Page images

other hand closed up the register with an infinite number of inhibitions, caveats, and cautions, which must be got rid of before any dealings with it could take place. In order to avoid that difficulty, to record every one's interest was, he ventured to say, the only practicable system. Indeed, the Commissioners themselves felt the difficulty which their proposal involved, because they said that beneficial interests in land not amounting to the fee might be usefully registered, but that such a registry ought not to be mixed up with and form part of the principal register of titles. They said there should be what they called a "subsidiary" registry of other interests in land. When the Commissioners were asked whether a registry of assurances was desirable, they justly pointed out the defects and inconveniences of the system. But a registry of title presenting all the parts of that title, had, as far as he could see, nothing in common with a registry of assurances, which alone was considered objectionable. Though gratefully availing themselves, therefore, of the labours of the Commissioners, the supporters of the present measure did not think it inconsistent not to adopt their proposals in their entirety. They proposed to make the scheme still more perfect, and to attempt to remove some of the difficulties which stood in their way. It was intended that purchasers might safely trust whatever appeared on the register under the Bill. When an indefeasible title was to be obtained, a very strict inquiry was to be made; and opportunity would be given, in the various stages of that inquiry, for all parties interested in the estate to come forward. Due notice would be given to them. The statement of title was to be drawn up as shortly and concisely as possible. The effect of registration would then be to give, in favour of any subsequent purchaser for valuable consideration, an indefeasible title, subject only to the reservations and conditions which might be mentioned on the register. Nothing could be more simple and sure than a transfer under the system. A certificate was to be given of the title on the regisThat certificate could be brought into the market, and it would be conclusive evidence to every one that the party to whom it had been granted was entitled to the estate and interest in the property therein described, subject only to such dealings as might have taken place after the date to which that certificate referred. The Solicitor General


It would be in the power of the owner of property to send the certificate up to town and have an entry made on it of any dealings subsequent to its date. Deaths, births, marriage settlements, and other such dealings with the estate would be entered. The Bill provided for a short and simple form of transfer. In ordinary cases its effect would be to do away with the entire of the complicated machinery then necessary, while, in cases which were not altogether simple, it would do away with much of that machinery. He believed, that if the measure were adopted, it would be attended with all the advantages that had been previously proposed, and with some peculiarly its own, amongst which was this, that it stated the title according to its real truth, and entirely avoided fictions. It had been supposed that there were provisions in the Bill which introduced that kind of registry of assurances to which objection had been made. That argument was, however, founded on a misconception. He trusted that the House would see that the opportunity so long desired then presented itself of simplifying the title to real estates, and of relieving landed proprietors from that great and constant source of expense to which its transfer was subject. In the evidence taken by the Encumbered Estates Commissioners, a unanimous opinion was expressed that the operation of the Encumbered Estates Act in Ireland had been attended by a vast augmentation in the value of property, and that it was desirable to extend many of the same facilities to this country. If the House should think fit to pass this Bill, it would be a great satisfaction to those who had introduced it. There had been many labourers in that field of reform, so that no party could exclusively lay claim to the laurels of passing the Bill. Many eminent and learned men, both in and out of Parliament, had contributed to add to a due knowledge of the subject. Several ingenious plans had been propounded before the Royal Commission of 1854, and the Commissioners themselves had given most valuable assistance to the improvement of the law. His hon. and learned Friend opposite (Sir H. Cairns) had largely contributed to the same end. None of these authorities had, however, claimed to have arrived at the best solution of the difficulty, and he could not but think, that if they could disengage their minds from their natural bias in favour

Moved, "That the Bill be now read the second time."

