SALE AND TRANSFER OF LAND.

Appendix to the Journals of the House of Representatives, 1858 Session I, D-01

18 5 8.

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HOUSE OF BEPBESENTATIYES.

SALE AND TRANSFER OF LAND.

Laid on the Table lZth April, 1858, and ordered to be printed.

REPORT of the COMMISSIONERS appointed to consider the subject of the REGISTRATION of TITLE with reference to the SALE and TRANSFER of LAND, presented to both HOUSES of the IMPERIAL PARLIAMENT by command of HER MAJESTY. Commission appointing Commissioners to consider the Subject of the Registration of Title with reference to the Sale and Transfer of Land. VICTORIA R. Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith : To Our right trusty and well-beloved Councillors Spencer Horatio Walpole and Joseph Napier, Our trusty and well-beloved Sir Alexander James Edmund Cockburn, Knight, Our Attorney-General, Our trusty and well-beloved Sir Richard Bethell, Knight, Our Solicitor-General, Thomas Emerson ITeadlam and Vincent Scully, Esquires, two of Our Counsel learned in the Law, Robert Lowe and William David Lewis, Esquires, Barristers-at-Law, Henry Drummond, John Evelyn Denison Robert Wilson, and William Strickland Cookson, Esquires, Greeting: Whereas a Select Committee of the House of Commons to whom a Bill for the Registration of Assurances, and certain other Bills for the facilitating the sale and transfer of land, and to facilitate the transfer of land in Ireland, were referred for consideration during the last Session of Parliament, recommended the immediate appointment of a Commission for the purpose of considering the subject of Registration of Title with reference to facilitating the Sale and Transfer of Land : Now know ye, that We, reposing great trust and confidence in your zeal, discretion, and integrity, have authorized and appointed, and by these presents do authorize and appoint, you, the said Spencer Horatio Walpole, Joseph Napier, Sir Alexander James Edmund Cockburn, Sir Richard Bethell, Thomas Emerson Headlam, Vincent Scully, Robert Lowe, William David Lewis, Henry Drummond, John Evelyn Denison, Robert Wilson, and William Strickland Cookson, or any four or more of you, to consider the subject of the Registration of Title with reference to the Sale and Transfer of Land, and generally to inquire into and consider the advantages and disadvantages attending such a system. And for the better discovery of the truth in the premises We do by these presents give and grant to you, or any four or more of you, full power and authority to call before you such persons as you shall judge necessary, by whom you may be better informed on the subject of this Our Commission and of every matter connected therewith, and also to call for, have access to, and examine all such official books, documents, papers, and records, as may afford the fullest information on the subject, and to inauire of and concerning the premises by all other lawful ways and means whatsoever. And Our further will and pleasure is, that you do, within one year after the date of this Our Commission, or sooner if the same can conveniently be done (using all diligence), certify to Us in Our Court of Chancery, under the hands and seals of you or any four or more of you, what you shall have done in the premises. And We further will and command that this Our Commission shall continue in full force and virtue, and that you, our said Commissioners, or any four or more of you, shall and may from time to time proceed in the execution thereof, and of every matter and thing- therein contained, although the same be not continued from time to time by adjournment. And for your assistance in the due execution of this Our Commission, We have made choice of Our trusty and well-beloved George William Sanders, Esquire, Barrister-at-Law, to be Secretary to this Our Commission, and to attend you, whose services We require you to use from time to time as occasion shall require. Given at Our Court at Saint James's the eighteenth day of January, 1854, in the seventeenth year of Our reign. By Her Majesty's command, (Signed) PALMERSTON. REPORT

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Sale and Transfer of Land. REPORT To the Queen's Most Excellent Majesty, in Heb High Cotjet oi? Chanceey". In pursuance of Tour Majesty's Commission authorizing and appointing us to "consider the subject of the Registration of Title with reference to the sale and transfer of land, and generally to inquire into and consider the advantages and disadvantages attending such a system," We, Your Majesty's Commissioners, humbly beg leave to present to Your Majesty the following Report: f y- I. The issuing of this Commission was recommended by a Select Committee of the House of Commons, to whom a Bill for the registration of assurances, and certain other Bills for facilitating the sale and transfer of land, were referred for consideration during the Parliamentary session of 1853. Under these circumstances we deem it right to advert to the report of that Committee and the evidence appended to it, in order that we may acertain and constantly bear in mind the full scope and object of the inquiry, which by Your Majesty's command, we have undertaken. ct 11. We find that three Bills were submitted to the consideration of the Committee, the first of he which had been sent down from the House of Lords. These Bills were entitled : 1. A Bill for the s. registration of assurances. 2. A Bill to facilitate the sale and purchase of land. And 3. A Bill to facilitate the transfer of land in Ireland. The Committee reported that the first of these Bills contained 3 ' within itself two distinct principles of registration; the one, contemplating the registration of all assurances in any manner relating to land, and the legal or equitable estate and interest therein ; the other, proposing that the legal title alone should be entered in the registry, and that there should be no necessity to register the instruments which declare or transmit the beneficial interest or equitable ownership. They also stated that the two other Bills proceeded upon a principle similar to that last referred to as contained in the first Bill, namely, the principle of keeping the registered ownership wholly separate and apart from the equitable right or title. And they further observed, that " pursuing that idea, and confining their attention to that principle, they had examined some witnesses of high professional reputation, who had brought under their notice a scheme for the registration of title or of legal ownership, which, if it could be fully developed and made capable of easy practical operation, would appear to them to fulfil the most important conditions of registration, and to afford the means of ensuring great facility for the transfer of land, combined with great simplicity and security of title." The advantages to be derived from some system of registration of land are therefore assumed by the Committee, provided that the difficulties which have hitherto stood in the way of a practical settlement of this important question can be removed or obviated. . 111. In prosecuting our inquiries we have availed ourselves of the labors of former Commissioners, especially the second report of the Real Property Commissioners in 1832, and the report of the Registration and Conveyancing Commissioners in 1850. We have also consulted the report of the Commissioners appointed to inquire into the working of the Encumbered Estates Court in Ireland in 1855, and the evidence taken before the Select Committee of the House of Commons on the Registration of Assurances in 1853, and we have referred to the report in 1850 of the Select Committee of the House of Commons, on the Court of Chancery (Ireland) Bills. We have further directed a series of questions to be circulated in different parts of the kingdom among persons practically acquainted with the subject; and these questions, together with the answers thereto, will he found in the Appendix. We have likewise examined some witnesses viva voce, partly with the view of ascertaining more accurately the nature of the plan submitted to the House of Commons in 1853 ; partly to obtain information on the subject of maps, which afford in the opinion of many persons the best means of describing and identifying landed property, and indexing registered titles of it; and partly to learn how the system of stop-orders or distringases, works at the Bank of England, in restraining the transfer of the public funds. We have also the pleasure of acknowledging that we have been assisted in our inquiries by different observations and suggestions which have been communicated to us upon the subject of registration, two of which papers we have printed in the Appendix (a), and by several publications upon the subject of registration, and the means of improving the title to landed property, which have been laid before us by the authors of them, and which are mentioned in the note below, (b) As

Origin of inquiry

Report of Selecl Committeeof thl House of Commons on Registration Assurances Bill, 1853, and other Bills.

Evidence made use of in this inquiry.

(a) " A Plan for the Registration of Titles to Land," by Mr. Randal Macdonnell. Letter and Plan by Mr. Edward Thomas Wakefield. (b) " Shall we Transfer our Lands by Eegister f" by Joseph Goodevc, Esq. Suggestions for a General Index of Title to Eeal and Personal Property," "by W. R. A. Boyle, Esq. " The Annihilation of past Titles considered as the only effectual Amelioration of present Titles, with a Scheme for its Accomplishment," by T. P. Keene, Esq. There has also been published since this Eeport was in print, a pamphlet entitled " The Transfer of Land by means of a Judicial Assurance : its Practicability and Advantages considered m a Letter to Sir Richard Bethell, M. P." By Isaac Butt, Esq., Q. C.

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Sale and Transfer of Land. As to Registration generally — the Existing Systems — and the failure of previous attempts at a ■ general Registration. IV. We need not dwell on the advantages to be derived from registration of the ownership of land ; they are and have been for a long time very generally admitted. In the earlier periods of our history, publicity was considered essential in almost all dealings with landed property. The transfer of the immediate freehold in possession was made notorious by livery of seisin ; the transfer of the remainder or reversion was made equally notorious by the attornment of the tenant of the estate in possession, by which he recognised the new proprietor ; the surrender of copyholds, followed by the admission of the copyholder, was an open avowal in the presence of the lord, and before the whole homage, that an old tenant had died or disposed of his interest, and that a new tenant had come into the manor and taken his place ; fines with proclamations were public acknowledgments in the King's Courts, that an estate which was supposed to belong to one man was in truth the estate or property of another; while easements, such as rights of way and rights of water, were evidenced and kept in existence by the notoriety of continued user and actual enjoyment. The Statutes of Uses and Enrolments were passed with similar objects. By them the Legislature sought to abolish that secret transfer of land which had begun to prevail by means of private confidences, enforced by the jurisdiction of Courts of Equity. Accordingly the former of these Statutes transferred the use int c possession ; while the latter rendered void any bargain and sale limiting an estate of freehold which was not enrolled in the Court of Chancery. But the object of these provisions was soon evaded by a subtle construction and contrivance ; and instead of giving publicity and notoriety to equitable transfers, the Statute of Uses was so interpreted as to make even legal conveyances, what they never were before, secret. So obvious were the evils resulting from this change, that from the time of James the First, to the present, repeated attempts have been made to remedy them by means of public registration, but made in vain. An historical account of these attempts was furnished by Mr. Sanders to the Registration and Conveyancing Commissioners, and it will be found at length in the 6th Appendix to their report, (a) It appears therefrom that the principle of registration has been constantly recommended by the ablest lawyers and statesmen ; that this principle has been repeatedly recognised by both Houses of Parliament separately, though they have failed to agree in the details of a measure which might pass into law ; that the difficulty and uncertainty of finding out such charges and incumbrances as affected the land, was early considered to be highly prejudicial to purchasers and creditors ; that as early as the reign of Charles the Second (6) this uncertainty of titles to estates was deemed to be " one cause of the decay of rents and.value of lands ;" and that the same conviction, instead of being diminished, has been so much strengthened by subsequent experience, that upwards of twenty Bills have within the course of the last twenty years been brought into Parliament for the purpose of establishing systems of registration. It should also be remembered that the Select Committee of the House of Lords appointed to inquire into the Burdens upon Land, having attributed the diminution of the marketable value of real property to the tedious and expensive process attending its transfer, expressed themselves as anxious to impress on the House the necessity of a thorough revision of the whole subject of conveyancing, and the disuse of the present prolix and vexatious system. They also recommended the improvement of the Law of Eeal Property, the simplification of titles and of the forms of conveyance, and of the establishment of some effective system in the registration of deeds. V. With such a remarkable concurrence of opinion, the failure of measures so often proposed and so generally desired can hardly be attributed to any other cause than the practical difficulties which, upon examination, are seen to be inherent in, or likely to result from a system of registration of assurances. The fear that such a system of registration would be found to be productive of evils as great, or nearly as great, as those against which it was intended to provide, was probably the main reason which induced the Select Committee of the House of Commons in 1853, to pause in adopting the Bill then before them, and to suggest, instead of passing a measure of that description, the appointment of a Commission for the purpose of considering the snbject of registration of title, with a view to facilitate the sale and transfer of land. Bearing this in mind, we deemed it our duty in the first instance to address ourselves more particularly to a careful examination of the defects imputed, and the objections entertained to a system of registration of assurances, in order that we might judge how far they might be remedied and overcome by a system of registration of title. VI. In order to form a just opinion as to the suitableness or sufficiency of a Eegister of Assurances or of the species of registration which we are appointed to consider as a remedy for the objections it is intended to remove, it may desirable that we should first advert to the examples already existing in our law of modes of registration ; secondly, to the chief causes and grounds of complaint which are alleged against the existing system of transfer of land ; and thirdly, to the peculiarities in the law of real property and the practice of conveyancing, which cast, as it is considered, unfair burdens on the owners of land, and injuriously interfere with the profitable use and enjoyment of land. VII. Various systems and methods of registration are found actually existing in practice, for the protection of the title to landed and other property. The peculiarities and incidents of these different systems we think it necessary to bear in mind in the investigation of the subject befere us. The

! ■ Expediency of some registration.

Failure of previous measures owing to the objections to a registration of assurances.

Matters to be considered with reference to- a system of registration. The different kinds of registration existing.

(a) See the Report of the Registration and Conveyancing Commissioners, p. 232. (f>) 1669, Lord's Journals, vol xii., p. 273.

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Sale and Transfer of Land. The various kinds of registry, or modes of registration, to which we refer, differ materially n their objects and their extent, and may be distinguished as follows :— 1. A Register of Incumbrances and Securities for Debt ; as The Registers of Judgments (ft), Grants of Annuities (b), Warrants of Attorney (c), Crown Debts and Recognizances \d), and Cases oi Us pendens, (c) 2. A Register of enrolment of particular classes of Deeds, or Deeds having particular objects ; as, Inrolment of Deeds of Bargain and Sale (f), Disentailing Assurances, or Deeds executed for barring estates tail (<?), and Bills of Sale of Personal Chattels capable of delivery. ($) 3. A Register of M emorials, or brief abstracts of Deeds and Instruments ; as, The" Registers of Memorials of Deeds and Wills affecting Lands in Ireland (i), and in the counties of Middlesex (j), and York, (k) 4. An Inrolment of the Deeds themselves, or full copies of them, and extending to all Deeds ; as, The Inrolment of Deeds affecting lands in the Bedford Leyel. (/) 5. A Register of the Title or actual Ownership, independently and irrespectively of the past tarnsactions or deeds by which it has been acquired. Such is the Register "in the books of the Bank of England of the public stocks and funds. VIII. Besides the foregoing, other schemes or systems of Registration, somewhat different in principle, have as matters of theory, been suggested ; but we believe that no examples are found in actual operation in our own country, of any other modes or kinds of registration than those above detailed, unless the Court Rolls of Manors form an exception. If the 4th of the above-mentioned systems were made to extend to the whole country, it would he. what is termed a general Register of Assurances, and would supersede the 2nd and 3rd. If the sth of these systems were extended to land, or if a register upon similar principles were applied to the ownership of land, it would exclude, or at all events might be made to render superfluous, the 2nd, 3rd, and 4th systems, and (with the addition of suitable provisions) the Ist also. IX. It is important to observe that this institution of registry has always, in each of its several forms, been directed to the attainment of one specific object of public policy, and founded upon a regard to one broad and distinctly defined interest of the community ; namely, the security of title and of transactions by means of notoriety and the perpetuation of evidence, (m) X. This

Possible extension of some of the existing sys< leins,

Policy of. existjng systems,

(a) Established in 1692 by the 4 & 5 William and Mary, c. 20., and since varied and extended by the 1 & 2 Vict. c. 110 , and 2 & 3 Vict. c. 11., and 18 & 19 Vict. c. 15. (b) Established in 1777 by the 17 Geo. 3 c. 26., and varied and improved by the 53 Geo. 3. c. 141., subsequently repealed by the Act abolishing the laws relating to Usury, 17 & 18 Vict. c. 90., but restored in an amended form by the 18 & 19 Viet, c, 15. s. 12. (c) Established in 1822 by the 3 Geo. 4. c, 39 extended by 6 & 7 Vict. c. 66. (d) Established in 1839 by the 2 & 3 Vict. c. 11. ss. 8, 9. (c) Established in 1839 by the 2 & 3 Vict. c. 11. s. 7. (/) Established in 1535 by the Statute 27 Hen. 8. c. 16. (g) Established in 1833 by the 3 & 4 Will, 4. c. 74 s. 41. (h) Established in 1854 by the 17 & 18 Vict. c. 36. (i) Established in 1707 by the Irish Statute 6 Anne, c. 2. (j) Established as to the several Hidings in the years 1703, 1707, and 1735 by the Statutes 2 & 3 Anne c, 4., 6 Anne, c. 35, and 8 Geo. 2. c. 6. (k) Established in the year 1708 by the Statute 7 Anne, c. 20. (I) Established in 1664 by the Act for Draining the Bedford Level, 15 Car. 2. c. 17 s. 8. (m) The Act of 4 & 5 William and Mary, requiring judgments to be docketed, contains the following recital :— " Whereas great mischiefs and damages happen and come as well to persons in their lifetimes, but more often to their heirs, executors, and administrators, and also to purchasers and mortgagees, by judgements entered upon record in their Majesty's Courts at Westminister against the persons defendants, by reason of the difficulty there is in finding out such judgments," The Act establishing a Register of Grants of Annuities oontains the preamble : —" Whereas the pernicious practice of raising money by the sale of life annuities hath of late years greatly increased, and is much promoted by the secrecy with which such transactions are conducted." And the Act of 18 & 19 Vict., which regulates the present register of life annuities, is expressly grounded on the fact, that " purchasers are no longer enabled to ascertain by search what life annuities or rent charges may have been granted by their vendors or others." The Register of Warrants of Attorney is required, because " injustice is frequently done to creditors by secret warrants of attorney to confess judgements for securing the payment of money, whereby persons in a state of insolvency are enabled to keep up the appearance of being in good circumstances, and the persons holding such warrants of attorney have the power of taking the property of such insolvents in execution at any time, to the exclusion of the rest of their creditors " And the Act 6& 7 Vict., passed to enlarge the provisions of the previous Act, proceeds upon the ground that "greater facilities should be given to persons in searching the books" in which the particulars of the warrants of attorney are entered, " and obtaining the information contained therein." The Register of Crown Debts and cases of Us pendens is founded on the principle " that further protection should be afforded to purchasers" against those incumbrances. The policy of the Statute of Inrolments, 27 Hen. 8, c. 16, we are told by Chief Baron Gilbert, was to remedy the effect of the Statute of Uses, which, " by executing all uses raised, introduced a secret way of conveyance contrary to the policy of the common law." Accordingly, the Statute provides that the deeds, when inrolled, shall remain in the custody of the custos rotulorum, amongst the other records of the counties, to the intent that every party that " hath to do therewith may resort and see the effect and tenor of every such writing so inrolled." The inrolment of disentailing deeds, it cannot be doubted, was required in order to answer the purposes of notoriety and perpetuation of evidence, which, in theory at least, were promoted or secured in the former practice of levying fines and suffering recoveries.

