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 an 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 regis

[blocks in formation]

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

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 all events, the Bill, having been proposed by the Lord Chancellor in the other House, had undergone full inquiry before a Select Committee, composed of landowners, who understood what was wanted as well as any lawyers, and some of the most eminent legal Members of the House of Peers. A majority of that Committee were of opinion that the plan now proposed promised better than that recommended by the Commissioners. It was not alone the landed interest that would be benefited by the passing of this measure, because whatever simplified the commerce in land, and gave additional safety and security to the possessors of landed property, must tend to the stability of all property, and every interest in the country. He would only say, in conclusion, that it would be a great satisfaction to the Government if they were enabled to settle this important question during the present Session.

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

system for the registration of deeds. His
hon. and learned Friend was so conscious
that public opinion was opposed to such
a plan, that he had endeavoured to show
that the Bill did not contain a system of
registration of deeds. He would, how-
ever, defy any one, possessing even a
hundred-fold the ingenuity of his hon. and
learned Friend, to satisfy any man of
plain understanding that there was no
registration of deeds in the Bill. He
agreed with the principle of the Bill up
to the first registration of indefeasible
titles. The model of the Irish Act had
been followed up to that point, and no
better plan could be devised. But what
was to happen afterwards? Everything
affecting the land-wills, mortgages, settle-
ments, sales, and deposits-was to be put
on the register; but what was to be done
with all the instruments by which the pro-
perty was thus affected? They were all to
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
the registrar was to keep them. Thus
they got publicity; everybody, as far as
the registration went, was obliged to make
the dealings with the land public. That
was his first objection to the plan, and it
was a serious objection.
The second point
was even more serious. What was the

SIR HUGH CAIRNS said, he was so anxious to see the first step taken for the amendment of the law of real property, and he entertained so lively a recollection of the candid assistance which he received from the noble and learned Lord now on the Woolsack when he, as Solicitor General, 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, 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 injunc-
tion 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

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, 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 hand, 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 inconsito 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, received to convince the House that the and weight of authority a judge ought Report of a Commission on which they to have. He wished to go one step furhad once acted was entirely misconceived, ther, and to ask the House to conand that in place of that which it recom- sider this point also. mended 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 mymade 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 Chanconsent 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 a good system badly adminis- Judges had their hands perfectly full of tered. 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 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

Suppose the re

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

"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 law

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 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 subject before he was on the Commission, their weight and responsibility. He 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 a 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 dif it 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. He 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 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


he had had occasion to consider the

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 each other. Mr. Cookson, who was examined before the Commission, and who was afterwards a member of the Commission, proposed a system of caveats which was adopted by the Commission. He (Mr. V. Scully) did not approve of that part of the scheme. He thought, however, that official trustees might be appointed with advantage. Thus it might easily be provided, that the court should have power to enter, along with the registered owner, the name of one of its officers, as a precaution against undue transfer; or the court might have power to enter a special caveat, to be limited to particular facts, on their being proved. The registering of several persons as official trustees would be an almost perfect protection in the majority of cases. He thought it possible to devise a Bill which would give immediate and safe transferability, without at all contravening the Report of August, 1853, or adopting any system for the registration of assurances. He wished to see a state of law by which the owner in fee should be able to transfer his title without more delay than was now experienced in transferring stock, and with no more proportionate expense. He hoped that whatever alterations in the details might be found necessary, the principle of this Bill would be adopted by the House, and when adopted its benefits would be extended to Ireland as well as to England.

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

and that object, shortly and simply stated,
he took to be this:-To enable any one
possessed of land in fee simple or by any
other freehold tenure, when once he had
established his title to that land, to obtain
a certificate from some competent autho-
rity which should give to him an inde-
feasible title to that land, and which should
record that title, so that it might protect
and secure the conveyance of that land in
all time to come. As far as the provi-
sions of the Bill were at all calculated to
effect that object he entirely approved
them; but, at the same time, he found in
it much which raised in his mind consider-
able doubts as to the efficiency of the mea-
sure. In order to secure an indefeasible
title to land, that title must, in the first
instance, be submitted to some tribunal of
undoubted competence; some authority
whose certificate would give confidence not
only to the owners but to all who might
have occasion to deal with the land. But,
instead of the title being referred to such
an authority, it was to be referred to a
registrar, an officer to be created under
the Bill, and with regard to whom it would
be impossible to say whether his certificate
was to be considered final or of no effect
whatever. But if in the first instance the
title were to be submitted to a competent
tribunal-whether that tribunal should be
established under the Bill, or whether it
was to be the Court of Chancery—and no
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 re-
mained, 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 ma-
chinery of the Bill, it appeared to him
radically (but he hoped not incurably) de-
fective, inasmuch as it totally rejected the
system of caveats. Without the intro-
duction of a system of caveats-without
providing that any person who had an in-
terest in the land, or a charge upon it,
should have power to enter a caveat, and

« PreviousContinue »