10. Authorised conveyances of legal estates.
§ 11. Devolution of legal estates by operation of law.
§ 13. Effect, creation (by means of terms of years absolute), and realisation of mortgages of freeholds and leaseholds.
§ Undivided Shares.
§ 14. The entirety of land held in undivided shares to vest in trustees for sale, with power to postpone the sale.
§ Dispositions on Trust for Sale.
§ 15. Provisions for regulating and facilitating dealings with land held on trust for sale.
§ 16. Regulations respecting settlements of land.
§ 17. Abolition of technicalities respecting the creation of entailed interests in personal estate; entailed interests in all property, to take effect only in equity.
§ 18. Abolition of technical rules relating to remainders, and provision as to heirs taking by purchase.
§ Infants and Lunatics.
§ 19. Infants not to take legal estates; conveyances on behalf of lunatics.
§ Land Charges.
§ Death Duties and Bankruptcies.
§ 21. Provisions for payment of death duties and protection of purchasers therefrom.
§ 22. As to bankruptcies of estate owners.
§ Miscellaneous Provisions.
§ 23. Provisions of Act to apply to incorporeal hereditaments.
§ 24. Vesting orders and dispositions of legal estates operating as conveyances by an estate owner.
§ 25. Modes of conveying legal estates, and provisions as to contracts.
§ 26. Charitable and public trusts.
§ 27. Abstracts of title and instruments.
§ 28. Registration in Middlesex and Yorkshire.
§ Savings and Reservations.
§ 29. Legal interests converted into equitable interests not to fail.
§ 30. Special statutory modes for conveying or acquiring land.
§ 31. Leasing powers.
§ 32. Limitation and Prescription Acts.
§ 33. Effect of possession of documents.
§ 34. Interests of persons in possession and covenants.489
Page 1, to end of Clause 34, page 23, leave out Part 1.— (Viscount Cave.)
§ VISCOUNT HALDANE
I quite agree with the Lord Chancellor that it is important we should get as much unanimity as possible, and it is quite right that there should be time for further consideration. But I wish to point out that Part I is the essence of the Bill; the Bill is not worth anything if Part I goes out. While there is, no doubt, room for discussion, I must point out that it has been the subject not of months but of years of consideration, and was referred by, your Lordships to the Joint Committee of the two Houses. As for omitting Part, or largely modifying it, all I can say is that the Bill will be worthless if that is done. The Lord Chancellor, who is anxious to make the most of the measure, is, of course, the best judge of the course to be pursued, and I only think it right to express my strong convictions, about what is necessary, if your Lordships really mean to reform the Law of Property, without letting the Motion pass sub silentio.
§ LORD BUCKMASTER
I certainly would not dissent from any proposal which had the Concurrence of the Lord Chancellor, but I must say that it is a little disappointing to those who have spent a very great deal of time in the pursuit of a most unattractive and thankless task upon this Bill to find that, at this stage, and after our labours are concluded, a Motion is brought before your Lordships' House to cut out what is, in fact, the very heart and substance of the measure. I do not intend to detain your Lordships on the subject of real property, which is not a very attractive one to discuss in any assembly except one acquainted with its technical details Nearly every Lord Chancellor for the last century has been trying to reform this law and, of course, it is obvious that any single method that is adopted will be open to the attack of any number of people who will say, "You had a variety of courses open, why take this?" If the matter were to be pursued I should earnestly entreat your Lordships not to assent to the Amendment, but if the Lord Chancellor thinks it is possible, by an arrangement on small matters, which may have been overlooked in the microscopic examination to which we subjected this Bill, he will avoid discussion, I shall be only too thankful. I 490 cannot say that I look forward with any confidence to such a possibility.
§ THE LORD CHANCELLOR
What has fallen from both noble and learned Lords reminds me that the first task which I ought to discharge in this connection is to express my sense of the great burden of gratitude under which your Lordships rest to those members who undertook to serve upon the Joint Committee. Lord Buckmaster has not exaggerated when he spoke of the distasteful and unattractive duty which fell upon noble Lords in assenting to undertake a task of this importance, Their labours extended over a period of many weeks, indeed months, and I should be very ungrateful if I did not place on record my sense of the meticulous industry with which they addressed themselves to this task. I entirely agree with both noble Lords, and if Part I were to go, I myself should not think it worth while to proceed with the Bill. I have not assented to this proposal with the desire to give the impression to any one that I should be prepared to go on with the Bill if Part I disappeared, but it is in the hope that, discussions with the very able gentlemen with whom Lord Cave has been co-operating may enable ns to obtain a degree of agreement which, at the present moment, does not exist. It is with that feeling, and with that hope, that I assented to the proposal.
§ LORD MUIR MACKENZIE
I should like to ask the Lord Chancellor whether he is going on with the Bill after having dropped Part I. I came down to the House understanding that we were going to support the Lord Chancellor for all we were worth in carrying through this Bill, and I was prepared with a speech that I hoped would have convinced your Lordships that Part I ought to be retained, and that if it was not the Bill was not worth going on with. I still think the same, and I cannot help joining with my noble and learned friends opposite in protesting against having been set to that most distasteful and laborious piece of work, which has really had, I regret to say, very serious effect upon my own personal health.
§ VISCOUNT CAVE
I hope I may be allowed to say that I join in the expression of gratitude to those members of the Committee who have given time and trouble to this matter. If there is inconvenience 491 in the time and form in which my Amendment is brought forward it is not my fault, because I made my protest at the time of the Second Reading, and I was not asked by the Committee to see them and to explain my objections. The Committee say very frankly in their Report that they have not gone into principles but only dealt with details, and therefore this is the first opportunity which I have had of bringing the matter before the House in any workable form. I can only say that I appreciate what has been said by noble Lords in expressing regret that the matter is to be postponed, but I shall be only too glad to do what I can to co-operate with them and the Lord Chancellor in endeavouring to agree upon some form of Part I which will be acceptable to the profession as a whole.
§ On Question, Amendment agreed to.
§ Clauses 35 to 75 agreed to.
§ Clause 76:
§ Abolition of enrolment of disentailing assurances, etc., 3 & 4 Will. 4, c. 74.
§ 76.—(1) Every assurance or instrument executed or made after the commencement of this Act which, under the provisions of sections forty-one, forty-six, fifty-eight, fifty-nine, seventy-one, and seventy-two of the Fines and Recoveries Act, 1833, or otherwise under that Act (as extended by this Act), would have been required to be enrolled in the Central Office in England, shall be as effectual for all purposes, without such enrolment, as if it had been duly enrolled within the time prescribed by the said Act for such enrolment.
§ (2) In this section "assurance" includes a vesting order operating as a disentailing assurance, whether made for barring an estate tail or enlarging a base fee or otherwise.
§ (3) This section applies to entailed interests authorised to be created by this Act as well as to estates tail created before the commencement of this Act.
THE EARL OF MALMESBURY
had Amendments on the Paper to move, in subsection (1), after "purposes" to insert "if registered pursuant to this section," and, at end, to insert the following new subsection:(2) A memorial or copy of every such assurance or instrument shall be registered at the Land Registry within the time provided by the said Act for the enrolment thereof in the prescribed manner, and the said Act shall, as regard, every such assurance or instrument, be construed as if such registration had been substituted for enrolment.(3) Rules shall be made by the Lord Chancellor for prescribing the manner of registration of memorials or copies, and otherwise for giving effect to the provisions of this section, and, as regards fees, with the consent of the Treasury.492 The noble Earl said: As a member of the Joint Select Committee which sat to consider this Bill I do not wish in any way to dissociate myself from the general unanimity which marked the findings of that Committee, or to appear to be dissatisfied with the conclusions arrived at by the Committee. I confess that it may appear to be a somewhat bold measure for me, not being a lawyer by profession, to sit upon a Committee so ably manned by noble and learned Lords, but I can assure your Lordships that I have gained considerable enlightenment of the provisions of this Bill, and, speaking as a layman, I feel sure that the Bill will confer enormous benefits not only upon landowners but the community in general.
With regard to the Amendment which stands in my name, Clause 76 of the Bill was very carefully considered in committee, and during the time the Committee sat we had very valuable assistance from Mr. Cherry, who, as your Lordships know, is one of the leading conveyancing lawyers at the present time. The object of the Amendment is to restore Clause 76 to the form in which the Bill passed its Second Reading in this House. I would have preferred the clause to have been left as it was when read a second time, but the Committee thought otherwise. The majority of the Committee were against me, but the noble and learned Viscount, Lord Haldane, who was our chairman, has given me permission, and his approval, to say that he felt that this Amendment might well be brought up in the Committee of the Whole House, in order that your Lordships might decide whether the clause should remain in the form in which it was when the Bill was read a second time, or whether you preferred it as altered by the Committee.
The majority of your Lordships have, at various moments of your lives, had to deal with disentailing deeds, either upon succession to your estates, coming of age, or marriage, or some other important period, and therefore I do not think I need take up your time in enlarging upon the form of these deeds beyond saying that when the old system of Fines and Recoveries was swept away by the Act of 1833 a less cumbrous method was adopted, whereby a deed executed by the tenant in tail, if duly enrolled within a specified time in the Court of Chaneery, 493 became valid for the purpose of bringing to an end the settlement. That is the law at the present time, and all these disentailing assurances have to be enrolled within six months in the Central Office before they are perfected. As the Committee amended the Bill it will be no longer necessary even to register disentailing assurances. The Bill, as it was read a second time, proposed to do away with the necessity of enrolment in the Central Office of the Supreme Court and to substitute for that a registration of disentailing deeds in the Land Registry.
