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creditors themselves.' The Report points out that it appears from the Board of Trade Annual Report, published in 1904, that whether a composition is accepted or the estate is fully administered the pecuniary result is, as a rule, far more beneficial to the creditors in the case of a deed of arrangement than where a receiving order is made.
The Report contradicts the statement in the Report of the Board of Trade above referred to, that the accounts collected under section 25 of the Bankruptcy Act, 1890, continue to illustrate the numerous abuses connected with the administration of estates under the Deeds of Arrangement Act, 1887. It appears, however, that the solicitor to the board had to take proceedings in only forty-five cases to compel the rendering of accounts, and that, in every instance, the account was obtained.
Without considering the details of the suggestions made by the Committee for the improvement of the law of bankruptcy, the principle on which they rest is that the management of the estate should be placed in the hands of the creditors, and apparently (for the Report is not quite clear on this point) that the disciplinary provisions should be separated from the administration of the estate, and that the official control over administration should be confined to an inspection. Those of us who can remember the discussions on the Act of 1883, will recall that public opinion was shocked at the number of bankrupts who, owing to their misdeeds not coming technically under the criminal law, escaped punishment, and probably the law was altered for the purpose of avoiding this scandal without taking into account the harm done to innocent creditors by increasing the expense of administration.
In the early days of limited companies it was a matter of common belief that many of them were formed merely for the benefit of the promoter. The object of the provisions for official control over winding-up was to ensure a full investigation of the affairs of the company, so as, if possible, to protect innocent investors. The Report severely criticizes the existing system for winding-up companies, and discloses a most serious waste of assets. When a winding-up is made by order of court an official receiver takes possession of the whole of the company's assets, and instead of merely protecting them and preserving them until the creditors have time to express their wishes, he proceeds at once to realize them, whatever the nature of the assets may be, and to pay the proceeds to the general liquidation account, when they are re-invested, and the bulk of the income until distribution is applied for the purposes of the department instead of for the benefit of the creditors of the company.' The italics are my own.
The Report gives an example taken from an official source where the official receiver got in, in the first two months, a sum exceeding £17,000. Although the winding-up order was under appeal, and ultimately reversed as having been made without jurisdiction, the unfortunate company had to submit to a deduction by the official receiver of his costs, charges, fees, and expenses, before they could get back the balance of his realization.
The part of the Report which deals with registration of title is very interesting. The objections raised in the Report to the existing system of registration are the following :
1. That when once the compulsory provisions have been put in force in any area, a purchaser does not acquire the legal estate if the transfer is not registered ;
2. That in all but the simplest cases the impossibility of adapting the form of transfer prescribed by the land registry to the requirements of the case renders it absolutely necessary that a collateral deed should be prepared which it is neither necessary nor desirable to register, and that additional deeds mean additional complication and expense;
3. That after registration the legal estate may be conveyed by an unregistered deed;
4. That the fact that registration works well in the colonies is no argument that it will work well in England;
5. That compulsory registration is extremely unpopular, and that many public authorities have opposed it;
6. The Report also objects to the rule allowing an absolute title to be granted on easy terms when the land has been registered with a possessory title for six years, on proof that the original registered proprietor was a bona fide purchaser on sale, and that he made a proper examination of title, under legal advice, when he bought it.
As above pointed out, the question how far officialism will be insisted on by Parliament depends on the popular opinion at the moment. At one time it was, perhaps, the popular opinion that registration would save expense in dealing with land; but the Report points out that in 1898 twenty-two of the vestries and local authorities within the county of London, nearly all the principal railway companies having their termini in London, the Institute of Bankers, the Ecclesiastical Commissioners, and the principal land and building societies were opposed to compulsory registration; and that in 1903 borough councils, representing a population of nearly 2,700,000 and a rateable value of nearly £20,000,000, presented a petition to the House of Commons stating in detail serious objections to compulsory registration, and that the petition was supported by the city of London and the borough of Stoke Newington, representing a rateable value of more than £5,200,000, and resolutions denouncing the system have been passed at public meetings attended by representatives of many important public institutions.
I am one of the few lawyers who believe that compulsory registration would, on the whole, notwithstanding the disadvantages attending it, be beneficial. Experience of the working of the Land Transfer Acts has, however, shown that they require considerable amendment to make them work properly, and that in their present form they occasion wholly unnecessary expense, especially in dealing with building estates. The reasons for this opinion will be found in articles in 21 LAW QUARTERLY REVIEW, at p. 27, and 50 Solicitors' Journal, at pp. 70, 91; and therefore, in my opinion, compulsion ought not to be enforced till the Acts have been amended.
