Page images

other hand closed up the register with an | It would be in the power of the owner of infinite number of inhibitions, caveats, and property to send the certificate up to town cautions, which must be got rid of before and have an entry made on it of any any dealings with it could take place. In dealings subsequent to its date. Deaths, order to avoid that difficulty, to record every births, marriage settlements, and other one's interest was, he ventured to say, the such dealings with the estate would be only practicable system. Indeed, the Com- entered. The Bill provided for a short missioners themselves felt the difficulty and simple form of transfer. In ordinary which their proposal involved, because cases its effect would be to do away with they said that beneficial interests in land the entire of the complicated machinery not amounting to the fee might be use- then necessary, while, in cases which were fully registered, but that such a registry not altogether simple, it would do away ought not to be mixed up with and form with much of that machinery. He be. part of the principal register of titles. They lieved, that if the measure were adopted, said there should be what they called a it would be attended with all the advan“subsidiary” registry of other interests cages that lind been previously proposed, in land. When the Commissioners were and with some peculiarly its own, amongst asked whether a registry of assurances which was this, that it stated the title was desirable, they justly pointed out the according to its real truth, and entirely defects and inconveniences of the system. avoided fictions. It had been supposed But a registry of title presenting all the that there were provisions in the Bill which parts of that title, had, as far as he could introduced that kind of registry of assursee, nothing in common with a registry of ances to which objection had been made. Assurances, which alone was considered That argument was, however, founded on objectionable. Though gratefully availing a misconception. He trusted that the themselves, therefore, of the labours of House would see that the opportunity so the Commissioners, the supporters of the long desired then presented itself of simpresent measure did not think it inconsist. plifying the title to real estates, and of ent not to adopt their proposals in their relieving landed proprietors from that entirety. They proposed to make the great and constant source of expense to scheme still more perfect, and to attempt which its transfer was subject. In the to remove some of the difficulties which evidence taken by the Encumbered Estates stood in their way. It was intended that Commissioners, a unanimous opinion was purchasers might safely trust whatever expressed that the operation of the Enappeared on the register under the Bill. cumbered Estates Act in Ireland had When an indefeasible title was to be ob- been attended by a vast augmentation in tained, a very strict inquiry was to be the value of property, and that it was made ; and an opportunity would be given, desirable to extend many of the same in the various stages of that inquiry, for facilities to this country. If the House all parties interested in the estate to come should think fit to pass this Bill, it would forward. Due notice would be given to be a great satisfaction to those who had them. The statement of title was to be introduced it. There had been many drawn up as shortly and concisely as pos. labourers in that field of reform, so that sible. The effect of registration would no party could exclusively lay claim to then be to give, in favour of any subse- the laurels of passing the Bill. Many quent purchaser for valuable consideration, eminent and learned men, both in and an indefeasible title, subject only to the out of Parliament, had contributed to add reservations and conditions which might to a due knowledge of the subject. Sevebe mentioned on the register. Nothing ral ingenious plans had been propounded could be more simple and sure than a before the Royal Commission of 1854, transfer under the system. A certificate and the Commissioners themselves had was to be given of the title on the regis- given most valuable assistance to the im

That certificate could be brought provement of the law. His hon. and into the market, and it would be conclusive learned Friend opposite (Sir H. Cairns) evidence to every one that the party to had largely contributed to the same end. whom it had been granted was entitled to None of these authorities had, however, the estate and interest in the property claimed to have arrived at the best solu. therein described, subject only to such tion of the difficulty, and he could not but dealings as miglit have taken place after think, that if they could disengage their the date to which that certificate referred. minds from their natural bias in favour

The Solicitur General


expense, and

of their own plans, they would perceive decds. 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 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 bee 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

Hoved, " That the Bill be now read the printed form by the parties, or, if not, by second time.”