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Sale and Transfer of Land. X. This policy accordingly long since suggested the project of establishing a general register of all deeds affecting the title to the landed property of the kingdom, or, as it has been of late years termed, a Register of Assurances. It was moreover considered that such a measure would furnish a remedy for many admitted evils in out real property system, or was the necessary precursor or accompaniment of any attempt to remedy those evils. XI. By the law of England the possession of land does not conclusively prove the possessor to be entitled to it, or to have the right of disposing of it. The ownership of land is not a simple right, or quantity, or a right which exists only in a simple or single form—like that of a chair or a sum of stock—but is susceptible of modification by deeds, into a number of independent quantities and degrees of ownership. These lesser ownerships in the land, if called into existence, must all re-unite or coalesce in order to confer the complete title to the land; or, in other words, the subsequent derivation of title must be traced through, and must include them. A possession or transfer inconsistent with them does not put an end to them; they remain integral parts of the title so long as the terms of their own creation admit of their taking effect, and the Statute of Limitations has not barred them. There is no record in law of the derivation of the title except the title deeds, and there is no security in law that such title deeds may not be suppressed or improperly withheld. A retrospective investigstion of the title (or, in other words, the former dealings with the land) must therefore take place on the occasion of a sale, in order to ascertain that the possessor is also the owner, and that no qualifying rights exist. Though by such means the title he ascertained to be valid, the law provides no permanent or binding record of that fact, or of the fact of ownership, to serve as a rest in the title, or form the foundation of its future deduction. It becomes necessary, therefore, on the occasion of subsequent dealings with new purchases, that such purchasers should, in their own interest and for their own protection, repeat the investigation which took place before, and examine the title retrospectively from the date of their own contract, without relying on the previous transfer, or the possession enjoyed under it, and treating these as possibly illucery merely. Lastly, according (a) to the law of England, the right to the possession, and to recover the rents and profits of real property in a court of law, may be vested in one person, while another is the beneficial owner. The person who is entitled at law is technically said to have the legal estate, and the beneficial owner is technically said to have the equitable estate. All actions and proceedings in courts of law must be brought and defended in the name of the person who has the legal estate: the person who has the equitable estate can only enforce his rights through the medium of a Court of Equity. XII. Such being the general outline of the nature of landed titles in this country, persons intending to become buyers of land find the practical working and consequences of the system to be something like the following:— 1. There being no registry of deeds or of ownership, fraudulent titles may be made by the suppression or destruction of title-deeds. 2. There is consequently a general insecurity of title and apprehension of risk, even when, to all external appearances, there is an absence of any ground for suspicion. 3. The evidence of title, for want of a register, is at best inferential and negative. The title can never be affirmatively and positively shown to be good. The possibility of its being impeachable cannot be excluded. Notwithstanding the dangers, however, thus to be encountered, a person who has entered into a contract of purchase in the usual way, without any information as to the title, is compellable

Extension of that policy.

Present state of the taw as to landed titles.

Evils of the present st.Ue of the law.

The registration of bills of sale is required upon the ground that "frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors." The Irish Registry Act is grounded on the principle of " securing purchasers, preventing forgeries, and fraudulent gifts and conveyances of lands," &c. The West Hiding Registiy Act states, that " most of the traders in the West Riding are freeholders, and have frequent occasions to borrow money upon their estates for managing their trade, but lor want of a register find it difficult to give security to the satisfaction of the money lenders, although the security they offer be really good, by means whereof the said trade is very much obstructed, and many families ruined." The North and East Riding and the Middlesex Registry Acts contain preambles, one of which states that, -'by the different and secret, ways of conveying lands, such as are ill disposed have it in their power to commit frauds, and frequently do so, by means whereof several persons have been undone in their purchases and mortgages by prior and secret conveyances and fraudulent incumbrances, and not only themselves but their whole families thereby utterly ruined-" 0) 2 Re. Pr. Com Rep. p. 7.

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Sale and Transfer of Land. pellable to fulfil his contract, unless he can prove facts showing the title to he bad or judicially doubt ful; the possible existence of documents unproduced not being a ground of defence, (a) 4. Should the subject matter of the purchase be only an equitable estate, the purchaser may be defeated by a subsequent purchaser (without notice) of the same estate, if he happens first to succeed in procuring a transfer of the legal estate. 5. Even an innocent purchaser who may possess the legal estate may be put to proof that, at the time of his purchase, he had not notice of some dealing or transaction for which priority is claimed ; and such notice may be imputed to him constructively from an infinite variety of circumstances. 6. A second mortgagee may, notwithstanding notice given by him to the first, find his security destroyed by a transfer from the first mortgagee to the third, unless the latter at the time of his loan had notice of the second mortgage. 7. Thus, equitable and derivative or secondary estates become, in fact, not marketable. 8. Contests and artificial contrivances to obtain priority by getting in the legal estate become inevitable ; and these merely in order to incline the legal balance in favour of one innocent victim of a fraud as against another equally innocent. Moreover (b), those expenses in the transfer and disposition of real property which arise from the necessity of obtaining conveyances and assignments of outstanding legal estates are very oppressive, and they are submitted to with the more reluctance because they proceed from a fictitious distinction, which is unintelligible except to professional persons. The expense of applications to the Court of Chancery, to enable trustees under disability to convey, and of the general evidence of representation and deduction of title to trust estates with the deeds relating to them, frequently exceed very considerably the expence of the conveyance, or other principle deed for effecting the real object of the parties. 9. Deeds are liable to be lost, and there is no permanent evidence of the contents of the lost deeds. 10. Constant difficulty is experienced in obtaining the production of deeds when they relate in common to two or more estates, or to the divided parts of an estate which was once entire. 11. By this difficulty of obtaining the production of deeds or insuring their production to buyers and by the loss of deeds, titles are rendered unmarketable. 12. Disputes arise as to the proper custody of the title-deeds. 13. The possession of the. title-deeds by law belongs to the person first interested in the freehold, and this possession without a registry of the deeds, enables, in many cases, the party having their custody to destroy, to suppress, or even to fabricate particular instruments, in fraud of other persons entitled to posterior interests, and in fraud of buyers and lenders. 14. There being no registry of the ownership and there being no conclusive record of the past dealings with the property, a history of those dealings must be made, in the form of an abstract of title, on the occasion of every succeeding sale or mortgage. 15. That history must on every such occasion be investigated and put to the proof. 16. Thus the former dealings with the land, however transitory their object, produce a permanent and an injurious effect upon the title, whether they result in conferring a good title or not. The transactions which enter into the history of the title, though spent and determined according to their own proper intention and effect, yet fasten themselves upon the ownership, and continue vital and operative to the extent of obliging every person dealing with the land, to see and take care that they are in fact spent, and have done their work. 17. Historical recitals of the previous title become necessary in the deeds executed on the transfer of landed property. These greatly lengthen the deeds, and are the occasion of constantly increasing expense in the future deduction of the title and dealings with the property. 18. Special and restrictive conditions of sale become necessary in order to preclude objections by the buyer, which this retrospective investigation of the title may enable or entitle him to make ; and a practice ensues of framing conditions of sale, which, in order not to depreciate the interests of the seller, or injure his sale, are so disguised as often to entrap the unlearned or unwary buyer. 19. The danger of contracting to buy land without a previous knowledge of the title is thus perceived by prudent and cautious buyers, and persons become unwilling to bind themselves as they ought by contract, or until after they have seen the abstract of title. 20. Where a contract is in fact duly entered into, the investigation of the title often causes not expense only, but delay, annoyance, and disappointment, sickening to both buyer and seller. The seller does not receive his money, nor the buyer his land, until the advantage or the pleasure of the hiirgain is lost or has past away. 21. The

(a) 2 Re. Pr. Com. Rep. pp. 5, 6. (4) 2 Re. Pr. Com. Rep., App., p. 128.

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Sale and Transfer of Land. 21. The existence (a) of technical defects in titles substantially good, places an undue amount of power (as has been well said) in the hands of an unscrupulous purchaser. The proceedings towards the completion of a sale, after the contract is made, necessarily occupy a considerable time; during which the purchaser has an opportunity of ascertaining, from the state and changes of the markets, whether his purchase is likely to prove a good speculation or the reverse; and his acceptance or refusal of the title is often unduly influenced by considerations arising from these circumstances. 22. Thus, finally, from these various causes, the sale and transfer of land are impeded, and dealings in it are discouraged (b) XIII. From what has been said, we think it may be concluded, that the great objects which the c reform of this branch of the law ought to have in view, range under the following heads, viz.— jj 1. Security of title. 2. Simplification of the title. 3. A record of the actual ownership. 4. Simplification of the forms of conveyance, and general facility of transfer. We do not conceive, indeed, that it is necessarily an objection to any proposition for a system of registration, that it is not adapted to accomplish all these objects. It may be sufficient for us to say, that if different systems of registration be proposed for consideration, that system which is found to secure these objects in the fullest extent, will best serve the interests of land owners and the public generally, and furnish the surest remedy for the evils out of which the demand for a registry of assurances arose. XIV. That a Register of Assurances would give increased security of title, we see no reason to i doubt. All those evils and objections which call for protection against the suppression of documentary ] evidence of title, would, wo think, be removed or remedied by a general register of deeds and other ' assurances relating to land. Registration of assurances has been justly said (c) to he a system which would protect every man against the ordinary accidents to which deeds and instruments are subject, and would afford a perfect substitute for covenants for production, where (as in the great majority of purchases is the case) a purchaser cannot obtain the deeds: and thus owners of estates would no longer, as to these matters, be in the situation in which they frequently are placed, of utter inability to offer their estates for sale, except clogged with conditions which must necessarly prejudice the sale. One of the most common objections occurring in titles arises from the discovery, pending the investigation, that other deeds besides those which are in the vendor's possession or power relate to the title. If the purchaser cannot obtain access to these deeds, and a binding covenant for the production of them (however unimportant they may be), he will not be compelled to complete the purchase. Registration of assurances, it has also been justly contended, would afford an effectual protection against deeds or instruments, of which a purchaser or morgagee may not have notice, and against which unless he obtains the legal estate —the tabula in naufragio —(of the possession of which, by the way he can have no confident assurance), he cannot protect himself. It would also disable parties from suppressing family and other deeds of which no general notoriety exists, and which are in the custody of persons having only a limited interest in the estates. In a few words, the result is, that a system of registration of assurances would afford protection and security to those who are equitably entitled to it, and would check fraud and dishonesty. The effect of registration of assurances would, we may admit, as respects these circumstances, be beneficial, as well to the proprietors of real property as to the community. XV. If, therefore, there were no other objects accomplished than security of title and protection against fraud, or if there were no system which would reach the other objects in view, a Register of Assurances would be a valuable measure ; though, even so viewed, it might happen that incidental inconveniences would arise to counterbalance such benefits. We shall, in fact, have occasion presently to consider whether many and considerable objections would not attend a system of registration of assurances, even assuming it to ensure all the requisite security of title. XVI. It

Objects whicti it is desirable to effect.

Advantages of a Registration of Assurances.

(a) Mr. Commissioner Hargreave's evidence. (b) R is well observed by the Real Property Commissioners, in their Second Report, that " the great difficulties which occur in selling estates and obtaining money on real security, the time which usually elapses before the completion of such transactions, and the harassing expenses and disappointments which attend them, are evils universally acknowledged. They are by many persons considered the greatest evils belonging to our law of real property. We believe it may be confidently asserted, that of the real property of England a very considerable portion is in one of these two predicaments—either the want of security against the existence of latent deeds renders actually unsafe a title which is yet marketable, or the want of means of procuring the formal requisites of title, renders unmarketable a title which is substantially safe." The Commissioners also allude to " the depreciation of real property occasioned by the general feeling of the present insecurity of title, and by the apprehension of the delay and expense attending transactions relating to real property ;" and observe that "it is obvious that by removing them a register would have a tendency to Increase the value of estates, and diminish the rate of interest upon mortgages." (c) Mr. R. Walters's evidence, 2. Re. Pr. Com. Rep., App., p 131.

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Sale and Transfer of Land. XVI. It is first, however, material to observe that a register of assurances would not of itself, as we conceive, operate to simplify title, or facilitate (as respects the title) the transfer of land, or render less intricate the practice of conveyancing, or lessen any of the burdens on land which arise from those peculiarities in the ownership of land to which we have above adverted. The registration of assurances would not, as we think, render unnecessary the retrospective investigation of the title on the occasion of each succeeding sale or mortgage. The effect of past dealings upon the title to the land would remain the same as as at present. No evidence of the ownership would be afforded without examining the former transactions, as is now done. Abstracts of title would not be shortened. The forms of conveyance would not be simplified. The technicalities and anomalies of the law of real property would, we think, be confirmed, rather than lessened or relieved, by registration of assurances, unaccompanied by alterations in the general law. Those embarrassments and impediments in the sale and transfer of land which arise from the state of the law and the mode of showing title to land would remain as before, if indeed the delay, trouble, and expense in transferring land would not not be increased rather than diminished by the establishment of a Register of Assurances. A brief consideration of the positive objections that have been taken to that scheme is calculated, we think, to show that this would be the case. , XVII. One of the most prominent objections to registration of assurances, is the vast bulk and increasing quantity of deeds and instruments which would have to be kept, and, on transfers, to be searched and examined, (a) It is calculated by solicitors that these instruments would accumulate at the rate of 300,000 annually, requiring a registry of about 1,000 a-day for every working day. The inconvenience of this, as well as the cost, would be so great, and it struck so forcibly the Commissioners who reported in 1850, that they endeavoured to get rid of the objection by allowing protection in ii variety of instances to unregistered assurances. After observing that in one aspect it would seem necessary to the perfection of a register that the registration should be as essential as any other solemnity required to the execution of a deed, the Commissioners in their Report remark, " But (b) we believe that the establishment of such a rule would lead to consequences seriously affecting the practical utility of registration. One great difficulty in the way of the establishment of a register has always been the bulk of written instruments which are forced upon the attention of purchasers. If registration were made imperative, this evil would become very formidable. After careful consideration we see no sufficient reason for denying to an unregistered assurance, an effect which is not incompatible with the protection to be afforded by the register to those who seek such protection. An unregistered deed may be safely allowed to have full effect against all persons except purchasers claiming the protection of the register." A stronger proof of the magnitude of the evil arising from an indefinite accumulation of deeds can hardly be adduced, for the remedy proposed amounts to this, that in establishing a registry of deeds one of the principal advantages to be derived from it, namely, the certainty of always being able to ascertain the instruments which by possibility can affect the land, may be withheld, except as against persons who have chosen to claim the protection of registration. ' XVIII. In the second place, the registration of assurances would involve a specific addition to the existing burdens on the transfer of land, without diminishing, as we think, except remotely andcasually, any of the existing causes of expense, tardiness, and difficulty in such transfer. The cost of the necessity searches, and the delay and impediments they will occasion in completing sales are not to be overlooked, if no substantial compensation be afforded by diminishing or removing other causes of expense and embarrassment. The complexities of title and the technicalities of transfer, which are at present the chief causes of cost and difficulty, and protracted inquiries in performing contracts of sale, will not be taken away by any system of registering deeds. To this we must add the important consideration that the additional expense and complication caused by requiring registration would be universal, and would extend to all landed property, and to all sales and purchases of it, large or small. The benefit, however, which the register would confer by excluding the risk of fraud would be exceptional anil peculiar. All transactions would, in fact, be made to pay for the machinery contrived to defeat fraud in a few. Were the register calculated to simplify title generally, or the forms of transfer generally, or were it adapted to relieve sellers and buyers from the necessity of retrospectively investigating past titles, the benefit to landed property, and to commerce in it, would be universal, or substantially so; and in such a state of things there would be no harshness in throwing upon all transactions the cost and burden of coming and being admitted to the register. Unless, however, the investigation of the title retrospectively can be dispensed with, the main sources of expense will remain untouched. The expense of this investigation, amounts certainly to one-third and often to two-thirds of the whole cost incurred by a purchaser, (c) We cannot, therefore, but concur in the opinion expressed by Mr. Hayes, that by "establishing a general register there is an absolute certainty of an immediate addition to the expense of every transaction relating to laud, and the risk of involving titles at an early period in almost irretrievable embarrassment, while all the advantages which it tenders are more or less speculative .and remote." In small transactions, which are far the most numerous, any increase of expense would be very oppressive, (d) An

What Registration of Assurances will not effect.

First objection to a Registration of Assurances considered.

Second objection considered.

(a) Lord St. Leonard's Pamphlet, " Shall we register our Deeds?" p. 4. (4) Page 28. (c) See the answers of Messrs. Hurst, Lewis, Statham, Shaen, Sweet, Christie, Earrer, Dugmore, &c. (d) See answers to Question 2. See also Mr. Btiliar's Evidence on Registration of Assurances Bill in answer to Question 685, &c.