The reader may ask why I consider that registration ought to be compulsory if the Acts were amended. The answer is, shortly, that when the system has got into working order it will greatly diminish the cost of dealing with land, owing to its rendering it unnecessary to investigate the title.
It is, in the absence of statistics, difficult to estimate how often a title has to be investigated; but judging from the number of mortgages that appear in abstracts and the number of cases in which land is taken under compulsory powers, it would probably be fair to suggest that a title has, on an average, to be investigated at least once in every ten years, and probably more often.
In estimating the benefit of registration to the public we must remember that on each investigation both the vendor and purchaser incur costs. It will be found that the costs of registration with absolute title, when accumulated at compound interest for fisteen years, fall short, by a considerable sum, of the joint costs of the vendors' and purchasers' solicitors of investigating the title on a future sale or mortgage, and the costs so saved will be a benefit to the community. It would, I think, be of use to have an inquiry, which can hardly be undertaken by a private person, as to the average number of dealings with land requiring investigation of title within a certain number of years after a purchase ; it will then be easy to see whether my opinion is well founded or not.
The third objection raised in the Report, viz. that a legal estate can be conveyed by an unregistered assuranco, appears to depend on a misapprehension of a paper read by Mr. Brickdale before the Institute of Bankers, and of a dictum of Cozens-Hardy L. J. in Capital and Counties Bank, Lim. v. Rhodes (1903] 1 Ch. 631, that
after first registration the legal estate will pass on every subsequent conveyance on sale without registration. ... Conveyancing may proceed just as if the Acts of 1875 and 1897 had not been passed, and the Report aites a passage from a work on the Australian Torrens System by Mr. Hogg, where he says :
• The English System, while in terms purporting to warrant à registered title positively, yet allows estates of validity equal to the registered title to be created. ... It is inherently vicious in so far as it does not give absolutely a negative warranty as well as a positive warranty.'
The answer to these remarks appears to be the following. An intending purchaser must search the register. If no entry to the contrary appears on the register, he can take a transfer from the registered proprietor without having regard to any unregistered assurance, and on his being entered as proprietor he acquires the legal fee, notwithstanding the unregistered assurance. On the other hand, if he finds an entry on the register protecting the unregistered assurance, he will decline to complete till the entry is vacated, and then he can take a transfer from the registered proprietor, and on registration acquire the legal fee.
Besides transfers and mortgages, there are other cases in which conveyances passing the legal estate are required, and it is impossible to say what the consequences of prohibiting a conveyance off the register may be; such a prohibition would be a leap into the dark. There is at least one case where a limitation which is valid if legal would be invalid if equitable; add to which for the reasons above stated, if the legal estate is conveyed by a deed off the register no purchaser or chargee from the registered proprietor is affected by it.
The Report objects, and objects very reasonably, to the necessity in many cases of having a deed off the register as well as a registered assurance. No doubt this is a serious defect in the Act; it is discussed in the articles above referred to, and could be obviated by a short amending Act.
The Report comments with disapproval on the rule which provides that where application is made for registration with absolute title of land which has been registered with possessory title for six years, the first proprietor having been a purchaser on sale, the examination of title may be modified as the registrar may think fit. The Committee are of opinion that the rule has the practical effect that after the land has been on the register for six years an absolute title can be granted.
The Report calls attention to the alarming increase in the expenditure on business managed by officials. The Board of Trade Report (1904) shows an excess of expenditure of the Board in respect of bankruptcy for the year (more than four-fifths of which is in respect of the salaries and pensions of officials) over income of more than £29,000. The Report considers that the accounts are incorrectly kept as regards an item of £18,658 included in income, and representing dividends, which it says ought to be credited to the different estates of which they are the proceeds, and as to an item of more than £36,000 which the Report alleges to be a fictitious item. The context shows, however, that it is not intended to charge the Board of Trade with falsifying the accounts, but merely to accuse it of an extraordinary method of book-keeping.
The Report states that the receipts for the year ending March 31, 1904, of the winding-up department of the Board of Trade were £24,591 ?, which was too little by £2,800 to meet its expenses. The Report observes that more than half the receipts of the department are derived from income upon the accumulated funds of estates in liquidation, including not only estates being administered by official receivers, but also those in voluntary liquidation.
The Report points out that for the purposes of land registration in one county alone there is an office with an establishment of 240 officials of various grades, and a building which is to cost more than £25,000, and they point out that the costs of registration, if it is made compulsory all over England, will be enormous.
In conclusion I feel that the Committee deserve thanks not only from the profession, but from the country, for the labour and skill that they gave to the Report, and that their conclusions, whether we agree with them or not, deserve to be most carefully considered.
HOWARD W. ELPHINSTONE.
· The remuneration to officials amounted to more than £22,000,