The Committee swept that away, and under the Bill, as it stands, it will be merely necessary to execute a deed. No further formality is required. Personally, I think that some formality should be attached to the bringing of a settlement to an end, not only for the sake of the interests in the property, but of the public in general. Of course, it is said, and I dare say rightly said, that under this Bill entailed interests become nothing more than equitable interests, and therefore it is not worth while to put the estate to expense. As against this, however, the fees required for registration in the Land Registry will be very much lower than those already exacted in the Central Offices of the Supreme Court. The regulation and the amount of these fees would be left in the hands of the Lord Chancellor. I might say, if your Lordships are willing to accept this Amendment, that I think you would be conferring an enormous benefit upon the tenant for life, who may not know what the tenant in tail is doing, as well as upon trustees and purchasers and a large number of other interested parties.
I may add, in conclusion, that I think that there is one thing of great importance attaching to some formality in regard to disentailing deeds and it is that in these deeds you frequently find a recital of an older and previous title and of prior interests, and thus a disentailing deed confers a special form of protection on the purchaser and other persons interested. I hope, therefore, that your Lordships will be inclined favourably to consider this Amendment, At all events I have felt, in the interests of a very large landowning class, that it should receive consideration at your hands. There is one more argument against it and it is that under the Bill, where you have assimilated realty and personalty and where the land of this country has passed and is passing into the hand of a number of small people, it has been argued that you are going to put undue expense 494 upon small landowners where it is absolutely unnecessary; but I beg to submit that the advantage to be gained by some form of registration and official acknowledgment very greatly outweighs the disadvantages which are alleged. The legal profession, so far as I have been able to ascertain, entirely favours some principle of registration, even though under the Bill, as it was read a second time, the necessity for enrolment was done away with. I beg to move the first Amendment standing in my name.
Page 60, line 24, after ("purposes") insert ("if registered pursuant to this section).—(The Earl of Malmesbury.)
§ VTSCOUNT HALDANE
I fully appreciate the interest which my noble friend has taken in this matter, his work as a member of the Joint Committee, and his sympathy with the general purpose of the Bill, but I wish to put before your Lordships the reasons why the Joint Committee of the two Houses was unanimously against my noble friend's Amendment. He was the only one left who remained firm to the good old principles. The difficulty arose in this way. This is a Bill which, as your Lordships know, aims at assimilating the law relating to land and the law relating to other property, but it also aims at assimilating the law relating to other property to the property in land. Your Lordships on the Second Reading approved the principle of getting rid of the distinction between two kinds of property and giving a privilege to land. On the other hand, the Lord Chancellor and the Joint Committee have sought in this Bill to preserve to landowners the same system which they have at the present time, only stripping that system of the technicalities which have led to cost and delay. One result of that is that in this Bill entails are not abolished, but are simplified, and you can make an entail of personality, of money and moveables. This is not new. You can make an entail of moveables in the shape of money to-day. You can leave money on trust for the purchase of land, and you can entail it. It is not therefore new to introduce the principle that you may entail moveables. We thought it right that it should be open to the weaver who lives in a cottage to say that his furniture shall go to his son's son after him. An entail created in that informal way may be a very common thing, and it may be the quite 495 right thing, restrained, as it will be, within narrow limits.
At any rate, the great purpose is to put land and moveable property upon the same footing. That involves that the whole thing should be stripped of the costly and cumbersome impediments which have hitherto attached to entails. Your Lordships will be as free to entail as you were before. But you would not be as free to tie up and to put difficulties in the way of disentailing as used to be the case. I will remind your Lordships in a sentence or two of how the law of entail arose. It took its origin in the old Statute by which there was a right way in which a testator, or settler, could say land was to descend in an unbroken succession. That was the old-fashioned entail, but the ingenuity of lawyers broke through that and invented a process called "common recovery." That brought about a state of things under which, if you wanted to disentail, you had to go to the Court of Common Pleas and maintain an expensive, though friendly, lawsuit. That obtained down to the latter part of the thirties. Then, as a result of compromise there came the opportunity to disentail by a deed. You had to enrol that deed in Chancery, and it was a rather expensive business. That has remained so till the present time. It is plain that we cannot call upon a miner or a weaver to enrol a deed disentailing a few pieces of furniture left by a will, and it is quite plain that if you are to put moveables on the same footing as land the process ought to be a simple one.
This was the conclusion reached by the Joint Committee, and the principle of this Bill is that, provided you use perfectly distinct words of your intention to disentail, and if you do it in a will and make it clear by the instrument you put in operation, You can disentail without going through any special formalities such as would be most appropriate if you are dealing with an enormous estate. I think my noble friend's Amendment is based on this. There are elder sons who are not always all they ought to be, and they go to moneylenders and raise money on what are called base fees without the knowledge of their parents, who are the tenants for life of the estate. My noble friend thinks there will be some protection if the moneylender and the young man have to go and enrol the deed of mortage in what takes the place of Chancery—the High Court or the Land Registry, as it would be under the 496 Amendment. They will be able to do that with the utmost simplicity. The moneylender will have a lot of forms of the disentailing mortgages ready prepared and they will only have to be filed and a small fee paid.
There is no real protection in it, and there is no publicity because these things are not published, and, without Special Rules made on the subject, the parent or guardian would not be able to search and see whether these moneylending transactions had taken place. Therefore, as no real security is offered by the proposal to introduce this necessity of registering a disentailing deed, and as the process would be wholly inappropriate to a small piece of land or moveable property, and as it is necessary, in order to make the Bill consistent, to bring this in, the Joint Committee was unanimous, with the exception of my noble friend, in thinking that it would be a departure from the almost fundamental principles in this Bill if we were to maintain this inadequate notion of the way in which to disentail, and this somewhat expensive procedure of registering a deed. Therefore, I submit to your Lordships that we do well (notwithstanding the zeal of my noble friend, which I fully recognise, to make the Bill as perfect as possible from an ideal point of view), not to be led away by the seductions of the case which he presented to the House.
§ THE LORD CHANCELLOR
The speech which the noble and learned Viscount has just delivered illustrates, I think, the manner in which the Committee went into the troublesome matter of detail. I am, I think, bound to support the view which the Committee, other than the noble Earl, unanimously reached. I find the arguments of my noble and learned friend upon this point convincing, and I hope very much that the noble Earl will not deem it necessary to carry this to a division.
§ Amendment, by leave, withdrawn.
§ Clauses 77 to 100 agreed to.
§ Clause 101:
§ Rights of the public over commons.
§ 101. From and after the commencement of this Act members of the public shall have rights of user (not being profits â prendre) and access in respect of the surface of all commons and commonable land, not inclosed at the commencement of this Act, corresponding to the rights hitherto enjoyed (whether under custom or otherwise) by the commoners and members of the public or any of them in respect of the land, but without prejudice to the beneficial tights (including sporting rights) hitherto respectively enjoyed 497 by the lord and the commoners, and subject to any rules prescribed by any authority having power, in the interests of the public, to regulate the user of the land.
§ VISCOUNT CAVE moved to leave out Clause 101. The noble Viscount said: I desire to call the attention of the House to this clause, because I do not think it should pass without being fully understood and considered. It formed no part of the Bill as introduced to the House by the noble and learned Lord on the Woolsack. It is, as I believe, entirely outside the scope of the Bill, and it has been added by the Committee, who quite properly call attention to it in their Report and say that in consequence of the insertion of the clause they have amended the title of the Bill. This clause deals not with the law of property, but with the rights to commons, and it is properly part of a Bill dealing with commons.
I hope noble Lords will look at it for a moment. It provides—
From and after the commencement of this Act members of the public shall have rights of user (not being profits à prendre) and access in respect of the surface of all commons and commonable land, not inclosed at the commencement of this Act, corresponding to the rights hitherto enjoyed (whether under custom or otherwise)"—
that would include, of course, by leave and licence—
by the commoners and members of the public or any of them in respect of the land—
and so on. It is not easy to see exactly what that means. The public are to have the rights which commoners and the public, or any of them, now have, except what are called "profits â prendre." As your Lordships know, "profits à prendre" are rights to use the produce bf the commons by pasturage and so on; indeed, they are exactly the rights which a commoner has. This clause provides that the public are to have the rights a commoner has, except those rights which are, in fact, the only ones he has to-day, and are to have the rights which the public have when as we all know the public have no rights over commons.
§ If you take the clause literally, therefore, it is, of course, quite meaningless; but the intended effect of it is apparent from the Report of the Select Committee. They say that the clause, in effect, gives to the public, in regard to commons which have not been enclosed the same rights which it is generally, though inaccurately, supposed that. 498 they possess at the present time. The intention is to give the public the rights which people think they have over the commons, or, to put it quite plainly, to give the whole of the public a right of using all commons and commonable land in this country. Now that is a very serious proposal indeed, because your Lordships know there are many thousands of acres of common and commonable land in the country, The expression would include all the great moors in many of our counties.