of their own plans, they would perceive deeds. They pointed out that great and that the present measure was preferable insurmountable objections were felt to any to any that had been yet proposed. At system for the registration of deeds. His all events, the Bill, having been proposed hon. and learned Friend was so conscious by the Lord Chancellor in the other House, that public opinion was opposed to such had undergone full inquiry before a Select a plan, that he had endeavoured to show Committee, composed of landowners, who that the Bill did not contain a system of understood what was wanted as well as registration of deeds. He would, howany lawyers, and some of the most emi- ever, defy any one, possessing even a nent legal Members of the House of Peers. hundred-fold the ingenuity of his hon. and A majority of that Committee were of learned Friend, to satisfy any man of opinion that the plan now proposed pro- plain understanding that there was no mised better than that recommended by registration of deeds in the Bill. He the Commissioners. It was not alone the agreed with the principle of the Bill up landed interest that would be benefited by to the first registration of indefeasible the passing of this measure, because what- titles. The model of the Irish Act had ever simplified the commerce in land, and been followed up to that point, and no gave additional safety and security to the better plan could be devised. But what possessors of landed property, must tend was to happen afterwards? Everything to the stability of all property, and every affecting the land-wills, mortgages, settleinterest in the country. He would only ments, sales, and deposits-was to be put say, in conclusion, that it would be a on the register; but what was to be done great satisfaction to the Government if with all the instruments by which the prothey were enabled to settle this important perty was thus affected? They were all to question during the present Session. be sent to the registrar, either put into a printed form by the parties, or, if not, by order of the registrar at their expense, and SIR HUGH CAIRNS said, he was so the registrar was to keep them. Thus anxious to see the first step taken for the they got publicity; everybody, as far as amendment of the law of real property, the registration went, was obliged to make and he entertained so lively a recollection the dealings with the land public. That of the candid assistance which he received was his first objection to the plan, and it from the noble and learned Lord now on was a serious objection. The second point the Woolsack when he, as Solicitor Ge- was even more serious. What was the neral, introduced a measure on the sub-registrar to do with the deeds when he jeet, that he should be willing to place in got them? The hon. and learned Genabeyance his own judgment in regard to tleman had spoken with some complacency the details of the present measure. In of the certificate of the title. That cermaking, therefore, a few observations, he tificate was to be a synopsis of the title, trusted his hon. and learned Friend would but how was the synopsis to be prepared? accept them in the spirit in which they The registrar himself was to prepare the were offered, because, although he differed précis, or summary of the title, and put in regard to one or two of the principles it on the register. The question then on which the Bill was framed, he should be naturally arose whether what the registrar sorry to give any opposition to the second was empowered and directed to do was to reading, or to offer any delay or obstruction be conclusive as to the effect of the deed to the progress of the Bill. He would then on the title or not? He did not know to submit to the House and the Government which alternative he looked with most the two principal objections he had to urge alarm. If it was conclusive, it must reguto the measure. Upon one point he had late to all time the rights of parties who already been anticipated by the hon. and had not been before him, and had had learned Solicitor General, who felt he had no opportunity of being heard. If it was to deal with the difficulty that the Bill was not conclusive, which he understood was in one respect in direct antagonism to the the alternative they were to regard as Royal Commission, of which the right practically the effect of the measure, they hon. Gentleman in the chair was one of had gained nothing whatever. They had the most prominent members. That Com- gained simply a certificate of title, which mission, which reported in 1854, considered would still impose on every one who acthe question of a registry of assurances, cepted it the duty of consulting the original which was sometimes called a registry of deeds to get at the first title. And that

was not all.

The Bill declared that all deeds should be registered. He looked with some curiosity and anxiety to know what would be the consequence of that injunction not being obeyed. The House would be surprised to learn, that, as he read the Bill, there was no provision whatever as to what the consequences were to be, one way or other, of the non-registration of the deeds.

THE SOLICITOR GENERAL said, that in the case of a purchaser such a deed would be as if it had not been executed, but it would be binding as between the parties if the lands were not sold.

to decide nothing, and refer all to the Court of Chancery. There was nothing in the Bill defining what matters he should decide. Whoever the holder of the office might be, it was probable he would take good care not to decide anything for himself. He might, certainly, be some sanguine young man who would “rush in" where others would scarce venture "to tread." But the House ought to ask this question,-If the registrar was competent to decide those intricate questions at all, why should it not be made his absolute duty to decide them? If he was not competent to decide any of them, why was he allowed to decide one. On the other hand, as he was to have the option of referring any case to another Court, they might assume he might not be competent to decide them himself. Then why should he be trusted to decide any case at all? That was a point on which the House would require to be satisfied, because it went to the working of the Bill. Nothing could bring greater discredit on an amendment of the law than that they should rashly and inconsiderately appoint an officer of that kind kind, who would not be a judge, with all the responsibility, experience, learning, and weight of authority a judge ought to have. He wished to go one step further, and to ask the House to consider this point also. Suppose the registrar said, as he ventured to think he would say in a majority of cases, "I will not decide this difficult question myself. I will send it to the Court of Chancery, and leave the Court of Chancery to decide." Was that a species of business which could be transacted by the Court of Chancery? The Equity Judges had their hands perfectly full of business. They certainly had no leisure time to sit down and peruse abstracts of title; and their business as Judges was very different in its character and details from the business of one who, without any assistance, sat down to investigate a title and to pronounce upon it. He therefore ventured to think there would be a difficulty in want of time, and a difficulty in throwing upon the Equity Judges business which was foreign to their habits and training. But then he observed a clause under which an indefinite number of chief clerks might be appointed, and he suspected that subordinate officers would be appointed to work out the business created by the Bill. If anything worse could be de