order of the registrar at their 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 ject, 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, lie 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 liad 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 to decide nothing, and refer all to the deeds should be registered. He looked with Court of Chancery. There was nothing some curiosity and anxiety to know what in the Bill defining what matters he should would be the consequence of that injunc- decide. Whoever the holder of the office tion not being obeyed. The House would might be, it was probable he would take be surprised to learn, that, as he read the good care not to decide anything for himBill, there was no provision whatever as self. He might, certainly, be some san. to what the consequences were to be, one guine young man who would “ rush in" way or other, of the non-registration of the where others would scarce venture “to deeds.

tread.” But the House ought to ask this THE SOLICITOR GENERAL said, question,- If the registrar was compethat in the case of a purchaser such a deed tent to decide those intricate questions at would be as if it had not been executed, all, why should it not be made his abso. but it would be binding as between the lute duty to decide them? If he was parties if the lands were not sold.

not competent to decide any of them, Sir HUGH CAIRNS said, that if so, why was he allowed to decide one. On it ought to be made to appear by the Bill the other band, as he was to have the that an unregistered deed was to be opera- option of referring any case to another tive against those who had notice of it, Court, they might assume he might not and inoperative against those who had no be competent to decide them himself

. notice of it. In every system of registra- Then why should he be trusted to detion of deeds all these matters were to be cide any case at all? That was a point provided for ; and till they were it was on which the House would require to be impossible to understand the bearing or satisfied, because it went to the working effect of any system. He would say no of the Bill. Nothing could bring greater more on that point than that all the pro- discredit on an amendment of the law visions of the Bill were in direct antagonism than that they should rashly and inconsi

, to the Report of the Commission. It would derately appoint an officer of that kind require very much more argument and kind, who would not be a judge, with all consideration than the subject had yet the responsibility, experience, learning, reccived to convince the House that the and weight of authority a judge ought Report of a Comniission on which they to have. He wished to go one step furhad once acted was entirely misconceived, ther, and to ask the House to con. and that in place of tliat which it recom- sider this point also.

Suppose the remended they were to have, not only a gistrar said, as he ventured to think he registration, but a most imperfect registra- would say in a majority of cases, “I will tion of deeds. His objections were not not decide this difficult question ms; made to oppose the second reading of the self. I will send it to the Court of Bill; but he hoped the Government would Chancery, and leave the Court of Chan. consent to large amendments on the next cery to decide.” Was that a species stage. It was a trite observation that a of business which could be transacted by bad system well administered might be the Court of Chancery ? The Equity preferable to n good system badly ndminis. Judges had their hands perfectly full of iered. And his next objection was, that business. They certainly had no leisure whether the proposed system proved bad time to sit down and peruse abstracts of or good depended entirely on the officers title; and their business as Judges was very by whom it was administered. What did different in its character and details from the Bill say on that point ? It proposed the business of one who, without any asto appoint a registrar, who was to be a bar- sistance, sat down to investigate a title rister of a certain number of ycars' stand. and to pronounce upon it.

He therefore ing He would have brouglit before him ventured to think there would be a diffiquestions of the greatest difficulty, involving culty in want of time, and a difficulty in the nicest points of cquity that could ever throwing upon the Equity Judges business be presented to a Court to decide. Yet, which was foreign to their habits and on looking at the clauses, he found that training. But then he observed a clause the registrar himself was to be the sole under which an indefinite number of chief judge, decider, and arbiter as to whether clerks might be appointed, and he suslic was to adjudicate on anything or not. pected that subordinate officers would be He might say he would decide all the appointed to work out the business created questions before him, or ho might resolve by the Bill. If anythiug worse could be de