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Sale and Transfer of Land. An account of a purchaser's legal expenses incurred at various times and in different parts of the country has been furnished by one of the witnesses, (a) It gives an average of two and a-half per cent, on the purchase money, or five times the ad valorem stamp duty. But as an average affords no notion of the heavy burden in individual cases, it is necessary to look at the smaller properties ; it will there be found that the expenses of the purchase mount up to ten, twenty, and even twenty-three per cent. Make even a slight addition to these expenses, and then a register, which is intended for the benefit of sellers and purchasers, would be the occasion of actual less to the great mass of the persons interested. The Select Committee of the House of Commons in 1832 were so strongly impressed with this result, that when they considered that a general register of deeds and instruments would be of decided advantage to large purchases, they only recommend it as regards small purchases, upon the ground that such a measure " would be made most perfect, by being made applicable to all lands without reference to their value." We cannot think it right to do an injustice to a large body of people merely for the sake of obtaining uniformity, which is miscalled perfection. Such perfection would operate unfairly on small proprietors, and, as Lord St. Leonards has well observed, " probably it would induce them not to resort to the register at all, and then they would be exposed to evils to which they are not now liable ; for if the rate of insurance be too high, the mariner prefers encountering the perils of the sea." XIX. Increased complication is a third objection to a general system of registering assurances. If' any of the instruments affecting the title are withheld from the register, then the system becomes im- ' perfect. If memorials only are registered, the original instruments of which the memorials are given must be searched for, and copied, or abstracted ; and if the instruments are once registered they must remain on the register. However occasional or however temporary their object, they cannot be destroyed; whether satisfied or not they must still be kept, and being kept they must all be examined by purchasers. Thus the machinery would be too complicated to answer its purpose, and complication would diminish the facilities of transfer, and in crease the chances of miscarriage. Simplicity and accuracy are the grand objects to be attained. The absence of these must lead to uncertainty, and uncertainty is insecurity, and insecurity is impediment. But how are simplicity and accuracy to be attained, if notice of deeds, by the fact of their being registered, is to be multiplied and perpetuated ? Extinct life estates, and charges or incumbrances which have been satisfied or exhausted, and other interests which have ceased to be of real importance to the title, must more or less form part of the abstract, and the purchaser's solicitor would not be justified in disregarding them. XX. Another objection raised to a general registration of assurances is the fear of unnecessary and uncalled-for disclosures, (b) No man likes to make his private affairs public ; and one man has no right to pry into the affairs of another, except for some object, in which the latter has given him an interest. Now the only legitimate object of making public, or giving notoriety to any title-deeds is to prevent frauds in the transfer of property by ensuring notice to future contractors of all transactions which are to effect them. For that purpose, however, there can be no need of disclosing the whole internal history of the title for an indefinite period. There can be no reason why every particular, however secret or however confidential, should be made known. Why are the trusts which affect an estate in land to be more divulged than the trusts which affect stock or railway debentures? Why are settlements and family arrangements, which are intended to preserve property in families, to be more liable to exposure in the one case than they are in the other? These and similar questions have often been asked, but they have never received a satisfactory answer. The objection is striking ; and the force of it constrained the Real Property Commissioners in 1832 to suggest (c) that in many cases, such as that of an appointment of a reversionary interest, or of portions in favor of children, the registration might be safely delayed ; and that any provision which it might be desirable to conceal might be made by vesting an interest in trustees in whom confidence could be reposed. They added, moreover, that the peril would be no greater than exists in all settlements of money in the funds, and in many other cases in which trusts are not expressed in the instruments by which the property is vested in the trustees. Such suggestions are by no means unimportant. They show, that in cases like those pointed out the Commissioners considered that the difficulty of establishing a registration of assurances would be so great that they were prepared to substitute for it what in fact in the particular case amounted to a registration of title ; but if a registration of title would be good for settlements, why would it not be equally good for mortgages and purchases ? If requisite for one, why not for the other? If the analogy from the funds is available for determining the mode of registration in some cases, why not in all ? The dread of disclosure can hardly constitute a just distinction between mortgages and settlements ; for'the danger of disclosures affecting credit would probably be as great as the dangers of disclosures affecting settlements andfamily arrangements. Nor do we think that there is any inconsistency in attributing weight to this objection, and at the same time regarding as an evil the disuse or loss of that system of public transfer of land, which in a previons part of this report we have adverted to as having prevailed in the earlier periods of our history. XXI. Another objection to a registration of assurances would be, the enhanced difficulty of obtaining loans by a deposit of deeds. The transactions of this kind are very numerous. At present a respectable man in possesion of title deeds, may, and does often obtain relief in sudden emergencies confidentially, easily, and at a few hours' notice. But if a registry of assurances were the only means of

Third objection considered.

Fourth objection considered.

Fifth objection considered.

(a) See Mr. Sweets answers to written questions. (b) See .Lord St Leonard's Pamphlet, pp 12, 13. (c) See Second .Report on Law of Ileal Property, p. 23.

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Sale and Transfer of Land. of establishing title, and if this title could no longer be evidenced, even prima facie, by the possession of deeds, transactions by deposit of deeds would be seriously impeded. The knowledge of such deposits, ascertained by publication through a general register, would be repugnant to the feelings of most depositors, and the process of search and consequent delay would stop or limit this species of dealing just at the time when facility and despatch are the chief things needed. These are results which cannot be contemplated in a great commercial country without apprehension and alarm. And we may confidently conclude, that any system of registration which did not provide for arrangement equal in convenience to the deposit of deeds would fail to meet with general acceptance. To obviate this objection as much as possible, the principal Bills of late years, introduced for the Registration of Assurances, directed certificates of registration to be granted. Upon the faith of these it was supposed that parties could obtain loans in the same way as they can now obtain them on the deposit of deeds. But we doubt whether the same confidence would be given to such certificates as that which is given to the deeds themselves, unless they were considered, not only as certificates of the fact of registration, but also as certificates of the fact of ownership. In the latter case, however, it is perfectly evident that the register would become a register of title rather than a register of instruments aud assurances. XXII. Another objection to registration of assurances is, that it would tend to render less secure possessory titles—those titles, namely, which depend more upon the fact of quiet and long-continued enjoyment, that the technical sufficiency and accuracy of the various deeds which may have contributed to form the stages and steps of the title. The evidence of defects and slips in limitations and conveyances would by the register be perpetuated ; and that possession, which might have continued undisturbed if the possessor had been allowed to kept his deeds in his box, would be made to invite criticism and attack, by presenting a public record of some frailty by which, or notwithstanding which, historically, the possession might have been acquired. XXIII. Lastly, we are not satisfied that any mode of classification of deeds or of titles, for the purpose of furnishing the requisite indexes to a register of deeds, and affording the necessary facilities for search, has been or can be devised so as to be sufficiently free from complication. Without the means of ready, accurate, and complete searches, a system of registering deeds would only be a snare to purchasers. 11 cannot be doubted, we think, that everything has been done which learning and ingenuity could devise, toward providing- efficient and complete indexes, in the Reports of the Real Property Commission, and the Commission on Registration and Conveyancing. But we concur in thinking (a) that the system of classification adopted by those Commissioners mixes up the technicalities of the law of real property, with the process of registration in a greater degree than would be compatible with the objects now generally sought to be attained by registration. XXIV. We have not overlooked the fact that the local registers of Yorkshire and Middlesex (as remarked by the Real Property Commissioners (b) " are generally considered to be, on the whole, productive of good, and that no attempt has been made to abolish them," As, however, these local registers have furnished a lengthened experience on the subject of the registration of deeds, we think it not unimportant to remark that they do not afford any answer to the observations we have found it necessary to make as to the insufficiency of a registry of assurances for removing the existing impediments to the free transfer of land, or as to the positive objections which may be opposed to the institution of such a registry. 1. In the first place, these registers are signally defective, in not presenting at one view all the documentary evidence which a party investigating a title may have occasion to see. There is no guide to the searches which on a sale ought to be made in the register, except a previous investigation of the documents which may happen to be included in the vendor's abstract of title. When the names of former grantors or owners of the land have been ascertained from the documents to which the purchaser obtains access, then (but not till then) he can search the register in the names of those former owners for any assurances which may have been executed by them. These searches must be repeated in new names as new light is from time to time thrown upon the title ; whereas a register ot deeds, in our opinion, ought itself to furnish consecutive information of the dealings with the land which have taken place, when once a reference to the proper head in the index has been obtained. The defects of the existing registers in this respect are pointed out by the Real Property Commissioners (c), and we concur in their opinion. 2. These

Sixth objection considered.

Seventh objection considered.

Yorkshire and Middlesex Regis, ters.

Objections to them considered.

(a) See Humphrey on Eegistration of Assurances Bill. (4) 2 Kep, p. 19. (c) " We may hero mention as an important inconvenience belonging to the existing registers, and from which a system founded on classification would be exempt, that whore registered deeds are indexed by names, several searches of the register at successive times are often necessary. The deeds produced to a purchaser indicate the searches required so far only as the title is shown by those deeds. It is obvious, that every document relating to the title must have been under consideration before the extent of the searches required can be ascertained, and that frequently searches will become necessary with reference to interests which are brough into view by the result of a former search. The consequence is, that in almost every case something is left undona; the purchaser, to escape from inquiries so indeterminate, foregoing the protection which the register would have afforded him. But if the deeds relating to a particular title are brought together in the index, a reference to the class enables the purchaser to ascertain at once whether all the documentary evidence has been produced to him, and to call for any instruments which may appear by the register to be wanting." And again— " The purpose of a repertory of documents of title is not answered, in a perfect manner, by any of the existing registers in this country, Wheaever the ownership of lands is shown by a deed to which the purchaser has access, a

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Sale and Transfer of Land. 2. These Registers do not, as we have already observed, contain an inrolment of the deeds, but memorials of them only ; and these memorials are not required to show more than the names of the parties, and the property affected. 3. In the next place, these registers do not confer a title according to priority of registration, so as to make it indifferent whether the registered deed confers a legal or an equitable estate, or so as to protect the sale of an equitable estate from the infirmities and risks we have already noticed as rendering it practically an unmarketable interest. A subsequent equitable right may obtain precedence over a prior registered right, by tacking to it a legal right prior to the former on the register, (a) 4. The objectionable tendency of the rule lastly stated is enlarged by a general doctrine long since settled, that registration is not notice, either actual or constructive, of the deed registered. 5. On the other hand, the efficiency and value of the register are impaired by a general doctrine, that express notice of an unregistered deed is equivalent to the registration of it. A purchase deed brought to the register, with notice of a prior deed kept off the register, is postponed to the prior deed, although the person claiming under such prior deed has (purposely it may be) disregarded the provisions of Register Act in not bringing his deed to the register. Thus, from the combined effect of the rules which postpone registered deeds to what may not be on the register, and do not secure priority in all cases to registered deeds over what may come after them on the register, the systems of registry in Yorkshire and Middlesex fail in fulfilling many of the most important offices of a registration of deeds. In all the particulars which we have here pointed out, the defects and errors of the local registers were proposed to be remedied or removed in the scheme for the registration of assurances which was last submitted to Parliament. It is plain, then, that the existing registries of Middlesex and Yorkshire do not furnish any evidence in answer to the observations we have already made on the deficiencies and the objectionable operation of registration of assurances in general. In those observations we have assumed the system to be free from the objections in the local registers which we have hero noticed, and we may add, that most though not all of the above remarks upon the local registries of Middlesex and Yorkshire are applicable to the general register of deeds in Ireland. As to Registration of Title. Various plans proposed. Objections thereto. XXV. Having regard to the many and great objections to a registration of assurances which we have considered, we cannot be surprised at the growing conviction that a measure of that description will not be adequate to answer the purposes for which registration is required. The unmanageable accumulation of deeds and instruments in one place ; the certainty of an immediate addition to the expense and delay of every transaction relating to land ; the risk of involving titles, at no distant period, in increased complication and embarrassment ; the apprehension of disclosures, especially in cases of private settlements and family arrangements ; and the diminished opportunities of obtaining loans on the security of the land for occasional purposes ; the risk of disturbing possessory titles ; and the complication of indexes, have naturally induced the distrust of a scheme, the supposed advantages of which as an additional safeguard and security to titles, are more or less speculative or remote. Even those advantages are much exaggerated, while the positive objections are certain and immediate. The main desiderata to which attention is most anxiously directed, are not so much security of title (for that, in fact, is, to a great extent, practically obtained), but the simplification of title, facility of transfer, simplicity of form, and the consequent diminution of delay and expense. To obtain these desiderata, a registration of title is the remedy proposed ; and several plans for accomplishing that object have been submitted to us. We propose to consider them in due order. XXVI. The first of these plans (b) proposes the establishment of a Land Tribunal, to which owners of land (including- tenants for life and in tail, as well as in fee) may apply to have the land placed upon the public register, and declared to be registered land. The Tribunal is to inquire into the nature of the applicant's title to the land and its existing circumstances, so as to decide upon the expediency of simply admitting it upon the register. When the land has thus become registered, no subsequent act is to create any new estate less than a fee simple, except registered leases or easements ; nor any new incumberance, except registered debentures to a limited amount. The plan also proposes that the owner of such registered land may further apply for a full investigation of title, and for an order declaring, in a conclusive form, all existing estates and incumbrances ; and that, after the making of such order, the Tribunal may give to each person so found to be interested, a certificate of his title. It is also suggested, that, in order to obviate all chance of any injustice

Registration of title suggested instead of Registration of Assurances.

Plans proposed. First plan.

search may be made for conveyances or charges by the grantor and grantee in that deed. Whether in any particular case the search can be continued downwards, so as to get at the whole of the subsequent evidence of title, must depend upon what may be disclosed by the memorials of the respective deeds to which a reference has been obtained by the previous search ; and although there would always be the means of ascertaining the subsequently registered title, if registration at length or a deposit of the deed were substituted for the memorial required by the existing registers, it is obvious that a register, framed upon the principle of indexes by the names of parties, could never be relied on for the discovery of the title anterior to the the earliest deed to which the purchaser may have access." (a) 2 Re. Pr. Com. Rep. p. 35. (l>) See Mr. Scully's plan with the Bill annexed in Appendix A.

12

Sale and Transfer of Land. injustice to third parties, the State may guarantee the title, upon payment of such small fees or premiums of insurance as will provide an indemnity fund to compensate persons whose prior rights might be superseded; but this guarantee is not an essential portion of the plan. The privileges considered to be incident to this plan are— 1. A Parliamentary or indefeasible title, when conclusively declared by the Tribunal; 2. A power to transfer by simple entry the registered land ; 3. A further power to obtain on its credit terminable land debentures, transferable either by simple entry, like Government stock, or by simple delivery, like bank notes or bills of exchange. With a view to impart to these debentures an immediate marketable currency, and consequent increase in value, their amount is to be limited—say, for example, to ten times the annual value of the land ; and they are to be for uniform sums, without priority inter se, and bearing a similar rate of interest. The leading object of these debentures is to avoid the existing complexity of incumbrances, and gradually to supersede all other kinds of charge, such as mortgages, legacies, family portions, quit rents, tithe rent charges, annuities, judgments, recognisances, crown bonds, decrees, orders, and rules of Court. As to family settlements and trusts, it is suggested that they might still be sufficiently effectuated (like settlements of Government stock or of railway shares) through personal confidences, and the equitable jurisdiction of the Land Tribunal; also that equitable mortgages or loans from bankers might be effected easily and without expense. The plan further recommends that the new system should be introduced gradually, and in a voluntary form; though, after some years' experience of its beneficial working, it might be considered expedient to render its application universal as to all land not specially exempted from its operation. The professed principle of the whole plan is to facilitate the sale and transfer of land through the most simple machinery for the registration of an absolute title, both to the land itself and to the charges upon land; with a subsequent capacity in the owner of any registered land or charge to transfer the former by entry, the latter by entry or delivery. XXVII. Such being the general outline of this plan, we have to observe, that it has unquestionably the merit of great simplicity, and it contains valuable suggestions of which we propose to avail ourselves. Its contemplated advantages are in a great degree based upon those already derived from the Incumbered Estates Court in Ireland, and indeed it was framed for that part of the United Kingdom, though it is said to be capable of easy adaptation to any English measure of land reform. Ireland possesses superior machinery for carrying into immediate operation a complete system of Registration of Title through its Registry of Deeds, its Ordnance survey, and its General Valuation of lands. The conclusion to which we have come is adverse to the institution of a Land Tribunal, (a) with judicial powers to decide conclusively upon all titles to land. Such a court may advantageously be established where estates generally are so heavily encumbered that their owners can neither emancipate themselves from existing burdens, nor discharge the duties which attach to the ownership of land. The object in that case is to obtain altogether a new proprietary, and to provide for payment of debts ; but the same principle is hardly applicable in a state of society where there is no paramount need of encouraging absolute changes of ownership, as contradistinguished from temporary chjinges or family settlements, and where a considerable portion of the property will, not improbably, whatever may be the state of the law, still remain in the same families. XXVIII. Another objection to this plan is the want of provisions for protecting beneficial and equitable interests. Without such provisions those who are entitled to beneficial interests in the registered land would not feel satisfied of having adequate protection against the wrongful acts of the registered owners. XXIX. With regard to the proposed system of debentures, we conceive that it is not within the range of the enquiry submitted to us, and therefore we do not recommend it. We may observe that we are not prepared to concur in recommending that the owner of registered land shall be deprived of his legal power to incumber bis own land, with the same kinds of charge as he can create at present. Furthermore, we may observe that if it would not be advisable to establish a Land Tribunal for the purpose of investigating the title to land, the same objection would also apply to the establishment of such a tribunal for the creation and issue of land debentures. Moreover, there is not in England any adequate machinery for ascertaining judicially the value of land through a public map or general valuation, such as exists in Ireland. The preferable way of enabling persons readily to obtain loans on the security of land, is to alter the expensive forms and incidents of mortgages, sui that they may be at law whac they are in equity, securities merely ; and that thus the dry legal estate may not be left out■standing on payment of the money secured, but that the mortgage may then cease for ever. A statutory

Objections to first plan Land Tribunal.