SIR HUGH CAIRNS said, that if so, it ought to be made to appear by the Bill that an unregistered deed was to be operative against those who had notice of it, and inoperative against those who had no notice of it. In every system of registration of deeds all these matters were to be provided for; and till they were it was impossible to understand the bearing or effect of any system. He would say no more on that point than that all the provisions of the Bill were in direct antagonism to the Report of the Commission. It would require very much more argument and consideration than the subject had yet received to convince the House that the Report of a Commission on which they had once acted was entirely misconceived, and that in place of that which it recommended they were to have, not only a registration, but a most imperfect registration of deeds. His objections were not made to oppose the second reading of the Bill; but he hoped the Government would consent to large amendments on the next stage. It was a trite observation that a bad system well administered might be preferable to a good system badly administered. And his next objection was, that whether the proposed system proved bad or good depended entirely on the officers by whom it was administered. What did the Bill say on that point? It proposed to appoint a registrar, who was to be a barrister of a certain number of years' stand ing. He would have brought before him questions of the greatest difficulty, involving the nicest points of equity that could ever be presented to a Court to decide. Yet, on looking at the clauses, he found that the registrar himself was to be the sole judge, decider, and arbiter as to whether he was to adjudicate on anything or not. He might say he would decide all the questions before him, or he might resolve Sir Hugh Cairns

perform it; more especially when they found that a portion of the Bill was in opposition to the Report of the Commismissioners, and to what only a few years ago that House thought fit to approve.

MR. VINCENT SCULLY said, he was perfectly prepared to consider the Bill

vised than giving the registrar the absolute right to decide important questions, it was accompanying it with a power for the registrar to hand over those cases to the Court of Chancery, there to be disposed of by the chief clerks or other subordinate officers. The only chance of presenting a measure which would work well, and induce owners either in a Select Committee, or in Comof land to bring in their titles to be ex-mittee of the Whole House, and he reamined, was to appoint some person who tained the opinion which he expressed would command respect and confidence, some years ago, that the greatest of all and he did not believe that the object misfortunes would be to pass a bad mea. could be attained by the appointment of sure, because a bad measure, by its certain any one of less weight, experience, and failure, would do more harm than good. authority than a judge of the land. Ire- They also had the authority of Lord Westland was taken as an exemplar, and in the bury, that an imperfect measure would be case of the Landed Estates Court the more mischievous than useful, and that by House had most wisely come to the con- a combination of skill and courage they clusion to appoint persons with the rank should deal with an intolerable evil undeand responsibility of judges. He thought terred by any superstitious terror of the it would be very false economy to appoint alterations which might be required. In a person registrar at a salary of £2,500 the words of Popea year who would not command the power and authority which attached to the holders of judicial office. The multiplication of judges was said to be an evil, but a far greater evil was the multiplication of a species of officer, of whom there were too many already, sometimes called registrars and sometimes called commismissioners, with powers which very closely resembled the powers of judges, without their weight and responsibility. He would not say a word upon the details of the Bill, but he trusted the Government would consider the points to which he had referred more fully than they had yet done. It was evident that there were matters in the Bill which could not be satisfactorily discussed in Committee of the Whole House, and he trusted the Government would consent, therefore, to refer the Bill to a Select Committee. He should be glad to see that course taken, not from any hostility to the Bill, or from any wish to delay it, but from an honest and anxious desire, if time would permit, to pass it into law in the present Session, after it had received the Amendments and alterations which it would receive in Select Committee. He was not deterred from advocating that course by the statement that the Bill had already been before a Select Committee of the other House, because he believed attention had there been princi-lished. pally bestowed upon abstract principles, and not upon the details of the measure. But whether that were so or not, the House of Commons had its own duty to perform, and he thought they would be careful to