Sir Hugh Cairns

vised than giving the registrar the absolute perform it; more especially when they right to decide important questions, it was found that a portion of the Bill was in accompanying it with a power for the re- opposition to the Report of the Commisgistrar to hand over those cases to the Court missioners, and to what only a few years of Chancery, there to be disposed of by the ago that House thought fit to approve. chief clerks or other subordinate officers. Mr. VINCENT SCULLY said, he was The only chance of presenting a measure perfectly prepared to consider the Bill 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 & person registrar at a salary of £2,500 the words of Popea year who would not command the power “Thus Bethel spoke, who always speaks his and authority which attached to the hold- thought, ers of judicial office. The multiplication " And alway thinks the very thing he ought.” of judges was said to be an evil, but a He had been a member of the Committee, far greater evil was the multiplication and also the Commission referred to, and of a species of officer, of whom there he could assure the House that the subject were too many already, sometimes called had been fully considered in all its bearregistrars and sometimes called commis ings. As a landlord and a Chancery lawmissioners, with powers which very closely yer, he had had occasion to consider the resembled the powers of judges, without subject before he was on the Commission, their weight and responsibility. Ile would and therefore it was no new subject to not say a word upon the details of the him. Although he signed the Report, Bill, but he trusted the Government would agreeing as he did with most of the recomconsider the points to which he had refer- mendations, he differed from the Commisred more fully than they had yet done. sioners on four matters, in reference to It was evident that there were matters three of which he ventured to sign a postin the Bill which could not be satisfac- script to the Report, and those three torily discussed in Committee of the Whole matters had been under discussion this House, and he trusted the Government evening. In that postscript he stated that would consent, therefore, to refer the Bill in his opinion there should be a land trito & Select Committee. He should be bunal of high judicial authority, and not glad to see that course taken, not from a mere registry office. The hon. and any hostility to the Bill, or from any wish learned Gentleman who had just sat down to delay it, but from an honest and anx. (Sir Hugh Cairns), in his Bill of 1859, did ious desire, if time would permit, to pass provide a land tribunal, but he also proit into law in the present Session, after posed a registry office, and in that he difit had received the Amendments and al. fered from him. The next point on which terations which it would receive in Select he differed from the Commissioners was Committee. lle was not deterred from ad-in reference to land debentures, such as vocating that course by the statement that the right hon. and learned Member for the Bill had already been before a Select Dublin University had since proposed, and Committee of the other House, because he which he trusted he should yet see estabbelieved attention had there been princi- lished. The third matter on which he pally bestowed upon abstract principles, and differed from the Commissioners was really not upon the details of the measure. But important. It was with regard to caveats whether that were so or not, the House and subordinate registries. The Commisof Commons had its own duty to perform, sioners wished to impart to the land the and be thought they would be careful to 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 fival 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

SIR FITZROY KELLY said, he was not provide such a tribunal—then, upon. far from intending to oppose the Second the tribunal being satisfied that the title Reading of the Bill, which related to mat. was such as the Court of Chancery would ters of deep interest to all who were con- compel an unwilling purchaser to adopt, cerned in land. The subject was also one that title might safely be pronounced which had long been an object of atten. indefeasible, and a certificate might be tion to lawyers and others who took an granted which would attach to the land, interest in the law of landed property, and and constitute, as long as the land rehe rejoiced to see-if, indeed, they might mained, a simple and indefeasible security be permitted to say they could see—a hope All the owner would have to do in any that through the introduction of this Bill, dealings with the land would be to produce at least a step might be taken towards that certificate, identify it with the land, attaining the object in view. But there and then the land might be transferred as were so many objections to the Bill, that simply as stock. Looking to the mauntil it had undergone the revision of a chinery of the Bill, it appeared to him Select Committee, or at least until it had radically (but he hoped not incurably) debeen considered and thoroughly investi- fective, inasmuch as it totally rejected the gated in all its parts by a Committee of system of caveats. Without the introthe Whole House, it would be impossible hie duction of a system of caveats—without could assent even to the substance of the providing that any person who had an in

In order to appreciate the pro- terest in the land, or a charge upon it, visions of this Bill, or, indeed, accurately should have power to enter a caveat, and

Mr. Vincent Scully


« PreviousContinue »