§ VISCOUNT CAVE
It would include Lammas lands which are only laid open to commoners for a part of the year and are cultivated during the rest of the year. It would include a tremendous area of the country. Now this clause provides that over the whole of that area the whole of the public shall have a right of access, and I think, more than that, they are to have any rights which any member of the public now has. So that if any particular individual, by the indulgence of the owner of a common, has been using the common for putting his planks there, or his chickens, or something else, that same right, which is only given by licence, will be granted by law to the whole of the public. I have never been anything but a supporter of the policy of throwing open the commons so far as possible; but I really think this is a very drastic proposition indeed. Owners of commons have been in the habit of allowing their neighbours, and indeed the public to roam freely over them; but they always had the right, in case of need, to stop an abuse of that privilege. For instance, where trespassers have come upon the common and done harm, or where gipsies have camped there, and camped sometimes for weeks or months, and committed depredations upon the neighbours, the owner of the common, generally the Lord of the Manor, has had the power of putting a stop to that kind of thing. But all that, of course, will be at an end if this clause passes.
§ VISCOUNT CAVE
I think that will be at an end, but my noble friends do not agree. This clause gives the public a right to use the common, as I gather, for the purpose of passing over it as they think fit. That is really a very serious matter. The clause says, it is true, it shall be without 499 prejudice to the beneficial rights (including sporting rights) hitherto enjoyed by the lord and the commoners. Well, the clause may say so, but, of course, it will not be without prejudice to them, because it will destroy, as I think, the greater part of those rights. I mentioned the trespasser who sometimes, though he does not mean it, interferes with sport. It will be very difficult indeed to stop him. I may mention another matter, perhaps of minor importance in some eyes. I do not know what will be the value of the common where a golf club now has a lease it any member of the public can go over the common and interfere with the game. I doubt whether any club would care to take a lease of the common any longer. It may be a small matter, but it is just as well we should realise what the effect will be. The clause, in effect, takes away a great part of the value of every acre of commonable land in the country. It gives no compensation to owners; it sets up no control. It leaves a control where it exists in commissioners, and so on; but it sets up no new control and will have a serious effect upon all our common land. I venture to think it is a matter which is not one [...]or insertion in a Bill of this kind, which has to deal with non-controversial matters; but is a matter to be brought forward as a separate Bill and to be dealt with on its merits.
Page 79, leave out Clause 101.—(Viscount Cave.)
§ LORD BUCKMASTER
If the noble Lord had introduced Amendments calculated to prevent the operation of the particular mischief to which he directed attention they would undoubtedly have been the subject of very careful consideration by those who are interested in the passage of this Bill. But he has done nothing of the kind; he has asked your Lordships to excise the whole of this clause and to remove from this Bill a provision which I trust your Lordships will think, when you have heard a little further explanation about it, really ensures to the public rights which under the present system the landlords are only too willing that they should enjoy. The noble Viscount has omitted to tell your Lordships—and, as it is impossible to believe that any one of your Lordships will gratuitously have read through this Bill, you may excuse me if I refer to it—that this Bill provides for the compulsory enfranchisement of the 500 whole of the copyhold land, so that, from and after the passing of this Bill, when once it has come into operation, the copyhold rights over commoners will cease to exist. At the same time it preserves, as of course it should, to the lord the substantial rights connected with the minerals and the whole of the under soil.
At the present moment the position, of course, is that the tenants of the manor have certain rights which vary from manor to manor, such as pasturage and turbary —small rights of great value to-day. While any single copyholder remains the exercise of those rights prevents any interference on the part of the lord of the manor with the surface of the waste lands. It follows from this undoubtedly that these waste lands have become in many districts places of very healthy resort for members of the public, and I repeat that the enjoyment of those rights, where they are not maliciously, wantonly, or carelessly exercised, so far from taking away any of the rights that the landlords have enjoyed, have, as I verily believe, been the subject of great satisfaction to the landlords themselves. And if you were to retain the commons as they now stand in the hands of their present owners there would, except in trifling circumstances, be very little risk, that anybody need dread, of these open spaces being taken away from the enjoyment of the Public.
Now, things are not going to remain as they stand to-day. Property is not going to stop in the hands of people who, by long tradition and association, have considered that the ownership of property has something more than the mere enjoyment of its privileges attached to it. Those properties will undoubtedly pass into the hands of people who are animated by no such feeling, and if, after this Bill is passed, and after the whole of the copyholds have been extinguished, these commons were to be publicly enclosed, I can only say that there would undoubtedly be grave disturbance, and there might be consequences that one might be unwilling to predict. It is also true that the mere fact of enfranchisement by itself would not take away from any person who had originally been a copy-holder, or any person who claims through him, the right to exercise rights that would keep these commons alive. That is quite true. But from the moment when you enfranchise you begin to lose all records of the rights of copyholders, because the copyhold tenants have all vanished, and in a 501 very short space of time there would be nobody who could be found who would be able to say that they were in the enjoyment of commonable rights which would ensure that the surface would be kept free from building and enclosure.
This clause is merely intended to provide that in those circumstances the public shall have rights of user which are at the present moment undoubtedly enjoyed by virtue of the indisputable rights of the commoner. I can understand lawyers objecting, because lawyers always do object to the slightest interference with any existing form of law. But I have the greatest doubt whether the big landowners of this country, whose open spaces have no doubt been part of their pleasure and have been enjoyed by the people of this country from time immemorial, with a satisfaction and a happiness with which I am certain landlords would be the last to interfere, I have the greatest doubt whether they will be so anxious at this moment to assert that, as soon as this Bill is passed, and the copyhold tenants are destroyed and the records of their tenancy disappear, a new and excellent chance will not be given to some speculator in a common to go and enclose the open space and use it for the purpose of building. I sincerely hope your Lordships will keep this clause.
§ THE MARQUESS OF SALISBURY
I do not know Whether your Lordships will allow a man who is not a lawyer to take part in this discussion, but, although I know nothing about law, and certainly very little about copyhold law, I do know a little about manors. I think that the noble and learned Lord who has just sat down has spoken in very generous terms of the spirit which animates the great body of the traditional landowners of this country. I agree with him, although perhaps I ought not to say so, as I belong to that class myself. I think that they have administered their property, not purely with a view to their own interests, but under a great sense of responsibility of what they owe to the public, and I do not know any class of landowners who would for a moment rob the public of an open space which the public value, out of any rights which he has as lord of the manor. The new kind of landowner will soon become very like the old kind of landowner; after a generation or so, at any rate. Still, if my noble and learned friend thinks some protection is required, I shall certainly not complain of his putting it into the form of an Act of Parliament.
502 But I do think that perhaps he and those with whom he is acting have rather omitted to remark—as the noble and learned Viscount, Lord Cave, has reminded your Lordships —that this clause applies to commons not merely in crowded neighbourhoods, where the public really do require an open space for their legitimate enjoyment, but to an enormous mass of ground all over the country— the moors in thinly populated parts of England to which none of the observations of the noble and learned Lord (Lord Buck master) apply, and which will be affected, I think, very adversely by the provisions of this clause. I know of some of those moorlands, so does my noble friend Lord Malmesbury, who was a member of the Committee, for he and I belong to the same part of the world. And there are vast extents of moorland, not with a very large population, to which it may be the public occasionally resort, but in many cases very seldom indeed. In some of these cases there are very few commoners at all. Of course, if there were no commoners the freehold would become vested in the lord, and he, in all respects, would do what he liked with it.
But there may be very few commoners, and those commoners may be rapidly disappearing. The question is in those cases, Is it, or is it not, in the interests, first of all, of the lord, and, secondly, of the public, that the present law should be continued? First in respect to the lord. There are many cases where there are perhaps only one or two commoners and no public demand for an open space, for the whole place is open and the question is whether the lord ought not to have whatever advantages accrue to him as freehold owner of the commoners' rights of the district. It will not be putting the public to any inconvenience at all. It will be really using the land to its best advantage, and sanely, in these days, the great thing is that all the land should be used to the best advantage. That is pressed upon us every day. We are told that the failing of the landowners in the past was that they did not use their land to the best advantage, and consequently all sorts of restrictive legislation is now threatened against them. Take one of those areas. Perhaps only one commoner is left. When his rights disappear—perhaps he may be bought out by the lord— why should not the lord use the land to the best advantage? Whom does it hurt? It is in the public interest. Of course he ought to be allowed to do it. And there is no advantage otherwise. 503 I have tried to show that in that class of case it is for the public interest that the present law should be continued. But there is another public interest. Sometimes these commons are near a small neighbourhood which is growing. Who is going to control the commons after this clause passes? Who is going to see that they are properly looked after, and that the people who are nuisances should not come upon this land? The district where my noble friend and I live has an enormous number of gipsies. They move about and settle upon our land. I am not opposed to gipsies; I do not want to exclude them from the commons; I think they have a right to live, like everybody else, and I had the honour of presiding over a Committee of your Lordships' House some time ago when we investigated the whole of this matter. But they ought to be regulated. As the law stands at present, no one can regulate the behaviour of nomads camped upon a common, except the lord; no one has any rights at all or power over it.