Objections con. tiuued. Laud Debentures.

(a) Mr. Scully retains his preference for the Land Tribunal and Land Debentures proposed by his plan in Appendix A. See las paper at the end of this report.

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Sale and Transfer of Land. statutory enactment giving that effect to mortgages, and conferring all the powers which a mortgage now usually possesses under distinct provisions against the mortgagor, or the mortgagor's property, coupled with a registration of the charge as well as of the land, might probably be framed so as to give to charges on land the same advantages and the same facilities of transfer as those which attach to railway debentures. Although we do not recommend the adoption of a judicial system of land debentures, we think it right to observe that there may be facilities for trying it in a proper manner in Ireland, where strong opinions have been expressed in its favour, (a) XXX. The suggestion of a guarantee or warranty of title, supported as it has been from many quarters, is not peculiar to the plan now under consideration, and is in our opinion very valuable. It is well know that when a title has once been investigated and approved of by experienced counsel and solicitors, it is as little likely to be questioned as the right to any chattel which a man buys in open market. Still on a re-sale it is again investigated and again approved by another counsel and another solicitor, because the new purchaser was no party to the former transaction, and he cannot be sure that everything has been done which he may think necessary to make himself safe. But should the second purchaser be a member of the family instead of a stranger, employing and taking the same legal advice it is probable that he would be satisfied, with the previous investigation, instead of requiring a new one to be instituted, which he would deem to be only going over the same ground again. Supposing, therefore, that a public officer, such as a registrar, should have the power, on application made for that purpose by proper parties, to direct that the title, before registration, should be examined and tested under the authority of a counsel and solicitor, he might safely guarantee it, on their recommendation, against all claims which could be brought against it. In such a case it would not be unreasonable that the registered owner who had thus obtained a warranted title should pay a small premium on that account; and the aggregate amount of the premiums paid would constitute a fund to indemnify the State as the public insurer in case any latent claim should be subsequently established. XXXI. The second plan (fi) which has been submitted to us is founded on a principle which was brought to the notice of the Registration and Conveyancing Commissioners. It has been described, in a word, as Registration of the Freehold. This plan proceeds on the hypothesis that possession is the root of title; bearing in mind that by possession the possession of the freehold is meant, and by freehold a presumptive fee simple. Credit, therefore, is given to possession until it is shown to be wrongful. The fact, that the property is held by the person who is seen to hold it, is presumed to be coincident with the right of property, until the contrary appears. Acting on this hypothesis, the freeholder as thus defined is always to be entitled to have his property registered. But since there may be other rights besides the freeholder's these rights are to be dealt with as qualifications of" the freeholder's presumptive title; for the possession is not necessarily the whole of the evidence upon which the title rests ; it should rather be considered as the basis of the evidence, or, as it were, the starting point of the inquiry. When, therefore, other rights exist, protection is to be given to them, and they are to be capable of registration under the heads of " Charges and Notices." Registration of charges and notices is to consist, in effect, of the registration of written instruments or assurances; but each instrument or assurance is to stand upon the register in the name of a person responsible for its introduction into or retention in the registered title, and empowered to remove it at pleasure ; and provision is to be made for its compulsory removal from the title, as soon as its operation has ceased. The registration of the freehold is to be provisional in the first instance, that time may be allowed—say six years ordinarily, but a longer period, perhaps twenty years, for those who are under disabilities—to interpose the registration of existing incumbrances or adverse titles. It is further proposed that a map of all the land in the kingdom, divided into parishes or districts, should be made by authority, on which each field or other materially defined portion ef the surface of the country should be distinguished by a numerical symbol. This map is to be made the basis of a book of reference containing the same numbers as those on the map, with the description and and contents of each division, and the names and addresses of the different freeholders. The register at the outset would be formed on the spot by an assistant registrar or commissioner sent down to the different parishes for the purpose of receiving claims; and the assistant registrar would in substance follow the practice prescribed by the General Inclosure Act, 8 & 9 Vic. c. 118., a limited time being allowed for appeals, with an extension of time in favour of persons under disabilities. XXXII. This second plan is explained in detail in the Appendix. It contains suggestions of which we shall avail ourselves hereafter; but in the view of the majority of this Commission there are . graye objections to it; and unless those objections could be overcome or materially lessened we should not feel ourselves justified in recommending it. XXXIII. One serious objection is the necessity of sending a commission into every district to ascertain who are to be put on the register of the lands in that district—an objection not merely or mainly on the score of expense, but to the principle of such an inquiry; it would, in fact, involve a compulsory

Warranty of title.

Second plan

Objections to the second plan con„ sidered.

(a) See Evidence of Commissioners Longfield and Ilargreave, Master Brooke, Sir M. Barrington, Lord Dunalley, Colonel Larcom, Mr. Griffith, LL.D., Sir E. Kane, Mr. Tollard Urquhart, M.P., Mr. Sausse, Q.C., Mr. K. Longfield, Q.C., Mr J. B Murphy, and Mr. X, W. White; also a Petition from Irish Landowners in May, 1850. (A) See Mr. Wilson's plan in Appendix A.

14

Sale and Transfer of Land. Compulsory registration of title ; for a landowner could not venture to remain passive, lest some one else should procure registration to his prejudice. The presumptive completeness attributed to the freehold title would also tend to stir up dormant claims which might otherwise be settled by mere lapse of time. In the next place, the right which under such a system every freeholder would have to register his freehold, as implying, in the absence of, or subject to registered qualifications, a power to transfer the fee simple to a bona fide purchaser for valuable consideration, would confer on a person with a limited interest, a power which he does not and ought not to possess. The consequence must be, that claims without number would be sent in to the registrar; for the presumptive right which the freeholder might acquire would otherwise destroy the actual rights which the remainder men, or those who have interests in the property, are justly entitled to. In the next place, the facility with which claims might be made and allowed would lead to the introduction of a mass of documents—some real, some doubtful, some fictitious—which would have to be searched for, examined, and got rid of, before a purchaser could be advised to accept the registertd title ; and thus ' the evils already pointed out (a) as necessary incidents to a registration of assurances would here arise, and we do not see how they could well be avoided. Again, since all interests, other than that of the registered owner for the time being, are by this plan remitted to the head of " Charges and Notices," it would often be ambiguous what extent of interest ought to be considered as represented by the registered ownership. In some cases the " claims " may be merely illusory, and in others they may relate to interests certain to take effect (at a future period). The certificate of ownership, however would be delusive, if it were not certain what measure or interest it represented, because the ownership would appear to be the fee, and yet might, in truth, be no more than a life interest. On the other hand, the proposed circulation of certificates of registered "claims" might lead to fraud when the claim covered merely an imaginary, a litigated or a doubtful interest. Once more, the sale of lands by registered owners would, during the period of provisional registration contempleted by this plan, be almost prohibited, inasmuch as, until the expiration of that period, modifications and limitations might be put upon the register in the shape of "claims." Assuming, however, that these objections could be more or less overcome, still there would be the difficulty, the expense, and the delay of mapping the whole country, of settling the questions of disputed boundaries, of correcting errors which would constantly creep in, and of revising the map from time to time so as to make it correspond with the changes, in the various alterations and subdivisions of property, which would constantly take place. XXXIV. The importance of maps as forming the best basis for a scheme of legistration has been long and often and ably discussed. In 1832 the Real Property Commissioners (5) reported against such a use of maps. In 1850 the Registration Commissioners reported (c) in favor of it; but two of that body, Mr. Humphry and Mr. Broderip, expressed their dissent. In 1850 a Bill for the Registration of Assurances, founded on the report of the last-mentioned Commissioners, which recommended maps, was brought into the House of Lords, and referred to a Select Committee. The Select Committee, admitting that maps were in theory to be preferred, came at length to the conclusion that, considering the occasional inaccuracy of the tithe maps, the insufficient scale of the then existing Ordinance maps, and the great delay and expense of a new survey, it would be inexpedient to propose their compulsory adoption in the first instance, hut that means should be reserved of introducing them as opportunity occurred. The Bill, in consequence, came down to the House of Commons without that portion of it which was founded on the recommendation of maps by the Commissioners. In the House of Commons the question was slightly re-opened (d) in 1851, but no opinion was expressed. Under these circumstances we have felt it our duty to take further evidence on it; and we have arrived at the conclusion that a compulsory plan for mapping the whole country would not be attended with sufficient advantages to outweigh the inconveniences which must necessarily attend it. The first inconvenience would be the unavoidable delay that must occur in re-mapping the kingdom. There are no public maps now in existence which would be sufficient to answer all the purposes of registration (c). The present scale of the Ordnance maps in England would not be large enough for minute subdivisions of common fields, and for a clear delineation of town districts. The tithe maps would determine the question of parochial boundaries, but not the boundaries of individual proprietors. Such maps might certainly be useful to a considerable extent ; but for registration purposes there must be new surveys ; the revision of existing maps must be made, and it would probably require two years before the map for any one county could be got ready. Again, the expense would be very considerable. Mr. Blamire says (/) that the maps and references in the Tithe Office have already cost as much as £2,500,000 ; and Colonel Dawson (g) estimates at upwards of a million, the cost of compiling a map of the entire kingdom partly from maps scientifically constructed, and partly from the revision of other maps to be adopted for the purposes of registration. And this would be independent of the expense which would have

Map&>

Ca) See Sections XVII to XXIII. Cb) See 2nd Rep. p. 26. Cc) See the Report of the Registration and conveyancing Commissioners, p. 15. Cd) See Mr. Btillar's and Mr. Coulson's evidence, 692-694, 1000-7, 1073-75, before Committee of House of Comons. Cc) It should bo remarked that this reasoning is applicable chiefly to England. In Ireland the Ordinance map on the scale of six inches to the mile is sufficient for the purposes of registration. See the evidence of Colonel Larcom, Mr. Griffith, Sir M. Barrington, Sir R. Kane, Mr. Brassington, and Mr. R. W. White. Cf) See evidence of Mr. Blamire. (g) See Col. Dawson's evidence, pp. 4, 5.

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Sale and Transfer of Land. have to be incurred in settling the boundaries between different proprietors, if such a measure were considered desirable. It appears to us, however, that to compel the formation of a general map of England with the view of making it evidence of the boundaries of properties, would of necessity open a vast field for litigation and dispute. Questions of disputed boundaries which are now allowed to remain in abeyance must then be settled. The trouble and annoyance thereby occasioned would be harrassing in the extreme ; and these evils would fall more heavily on small owners than on large proprietors. Every person must defend his extreme rights, for when once the register came into operation, they would be barred for ever. To meet so many and such serious inconveniences, the corresponding advantages should be clear and positive, certain and immediate ; but we doubt very much whether this would be the case under a compulsory obligation to map the boundaries of every proprietor. XXXV. For the reasons before mentioned we cannot recommend that the compulsory formation * of a general map should constitute the basis of a system of registration of title. At the same time we are not insensible to the numerous advantages which a pictorial representation of property and it's boundaries must always have as compared with a mere verbal description of it. (a) The verbal description can only state that it contains so many acres, roods, and perches ; that it bears such and such names ; that it is occupied by this or that tenant ; and that it is bounded on the north, south, east, and west by certain specified roads, rivers, buildings, or lands belonging to or in the occupation of certain specified parties. But such a description is not necessarily sufficient to identify the property, or to ascertain correctly its form or shape, or whether the fences or boundary lines are crooked or straight, or to determine what is the general or particular direction of it with regard to the points of the compass. These are matters which a map, constructed upon a basis of triangulation, and according to the principals of science, can best supply as permanent landmarks, accurate at the time when they are originally made, and capable of being restored to their true positions, whatever may be the casual or accidental circumstances by which they may have been disturbed. Although, therefore, for the reasons above given, the compulsory formation of a public map would be open to serious and grave objections, yet the use of a map properly authenticated for each individual estate, and made on a uniform scale, would probably furnish, together with the usual verbal description, the best means of identifying the property, and the clearest mode of indexing correctly the registered title to it. One of the witnesses has observed in his evidence (b) that " a map is a good servant, but a bad master ; very useful as an auxiliary, but very mischievous if made indispensable." In this opinion we concur ; and while we would deprecate the adoption of maps in any mode, or for any purpose, which would make them binding upon, or conclusive of the rights of parties, we would encourage and even require their use in each case, so as to obtain a description and admission of the particular property which the party applying intends to have registered. In furtherance of the same purpose a discretionary power should be given to the registrar for determining how far and under what circumstances any existing public maps might be made available, as well as the scale upon which either the private maps or copies of the public ones should be prepared and employed. XXXVI. The next plan which has been brought before us is that which was previously ' submitted to the Select Committee of the House of Commons, (c) This plan is founded on the belief that the transfer of land may for many purposes be assimilated to a transfer of stock Every person who, in respect of power or interest, has the absolute right of disposing of the fee simple of property in land, would, according to this plan, be entitled to put the estate on the register, and to transfer the ownership thereof to any other person, subject to such rights and interests as were created before and existed at the time when the registration of the property was effected. And inasmuch as this part of the plan would be slow in its operation, and for fifty or sixty years would involve an investigation of title anterior to the registry in every dealing with the land subsequent to the registry, it is proposed that the person seeking registration should be empowered to apply to the registrar to have the title duly investigated by a counsel and solicitor of his own selection ; and then, if the title should be found in all respects to be perfectly marketable, the registrar is to be authorised to guarantee or warrant it against all claims that might be brought in respect of it. But since persons having limited interests might be prejudicially affected by the acts of the registered owner, ii is likewise proposed to enable such persons to protect themselves by the entry of distringases, to be obtained and to operate in the same way as stop orders are now obtained and operate on the transfer or disposition of stock in the funds. A similar mode of registration is likewise provided, by means of a subordinate register, for leaseholders. This plan does not provide for the registry of anything beyond the simple transfer of the ostensible ownership in fee and leases. Dealings which concern partial estates or equitable interests only will not be assisted or protected by the register, except when (as against an improper disposition by the registered owner) a distringas is put on. In fact, the purpose of this plan is, to attach to each landed estate a formal and ostensible proprietorship, to which the right of sale and transfer may be incident, in cases where the whole fee simple is intended to be disposed of, and to remit those who, in any case, may have right to restrain the sale or transfer, or to complain

Maps continued.

Third plan.

(a) See on this subject Col. Dawson's evidence. (A) See Mr Joshua Williams's evidence. (c) See Mr. Cookson's, Mr. Field's, and Mr. Williams's evidence, and the Appendices Nos. 1 and 3 to the House of Commons Report of 1853. See also Mr. Cookson's paper in Appendix A. to this Report.

16

Sale and Transfer of Land. complain of it, or are interested in its proceeds, to the protection of the distringas, or to their personal claim against the individual. XXXVII. The material objection to this plan is, that transfers by the registered owner are stopped or prevented so long as there are mortgages on the property protected by distringas, and that mortgagees must either be themselves placed on the register as owners in lieu of their mortgagors, or must be content with the protection of a distringas. Another objection is, that a general liberty of entering distringases on the oath of parties, stating that they have an interest in the land, and on an ex parte order of the Court of Chancery, may lead to complications, embarrasments, and litigation, which ought to be avoided. Some further check may perhaps become necessary to prevent this liberty from being abused, and we believe such check may be found and provided. _It is also considered by some of the Commissioners that the advantages to be derived from registration would, under this plan, be postponed to too remote a period, unless some means could be devised of ascertaining and protecting on the register, within an early period, rights in registered land created anterior to the registry. The principal change in the law which this plan involves is, that after the commencement of the registry no disposition by a registered owner will be allowed to pass any interest less than.the whole fee simple, except leases. The transfer must vest an absolute proprietorship in the transferee, whether the purpose of the transfer be a sale, a mortgage, or a settlement. XXXVIII. Other plans for the registration of title have also been submitted to us, and are given in the Appendix. One (a) of these, by one of the Commissioners, is substantially the same as the last, with the exception that it makes no provision for a system of warranty to which he objects. The others (b) we have not failed to give attention to, but they do not appear to us to call for special remark in this place. As to Registration of Title. Observations introductory to the Plan about to be recommended. XXXIX. The previous examination of the different schemes before mentioned will tend to show the special difficulties which we have to avoid, and the particular provisions upon which all are agreed. They are agreed in recommending that the entry in the register should be the only manifestation of actual ownership for purposes of transfer. Each of these plans, moreover, suggests a certain " registration of title" to land; and what is thus proposed is not a registration of that which is now known as " the title" to land, but of some form of landed ownership which, as part of the scheme in question, and for the purposes of it, must be adopted, and established by alterations in the existing law. Each of the schemes proposes, to a greater or less extent, to remove existing complexities of interest in land, and therefore more or less implies change in the nature of title. The difficulty consists (and here the plans essentially differ) in effecting the transition from the existing system of title, and in endeavouring to reconcile the registered ownership with the preservation and protection of unregistered interests. Most of the plans adopt some kind of mapping and some system of warranty; but they vary in the mode in which these objects are sought to be accomplished. XL. Bearing then in mind such agreements and differences, and taking advantage of the different suggestions submitted to us in each of these schemes, we find that the problem which has to be solved is this:—By what means consistently with the preservation of existing rights, can we now obtain such a system of registration as will enable owners to deal with land in as simple and easy a manner, as far as the title is concerned, and the difference in the nature of the subject matter may allow, as they can now deal with moveable chattels or stock? No one doubts that it would be a great benefit to the proprietors of land if they were able to convey it with the same facility as the owners of ships, or of stock, or of railway shares, can now assign their property in any of them. But the question is, Can this be accomplished?—and, if so, how? In answering these questions, it must be assumed that no plan of registration will be acceptable or desirable unless it leaves, substantially and practically, to the owners of land powers of disposition and rights of enjoyment of similar extent and facility of exercise with those which they possess under the present system. XLI. One remark should here be made, which is apt to be lost sight of; it is this —that if there had been always a register of land, as there is in fact a register of ships, of stock in the funds, and of railway shares, it would be difficult to point out any substantial distinction between property of that description and land, so far as regards the mode and form in which they might respectively be transferred or sold. The distinction between them has arisen, not so much from the different nature of the things themselves,as to the different regulations to which they have been subjected in their origin and in the developement of their legal qualities. Both kinds of property are equally the creatures of and require the protection of the law. Both admit of transfer from one person to another. Both may be subject

Objections to third plan considered.