"Thus Bethel spoke, who always speaks his thought, “And alway thinks the very thing he ought." He had been a member of the Committee, and also the Commission referred to, and he could assure the House that the subject had been fully considered in all its bearings. As a landlord and a Chancery lawyer, he had had occasion to consider the subject before he was on the Commission, and therefore it was no new subject to him. Although he signed the Report, agreeing as he did with most of the recommendations, he differed from the Commissioners on four matters, in reference to three of which he ventured to sign a postscript to the Report, and those three matters had been under discussion this evening. In that postscript he stated that in his opinion there should be a land tribunal of high judicial authority, and not


mere registry office. The hon. and learned Gentleman who had just sat down (Sir Hugh Cairns), in his Bill of 1859, did provide a land tribunal, but he also proposed a registry office, and in that he dif fered from him. The next point on which he differed from the Commissioners was in reference to land debentures, such as the right hon. and learned Member for Dublin University had since proposed, and which he trusted he should yet see estabThe third matter on which he differed from the Commissioners was really important. It was with regard to caveats and subordinate registries. The Commissioners wished to impart to the land the utmost amount of transferability that was

consistent with registered interests, and to understand them, it was necessary to they also wished to give protection to un- consider what was the great object they registered interests. It was exceedingly had in view in a measure of this kind; difficult to reconcile these objects with and that object, shortly and simply stated, each other. Mr. Cookson, who was ex- he took to be this :-To enable any one amined before the Commission, and who possessed of land in fee simple or by any was afterwards a member of the Commis- other freehold tenure, when once he had sion, proposed a system of caveats which established his title to that land, to obtain was adopted by the Commission. He (Mr. a certificate from some competent authoV. Scully) did not approve of that part of rity which should give to him an indethe scheme. He thought, however, that feasible title to that land, and which should official trustees might be appointed with record that title, so that it might protect advantage. Thus it might easily be pro- and secure the conveyance of that land in vided, that the court should have power to all time to come. As far as the provienter, along with the registered owner, sions of the Bill were at all calculated to the name of one of its officers, as a pre- effect that object he entirely approved caution against undue transfer; or the them; but, at the same time, he found in court might have power to enter a special it much which raised in his mind considercaveat, to be limited to particular facts, on able doubts as to the efficiency of the meatheir being proved. The registering of sure. In order to secure an indefeasible several persons as official trustees would title to land, that title must, in the first be an almost perfect protection in the instance, be submitted to some tribunal of majority of cases. He thought it possible undoubted competence; some authority to devise a Bill which would give imme- whose certificate would give confidence not diate and safe transferability, without at only to the owners but to all who might all contravening the Report of August, have occasion to deal with the land. But, 1853, or adopting any system for the instead of the title being referred to such registration of assurances. He wished to an authority, it was to be referred to a see a state of law by which the owner in registrar, an officer to be created under fee should be able to transfer his title the Bill, and with regard to whom it would without more delay than was now expe- be impossible to say whether his certificate rienced in transferring stock, and with no was to be considered final or of no effect more proportionate expense. He hoped whatever. But if in the first instance the that whatever alterations in the details title were to be submitted to a competent might be found necessary, the principle of tribunal-whether that tribunal should be this Bill would be adopted by the House, established under the Bill, or whether it and when adopted its benefits would be ex- was to be the Court of Chancery—and no tended to Ireland as well as to England. Bill ought to pass that House which would not provide such a tribunal-then, upon. the tribunal being satisfied that the title was such as the Court of Chancery would compel an unwilling purchaser to adopt, that title might safely be pronounced indefeasible, and a certificate might be granted which would attach to the land, and constitute, as long as the land remained, a simple and indefeasible security All the owner would have to do in any dealings with the land would be to produce that certificate, identify it with the land, and then the land might be transferred as simply as stock. Looking to the machinery of the Bill, it appeared to him radically (but he hoped not incurably) defective, inasmuch as it totally rejected the system of caveats. Without the introduction of a system of caveats-without providing that any person who had an interest in the land, or a charge upon it, should have power to enter a caveat, and

SIR FITZROY KELLY said, he was far from intending to oppose the Second Reading of the Bill, which related to matters of deep interest to all who were concerned in land. The subject was also one which had long been an object of attention to lawyers and others who took an interest in the law of landed property, and he rejoiced to see-if, indeed, they might be permitted to say they could see-a hope that through the introduction of this Bill, at least a step might be taken towards attaining the object in view. But there were so many objections to the Bill, that until it had undergone the revision of a Select Committee, or at least until it had been considered and thoroughly investigated in all its parts by a Committee of the Whole House, it would be impossible he could assent even to the substance of the measure. In order to appreciate the provisions of this Bill, or, indeed, accurately Mr. Vincent Scully

« PreviousContinue »