If the clause passes, no one at all will have any rights, but the public will be entirely at their mercy. They may do anything they please upon this land. They will be Members of the public and will succeed to all the customary rights of the public, and, as people have been allowed hitherto to camp there, they will be allowed to camp there; they can do whatever they like and be a great nuisance to all their neighbours, and no one will have the right to control them. At present there is the control of the lord. I myself, if I may instance my own case, have control over gipsies in that way, and can see that they do not do anything they should not. Under this rather crude provision, if the noble and learned Lord will pardon me, there is no such power. I cannot help thinking that what my noble and learned friend below the gangway said is true. This clause has been introduced not by the Government, but by the Committee, as it were, at the last moment, and has not been fully considered. It is not in a proper form. It does not seem to me to be germane to the main object of the Bill, and I would suggest to your Lordships that the clause should be withdrawn for the present, and be brought up in some amended form where the true interests of the public would be protected, or at any rate should not be attacked.
§ VISCOUNT HALDANE
I do not rise to repeat the reasons which my noble and learned friend Lord Buckmaster gave, but 504 to draw attention to the character of the clause. I can assure the noble Marquess it was most closely and exactly considered, and I am not quite sure that he has appreciated all that is in it. We all know that he is a really generous owner of manorial land, and treats the public admirably in respect of commonable rights. But none of the dangers of which he spoke will arise if this clause passes. The noble Marquess referred to the early part of the clause, but he did not refer to the words in the second half of the clause. If your Lordships will look at those words it will be seen that what is given is this: The public are to have rights of user, corresponding to the rights hitherto enjoyed (whether under custom or otherwise) by the commoners and members of the public or any of them in respect of the land—the two together.
As for gipsies going on the land that, of course, is absurd. No gipsies will be allowed to go on the land under this clause, and they will have no right given to them by this clause. What is done is without prejudice to the beneficial rights, including sporting rights, hitherto enjoyed by the lord and the commoners, and is subject to any rules prescribed by any authority having power, in the interests of the public, to regulate the user of the land. Under the Bill, the Board of Agriculture and other appropriate bodies are given these powers. So that your Lordships see not only is there regulation, but a member of the public has not any larger rights than he has had before, and he has not any larger rights than the commoners have had. As for the gipsies, I dare say they will stray there in future as they have done in the past; but not under this Bill, if it should become law, because this Bill gives them no encouragement Indeed, it puts them under regulation for the first time. As regards the rest, no doubt there are distances between commons where the public have been in the habit of going, and where, as the noble Marquess said, he would be the last to wish to disturb them—
§ VISCOUNT HALDANE
And other places where they go less often. The commoners themselves go less frequently there, and will have no greater right than they had before. The public may walk across, but they are given no power which militates against the ownership, and they are put under regulation. The real value of this 505 clause is that it will prevent a very great danger. Everywhere there is a tendency to break up great estates, and everywhere there is a disposition to inclose commons just now. As for golf links, they will not be interfered with. You cannot inclose a common for the purpose of making golf links. Where you want to make golf links you have to have a title to the land upon which you make it.
This clause will preserve every right the lord has of defending every right of the commoner and preserves, for the public, just as much as, and no more than, they had before in point of user, and in addition puts them under some sort of regulation under which they have never been up till now. What renders it necessary is that, as the copyhold system disappears so the commoner will disappear and you will have no register or record of the commoner, as you have at the present time. It will not be known who have rights, and the tendency will become very strong for the facilitation of the somewhat nefarious process on the part of those people who are always trying to inclose and succeed, not because they have the slightest legal right to do so, but because there is nobody who is capable of asserting a title and getting in their way. All I want to say, in conclusion, is that this was a clause the importance of which became very much present to the mind of the Joint Committee. As we proceeded with the copyhold clauses of the Bill, it was considered with the most minute care. At any rate, we have done everything in our power to make it an exact safeguard of a state of things which, I am sure, all your Lordships would wish to be preserved whatever changes may be made.
§ LORD TREOWEN
Before this clause is put, I think there is one point upon which your Lordships would like, as I should, to have some information, and that is what the effect of it will be on the prospective afforestation of a great many common lands. That is a question which is of considerable interest, and which has come before us very much in recent times. In my own country, Wales, we have common area, part of which it certainly is to be hoped will, at no distant date, be afforested. I confess I am not in a position to understand all the technicalities of this Bill, but I should very much regret if anything were inadvertently put into it and made the law of the land which would hereafter raise a serious difficulty in respect to the question of afforestation as a whole.
§ VISCOUNT HALDANE
The Bill leaves afforestation in exactly the same position as it is now, with all the rights and facilities which exist. They are not altered.
§ THE LORD CHANCELLOR
The noble Lord who asked the question will, I think, see that what Viscount Haldane has said must be well-founded. No one, of course, can proceed with afforestation now to the prejudice of the commoner's right, and the position will remain unchanged. I think every one must be impressed by Lord Buckmaster's statement of the merits of this Amendment. He pointed out, what became more and more apparent to the minds of the Committee—though I confess it had not occurred to me or to those who drafted the Bill— that inasmuch as the Court Rolls of manors will cease to be kept under the arrangements proposed, the evidence of the existence of commonable rights will become more and more difficult to produce. Therefore, the Committee unanimously and, as I happen to know, after deep consideration, came to the conclusion that some clause of this kind was desirable.
Some criticisms have been made, by Lord Cave, of the form by which this purpose is attempted to be secured, and Lord Buckmaster, in reply to him, said he would gladly have considered any suggestions of form which the noble and learned Lord might have placed upon the Paper, but he has not taken that course. Lord Salisbury has made the suggestion that the clause should be withdrawn and redrafted. I thing we ought to show our gratitude for the unanimous conclusion reached by the Committee by treating it in a slightly different way, and I would venture to hope that the noble Marquess would find it a satisfactory alternative proposal that at this stage the clause should be allowed to survive in the Bill, and I will carefully examine, with the help of my noble and learned friends on both sides of the House, the wording and drafting and we can then discuss it on the Report Stage. There is one proposal which, I think, I must put down as an Amendment.
THE EARL OF MALMESBURY
We are grateful to Lord Buckmaster for the compliment he has paid to the old class of landowner, and for giving the reasons why he fears that the new class of landowner may not act in the same way. Since the Joint Committee sat a very grave case has come before my notice as to the way in which this clause may be abused. For years in my 507 neighbourhood a number of gipsies have been in the habit of encamping on a large common belonging to a manor of which I am lord, and they are not only a danger to property but a nuisance as well. This became so serious recently that the commoners asked me to remove them. I undertook to remove them, and did so in former years; but in these days it is not a very exhilarating amusement owing to the enormous cost of labour, and I asked the commoners to assist me. They said they would, but I found that a number of those who were most violent in their protestations against these gipsies suffered from "cold feet" when it came to removing them. I then had to proceed by way of an injunction in the County Court. Most of the gipsies, however, cleared off the common; only three lots remained, who were warned that unless they cleared off within a specified time an injunction would be issued against them. For many Years they have abused the privilege of camping on the common and now the small holders who live in the vicinity found that their chickens and vegetables, and other articles, disappeared nightly. I hope, therefore, that the Lord Chancellor and Lord Cave will be able to agree upon some clause which, while doing what the Bill seeks to do, will not render those who have common rights liable to be troubled and disturbed by gipsies and other vagrant people unlawfully using these open spaces to the prejudice of adjoining property owners and others. I confess I lean strongly towards Lord Cave's suggestion.
§ LORD FARRER
I should like to add one word, as I had the advantage of sitting on the Committee which considered the question of gipsies. There is a method for removing gipsies which has not been referred to, and which we in Surrey have frequently adopted, and that is to put the common under regulation. It needs the lord's assent, but it is always given when things become a nuisance. If Lord Eversley had been in his place to-day he
§ would have pointed out what I desire to point out—namely, that some of these commons have only been saved for the nation after tremendous struggles. There are Epsom Downs for instance. The case was carried to the House of Lords before that great common was saved for the nation. It is quite obvious that if the manorial courts go there must be some machinery for keeping the commons open, or they will fall into the hands of one person and the property will pass from the commoners to others. I am not very much impressed with the argument concerning game. As regards the gipsy nuisance the way to deal with it is by a scheme of regulation. Some county councils have bought the rights from the lord and since then have had no difficulty in the matter. For these reasons I hope that something in the form of this clause will be allowed to pass.
§ VISCOUNT CAVE
With regard to what Lord Farrer has said, it is of course quite easy in counties like Surrey to obtain a scheme of management over commons, but a system of Commons Commissioners is not applicable to the more distant parts of the country. Lord Buckmaster is mistaken in supposing that when all copyholders are enfranchised the rights of common will be lost. There are many cases where there are freeholders having rights of pasturage over a common and their rights, attached to freehold tenements, are quite easily understood. With regard to the course to be taken, I should be anxious to agree to any suggestion of the Lord Chancellor, but I think it would be much better, as we have discussed the matter, for the House to express its opinion as to whether the clause should remain in the Bill or not, and we can discuss the form of the clause at a later stage.