Olher plans,

Points or agreement in the plans.

Problem to be solved.

Difficulties resulting from long existence of the present system.

(a) See Mr Headlam'e paper in Appendix A. (6) See Mr. Wakefield's and Mr. Macdonnell's and Mr. E. N. Ayrton's papers in Appendix. See also Mr. Dugmore's evidence, and Mr. Boyle's pamphlet entitled " Suggestions for a General Index of Titles,"

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Sale and Transfer of Land. subject to family settlements. But the right to the one has grown up under the feuded system of law, adopted, no doubt, as far as it could be done by judicial decision, to the varying wants of mankind, but without the aid of a controlling power which alone would be sufficient to simplify its tenure or facilitate its disposition. The right to the other has been created and regulated by Parliament itself, which, having to deal with a new subject, determined at once to allow no trusts to affect the transfer of it, and therefore excluded from the register of the right to it all modifications which might qualify the absolute ownership. Had land always been similarly registered and similarly transferred, no one would now think of imposing on its present proprietor the harsh and unnecessary burthen of furnishing, before he could part with a single acre, a detailed history of every transaction relating to the property for a . period of sixty years; nor of forcing him, before he could borrow £100 for purposes of improvement, to prove every birth, marriage, death, settlement, charge, conveyance, or incumbrance that might, by possibility affect the title for more than half a century past; and if this be so, how much more beyond reason would it be to compel an owner, after such a process had been gone through on his purchase, again to undergo it, when he might wish to sell that to which the title had been both recently and abundantly proved. Assuming that we are right in this conclusion, and we think that few will doubt it, the difficulty of giving to the owners of land the same benefits as those enjoyed by the owners of ships, stock in the funds, and railway shares, is the difficulty of applying a new principle which, in a 1 new* state of things, has been found to be practicable and advantageous, so far and in such a manner as to render it applicable to an old state of things, which is justly complained of, and which has become prejudicial to the interests of society in those very particulars in which it disregards that principle. It is the difficulty of unravelling the intricate meshes of form and technicality with which the owners of real property are surrounded and entangled, the difficulty of assimilating the transfer or alienation of that kind of property which has been hitherto subjected to these forms and technicalities to the transfer or alienation of that kind of property which has always been without them; the difficulty, so to speak, of undoing, as far as regards the future, that which has grown up into a kind of necessity, until it has almost come to be supposed that the security of property in land depends on the fetters with which all freedom of action respecting it is tied up and restrained. We will proceed to show how we think this assimilation may be effected, notwithstanding the complications in which the title to land and the transfer of it are at present involved. XLII. The objects in view are, to form a register of title as distinguished from a register of the various deeds and assurances under which the title has been derived; —to form this register in such a manner that the retrospective inquiry into the former dealings and transactions, which on a transfer is now necessary, may be avoided; —to make this register instrumental in simplifying generally the title to land and the forms of conveyance; and at the same time te continue, as far as possible consistently with a simple register of title, the existing system of settlements, and to avoid impairing unduly the security of settlements and trusts. These objects, moreover, we consider ought to be accomplished, if possible, in a manner which will avoid the special objections incident to a system of registration of assurances, but at the same time will secure the particular benefits and advantages which, as we have stated, belong to that system. XLIII. In endeavouring to accomplish the objects in question, we have come to the conclusion that the register ought to be composed of a succession of simple transfers merely, and should manifest only the actual and existing ownership of the land for the time being, without laying open the history or past deduction of it. It ought, in fact, to be a record of the ownership existing at the time of any supposed search of the register. If the register were to' disclose, as part of the existing title, the former dealings, it would be found not to afford the requisite relief from the obligation of retrospectively investigating the title. XLIV. We further think that, consistently with the objects in view, no form of ownership or ' property, besides the fee or entire ownership, with the exceptions next mentioned, can be allowed to be ' put upon the register. The registered ownership should, with those exceptions, always be the fee or ' whole interest in the land forming the subject of the registry. Charges on the fee, however, and leases, being (apart from the fee) subjects of marketable dealing, and interests commonly bought and transferred, should also be admitted to the register, separate places being provided for them. XLV. Some of us think, indeed, that beneficial interests in land not amounting to the fee, and - dealings with such interests, might usefully and advantageously be registered. We conceive, however, ' that registration, as to such interests and as to dealings with them, would, in all material points, resemble a registry of assurances, and that such a registry should not be mixed up with or form part of a registration of title. Any such register should (a) be entirely distinct, and should not in any way affect purchasers of the fee, but should only bind the parties who created minor interests and incumbrances, the owners of such interests, and their heirs and personal representatives and assigns, and the trustees. This distinct register might be useful in regulating the distribution of the money arising from a sale of the fee, and in determining questions of priority, but it should not in any way complicate or impede the sale of the fee. We

Objects aimed at.

What a register ought to be and do.

What ought to be put on the register.

What ought not to be mixed up with it.

(a) Professor Hancock's evidence.

18

Sale and Transfer of Land. We, however, confine ourselves in this report to registration of the fee and charges on it, and leases; only observing that the system of registration here recommended will be found compatible, as we believe, with the subsequent establishment of the subordinate registry we have mentioned, should that appear advisable, when the registration of title has been found upon trial to answer the ends which are intended to be promoted by it. XLVI. Before proceeding to state in detail the form and effect of the registration we propose, it may be convenient that we should advert to some questions of primary moment which affect the subject of registration of title generally, and which have received our careful attention, as presenting themselves at almost every stage of our investigation. These questions are:— 1. Whether registration shall be compulsory or voluntary? 2. Whether the title conferred by the registry shall, in' the outset, be parliamentary or unimpeachable, or shall be subject to be defeated by the claims of persons having rights created before the commencement of registration? 3. Whether, if the registered title be not at the outset unimpeachable, interests created before the commencement of registration shall become in any manner bound or affected by the registration after the lapse of any given period, or otherwise? 4. Whether the registry of the legal ownership will be compatible with the due protection of the equitable or beneficial interests in land? 5. Whether it shall be a metropolitan or a provincial registry, or both metropolitan and provincial? XLVII. In considering whether registration shall be compulsory or not, it is necessary to bear in mind the various senses in which a system of registry may be said to be compulsory. 1. One form of compulsory registration of title would be to require all owners or persons in possession of land to make their claims and apply for registration within a limited period, on pain of losing their rights, or of other claimants being admitted to the register upon their default This species of compulsory registration of title we do not recommend. Such a system would tend to disturb possessory titles, by arousing dormant chums and encouraging litigation, and would contravene the general policy of the law in respect to possession, which we deem to be a very wholesome one. 2. Persons applying for registration may be required to prove their title or submit it to a quasiadverse investigation, as a condition of their being admitted to the register. We think such a compulsory investigation of title, though only required as a preliminary to registration, would be highly objectional, and we do not recommend it. It would involve, as has been pointed out in the evidence before us, the necessity of having every title to every acre of land thoroughly investigated by a competent judicial tribunal. It would (a) be distasteful to land-owners, who would be very reluctant to disclose their titles, and it would occasion the bringing forward of many stale and illgrounded claims, would give rise to litigation, and would, wheii completed, be of no practical benefit to. any, except those who contemplated selling their estates. It is also to be borne in mind that many persons in quiet possession of land have bought i± under special or restrictive conditions of sale, which have precluded them at the time of their purchase from calling for strict or proper evidence of the title, and have limited them to some short period of the title in their investigation of it. It would, we think, be highly unjust to call upon persons in such a situation for strict and technical proof of their title, such as alone any public authority charged with certifying titles ought to be satisfied with. 3. Registration of every dealing with land may be rendered as essential to perfect such dealing as any other solemnity which is required for the legal alienation of land. This is another description of compulsory registration. We think however, that it is unnecessary, to adopt any such principle of compulsion. Except so far as the object of securing a register of the ownership for the protection of purchasers requires registration, dealings with land not perfected by entry on the register ought to be allowed to have effect. 4. Registration may be rendered necessary in order to obtain priority for a transaction affecting land as against another transaction relating to the same land which may claim the protection of the register ; in other words, as between two transactions affecting the same lands, priority may be given to that which is first entered on the register. With reference to registration compulsory in this sense it has been urged, (b) on the one hand, that by not making the original registration of title compulsory the gradual adoption (if it shall take place) of the system will be, so far, a test of its usefulness and suitableness to the condition and wishes of the country, whilst its non-adoption would render it innocuous. It

Certain preliminary questions stated.

First question (compulsory registration) considered.

(a) Mr. J E. Walter's evidence. (6) Mr. J. B, Murphy's evidence.

19

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Sale and Transfer of Land. It is further said that, considering that the measure is novel in its character as well as in its operation— considering the advantages of gradually introducing it, instead of incumbering the registry office with a mass of applications which it would be difficult to get through—considering that the main object of establishing such a system is to obtain, if possible, a facility of transfer which many persons whose properties are kept in a course of settlement may not desire immediately to possess—and considering that the change is sure to recommend itself if it is likely to be followed by those benefits which are anticipated, it would be advisable, at least in the first instance, to make the registration purely voluntary. It is said, on the other hand (a) that there should be one law for the whole country, and that it would be a highly objectionable system to propose that some purchasers may bring their estates within the pale of registration, and others, at their option, remain unaffected thereby. It is also urged that a main benefit of the system will be lost, if the register should not be the sole and conclusive evidence of dealings taking place after the establishment of the register, or if, as to such dealings, a retrospective investigation of the title by purchasers should in any class of cases be necessary. Generation after generation (b) might pass away in the successive enjoyment of property without any assertion of title on the register ; and when made, some thirty, forty, or fifty years hence, it must either be clothed with a parliamentary or other warranted title, or else after that lapse of time a retrospective investigation of title would be needful. The conclusion to which we have come on this point, though not without some difference of opinion, is that registration shall not, at any rate in the first instance, be necessary to a transfer of the fee in order to obtain for it preference or priority over any subsequent transfer which may be brought to the registry for completion. 5. Another mode in which registration may be made compulsory is to require that, as to al land once voluntarily put on the register, the subsequent dealings and titles should be always continued on the register. In this sense we concur in thiukiug that registration should be compulsory. XLVIII. With reference to the second of the questions above pointed out, we think that the observations already made, showing that applicants for registration ought not to be required first to submit their title to judicial scrutiny, are sufficient to prove the objectionable nature of any scheme of registration which should profess to confer at the outset a parliamentary or unimpeachable title. It would, we think, be oppressive, either on the one hand to require claimants out of possession to come forward, and make assertion of their rights, in order to avoid losing them, or, on the other, to put the persons in possession to the defence of their rights, as against any stale claims or assertions of right that might be set up. We do not think that in order (c) to pass from our present system to a register of title it would be necessary, as has been suggested, to create a jurisdiction in commissioners, applicable to all land, whether incumbered or not, similar to that of the Incumbered Estates Court in Ireland, by which an absolute or parliamentary title to the land, subject to leases or tenancies, should be declared. On the contrary, we concur in the opinion of one of the witnesses (d) who has given evidence before us, that to make a judicial or quasi-judicial examination of title an indispensable preliminary to admission to the register would greatly narrow the benefits of registration. The expense alone of the examination would exclude nearly all small properties, and the trouble and expense combined would exclude many others. Defective titles would necessarily be excluded; and we do not see why a defect in the title to land anterior to the introduction of registration need deprive that land of the benefit of an improved mode of transfer subsequently. We think that a registration founded on ostensible or possessory ownership should be permitted in the first instance, and that on such a registration the antecedent title might be left to be the subject of investigation, until by lapse of time or otherwise that investigation should become unnecessary. XLIX. The next question we have to consider is, whether interests existing in land before the time of the first registration of the land shall be in any manner affected by the operation of the register, after the lapse of any given period or otherwise. It has been strongly urged upon us (c) that if the provisions of the registry should operate upon the subsequent title only, and if the old title should be left open to investigation for the full period during which it is now liable to be affected by latent rights, the utility of the registry would be wholly lost to the present generation. On the other hand, it is said that any one who by the existing law has an interest which he might set up, supposing there were no registration of the ownership, ought to be allowed the same period of time and the same opportunities that he now has for asserting his right, though the effect of his claim might be to disturb and undo the existing registration at a remote time subsequent to the commencement of the registry. The question hence arises, whether the principal benefit of the proposed system, which is the avoiding the necessity for retrospective investigation of the title, may not be secured by fair and reasonable provisions at some period earlier than the full time when all possible claims existing anterior to the registry would, by the existing law,

Second question (Parliamentary title) considered.

Third question (pre-existing inteiests) considered.

(a) Mr. Kettle's evidence (6) Mr. Dugmore's evidence, (c) Professor Hancock's evidence, (rf) Mr. Macdonnell's evidence. 0) Mr. Commissioner Longfield's, Mr. J. B. Murphy's, Mr. Dugmore's, Mr. Meadows White's, and Mr. Farrar'i evidence.

20

Sale and Transfer of Land. law, have expired or become barred. We have been reminded (a) that if the legislature should adopt such a rule it would be only following an analogy furnished by their predecessors. A statute of Henry 7th gave to a fine levied with proclamations after five years a conclusive effect. The proclamations were nevertheless in practice a mere fiction, and gave no real notice to others, and the period of five years was adopted at a time when communication was difficult and intercourse confined. The effect of a fine with proclamations remained in force until the Act was passed abolishing fines and recoveries ; and it is said that its abolition by that Act, without a substitute, has been frequently regretted. It is contended that in the present day we have need, for the purposes of commerce, of the same policy which for different purposes and in a ruder state of society animated feudal tenures : and that the course of years has brought us round again to feel a want somewhat analagous to that felt in the early, period of our history, though with different aims. It has been further urged, (b) that if provision be made for the due publication of the registration or the application to register, the registration ought to be allowed to attain its conclusive effect, after the lapse of some period shorter than is now required by the general Statutes of Limitation to extinguish dormant rights; in other words, that the title if not impeached in a given time, say a short term of years, after the title is put upon the register, and full notice of it published, might pass into an absolute and unimpeachable title, at least for the purposes of sale, and thus retrospective investigation of the title avoided in the case of a sale to a purchaser. Those who entertain these views consider, however, at the same time, that all parties, or their trustees, should have the power or right, within the prescribed period, to show cause against the title, and should not be obliged to wait until their interests are reduced into possession ; and further, that, with the view of justifying and facilitating the application of such a provision, some moderate evidence of ownership sufficient to exclude the hypothesis of fraud, should be adduced by every applicant for registration. The conclusion, however, to which we have come, though with some difference of opinion, is, that interests created in land before the commencement of registration should not be adversely bound or affected by the mere registration as such, but should be allowed to be claimed, notwithstanding the registration, within the period now fixed by the Statutes of Limitation. L. We next proceed to consider whether registration of the legal ownership will be compatible with due protection of the equitable or beneficial interests in land. It has sometimes been supposed that any system of registration of title will require a decision as to which of certain principles alleged to be irreconciledble touching the theory of disposition of landed property ought to prevail ; whether, on the one hand, the stability of settlements, or, on the other, the safety of buyers, or, in other words, the protection of families or the marketability of land, ought to form the paramount consideration. After mature examination, however, we have been led to the conclusion that no such dilemma is in fact involved in the institution of a registry of title. Were we to allow, however, that such a difficulty does in fact present itself, we should be able to rely (as has been well remarked (c), on our ancient law as affording for the present purpose a wise and useful precedent ; for just as the feudal law required that the freehold should always be filled by one capable of contributing to national defence, and performing the duties of a feudal follower, so the spirit of commerce now demands that for its purposes also the fee simple in land shall always be represented and be in the possession of persons capable of fulfilling those new duties and offices which the ownership of land in the present state of society entails or involves. As regards the sale and transfer of land, it is clear (d) that much good would not be obtained by merely registering the fee, or, in other words, the legal title, unless the purchaser could dispense with inquiry into the equitable title, with its incidents. Unless a purchaser be protected from inquiring int trusts, there will not be any advantage to him. In other words, (c) if trusts and limitations are to continue to form part of the title in all respects as they now do, the registry of title will be useless, or at least not worth the danger and difficulty attendant upon the introduction of a new system. The question then is, (f) whether the present system of settlements can be modified without materially interfering with the nature of quantum of interests commonly created by them. Any material interference with the nature of such interests would be objectionable ; but, under modified forms, the system may, we think, be continued consistently with the objects contemplated by a register of title. Equitable interests and trusts cannot, (g) consistently with the objects to be attained by registration of title, bind or affect the ownership of a registered purchaser, unless such interests are of his own creation ; but they may be allowed to confer a right against the land whilst in the possession of the owner who created the trusts, or in that of his representative, or volunteers claiming under him. When the

Fourth question (protection of beneficial interests) considered.

(a) Mr. Dobbs, on the best means of giving increased facilities to the transfer of land. (b) Mr. Clifford Lloyd's evidence. (c) Mr. Dobbs, on the best means of giving increased facilities to the transfer of land. (d) Messrs Nicholl and Smyth's evidence. (c) Mr. Commissioner Longfield's evidence. (f) Mr Dugmore's evidence. (g) Professor Hancock's evidence.

21

D—l

Sale and Transfer of Land. the land is sold without fraud, the equities and trusts must be transferred to the funds arising from the sale ; and so the purchaser will take the lands discharged of the trusts. But they may be protected on the register of title by the trustee of the family settlement, or by a trustee named by the Court of Chancery, and sales by the settler or the trustee in contravention of the trusts may be prevented by entering an inhibition or caveat. Thus the existing system of settlements, by which the limitations and trusts of the settlement modify and become part of the title, will be unchanged under a registry of title, so long as the land continues in the possession of the settler or volunteers claiming under him, or the trustees of the settlement. Upon a sale without fraud, these limitations and trusts will attach to the funds arising from the sale. It has been suggested (a) as another mode of providing for equitable interests, that where a person beneficially interested enters an inhibition or caveat, it would be a convenient mode to enter the name and address of such party in the principal register, with a reference to a distinct register in which the nature of the equity might be specified, and this latter register would be in the nature of a register of trusts, and the legal title could thus be kept distinct from that relating to the equities. This corresponds to the suggestion already made, that in erder to perfect the system of registration it may be expedient hereafter to establish a subordinate register of equitable and secondary estates, independent of the principal registry of the fee. We are aware that it has been objected (b) to the portion of the proposed system now under consideration, that partial and equitable interests constitute a very large proportion of landed interests, and that while to require them to be registered would be to sacrifice the simplicity of the register, to exclude them from the register would be to jeopardize them, by placing them at the mercy of the registered owner, except so far as the persons entitled to such interests might become active in using the allowed means of restricting his power of disposition. It is remarked with truth, that the owners of these interests may now remain passive, and yet be sufficiently protected. It is therefore contended, that to deprive them of their present grounds of security, and substitute the necessity of taking active measures, by distringas or otherwise, to protect themselves from improper dealing on the part of the registered owner, would be placing such owners in a new and critical condition, requiring much intelligence and caution, and would tend greatly to diminish the value of these numerous and very important interests, which are themselves constantly the subjects of sale and transfer. A settlement of land, it is said (c) would, under such a system, come not to differ practically from a settlement of a sum of stock, which would be felt by some to be an evil; many preferring an interest in land, because to use a not uncommon expression, " while they are sleeping land cannot run away." We may remark, however, in reference to these objections, that experience and existing practice will furnish the best answer to them. According to the modern practice of conveyancing, the apprehended danger has not been found to rise in analogous cases, were trustees are clothed with as large powers as they would have under the proposed system. That practice has especially been directed to avoid the embarrassment of a complicated system of trusts, which, by the rules of equity, fasten themselves on the land, and provisions are constantly inserted (d) in settlements, to render it unnecessary that purchasers or mortgagees, when dealing with trustees should be forced to see to the circumstances under which the trust is performed, or the maimer in which the proceeds are applied. For example under the present system most well-drawn settlements of landed estates contain clauses empowering the trustees to sell, with the consent of the tenant for life, if he be living, but if he be dead, at their sole discretion, and to give absolute discharges for the purchase money; and yet no sales, excepting those within the object and provisions of the trust, are ever heard of. Again, this principle is carried so far that the property is often conveyed to the trustees by one deed, while the trusts are declared by another. And what is the object of these complicated proceedings, except that the trustees may appear to the purchasers, or be treated by them, as absolute owners, and that those purchasers need not know anything of the purposes for which they hold the property? Again, under the present system of conveyancing, a mortgagee has usually a power of sale, which he may exercise without the concurrence of the mortgagor; but experience has shown that this power is very rarely abused, and it is uniformly given without hesitation. We therefore think that the practice (c) of inserting powers of sale in settlements and mortgages proves that the proposed scheme of registration, when properly understood, will not be considered objectionable by landowners. Nor should it be forgotten that there are millions of money in the funds, and in railways, canals, docks, and other undertakiags, left to a great extent in the names of trustees, and yet it has been found that property so circumstanced is practically safe. Can it be believed that what is safe for beneficial interests in such property, when prudently looked after, will be otherwise than safe when applied to land, especially if there are thrown over it those additional protections which we recommend in this Report? With such protections, prudently claimed and carefully acted on, we conceive the answer must be in the negative. And if any further proof were

(a) Mr. Warner's evidence. (6) Mr. J. T. Humphrey's evidence. (c) Mr. Alfred Bell's evidence. (d) See on this subject the Report of the Registration and Conveyancing Commission, p. 30, (c) Mr. Goo Sweet's evidence.

22

Sale and Transfer of Land. were needed, we should find it in the fact that the legislature itself has recognized (a) the principle upon which we proceed, and applied it to property in British ships, as may be seen by the recent Statute for amending and consolidating the Acts upon that subject. It may also deserve remark, (b) with reference to the supposed objection arising from the risk of fraudulent sales by trustees, that the contemplated sale of land is usually known to tenants and other persons in the locality, and is therefore less likely to be effected by fraud than transfers of stock. LI. The remaining question is, whether the register shall be a metropolitan or provincial one, or, in other words, whether it shall be central or local, or both central and local? Or, to put the question more accurately, shall there be— One central register for the whole kingdom; or, Several county registers for the several subdivisions of the whole kingdom; or, One central register for the whole kingdom, with branch offices in the principal towns throughout the kingdom? A central register for the whole kingdom would of course, be established in the metropolis; county registers would probably be in the largest, or most central, or most generally accessible town in the county. The advantages of a metropolitan register over county registers have been stated to be the following: — Ist. Under a metropolitan register a uniformity of system throughout the whole kingdom would be established, which would hardly be attainable, or at any rate maintained, in several county registers. 2nd. One metropolitan register would be much less expensive than from fifty to sixty county registers. For in each county register there would necessarily be an efficient registrar, and a deputy competent to discharge the duties of the registrar during his absence from illness or other inevitable cause. 3rd. One metropolitan register, under the superintendance of a registrar of high professional attainments and experience, and efficient deputies and subordinate officers, would inspire more confidence on the part of the landowners of the country than several county registers would do. 4th. The registers of judgments, bankruptcies, and insolvencies must necessarily be metropolitan. sth. The suggested system of distringas would be more efficiently worked, and uniformity of practice would be more securely preserved, in one metropolitan register than in numerous county registers. 6th. A metropolitan register would be less expensive to parties employing solicitors resident in the country. Every solicitor in the country, without exception, has an agent in London with whom he is in daily confidential unreserved communication, and no additional expense, or the smallest additional expense possible, is occasioned to the client by reason of the employment of a London agent. The remuneration of a solicitor is on a fixed scale, and, as to the business transacted by the agent, the remuneration is divided between the agent and country solicitor. They are, as regards the particular transaction, very much in the position of partners residing in different towns. Through his London agent, therefore, the country solicitor might obtain from the metropolitan registry all the required information, at the same cost to the client as if the register were in the town where the country solicitor practised. But the country solicitor rarely has a confidential agent in any other place than London and if he does not reside in the register-town he would be obliged to employ a local solicitor, or to make a journey to the registry for the purpose of search or registration, and it would often happen where secresy was desired, that he would find it his duty to incur the expense of a journey. 7th with county registers it would constantly occur, that solicitors in distant parts of the country as well as solicitors in the metropolis, would have no knowledge of the solicitors in the particular town where the country register might be. Many of the solicitors in large practice in London have clients who are landowners in many of the counties in England, and they would be much inconvenienced and embarrassed by a system of county registers. Bth. The ordinary communication between London and country towns, to say nothing of the telegraph, is often much more rapid and regular than between one country town and another, and of course the postage of letters is the same, whatever the distance may be. It

Fifth question (Metropolitan or Provincial Office) considered.

(a) See 17 & 18 Vict.c. 104. . 30, &c. (b) Professor Hancock's evidence.

D-l

23

Sale and Transfer of Land. It has, on the other hand, been urged (a) that the registrar ought to be charged with the duty of ascertaining the accuracy of the description and identity of the land, and that to ensure this a local register would be indispensable, and that a union of the two systems would be at once practicable and desirable. With reference, therefore, to the question whether the office should be a single metropolitan office, or whether it should be subdivided into various provincial offices, our opinion is, that both suggestions may be combined with great advantage. The principal office should be situated in London; but local or district registries should be also established. We now proceed to state the leading particulars of the registration we recommend. As to Registration of Title. Leading particulars of the Plan recommended. LII. A land register and transfer office for England and Wales will be established in London under the management of a Registrar-General ; and branch offices will be also established in different districts throughout the kingdom, subject to the orders and regulated by the authority of the RegistrarGeneral. LILT. The registration will extend to all corporeal hereditaments, except copyholds, and to advowsons and rentcharges, except perhaps tithe rentcharges. LIV. After the establishment of the office, all owners or proprietors of land who have the right of possessing or the power of disposing of it in fee simple, will be at liberty to apply for the registration ol the ownership thereof ; so that such ownership, or the title to the land which is the subject of the same, may thenceforth be manifested by the register alone. Supposing this to be accomplished safely and with prudence, the effect of the register, when in complete operation, will be to render it unnecessary, in dealing with land, which has so been registered, to look beyond the last ownership appearing on the register, and thus the expense of long investigations of title—of deducing that title through numerous assurances, pedigrees and devolutions—of requiring covenants for the production of deeds in the hands of third parties —of lenghtened abstracts, recitals, and conveyances —will, on the occasions of future alienation, as the register advances, be gradually diminished, and eventually he altogether avoided. Two difficulties, however, here arise : the one, in first bringing titles on the register ; the other in protecting the different interests and incumberances which may now be derived out of or charged on, the fee simple of land, and connecting them with the registered ownership. We have endeavoured to remove both these difficulties. LV. Registration of title is proposed to be twofold ; one which shall at once enable the registered owner to transfer the estate with a present or immediate statutory title ; the other, registration of actual ownership, without the power to transfer an immediate statutory title. LVI. In the second of these cases, that is, in the case of registration unattend with immediate statutory title, the parties applying will be required to produce before the registrar a declaration on oath stating that they are in the actual enjoyment of the rents and profits, and that they believe themselves to be absolutely entitled to the land in fee simple free from all incumbrances, or subject only to such incumbrances, as are distinctly specified ; and they will also be required to produce, where it can be done, the last instrument of conveyance of the fee simple, or such other evidence as the registrar may find it necessary to require, with the view of excluding fraudulent claims. Powers will also be conferred on the registrar to give such public and other notices as he may deem necessary of the intention of the parties to have the property registered, in order that they may not wrongfully procure a registration which may be detrimental to other persons. But where the title to lands has been ascertained by decree or judgment of any Court whose jurisdiction is competent to determine the right, there the production of such decree or judgment by the person in whose favour it may have been made, or the order of the Court consequent thereon, will alone be sufficient' to authorize the registrar to register the ownership of such person, subject to the necessity of making such declaration and serving such notices as above adverted to. LVII. Registration with immediate statutory title will take place in those cases where the owner of land desires, not only to obtain a title which, with regard to the future, will be manifested and established by the register alone, but a title which with regard to the past cannot be disturbed. We have already adverted to this part of the subject, and we have stated, for reasons which we neednot repeat, that the suggestion of a guarantee or warranty of title is in our opinion most valuable. In this class of cases (b) it will be lawful for the parties seeking registration with the benefits of a warranted ownership to apply to the registrar to have the title investigated with that object. In such cases, it will be right the registrar should cause the title to be fully investigated, at the expense of the parties, by council and solicitors ; and

! The Office, t

. The kinds of property. • General right of owners in fee simple to obtain ' xegiatration. 1

. Two kinds of registered owner - ship.

Prevention of improper attempts at registration.

. Registration i with wartanted 1 title. See paragraph ..XXX. ) » 1

(a) Mr. J. Meadows White's evidence. (l>) Mr. HeaJlam objects to the system of warranty. See his paper at the end of this Report.

24

Sale and Transfer of Land. and if he shall be satisfied on their advice that the title is a good one, then, on the payment of a small premium, to be calculated by way of a per-centage upon the estimated value of the property in question he will register the ownership as a warranted one, either in the name of the party applying, or, if the party applying shall prefer it, then in the name of such persons as he may nominate for that purpose. Since the guarantee of the title will be given by a public officer, the premiums payable by the party obtaining such guarantee will be paid into the Fxchequer ; and the Consolidated Fund will be liable to make a fair and reasonable compensation to any person who may within the period allowed by law establish a claim in respect of the estate, the title to which has thus been registered with a warranted ownership. A similar provision will also be extended to those cases where land is sold under the decree of a Court, subject to the payment of similar premiums, and to the title being examined and approved of in a similar manner, (a) It may here be mentioned, that the suggested warranty has to some extent the advantage of precedent in its favour. For when lands are sold (c) by the principal officers of the Ordinance department, Parliament has empowered them to give to purchasers a clear and indefeasible title, making compensation to those persons who can establish, within a limited period, any legal or equitable right to the property. LVIII. In both the above cases, for the convenience of parties, as evidence of their title to the property registered, and for other purposes which we will hereafter refer to, a certificate of the fact that it has been registered will be delivered by the registrar to the party applying; and this certificate duly authenticated by the seal of the office, will be a certificate either of warranted or unwarranted ownership, as the case may be. It will be advisable that this certificate should state on the face of it the name of the registered owner, the lands registered, and the incumbrances (if any) to which they are subject. It will also contain a reference to the indexes which relate to the entry thereof in the books of the registry. LIX. The general effect of the kind of registration here recommended will be, that for the purposes of transfer, the registered ownership will at all times represent the fee simple of the property, and, as such, it will not be capable of any sub-division or modification into partial or limited estates or interests, except so far as charges and leases may also be admitted to the benefit of registration under the provisions, which we shall presently mention. LX. The right to dispose of and transfer the ownership of land in fee, including the right to charge and lease the same, will belong and be incident to, and in fact be taken as forming part of the registered ownership. LXI. When the registered ownership has not been warranted, it will be subject to such rights and interest as existed in or were capable of attaching upon the property at the time of the first registration, but it will not be subject to any rights or interests arising or created at any period subsequent to the time when the first registry was effected, except charges and leases admitted to the register, and except interests protected by caveat or inhibition, as afterwards mentioned. Thenceforward the title to the property, for the purposes of transfer, will be manifested by the register, and by that alone ; and so eventually the only title to land which a purchaser need examine, will be the last transfer as the same is recorded in the registrar's books. At the commencement, indeed, the validity of the title of the first registered owner will still depend, as it does now, on the validity of the title of the party by whom the transfer has been made. But as time passes on, this title will gradually strengthen itself, until it has reached a period which, under the operation of the Statute of Limitations, will make it complete, and mature it into an unimpeachable statutory title. Year by year the purchaser will be brought nearer and nearer to this result, and so the expenses which attend the retrospective investigation of title will be gradually diminished, until they reach their minimum point. LXII. When the registered ownership is a warranted ownership, the special advantages to be derived from this system of registration will immediately follow. In such cases the registered ownership will be subject only to other registered rights, and will he exempt at once from all latent claims and interests which may have been created previously to the time when the property is registered. The registered owner will therefore have, forthwith, for the purposes of transfer, a simple, complete, and indefeasible title. Such a result will tend, not only to diminish the expenses attending the transfer of land, but also to increase the value of land as a marketable commodity; for the value of 1 and when offered for sale is not merely to be measured by the purchase money paid, but likewise by the costs which the vendors and purchasers must necessarily incur in deducing the title and ascertaining its validity. In proportion as these costs are diminished the value of the land will be raised. Great as these advantages unquestionably are, they are not the only advantages which may be expected from a system of warranted ownership ; for a well-devised scheme of warranted ownership will afford so perfect a security to titles that no latent

Certificate of ownership.

General effect of Registration.

Right of disposition incident to the registered ownership. What unwarranted ownership free from, and what not.

"What warranted ownership free from.

(a) Mr. Napier approves of the proposal to make decretal titles under judicial sales, indefeasible ; but objects to a warranty by the Registrar as above. (A) See 5 & 6 Vict- c 94- ss- 5 to 15.