§ On Question, whether Clause 101 shall stand part of the Bill?—
§ Their Lordships divided: Contents, 42; Not-Contents, 29.509
|Birkenhead, L. (L. Chancellor.)||Sandhurst, V. (L. Chamberlain.)||Farrer, L.|
|Allendale, V.||Glenarthur, L.|
|Sutherland, D.||Churchill, V.||Hemphill, L.|
|Haldane, V.||Hylton, L.|
|Crewe, M.||Hampden, V.||Muir Mackenzie, L.|
|Craven, E.||Hutchinson, V.||Pentland, L.|
|Eldon, E.||(E. Donoughmore.)||Ranksborough, L.|
|Howe, E.||Peel, V.||Rathcreedan, L.|
|Lucan, E.||Annesley, L. (V. Valentia.)||Shandon, L.|
|Lytton, E.||Balfour, L.||Sinha, L.|
|Malmesbury, E.||Buckmaster, L.||Somerleyton, L. [Teller.]|
|Mount Edgcumbe, E.||Chalmers, L.||Southwark, L.|
|Onslow, E.||Colebrooke, L.||Stanmore, L. [Teller.]|
|Reading, E.||Denman, L.||Strachie, L.|
|Vane, E. (M. Londonderry.)||Emmott, L.||Treowen, L.|
|Bedford, D.||Verulam, E.||Fairfax of Cameron, L.|
|Bath, M.||Bertie of Thame, V.||Hindlip, L.|
|Salisbury, M.||Cave, V. [Teller.]||Joicey, L.|
|Doncaster, E.||Askwith, L.||Monekton, L. (V. Galway.)|
|(D. Buccleuch and Queensberry.)||Avebury, L.||[Teller.]|
|Fitzwilliam, E.||Barrymore, L.||Sumner, L.|
|Morton, E.||Clifford of Chudleigh, L.||Sydenham, L.|
|Northbrook, E.||Dynevor, L.||Sydenham, L.|
|Northesk, E.||Ebury, L.||Templemore, L.|
|Roden, E.||Erskine, L.||Walsingham, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment disagreed to accordingly.
§ Clauses 102 to 146 agreed to.
LORD BUCKMASTER moved, after Clause 146, to insert as a new clause:—
.A will expressed to be made in contemplation of a marriage shall, notwithstanding anything in section eighteen of the Wills Act, 1837, or any other statutory provision or rule of law to the contrary, not be revoked by the solemnization of the marriage contemplated.
The noble Lord said: This Amendment has at least the merit that it has very few legal technicalities associated with its provisions. As the law stands to-day, if a man marries, the fact of his marriage ipso faclo revokes all existing wills. Now this clause proposes that if a will be on the face of it expressed to be made in contemplation of marriage, then the solemnisation of that marriage shall not revoke that will. It does appear to me to be a simple and useful clause. I can see no reason why a man, on the eve of his marriage, should not make a will expressing his wishes regarding his property. If a settlement may be executed in anticipation of marriage, I cannot see why a will should not remain valid in the same way. There still remains to the man full power of revocation after the marriage, if he thinks fit. He can revoke it by making another will, or by destruction. But I suggest to your Lordships that there is no reason why a man should be deprived just before his marriage of saying where he wishes his property to go after the marriage is solemnised, and of letting the will stand when that marriage, which is referred to in the will, has once taken place. I trust your Lordships will think that this is a simple, useful provision, and one winch is in accordance with common sense.
Page 125, after Clause 146 insert the said new clause.—(Lord Buckmader.)
§ THE LORD CHANCELLOR
I confess I think that my noble and learned friend has abundantly justified his proposal. Everybody, of course, knows the ground of policy upon which, up to the present, a will has been voided by marriage, because it is presumed that intentions before the marriage no longer, for obvious reasons, may be supposed to hold good; but where, on the face of it, a will is expressed to be made in contemplation of a marriage, it seems to me to be absurd and indefensible that that will should become void after the marriage takes place which is referred to in it.
§ VISCOUNT CAVE
May I have the pleasure of supporting, in one sentence, the proposal of my noble and learned friend. I never could understand why, in these modern a man's marriage should ipso faclo revoke his will. I am sure the effect of that rule has been in many cases to disappoint the intentions of the man who made the will, and I think it is high time that a will expressly made in contemplation of a marriage should cease to be revoked by that marriage.
§ THE EARL OF READING
May I, in saying one word in support of the new clause introduced by my noble and learned friend, suggest to the Lord Chancellor that it will be necessary to amend the title. It is very unsatisfactory to have in this Bill a clause of this kind, which amends the Wills Act, without any reference in the title to that Amendment. It is a question for consideration, but I think he will agree that those of us who have to deal with the interpretation of the law find it very difficult to do so when a Bill to amend the law of property contains a clause which affects the Wills Act and there is no reference in its title to that clause.
§ Clauses 147 to 176 agreed to.
§ Clause 177:
§ Power to require registration of title on sale.
177.—(1) In subsection (1) of section twenty of the Act of 1897 the words beginning "a person shall not" down to the end of that subsection are hereby repealed, and the following words are hereby substituted therefor:—
Every conveyance on sale of freehold land, executed in the case of land in the county of London after the thirty-first day of December nineteen hundred and twenty-one, and in the case of land in any other area on or after the day specified in the order which makes registration of title to land in that area compulsory on sale, shall (save as hereinafter provided), on the expiration of two months from the date thereof or of any authorised extension of that period, become void so far as regards the grant of conveyance of the legal estate in the land within the area affected comprised in the conveyance unless the grantee or his successor in title or assign has in the meantime applied to be registered as proprietor of such land; and the expression 'grantee' means the person who is entitled to be registered as proprietor of the land:
Provided always that the registrar, or the court on appeal from the registrar, may, on the application of any person interested in any particular case in which the registrar or the court is satisfied that the application for first registration cannot be made within the said period, or can only be made within that period by incurring unreasonable expense, or that the application has not been made within the said period by reason of some accident or other sufficient cause, make an order extending the said period; and if such order be made, then, upon the registration of then grantee or his successor or assign, a note of the order shall be endorsed on the conveyance.
§ (2) Rules under the Acts may provide for applying the provisions thereof to dealings with the land which may take place between the date of such conveyance and the date of the application to register, as if such dealings had taken place after the date of first registration; for registration to be effected as of the date of the application to register, and for applying the provisions of section twenty aforesaid (as amended) to the case of leasehold land.
§ (3) In section twenty aforesaid (as amended) the expression "conveyance on sale" does not include an enfranchisement or extinguishments of manorial incidents whether under Parts V and VI. of this Act, or otherwise, but shall after the commencement of this Act include a conveyance by way of exchange, where money is paid for equality of exchange.
- (i) The county council and any law society whose district is proposed to be affected, or either of them, may within six months after receipt of notice by the county council of any proposed order, pass a resolution that a public inquiry shall be held in the county proposed to be affected, as to the desirability of extending compulsory registration of title (on sale) to the county or part of the county intended to be affected; and the county council within ten days of the receipt of such notice shall furnish a copy thereof to any such law society:
- (ii) A copy of the resolution shall be sent to the Lord Chancellor:
- (iii) After the receipt of a copy of the resolution the Lord Chancellor shall appoint a person to hold and conduct the inquiry and shall fix the date and place on and in which the inquiry is to be held:
- (iv) The Lord Chancellor may make rules as to the conduct of any such inquiry, the manner in which the expenses thereof are to be borne and any other matters relating to the inquiry, and may revoke or vary any such rules:
- (v) At any such inquiry the county council, and such other persons as may be admitted by the person holding the inquiry, or may be nominated by or on behalf of any such law society as aforesaid and all other persons willing to give evidence, shall be entitled to submit reasons, whether local or general, for or against the extension of compulsory registration of title (on sale) to the country or part of the county intended to be affected:
- (vi) The person holding the inquiry shall, after the completion thereof, forthwith report the result, stating the facts and reasons upon which the result is arrived at, in writing to the Lord Chancellor, who shall cause the report to be published in the Gazette or in such other manner as he may prescribe:
- (vii) If, after the publication of the report, or after the period within which a resolution that an inquiry be held may be passed, has expired without any such resolution being passed, the Lord Chancellor decides to proceed with the draft Order (with or without amendment) he shall cause such draft to be laid upon the table of both Houses of Parliament while Parliament is sitting:
- (viii) If and when an address is carried in either House approving of the draft, the Order may forthwith be made, but not otherwise:
- (ix) If an address is not carried in the first session in which the draft is laid on the table the Lord Chancellor may lay it on the table in any subsequent session or sessions of the same Parliament with any necessary amendment as to the date when it should take effect:
- (x) No order under section twenty aforesaid (as amended) shall be made until after the expiration of two years from the commencement of this Act
- (xi) Not more than one Order under the: said section shall be made within the period of three years from and after such commencement
- (xii) The first Order made under these provisions shall not affect more than one county with any county borough surrounded by or contiguous to such county.
moved to leave out sub-section (4). The noble Viscount said: In rising to move an Amendment to this Bill, which assimilates the law of realty and personality, and reduces the cost connected with it, I am sure that as far as it reduces the cost the Bill will be welcomed by landowners. My Amendment deals with a different point, and in moving it I am speaking not only my own personal view but that of the County Councils Association, of which I have the honour to be president. Your Lordships will perhaps allow me to read the law as it stands to-day. This is the clause of the Land Transfer Act of 1897–If within three months after the receipt of the draft, the county council, at a meeting specially called for the purpose at which two-thirds of the whole number of the members shall be present, resolve and communicate to the Privy Council their resolution that in their opinion compulsory registration of title would not be desirable in their county, the Order shall not be made.That is a very clear and definite clause which gives absolutely to county councils the power to prevent registration of title being made compulsory in their county.
But there is a further point, and that is this. I would call your Lordships' attention to the words used about that clause when it was introduced in the House of Commons on August 3, 1897. The First Lord of the Treasury then said—The Government, if it would conciliate objection to the Bill, would be prepared to make the three years perpetual.He went on to say—In other words, to introduce an Amendment in Schedule 8 by which it would be impossible to 514 force on any county council against the wish of that county, the provisions of the Bill. It would rest for all time with county councils to take the initiative in applying provisions for compulsory registration.If ever there was a distinct promise made when a Bill was brought forward in the House of Commons and pressed through both Houses of Parliament, that the initiative of registration of title should be left in the hands of county councils, that surely was such a promise, and I think it is impossible to imagine one that could be stronger, or more clear and definite.
I would remind your Lordships that there has been no attempt whatever by county councils to have that clause in any way altered, and certainly there has been no great demand by the vendors that it should be altered. What I feel very strongly, and the County Councils Association also feels, is that as we have this distinct promise, and as there are great changes proposed in the law regarding the transfer of real and personal property, it is not too much to ask that the view of the county councils upon these proposed changes should be considered and given due weight. We should know what the results of these changes are to be before this power is taken away from the county councils. They can only exercise it in full meeting assembled, at which two-thirds of the members must be present, so that the meeting has to be fully representative and capable of ascertaining the feelings of all persons in the county affected. It should be for them to say whether a person is worthy in the matter.
There is an even stronger reason why I ask your Lordships to support my Amendment. We have heard a great deal lately about economy and reducing the Civil Service staffs. I would ask your Lordships to contemplate for a moment the enormous bureau that this Bill, if put in force all over the country, would involve. In the last report of the Registrar of London, where this compulsory power is enforced, it is admitted that the annual cost was approximately £50,000. If you come to apply that all over England, you can imagine the number of districts and branches there will be and the enormous cost that will be involved. It will be anything from £300,000 to £1,000,000. I do not know whether the noble and learned Lord in charge of the Bill will say that this very large sum will be met by the fees charged.
Then it is quite true there is no fixed scale, and I would ask your Lordships to remember that when the Public Trustee Bill was introduced we were told that charges were fixed very low. Since then they have gone up threefold and fourfold. We have no idea, therefore, what the charges may be under the Compulsory Registration Act, but it looks as if the cost of this enormous bureau will be laid upon the vendors and purchasers of real property. It comes to this—that we are to be handed over to the control of red tape, and the charges for this great bureau which is to be set up will be paid out of the pockets of the vendors and purchasers of real property. How that is going to reduce the cost of the transfer of real property I fail to see. A large number of landowners would much prefer to deal with their own private solicitors rather than be handed over to a bureau and pay the charges of that bureau. On behalf of the county councils, who desire to retain the power that they already have, and on behalf of landowners and other owners of property, and to prevent an enormous bureau being established at great cost, I hope your Lordships will agree to my Amendment.
Page 161, line 39 to line 18 on page 163, leave out subsection (4).—(Viscount Galway.)
§ THE LORD CHANCELLOR
I am glad that my noble friend has put this Amendment down, for it gives me an opportunity of explaining, a little more fully than was appropriate on the Second Reading stage, the reasons which render the clause, in the view of the Government, necessary and proper. Before going into these reasons, I should like to say that since the Second Reading of the Bill I have noticed with great satisfaction that there has been no expression of dissent from the principles of the clause on the part of any person or any body of persons who represent in any distinctive way the interests of landowners or of persons who deal in land or landed securities, as a class. This circumstance is significant, and it is extremely satisfactory. On the other hand, I have noticed that certain associations representative of the county councils and municipal corporations have issued reports unfavourable to the clause. These reports adduce various arguments of a general nature with which I will 516 deal presently. But the main ground of the objection is that the clause takes away from these bodies the control of the incidence of compulsory registration which they possess under the existing Acts.
The history of this matter and the origin of that control are somewhat curious. The decision was come to very late at night, or in the morning—I think about three o'clock in the morning—as a result of a long, and (at a distance of almost twenty-three years) we may say, I think, an obstructive debate, at the end of a very protracted session in August. I think that there were three members who, for many hours, had sustained the unequal burden of the Parliamentary struggle before they finally conceded this matter, unaware of there being any evidence in existence that the county councils had ever asked for this veto, or ever attached the slightest importance to it. The noble Viscount, Lord Galway, has said that at that time, twenty-three years ago, the First Lord of the Treasury said that he thought county councils always will get this veto. It must be quite obvious that the First Lord of the Treasury was expressing what was his own view in relation to all the considerations which were at that time open to the Minister, but no First Lord of the Treasury can, for all time, if considerations have been profoundly modified, give an assurance of that kind. How long is such a pledge to last? It has been carried out for twenty-three years, and I gather that the noble Lord thinks it ought to be carried out for 300 years or more.
§ THE LORD CHANCELLOR
Not only am I aware that it has not been asked for, but I have most handsomely made the admission to the noble Lord. It has been admitted, so I was under no delusions on that point. It must be apparent that a so-called pledge is the assurance of what is the view of the Minister who gave it. He has no power at all to bind his successors, and we must be free to consider this matter according to the new considerations which have arisen. Lord St. Aldwyn's Committee and Mr. Leslie Scott's Committee, both of which gave great attention to this matter, laid it down in the clearest possible manner that if compulsory registration in this country is to become a reality, the veto of the county councils 517 must go. Therefore the only question that remains to those who do believe in compulsory registration, is whether a veto, which does not really primarily belong to the county councils, and which is not very closely connected with any other function which they discharge, ought to be allowed to block a reform which on this hypothesis is a very important one.
I think that behind the noble Lord's mind, and behind the minds of many of those who share his views, there is some doubt as to whether the principle embodied in the Land Transfer Acts is itself either required or desirable. Indeed, the noble Lord, in the course of his speech, made it quite evident, by his talk of bloated staffs, bureaucracies and vast sums, all of which had very little application indeed, that he objects to it on principle and quite apart from the question of county councils. I venture to say that this is incomparably the greatest individual proposal in the whole of this Bill. It is incomparably the most promising proposal in the interests of those who hold land, of those who sell land and of those who buy land, that has ever been brought forward. I should have expected that it might have been resisted by lawyers, because I entertain no doubt whatever that this Bill will do more for the land-owning class and the land-transfering and land-acquiring classes than any Bill which has been before your Lordships' House for many years.
In that connection I think it right to remind your Lordships of what the Parliamentary history of this matter has been. The noble Lord does not approve of compulsory transfer. This House, on the contrary, has always approved of it on every occasion, so far as I am aware, on which the matter has been discussed. In 1873 Lord Selborne introduced a Bill for the compulsory registration of title on every sale in England and Wales after two years from the passing of that Act. It was given a Second Reading unanimously. In 1874 Lord Cairns introduced a similar Bill which passed all its stages in this House unanimously. It passed the Second Reading in the Commons and was extremely unfortunate not to have gone through all its stages. In 1885 Lord Davey, one of the greatest authorities who ever concerned himself with this topic, wrote a series of letters to the Press strongly advocating this proposal. In 1887 my venerable friend Lord Halsbury introduced his first Bill for 518 compulsory registration of sale in districts to be defined from time to time by Orders in Council. This Bill, though it gave no legal veto or control to the county council or to anyone else, went through three Readings in this House. In 1888 and 1889 the same proposal was passed by this House after being considered in great detail by a Select Committee of distinguished lawyers and others. In 1893 Lord Herschell introduced a Bill with similar proposals and, of course, with no county veto, which is a pure afterthought. The 1893 Bill passed all its stages unanimously in this House—and in 1893, 1894, and 1895. In 1895 it passed a Second Reading in the Commons and was referred to a Select Committee; but no Report was made owing to the Dissolution of Parliament.
To close this remarkable Parliamentary history of the proposal, in 1897, with a view to conciliating the professional opposition, which, through all those years, had produced a deadlock in the House of Commons, Lord Halsbury once more brought in a Bill where, for the first time, the local authority was given, not a veto, but a right to petition against any proposed Order. In that form it passed this House unanimously, and the Second Reading in the House of Commons was passed by consent and it was referred to the Standing Committee on Law. The right of petition in the Standing Committee was altered to a veto, and later, on the Third Reading, on the last night of the session and to meet the opposition of a tiny group of legal members of the House, the veto was altered to take the form of the last provision. That, my Lords, is the history of how the county councils obtained this veto, with regard to which, as I have said, until that last debate, I find no trace that they have ever asked for it. Your Lordships have confirmed the principles of compulsory registration on all those occasions, and I cannot believe that your Lordships will take the view that the considerations, however respectable they may be and however distinguished the source from which they come, which have been put forward by the noble Lord are sufficient to defeat this proposal.
Let me in a few words explain what is the very great importance which this limb of the Bill possesses. Everybody, I suppose, will agree as to what are the characteristics of an ideal system of land transfer. It must be quick, cheap, simple and safe, and there must be no traps for the unwary. 519 Now how does our present ordinary system of conveyancing stand in these respects? Supposing that a sale of land is decided on and the preliminaries are adjusted so that one has simply to comply with the legal formalities. One would really think that the man who has an estate in land to sell with no special complications would be able to do it with great simplicity. Experience has shown that this is very far from being the case. First of all a contract with special conditions as to title must be draw up and settled by experts on each side. The experts at this and the later stages are very busy, and the experts are the opponents of my present proposals. Suppose that the vendor or the purchaser, by accident or design, omits this preliminary precaution. I need not remind you how unhappy the results have frequently, and even recently, been. The preparation of the contract may take from a few days to several months, according to the state of the vendor's title.