D—l

25

Sale and Transfer of Land. no latent interests, no dormant trusts, no fresh claims, which may have been concealed or overlooked, can possibly interfere with the enjoyment of the purchaser ; and the land will be as clear from all rights, other than those which are actually registered, as stock which is purchased in open market. LXIII. The registered ownership whether warranted or otherwise, will at all times represent for the purposes ..f transfer, what is usually known as the fee simple, subject to such charges and leases as may be admitted to the register, and in the case of ownership not warranted, to the title antecedent to : the first registration. In other words, the register will be a substitute for the documentary or parchment title. But the registered ownership, whether warranted or otherwise, will remain subject, as the fee simple now is, first, to such other rights as are not usually included in the abstract of title (a) that is to say, those rights which are incident to the property in a physical rather than a legal sense, and those which arc presumed to attach on all landed property ; and secondly, also to such rights as may be ascertained by inspection on the land itself, or by inquiry of the occupier. Under the first_ of these heads we include all easements, such as rights of water, rights of way, rights of sporting, and rights, to light, and those interests which are denominated inlaw profits a prendre, and tithe rentcharges, land tax, and other taxes and rates of a general character ; under the second we include short leases at rackrent where the lessee is in actual occupation of the premises. These are rights which are commonly evidenced by known usage or continued enjoyment, or may be ascertained on the spot by inspection or inquiry ; and the title to them is generally so independent of the documentary title to the property that they will necessarily form a partial exception to that which will constitute the registered ownership, whether warranted or not LXIV. It may be convenient, before quitting this branch of the subject, to point out as one of the effects of such a system of registration the great facilities which it will afford to landowners to obtain loans for temporary purposes. The possession of the certificate of the registered ownership, as an equitable security for money advanced, will confer the same privileges and be attended with the same rights as those which are derived from the possession of title deeds under a deposit. And it can hardly be doubted, that for the security of those who advance money under such deposits the assurance that_ there could only be one title deed to the property pledged would be of much importance. In transactions of this kind, the lender is always liable to be imposed upon by the suppression or concealment of some particular deeds which may qualify the borrower's right, and we threfore concur in an opinion expressed by one of the witnesses before the Select Committee of the House of Commons (b) that "it is probably not too much to say, that there is no point on which the proposed registration of landed property would work better than in improving the security of lenders on deposits of title deeds, and, consequently, so far as facilities in borrowing inexpensively may be deemed advantageous, in facilitating the obtaining of loans on such deposits. LXV. The second difficulty to which we have adverted is the difficulty of providing an adequate security for those interests which are not of a nature to be admitted to the register. _ The ownership of land, whether registered or not, will still be subject to various derivative or beneficial interests which will require protection. The distinction between legal and equitable interests is not a mere technical distinction. It is a matter of fact. Its continuance is necessary for the full enjoyment of property. So far as the interests of purchasers exclusively are concerned, it would be better, no doubt, that the vendors or registered owners should in all cases be the sole owners, both at law and in equity. But the beneficial ownership or equitable estate being often divided between several persons, the right of present enjoyment being in one person, and the right of future enjoyment in another, and the person who is entitled to the present enjoyment being sometimes a minor or under other disability, and the person entitled to the future enjoyment being sometimes unborn or unascertained, a necessity arises which must be attended to, of protecting interests such as these, which would still be unregistered, against the unjust acts of the registered owner. Occasionally it has been thought that the equitable interests might be put on the register; but if that is done, it is demonstrable, as we have observed in a previous part of this Report, that the advantages of a registry of title would soon be lost, since it would become m fact little else than a registry of assurances, and a very imperfect one. The protection must be provided in some other mode, and we think it may be obtained in various ways. LXVI. Where the parties to a settlement desire it, they will have the power of registering the property in the names of two or more persons as registered owners, with a short note (the words "no survivorship" will be sufficient), intimating that in the case of the death of either, the jus accrescendi is not to have place (c) The effect of this will be, that if one of the registered owners die, no alteration of the ownership can be made until his place is filled up. And as the prevailing instances of fraudulent or improper alienation of stock are those where it has developed upon one trustee, this simple provision (which will completely prevent the devolution of the registered ownership upon a smaller number of persons than those first registered) will operate as an almost perfect protection to all parties who have or may have any kind of interest in the registered land under any settlement of which the registered owners are trustees. VITTT . LXVII. As a

What registered ownership, whether warranted or not, will be subject to.

Facility of obtaining loans.

i Mode of protectp ing unregistered interests. 1 1

n Same subject. No survivorship J between regis- ■> lered owners. 1

(a) See Mr. Commissioner Ilargrcavo's evidence. . , (6) See Mr; Bullar's suggestions aud notes in Appendix to the Report of Select Committee on Registration of Assurances Bill. ,•«,,, (c) See Mr. Commissioner Loagfleld s answer to question 24.'

26

Sale and Transfer of Land. LXVII, As a further protection, those parties who are entitled to any unregistered Interest which, as the law now stands, would render their concurrence necessary in a sale of the fee, will be at liberty to enter in the registry a caveat (a) or inhibition against the transfer of the registered ownership. This caveat or inhibition may and ought to be of various kinds, or various in its operation, so as to adapt itself to the different circumstances under which it will be required. To prevent abuse, it will be lodged at the register office, only under proper sanctions, such as the consent of the registered owner, or the order of the Court of Chancery, if the registered owner improperly refuse to give his consent; and to secure protection suited to the various conditions of settlements, the caveat or inhibition will be allowed to be so framed as to prohibit the transfer of the registered ownership either for a time specified, or during particular lives, or until the occurrence of a stated event, or without the concurrence of certain parties who for that purpose may be named or referred to as protectors, or under any other condition conformable to law which the parties themselves may think fit to impose. The simple effect of such a provision will be, that as long as the caveat or inhibition remains, the registered ownership cannot be alienated without the permission of those whose consent will be thus rendered necessary; but if all these parties desire a sale, that consent can previously be obtained, and so the purchaser will always be able to contract for the property, on the express condition, or with the absolute certainty, that he need not move in the matter until the title has become perfectly clear of the equitable interests thus interposed, (b). LXVIII. When it is remembered that the protection thus afforded to the beneficiaries of land will be greater than that which is now afforded to the beneficiaries of stock or railway shares, there can hardly be a doubt that—taken in connexion with the fact that, except as against purchasers without fraud, the beneficial interests will continue as now to affect the land—these various methods of protection will be found sufficient, If it be suggested that fraud may still be practised, the answer is that there will still remain the remedy by suit, by injunction, and by account. For it is to be observed, that an unregistered interest will entitle the beneficiary to enforce the performance by the registered owner —not being a purchaser—of such duties as properly ought to be observed and performed by him; .and for that purpose, but for that purpose only, those duties will be deemed to be trusts cognizable like other trusts in the Court of Chancery, and determined like other trusts on the principles of equity. LXIX. Where the registered owner shall be a person named such for the purposes of any settlement, then, as between such registered owner and the beneficiaries interested under the settlement, ho will not be at liberty to retain the registered ownership, or to remain on the register as registered owner for any longer period, or under any other circumstances, than according to the present rules of Courts • of Equity, he would be entitled to retain the legal estate if he were a trustee of the fee upon trusts similar to the provisions contained in such settlement, and he will be bound to make a grant of the . registered ownership to such person as may be named in that behalf by the beneficiaries. LXX. In order to keep up the chain of title, and to prevent the difficulty which might arise upon the death of any registered owner in obtaining a transfer, we think it will be convenient that for the purposes of this measure, as well as for the purposes suggested by the Chancery Commissioners, a real representative should be appointed, upon whom the registered ownership shall devolve. This representative will be ordinarily the executor; but where an executor has not been named, or where he has died or renounced probate, power will be given, to the parties interested to apply to the registrar or to a judge to supply the place of the deceased registered owner, and to enter the name of some proper person in his stead. LXXI. We have already intimated that, in our opinion, no plan of registration will be acceptable or desirable, unless it leaves substantially and practically to the owners of land, the same powers of disposition and enjoyment, and means of protection and security, as those which they possess under the present system. The plan recommended will secure this object; for, subject and in subordination to the registered ownership, qualified and explained as we have mentioned, the owners of land, or of the unregistered interests therein, will be at liberty to settle, devise, and deal with the same, for the like estates, to the like extent, and generally in the like manner, as by the rules of law and equity they would have been entitled to do if the registration of the ownership had not taken place, All the rights of tenants for life, or other persons, having partial interests, will be left unaffected and undisturbed; for the registration will not interfere with the right of beneficial enjoyment and management of the land, and the property cannot be dealt with by the registered owner except when a transfer is by the absence of a caveat impliedly permitted. It may also be observed, that such a system will have the effect of keeping private, all family arrangements, while it will continue the enjoyment under them, and provide for their security ;

Same subject. Caveats to prevent sale without consent.

Same subject. Injunction by Court,

Registered owner, where only a trustee, not to retain the registered ownership as against the beneficiaries after trusts satisfied ; but this not to affect purchasers. On death of registered owner his executor to be the new registered owner, or a new registered owner to be appointed.

All powers now possessed by landowners left untouched.

(a) Mr. Scully considers that more convenient modes of protecting unregistered interests might be provided than the proposed caveats. See his paper at the end of this Report. (6) It has been suggested that it might be lawful for tho parties interested in the trusts of any settlement or will, to deposit privately with the registrar a copy of the settlement or will at the time when tho lands which are or may be the subject of such settlement are entered on the register, with a private instruction that no transfer shall be afterwards made of the registered ownershin without the consent of the parties who for the time being may be interested or who may have power of consenting under the settlement or will, or otherwise than under and in conformity with the powers of the settlement or will.

D—l.

27

Sale and Transfer of Land. security; so that the advantages of trusts and settlements will be effectually preserved, while the title will not be incumbered, nor the transfer impeded, by any notice of such trusts or settlements. The provisions necessary to prevent alienation against the will of those who are entitled to say that tlie property shall not be sold, will not involve any such notice. LXXII. Registered transferees without valuable consideration will be subject to the claims of the persons interested in the unregistered ownership, in the same manner as their transferror would have been; but this can be so provided for as not to affect registered purchasers from volunteers without fraud; and a further provision can be added, that it shall not be necessary to inquire whether the registered owner acquired his title as a purchaser or not. LXXIII. We propose that fraud in obtaining a transfer of the registered ownership shall defeat the title of the person who becomes registered owner by fraud ; but that notice of unregistered rights shall not merely as notice have any such effect. We think that though the purchaser, in the course of his inquires, or before he concludes the purchase, has notice of any claims upon the estate, it will not be unjust to deprive the parties interested in such claims of their rights in favour of such purchaser, if their rights are not protected upon the register. We do not agree (a) that any attempt to exclude the application of the doctrine of notice would prove abortive. We are not aware that it has been said that the Judges would, notwithstanding any law to the contrary, in the course of time, contrive some means of neutralizing any enactment which went to exclude the doctrine of notice, just as our Courts of old contrived to prevent the Statute of Uses having , the effect intended by the Legislature ; and that to abolish the doctrine of notice altogether would be contrary to every principle of justice and equity. After full consideration, however, we cannot adopt these views ; but, on the contrary, we concur generally in the reasons adduced by the Real Property Commissioners, in their Second Report (b), in favour of excluding the interference of Courts of Equity on the ground of notice. LXXIV. In determining the provisions necessary for securing a proper description of and the means of identifying the lands admitted to the register, it will be useful to bear in mind (c) that in every investigation of title, there are three important questions to be attended to, viz.—First, Whether the title deeds disclose a clear title to the lands described in them ? secondly, Whether in that description all the lands intended to be dealt with are truly comprised ? and thirdly, Whether the actual possession of the lands is consistent with the title as so disclosed ? Now looking at the plan which is here recommended, it is clear that the difficulties arising from the first of these questions will be completely met when the register is in full action ;for a purchaser will not be under any necessity of requiring and examining documentary evidence, the register alone, for purposes of transfer, manifesting at once the title to the lands which form the subject of the registered ownership. With reference to the third point, it will still be necessary that the possession of the lands should be inquired into by purchasers, lest it should be adverse to the registered ownership. The second, however, of these questions we have here more particularly to consider. We have intimated our opinion that, although the compulsory formation of public maps would be open to many and grave objections, yet the use of a map properly authenticated for each individual property, together with the customary verbal description, would probably furnish the best means of describing and identifying the land, and indexing it correctly. Tα accomplish this object in the fullest manner, we accordingly recommend— 1. That the Registrar shall have power to require the description of the registered lands to be stated and set forth in such form and manner as he may deem to be best fitted for the purposes of registration. 2. That at the time of registration it shall be lawful for the registrar to require the parties applying to be registered as owners of any lands, to produce a private map or plan of the lands proposed or intended to be registered ; and that such map or plan shall be made on such scale and contain such particulars for identifying the same with the property registered as the registrar by any general or special regulation, may in thai behalf require. 3. That before the registration of the ownership of any land, the private map or plan so produced by the applicant shall in every case be referred to in the description of the lands required to be entered on the register itself. 4. That the registrar shall also be empowered to require, at the time of registration, that the property proposed or intended to be registered shall contain a reference in the description given of it to some public map to be kept in the registry. 5. That for that purpose he shall be at liberty to declare that the maps made under the direction of the Master-General of the Ordnance, the Tithe Commutation Maps, or any other Maps of the accuracy of which he is satisfied, shall be deemed public maps for the purposes of registration ; and if lie thinks fit, he shall cause copies or reprints of any parts thereof to be made, either on the existing or on an enlarged

As to persons be coming registered owners by gift. As to notice and ' fraud, f : i 3

> ■J Mode of describing and identu J Tying lands oa J register. f t

t , See paragraph, 1 XXXV.

(a) Mr. J. E. Walters' evidence. (b) Pp. 37-40. (c) See Mr. Cookson's paper, Appendix A. :

28

Sale and Transfer of Land. enlarged scale ; and such maps as are directed to be used for the purposes of registration shall be deposited in the registrar's office, and copies thereof published and sold in such manner and subject to such provisions as the registrar may direct. 6. And that, as the main object of the public maps will be to facilitate searches and references, the registrar shall be empowered to adapt the maps to the districts created for the purposes of registration, or to form the districts with reference to the number, quality, and description of the available public maps, so that each district may have its own public map or maps to which the parties seeking for information will be able to refer. LXXV. Having thus provided for the first registration of title to lands, for the protection to be given to unregistered interests, and for the mode in which the identity of the property may be ascertained, the provision to be made for subsequent dealings with the registered ownership by way of transfer, mortgage, or lease, will be comparatively easy. Beginning with transfers, when the registered ownership is in a single name, and unfettered by a caveat, that party alone can go to the registrar, and desire the transfer, on production of the certificate of registered ownership. When a purchaser has bought the land of the registered owner, the application of the one and the authority of the other will, on the production of the like certificate and a deed of grant, be sufficient for the purpose. And when the ownership has been guarded by caveats, the previous withdrawal of them, on the consent of the persons in whose names they are entered, or by an order of Court, will enable a purchaser, without any trouble or further inqniry, to see at once whether he can complete his contract. The transfer will be made by deed, and in a short and simple form, which the Act will authorise. On proper evidence being adduced before the registrar of the validity of the deed, he will enter in the register the name of the transferee in the place of the transferror. When that has been done the transfer will be complete, and will pass the whole fee simple ; and on the completion of it, the registrar will deliver to the transferee a fresh certificate of registered ownership, if the whole of the registered land has been transferred ; but if the transfer is confined to a part, he will deliver to the transferee a certificate of ownership limited to such part; and he will deliver to the transferror a fresh certificate of ownership, containing a description of the lands retained by him. The effect of such transfer will be, to give to the person registered an absolute title to the lands so registered for the purposes of alienation, free from all interests created subsequently to the first registration of the land. If the registered ownership is a warranted ownership, it will further be freed and discharged of all estates and interests whatsoever, excepting easements, registered leases, and registered charges ; but if the ownership has not been warranted it will be subject to any claims which existed at the time of the first registration, and have not since become extinguished or barred by time. LXXVI. With regard to incumbrances, we (a) think that the benefits to be derived from registration should be extended to the owners of charges upon the fee of land as fully as to the owners of the fee itself. The registration of charges may properly be subjected to the following rules :— 1. Every charge intended to be registered shall so be entered on the register as to show the name of the owner thereof, the lands upon which the same is made, the amount of money secured thereby, the rate of interest payable thereon, and the date of the instrument by which it is created. 2. Every such charge shall also be entered under some proper sanction, such as the consent of the registered owner to the registration thereof, or the order of a competent Court decreeing or directing the same to be registered. 3. On the registration of such charge the registered ownership will be subject to the legal rights and powers incident to the charge, and either may be transferred independently of the other. 4. A certificate of the charge will be given by the registrar to the party applying to register the same. 5. The priorities of all charges shall be determined exclusively according to the dates of their respective registration. 6. Unregistered charges shall only take effect as unregistered interests, but may be protected in like manner as unregistered interests. LXXVII. The benefit of registration will also (V) be conferred on the owners of leases for the term of twenty-one years and upwards. The registration of leases will be subject to the following rules :— 1. Every lease intended to be registered shall so be entered as to show the name of the owner thereof, the length of the term, the date of the lease, and the rent reserved. 2. Every

Mode of transferring the registered ownernhip.

Registration of iitcumbrances.

Registration of leases.

(a) Mr. Headlam objects to an independent Register of Incumbrances or Leases. See his paper before referred to. (4) See Note (a) p. 25.