After the contract is signed, a like period is spent by the purchaser's advisers, who also take a great interest in these proposals, in examining the title. This process is extremely tedious, and, in the manner in which it is frequently carried out, it is excessively formal. Sometimes, however, where the matter is less normal, an application to the Chancery Division which must be familiar to many of your Lordships, becomes necessary to settle it, with the consequential additional cost and delays that are inseparable from amusements of this kind. Then, at last when the investigation is over and the conveyance is prepared, it is couched in language which is quite unintelligible, even to most of the p[...]rsons who have to execute it, and sometimes contains, for reasons that cannot be avoided, no clear or exact description of the land intended to be conveyed. And, finally, when the bills arrive, if the estate is considerable the cost may be anything up to £1,000 (depending on the valuer) consuming up to two or three per cent. of the value. And, as to the security afforded by the whole of this proceeding, frauds on morgagees by the duplication or separation of deeds are far commoner than they ought to be.
I say plainly that, so long as these conditions prevail, they must put, and they do put, a very serious clog on dealings with landed property. They place it in a disadvantageous position as regards other 520 property, such as goods, stocks, shares, and ships, which can be dealt with quickly, and safely, and easily, and in an intelligible manner. I have no doubt at all that the consequences must be such that they drive capital from the land market, lessen the number of dealers, and so diminish the value of land. If they can be replaced, as I believe they can, by a saner, a more modern, a more intelligible, and a less expensive system, we should indeed be mad if we did not embrace such an alternative. The cause of these evils is undoubtedly the repeated investigation and re-investigation time after time of past transactions that has to be made by different people on every single dealing in land. On these occasions every occurrence that has taken place with regard to a property during the last twenty, thirty or forty years is examined. It may be a mortgage or sale, but all that is gone into up to a very remote period of time, or, at any rate, to twenty, thirty, or forty years, as far as relates to a subsisting interest of the present day.
The whole of the process is irrational to a degree that I cannot describe. Nothing can remedy this except registration of title, because registration of title is the only system which renders it unnecessary to investigate past events and transactions, because it clears away the past as it goes along, and exhibits nothing but what has present effect and validity. Nor is this all. In addition to the simplification of the title there is very great saving of time and money on every dealing, and it provides the purchaser and the mortgagee with what he can never get under the private system—a Government guarantee of title. It gives him what he seldom gets under the private system—a clear, correct, and complete description of his property by means of the Ordnance map, revised up to date. And last, but not by any means least, it does away with the mystery and technicality of the conveyance itself and provides short and simple forms of dealings.
That brings me to the Land Transfer Acts. In what way have they attempted to remedy the evil? They do it in two ways—one as to the past, and the other as to the future. As to the past, they clear up the title prior to registration, so as to get a clean slate; and, as to the future, they provide what I might call a sponge to keep the slate clean and simple afterwards, 521 by recording every dealing as it occurs and wiping out everything that is superseded by it. The first process— what I call the cleaning of the slate; registration with absolute title—consists in an official examination of title by the Land Registry Department. This is a very easy process if undertaken, as in most cases it is, immediately after a purchase. I do not speak without some experience that we have gained in the last few years. In the last eight or ten years thousands of absolute titles have been registered in London and elsewhere. In 1919, 4,528 were registered, and in the first six months of this year the number is 3,201. The process is not expensive. The fees begin at 12s. where the value is £100, and arrive at £3 at £1,000 value, and so on. This process usually occupies about a month; in an ordinary case practically never more. On completion, what is the owner given? He receives a land certificate of absolute title, containing a copy of the Register, which is usually only a few lines of writing, and a plan of the land.
What happens if he wants to sell again, as he may? On the next dealing there is no anxiety or trouble about the title at all. All these busy experts who give so much advice to-day will not be re-employed. They are always re-employed on every dealing, and with the same expenditure under the existing system, but there is no need here to prepare a contract at all. If the price is agreed and the money ready it can be Completed at once. The purchaser is bound by the Act of Parliament to accept the title; he gets a Government guarantee that the title is good. The conveyance is in a short, clear, printed form issued by the Department. The fee for registration (the noble Lord was much concerned about this paid by the purchaser is 1s. 6d. for every £25 of value up to £50,000. After that the rate is lower. So that the fee for £100 is 6s., for £1,000 it is £3, and so on. And this scale, I may say for the reassurance of the noble Lord, is sufficient to pay all the costs of the Department, so that he need have no apprehensions on that head. The process is exactly similar to that used on the transfer of shares in a company. The purchaser receives a new and corrected land certificate after a few days, precisely as if he were dealing with shares, and with the same simplicity. In these illustrations I have necessarily taken simple cases. Nearly all cases, if they are treated 522 with common sense, can be made simple, I but, of course, full provision is made for the rarer and more elaborate titles.
I hope I have said enough to show that great merits can be claimed on behalf of this system, and I want to say a word, if I may now, as to the necessity and the justification for making this system compulsory. Every time this proposal is made, every time it has been made in the course of the last thirty-five or forty years, it has been defeated—I must speak quite plainly and without offence for a profession for which I naturally have the most profound respect and admiratior—by legal opposition. In so far as it is hoped that it will be made operative over the whole country by methods of persuasion, I assure your Lordships that if, on one tongue, were concentrated all the honeyed eloquence that has been possessed by all the orators in the world, this proposal would not, in my judgment, be made effective by persuasion.
The suggestion that registration of title should be allowed gradually to produce its persuasive result is somewhat as if an electric light company was expected to attract business under a law which requires every lamp to be sold through a gas company, to be put up by a gas company, and, it if were out of order, to be repaired by a gas company. And personally I should not think much of my capital invested in the stock of such an electric light company. The result of half-a-century's brilliant argumentative success in both Houses of Parliament has been to place it beyond possibility of doubt that, though locally a certain amount of progress can be made, highly organised professional opposition will always prevail to stop it as a method of general adoption. I am as certain as I am of anything that compulsion is the only method of effectually establishing this reform within any measurable distance of time.
The noble Lord has spoken of the objections which are felt by county councils. It has undoubtedly been found—and here, again, I must speak quite plainly—that you cannot get the driving power which is sufficient to overcome the local resistance when you leave that driving power to be exercised through the agency of these innumerable county councils. As I have said, in many places locally it has attained to very great success, but, on the whole, it has not been found possible to indulge in any general hope that it could be established as a uni- 523 versal system. I think I ought to add a word on one other subject in this connection. When the comparison is made between the system which prevails in Middlesex and that which prevails all over the country, one observation must occur to everybody's mind that never had a system better opportunity of being tested than this system of compulsory registration has had in the county of Middlesex, the most important county of all. I say, without any fear of contradiction, that its success has been astonishingly great in the only place where it is, at the present time, compulsory. I know of no one of importance or who occupies any representative position in the county of Middlesex who would dream of making an effort to revert to the old and worse system.
This proposal is one which will effect the greatest simplification in the transfer of land in the whole history of real property and legal dealings with it. It will effect immense and recurring economies for the benefit of landowners, but it cannot, as experience has shown in the forty years during which your Lordships have been voting in its favour, make its way unless it becomes compulsory. It cannot be made compulsory as long as this veto is retained, and in the only county in which it has been compulsory it has been universally admitted to be a brilliant success. I have addressed your Lordships at some length, I am afraid, but I know the opposition from this single quarter is a strong one. I must confess that I feel very strongly about this proposal, and I was unwilling that this House should approach a decision without my having fully placed my views, with such responsibility as I might have, before your Lordships. I earnestly hope that this Amendment will not be adopted.
§ LORD BUCKMASTER
I promise not to detain your Lordships for any length of time, but I wish to say one or two words in support of the Bill as it is drawn. I should like to begin by saying that I share, almost without any qualification, the feeling of the noble Lord who moved this Amendment, against any form of bureaucracy. I dislike it immensely. I think the government of the affairs of our life by officials is an intolerable burden which everybody should resist as far as possible. It does not seem to me that it follows that one ought to object to a system of land registration, and the reason 524 is this. In dealings with all property, excepting land, the title of the property is complete as from the moment when the transaction is ended, excepting, roughly, in the case of forgery. With regard to land, it is not so. Under a private system of conveyancing you are never certain that you may not find that the title for which you have paid large sums of money is imperfect; your money may be wasted, and, indeed, you may have no possible means of recovery against the person who has sold. The system of registration, therefore, is designed at once to give a man the absolute security produced by knowing that if he has taken a title from the man whose name appears upon the register, he need have no apprehension whatever; his title is complete.
The next thing is that, without a system of land registration, it is impossible to secure that your method of transfer should also be speedy and cheap. The land laws of this country are an interesting subject for investigation by the antiquarian or the historian, but to plain-dealing men who are accustomed to plain language, they are nothing but an effront, for they have so complicated the whole history of real estate with phrases that have no meaning to the mind of any body excepting those who have been trained in learning what they mean, that the layman is completely baffled and bewildered by the technicality of the phraseology in which, without a system of registration and without this Bill, it becomes essential that you should clothe your transactions relating to the transfer of real estate. The noble and learned Lord says that this part dealing with registration is the most important part of the Bill. I agree with him, subject to this qualification, that unless Part I of the Bill, or its equivalent, be introduced your system of registration will go on—I will not say ploughing the sands, because it produces fertility out of its furrows—will go on meeting obstacles which must be overcome if we are determined to free our system of land conveyancing from the reproach under which it now labours.
I do not desire to occupy your Lordships' time by giving illustrations, as I readily could, of the clumsy encumbrances which our present system of land laws has placed upon the dealings with real estate. It is obviously of the very first importance that you should be able to deal with land as freely and as readily as you can. 525 It may be impossible always to deal with it with just the same facility and freedom as you can deal with a chapel, which you can hand from hand to hand, but you can approach that by a system of land registration. I had the honour to sit for three years upon the Commission presided over by Lord St. Aldwyn, who, I believe, had charge of the Bill in which was introduced the provision to which the noble Lord referred, enabling the request of the county council to be a condition precedent to the extension of the system. I do not think that any one would have ventured to say, during Lord St. Aldwyn's lifetime, that a statement he made was not strictly to be trusted, but there is no doubt whatever that he strongly thought what he said at the end of the Report:—If, after sufficient experience, the amended system—he wanted to have the system then amended so as to make it work effectively—is satisfactory, Parliament is to be invited to consider the gradual extension of compulsion to the rest of the country.When I began my work upon that Commission—and I shall always look back with pleasure to the fact that I was able to work under his Chairmanship—I was as strong an opponent of a bureaucratic system, even in connection with land, as the noble Earl, and I feel quite satisfied that the Registrar of the Land Registry and the other witnesses called in its support, would not complain upon the ground that I did not severely and exhaustively cross-examine them as to the claims that they put forward in support of their system.
The result was not only that I signed that Report but—it is a small and perhaps trivial personal matter—from the time I sat on that Commission I have never had any dealings in land of any kind which I have not insisted on being carried out through the Land Registry, nor would I consent to buy or sell property until I had secured first the title under the Land Registry. I hope your Lordships will not assent to this Amendment, but will try once more, after fifty years, to do, at the instance of the present Lord Chancellor, what such a very large number of his great and distinguished predecessors have repeatedly invited your Lordships to do.
§ LORD STUART OF WORTLEY
I should like to say a word in support of the Amend- 526 ment. We all partake of the enthusiasm and admire the zeal of the two noble Lord; who have discoursed to us on the abstract merits of compulsory registration of title. This is not an Amendment to negative or defeat in any way the contentions in favour of this principle, nor is it an Amendment intended to make county councils, as distinguished from the State, masters of local systems of registration. The county councils feel that a pledge was given them in 1897 which ought not to be repudiated now. I was curious to see how the Lord Chancellor would get out of this pledge given by the First Lord of the Treasury, the Leader of the House, Mr. Balfour, on August, 3, 1897. According to the Lord Chancellor it was a mere expression of individual opinion. But Mr. Balfour got value for the expression of that opinion; he got his Bill. The Lord Chancellor's recollection must be second-hand. I have the melancholy advantage over the noble Lord in the fact that I was a member of the House of Commons at the time. He entered it ten years later. I was a member of the tiny group he described. He said that it all happened at three o'clock in the morning. The Records says that the House adjourned at twelve-thirty under a Standing Order which compelled them so to adjourn.
§ THE LORD CHANCELLOR
I was two hours wrong then, in a matter on which I confess I was speaking from hearsay. The noble Lord would have far greater vigour for his task two hours earlier.
§ LORD STUART OF WORTLEY
I am contending that the proceedings were normal; that it was not a proceeding in a tired House; that the debate was effective; and I can assure your Lordships that it was not participated in by faddists and obstructionists. There was Mr. Hopkinson, a distinguished member of the professorial staff of the Manchester University, Mr. Sidney Gedge, Mr. J. G. Butcher, Mr. Bryn Roberts, and, of course, myself; and if it is to be objected that I belong to the same unworthy profession I am perfectly certain that I had behind me the energetic representations not only from the great West Riding of Yorkshire but from the county borough of Sheffield, which I had the honour to represent in the House of Commons. That was the position, and I fail to see why this pledge so given on that occasion should be repudiated, except on one condition, and 527 that is that there was any evidence on the part of the county councils that they wanted new to forfeit the benefits of that pledge. This evidence I defy any noble Lord to produce. The fact is that it is impossible for the two noble Lords to get one inch of progress in their case unless they are prepared to ask your Lordships to distrust the county councils in this matter.
If it is the fact, as the Lord Chancellor says, that the present system is slow, is expensive, is complicated and is unsafe—all of which adjectives are the contrary to those adjectives he used in his encomiums on the system he wants to introduce—it is to my mind unbelievable that landowners and other persons the inhabitants of counties, will not be quick to put such pressure on the county councils as will speedily lead to the adoption of the same within their counties. It is evidently a case for local option. Land cannot be moved from one county to another; and if it is the case that registration cheapens transfer, then the non-adopting county will be the only sufferer and cannot impose its own burdens on other counties.
§ VISCOUNT CAVE
I want to say something which has not yet been said. Like Lord Buckmaster I was a member of the Royal Commission over which Lord St. Aldwyn presided. Our work continued for over three years. We heard evidence on both sides and the conclusions of the Commission were embodied in the Report. What the Commission said was this—perhaps I had better read it because it exactly expresses the view I hold to-day—Whatever the advantages of such a proposal, we feel that the alarm which it would cause to land owners generally, and the cost which as a rule would be imposed on them by the employment of solicitors to prove their titles, are objections to it which could only be overborne by a really strong public feeling in favour of the compulsory registration of title; and we have been unable to find proof of the existence of any such feeling in the country. But, apart from this, the system as it stands is in our judgment, imperfect—that is the system as it then stood in London—and we cannot recommend the compulsory extension of an imperfect system"—I call the attention of Lord Buckmaster particularly to that remark— 528We think that it should first be amended in the manner we have proposed—These amendments are down in Part 10 of the present Bill.and that if, after sufficient experience, the amended system is found to work satisfactorily within the present compulsory area of the county of London, a Bill for the gradual extension of compulsion on sales to the rest of the country by the establishment of local centres and branches in the manner suggested by the Registrar should then be considered by Parliament.The Commission, while recommending certain Amendments of the existing system, suggested that they should be tried in the London area and, if satisfactory, their extension to the rest of the country could then be considered. These amendments have not been passed until to-day. They are in this Bill, and I prefer the findings of the Commission which gave so much trouble to the matter. I think you should first pass this Bill or that part of it which relates to the system of registration, and, having given the new system a trial, then consider the question of its compulsory extension.
§ THE LORD CHANCELLOR
I should like to say one word in answer to my noble friend Viscount Cave. It is perfectly true that the Commission, of which he, like Lord Buckmaster, was a member, recommended that this proposal should be given a trial. In this Bill we have adopted all the proposals that were recommended by the Commission. Lord Cave speaks as if this compulsory registration could be carried out in a month, or in a year. It will take ten, fifteen and twenty years to carry it out. It is not contemplated, and never has been contemplated by any one, that it can be done to last over the whole of that period, but we shall collect all the time the very experience which it was desired by the Commission that we should collect, and it would be a great tragedy if, at a time when there is a fair prospect of a Bill becoming law containing so much which becomes valuable, we should not, at the same time, take the first stage, which must be followed by a long delay in carrying out the others.
§ On Question, whether subsection (4) shall stand part of the clause—
§ Their Lordships divided: Contents, 50; Not-Contents, 18.529
|Birkenhead, L. (L. Chancellor.)||Churchill, V.||Glenarthur, L.|
|Haldane, V.||Hindlip, L.|
|Sutherland, D.||Hutchinson, V. (E. Donoughmore.)||Hylton, L.|
|Bath, M.||Joicey, L.|
|Craven, E.||Peel, V.||Meston, L.|
|Grey, E.||Methuen, L.|
|Howe, E.||Annesley, L. (V. Valentia.)||Muir Mackenzie, L.|
|Lucan, E.||Askwith, L.||O'Hagan, L.|
|Lytton, E.||Balfour, L.||Ranksborough, L.|
|Malmesbury, E.||Barrymore, L.||Rathereedan, L.|
|Onslow, E.||Buckmaster, L.||Shandon, L.|
|Reading, E.||Chalmers, L.||Sinha, L.|
|Strafford, E.||Clifford of Chudleigh, L.||Somerleyton, L. [Teller.]|
|Colebrooke, L.||Southwark, L.|
|Vane, E. (M. Londonderry.)||Ebury, L.||Stanmore, L. [Teller.]|
|Verulam, E.||Erskine, L.||Treowen, L.|
|Sandhurst, V. (L. Chamberlain.)||Fairfax of Cameron, L.||Walsingham, L.|
|Bertie of Thame, V.||Faringdon, L.||Wigan, L. (E; Crawford.)|
|Bedford, D.||Mount Edgcumbe, E.||Dynevor, L.|
|Northbrook, E.||Forester, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Scarbrough, E.||Leigh, L.|
|Monckton, L. (V. Galway.) (Teller.]|
|Eldon, E.||Allendale, V.|
|Fitzwilliam, E.||Cave, V.||Strachie, L. [Teller.]|
|Morton, E.||Hampden, V.||Stuart of Wortley, L.|
§ Resolved in the affirmative, and Amendment disagreed to accordingly.
§ Clause 177 agreed to.
§ Remaining clauses agreed to.
§ Schedules 1 to 9 omitted.
§ Schedules 10 to 16 agreed to.