29

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Sale and Transfer of Land. 2. Every such lease shall also be entered under some proper sanction, such as the consent of the registered owner, or the order of a competent Court decreeing or directing the same to be registered. 3. On registering such lease the registered ownership will be subject to the legal rights incident to the lease, and either may be transferred independently of the other. 4. A certificate of the lease will be given by the registrar to the party applying for the registration of the same. LXXVIII. The mode of transferring registered charges and registered leaseholds will be similar ■ in all respects, mutatis mutandis, to the mode of transferring the registered ownership. And on the • death of the registered owners thereof, their representatives will be entitled to be registered in their place. LXXIX. There are some cases in which provisions, in connection with the proposed register, may i be made to facilitate the sale and transfer of land, though not provisions which can be said to be indis-i pensable to the system as a system of registration. It has been suggested to us (a) that means might' be devised by which the conversion of land into money could be effected at once, with the concurrence only of the person having possession and enjoyment of the land, if care were taken to provide a safe and independent place of deposit for the money for division among the parties having pecuniary claims on it. Facilities, it is said (b), might he given in some cases to allow the transfer of the land to proceed, impounding the consideration for the transfer, and fixing it with the equities under notice. This, it is urged, would be specially desirable in cases of pecuniary claims or charges on the land the title to which charges may be embarrassed. We have adopted these views, and propose to vest in the Court of Chancery certain powers for the purpose suggested. LXXX. A provision which it is most important to attend to is the mode of indexing the property 1 registered. This must be left to a great extent to the determination of the registrar. But since there are three matters more or less distinct from each other, yet more or less connected together, which would have to be entered in different ways, namely, registered ownerships, registered charges, and registered leases, there must be also three sets of indexes corresponding therewith ; namely, first, an index of registered owners ; secondly, an index of incumbrancers ; and thirdly, an index of lessees ; and these indexes should so far refer to each other that the registered ownership should always show by a distinct reference whether such ownership was subject or not to any existing charge or lease. LXXXI. With regard to some miscellaneous questions as to the machinery of the proposed i registry, we think that the title-deeds should not be required to be delivered up to the registrar ; that £ the registrar should have a general power of determining conflicting claims by consent, or of putting them in a course of judicial determination that no tenancy in common should be allowed in a registered ownership ; that a general power should be given to the registrar of making necessary regulations ; and that there should be a difference of fees for large and small transactions. LXXXII. With regard, however, to the powers to be entrusted to the registrar, we conceive / that, as a general principle, his authority should be ministerial and executive in its nature, and not ! judicial. We agree in an observation contained in the evidence before us (c), that there is no feeling more strongly rooted in the public mind than dislike of official interference with their private affairs, and any system must be considered practically impossible, however theoretically perfect, which would render the approval or sanction of a registrar necessary for the completion of transfers, or would give him any discretionary power to prevent them. Conclusions in favour of, and Answers to Objections against, the plan recommended. LXXXIII. This measure, so novel in its character and so difficult in detail, demanded from us, l and has received the most careful and searching examination. The best means, in fact, of testing its practi- s t cability were afforded to us before this report was drawn up, by the labours of one of the Commissioners, who prepared the sketch of a Bill (d), with the requisite provisions and machinery for the practical working of the measure. This Bill, which will be found in the Appendix, was examined by us in detail, and from it we derived much valuable assistance in framing this report. In some respects it differs from the recommendations which have here been made ; in principle, it agrees with them altogether. Novel, therefore, and difficult as the measure may be, we sea no reason to doubt its practicability, and we can consequently recommend it with more confidence, and in the belief that while it would obviate all the difficulties which are likely to spring from a registration of assurances, it would provide those benefits in the transfer of land which registration is intended to confer. On the one hand it will be found, that the expense

Transfer of incumbrances and leases.

Extension of powers of sale of Court of Chan'eery.

Indexes,

Miscellaneous provisions.

Authority of Registrar.

General conclusions in favour or the measure.

(a) Mr. Bartle J. Frerc's evidence. (4) Mr. J. Meadows White's evidence. (c) Mr. Kettle's evidence. (d) See Mr. Lewis's Bill, App. B.

30

Sale and Transfer of Land,

expense and delay which must always be occasioned by a retrospective investigation of title—the evil of accumulating year after year a vast mass of documents in one registry—the complication and difficulties which would thence arise—the danger of disclosing the private affairs of individuals, and the other objections above adverted to, in a registration of assurances, will all be avoided. On the other hand, it will he seen that the removal of those impediments with which the alienation of land is surrounded— the ready means afforded of raising money by means of temporary loans for purposes of improvement— the facilities for partial or complete alienation, without disturbing existing interests, or interfering with the rights of settling property which are now enjoyed under the present law—and the perfect security which a purchaser may acquire by obtaining easily a parliamentary or warranted title—will confer on land an enhanced value, and free the owners of it from those embarrassments to which no other property has ever been subjected. 1 LXXXIV. The main objections which have yet been urged against such a measure are, first, that it excludes from the registered title all those various modifications of ownership which the law allows, other than fee simples, mortgages, and leases ; and, secondly, that the warranty of title to lands will be o pen to serious inconveniences. We will make some remarks on each of thege objections. , LXXXV. With regard to the first objection, it must be admitted that the benefits intended te be 1 conferred by registration are confined, in the first instance, to the registration of the fee simple, mortgages and leases. These, it is to be remembered, are the properties in land which most usually form the subject of sale and transfer. Transfers of other rights and interests are for the present excluded from the proposed register, because it is desirable, at least in the first instance, that the plan should not be unnecessarily complicated. In the meantime there is nothing to interfere with those rights and interests. They will be as capable of being exercised and enjoyed after the establishment of the register as they are now. The measure proposed expressly preserves them. And as long as it preserves them, the owners of them will have all the control over the management of the property with which the law now invests them, and which their settlors or testators intend that they should have. Further than this it might be imprudent to go, before the measure has moulded and adapted itself to the practical wants and habits of the community. , LXXXVI. With regard to warranty, it is considered by some of the Commissioners to be contrary to the general policy of this country to allow the State to enter into pecuniary speculations of any description; that though there may be reason to believe that the sum which landowners would be willing to pay for such a warranty would be more than equivalent to the risk incurred by the Government, or in other words, that the speculation would be a good one; yet as there is no experience on the subject, no confident opinion can be expressed; and that it is obvious that if at any time there should be carelessness or fraud on the part of the officers of the Government who have the management of the scheme, the loss to the State might be of a most serious description. In the second place, it is said that there is a great objection to the plan arising out of the manner in which it deals with the rights of individuals. It provides that any person establishing a claim on land guaranteed by the Government shall forfeit his right or interest in the land itself, and in lieu receive a money compensation to be paid by the State, and apjiarently to be also estimated by the State ; and it is argued to be most objectionable that the contract between an individual and the State should be allowed to affect the rights smd interests of a third person, who is not in any way cognizant of or a party to the contract. Independently of the foregoing objections, which apply to the principle of the scheme, it is considered that there are considerable practical difficulties incident to its execution ; and that but few of the titles to land would bear so searching an investigation'as would be necessary in order to obtain the warranty. It is lastly said that the costs and expenses of an application for a warranty would be serious and certain, the result of the application would be doubtful, and in the event of a refusal a stain wor Id be cast upon the title, and its defects made known and exaggerated. We have considered these objections, and agree in thinking that they are entitled to attention; but a majority of the Commissioners have come to a conclusion in favour of the principle of warranty. They can see no reason why the great benefits which have been conferred in Ireland on encumbered properties should not, by analagous measures, be extended to unencumbered properties, and also to this country. A parliamentary or warranted title is the one grand desideratum to enable parties to deal as freely with their landed estates as they now can do with their personal effects. If the title is investigated with ordinary care, as no doubt it would be, by the counsel and solicitors selected for that purpose, the risk run is more nominal than real. If it should turn out that there was some claimant whose possible rights had been overlooked, he would receive compensation which the premiums paid by way of insurance which would probably be more than sufficient to cover. If the purchaser should think that these premiums would entail upon him a new expense, the answer is, that he need not incur it unless he derives an equivalent advantage. But instead of this we believe he would feel that this advantage was more than an equivalent for that expense by the clear title which he would thus obtain, by the additional value given to his land, and by the perfect security in which he would hold it. Answer to the Inquiry as to "the Advantages and Disadvantages of the Plan recommended."

Objections urged against it.

First objection as to the limited extent of the measure.

Second objection as to warranty. 1

Whether there are any disad-. vantages attending the system. '

LXXXVII. Having now stated the leading details of the plan of Registration we recommend, we propose to consider, in answer to the enquiry entrusted to us, "the advantages of and disadvantages attending such a system." Lxxxvni.

D—l

31

Sale and Transfer of Land. LXXXVIII. In regard to what may be the disadvantages of registration of title, we may refer to the different parts of this report in which objections and difficulties have been adverted to and dealt with. We have shown that the existing evils are great; and we have acted upon the principle laid down by the Real Property Commissioners, that it should be made out, to a reasonable degree of certainty, founded on a careful investigation of facts and mature deliberation, that the proposed remedy is practicable, and that it will be effectual; that it is the best that can be devised; and that it will not itself be an evil, or productive of evils, equal, or nearly equal, to those against which it is provided. We are of opinion that the plan recommended by us fulfils or satisfies all these conditions; and at all events these objections, even if allowed to have the character of disadvantages, cannot be deemed seriously to detract from the very great benefits which landed proprietors, and the buyers and sellers of land, will derive from the measure we have recommended. LXXXIX. The advantages of the system will consist in giving facilities to the sale and transfer i of land in the following respects :— ° 1. It will secure the principal benefits and advantages sought to be attained in a system of registration of deeds, (a) 2. The system will render unnecessary retrospective investigation of the title, as to all dealings subsequent to the commencement of the registration, and will gradually operate to dispense with such investigation altogether. 3. It will simplify the title to real property for the future (though it will not, except where warranty is obtained, confer at the outset a. parliamentary title as against interest existing anterior to the registry), and it will have this effect even though it should happen that no concurrent improvements are effected in the general law of real property. 4. It will make purchasers of the fee and leases perfectly secure. 5. It will simplify to the utmost possible extent the forms of transfer and the modes of conveyance. 6. It will tend to increase the saleable value of land. The system will effect this last benefit (b) by removing difficulties, and thus increasing the desire to invest in land. It will also enable the buyer to ascertain his expenses accurately. At present the expense depends partly upon matters which come to his knowledge only after he has entered into the contract. There will in fact (c) be a saving to the buyer of the expense of investigating title and conveyance, and to the seller of preparing the title. The seller will indeed still have to bear the expenses of distributing the purchase money, but this he must do under the present or any other system. 7. It will tend to lower the rate of interest on loans secured upon land. It has been well said that the greatest condemnation of the existing system of lending money on land is the reluctance which bankers, the natural traders in loans, have to lend on mortgage or judgment. The security which they refuse, careless trustees, ignorant people who have savings, and widows and others who have some small provision are advised to accept, and in this way the whole risk of bad security is thrown on the classes least able to bear it. (d) 8. It will confer facilities for the sale of large estates in lots. We agree in the statements of one of the witnesses, that the necessity for investigating the past title, and procuring the means of proving it and substantiating it for the future, places great obstacles in the way of selling a considerable estate in numerous lots ; as it is generally difficult and always expensive to furnish each purchaser with the necessary evidence. One of the important advantages of a new and parliamentary title is found in the great facility it confers for the subdivision of estates upon a sale. 9. It will enable persons to obtain a warranty of their titles at the same or nearly the same expense as that incurred in an ordinary purchase under the present system. Miscellaneous

The advantages of the system.

(a) There are, however, two exceptions :—The exceptions are, that it will not directly tend to make equitable or secondary estates more marketable than they now are, and that it will not afford the means of obtaining evidence of the contents "of lost deeds. The former defect or objection will, however, cease to be material if the subordinate register of derivative estates to which we have more than once referred be established, and the objection may at all events be alleviated by an alteration in the law as to the obtaining of priority by the legal estate and the doctrine ot tacking, which is one of the amendments of the general law subsequently adverted to in this report. The latter defect will not, as to future titles, be of any considerable moment as regards purchasers of fee-simple estates, for title deeds will, under the operation of the registry here recommended, become of less consequence than they now are as evidences of title to the fee. (6) Mr. Commissioner Hargreave's evidence. (c) Mr. R. J. Farrer's evidence. (d) Some experience as to the bearing which an improved state oftitlemay have upon the rate of interest is furnished by the Report of the Select Committee of the House of Lords, appointed to consider whether it would not be desirable that the powers now vested in the companies for the improvement of land should be made a subject of general regulation ; for it appears from that report that one great advantage afforded by these companies is, that a landowner holding in fee can borrow cheaper under these Acts than he could otherwise, by reason of the mortgage being a primary charge under the Acts, and by reason of an investigation of title not being required, as in other cases,

32

Sale and Transfer of Land. Miscellaneous Recommendations and Observations. XC. But it is our opinion that as the register cannot in the first instance be made to confer an immediate statutory title in ordinary cases, some changes in the general law, having a tendency to simplify title, should be made concurrently with the establishment of the registry. The evidences of title and its devolution may be rendered more simple in various particulars which have been pointed out in the evidence before us, and are hereafter adverted to. By making those improvements in the law, the register, without being made to confer immediate Parliamentary title, may nevertheless be instrumental in producing immediately many of the advantages in regard to simplicity of title and transfer which will result from its own proper and unassisted operation, when its action has become complete. Facility of transfer and simplification of title act and react upon each other. We think that the establishment of a register should only be part of a general plan for amending the law of real property in the particulars presently adverted to. We concur in the opinion of one of the witnesses (a), that, considering the cumbrous forms employed in conveyancing, it would be extremely impolitic to establish a register that would, as it were, stereotype a decaying system, and perhaps stand in the way of its thorough reformation, or, in case of its being superseded by a better, would induce the inconveniences of a register begun in one era and continued in another. The improvements in the law of real property and the forms of conveyancing which have been suggested to us we have thought it advisable to embody in the sketch of a Bill, which has been drawn by one of the Commissioners, and will be found in the Appendix. Thereby the title to real property, independently altogether of the registration we recommend, and during the gradual introduction of the sjstem, would be greatly simplified—by the abolition of certain technical modes in the creation, limitation, and disposition of estates —by turning mortgages into mere securities, but with the same powers of recovering the money which are usually conferred on the mortgagee —and by giving to certain instruments such general effecis as are now expressed in a lengtnened form, and which add greatly to the cost of the transaction. These provisions do not strictly fall within the main object of the inquiry submitted to us, but they are so nearly allied to, and so much connected with it that we have deemed it our duty not to overlook them. They are also framed upon the principal recommended by experienced witnesses (b), of first deciding on the plan of the registry, and then altering and simplifying the general law with reference to that plan. We hope that this Bill, together with the plan which we submit to Your Majesty for the registration of title, will be of use in assisting Parliament to deal at once with the whole subject. XCI. One practical suggestion there is, which it may be useful we should make with regard to the policy of establishing the register in the first instance partially. As was said (c) of registration of deeds, we doubt whether any scheme of indexes, which ingenuity may devise, will be such that registration, with all its incidents, may start into life a perfect system, answering at once every purpose for which it is intended. We think there must be some practical experience, some working of the system, before office arrangements can be made which will be so perfect and simple that information (the non-discovery of which may be prejudicial) may readily be obtained. We therefore conclude that it would be desirable to try the registration partially at first, and establish the system to its fullest extent in some particular county or district. If it should be found to answer the objects for which it is intended, it might be then universally established ; or the office created for that county or district might be extended to the whole country. * XCII. Before concluding this report, we think it right to observe, that the circumstances of " landed property in Ireland at the present time afford peculiar facilities for the introduction of an "improved system of registration into that part of the United Kingdom. The long-established Register of Deeds, the Ordnance Survey, and the Incumbered Estates Court, in that country, furnish materials and machinery for effecting the transition from the existing system to the new one, much more readily and speedily than can be anticipated in England. We are informed by competent witnesses that the Ordnance Survey is considered one of the most valuable acts of practical government that has ever been carried out in Ireland. The maps are in almost universal use in the management of estates, in the sale of land, and in the valuation of land for public and private purposes. The boundaries of the old divisions of the country, such as counties, baronies, parishes, and townlands, are set out en the maps; the Poor Law Unions and electoral divisions are aggregations of townlands, and can, therefore, be at once ascertained. In the southern counties the maps show the divisions of fields and tenements; and this system is beino- extended to the northern counties. These maps afford it is said, the requisite materials to construct a public map as a basis of registration. The scale of the ' Ordnance Survey is, for the entire county, six inches to the mile, and the seperaie maps of towns are on a scale of sixty inches to the mile, The existing (d) and long-established Registry of Deeds in Ireland appears to afford additional facilities

Improvements in the general law . and piactice of U conveyancing. s' t: ii

] 1 Partial establishment of the re-, gister in the first instance. 1

Peculiar facilities for the establishment of the register in Ireland.

(«) Mr. Dngmore's evidence. (6) Mr. Bellenden Ker's evidence. (c) App. to 2 Re. Pr. Coin. Hep., 133--(d) Bee evidence of Mr, J. B. Murphy.

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Sale and Transfer of Land. facilities for ascertaining satisfactorily the existing titles to and interest in land in that country. These facilities might, of course, be increased by the application for that purpose of the machinery of the Incumbered Estates Act. Great as are the benefits, however, which the Incumbered Estates Court has conferred upon titles in Ireland, it is a remarkable circumstance that there is no provision for perpetuating and continuing, as to future transactions, the Parliamentary title obtained upon a purchase from that Court. The title is unimpeachable as to all transactions prior to the time ot the purchase; but immediately atter the purchase the transfer of the land becomes subject to the general law, and as to all transactions taking place after the purchase, the title is liable to be become again involved in complications and embarrasments similar to those from which it was relieved by the sale under the Incumbered Estates Act. Permanent simplification of title and simplicity of transfer are not attained by the Act, and retrospective investigation of the title becomes again necessary though at present not to the same extent as formerly. The system, therefore, which we have recommended, is required not less for Ireland than for this portion of the United Kingdom, while, at the same time, as we have already observed, the facilities for its introduction there are much greater than in this country. XCIII. We take leave further to observe, that we think it will be very difficult to deal fully ' or satisfactorily with the subject of registration of title without making fresh regulations on the' subject of professional remuneration of solicitors. We observe that the Real Property Commissioners also found it necessary to direct their attention to this subject when making their leport in favour of the registration of assurances. In England a solicitor is allowed to receive such fees only as the Judges of the Court assign him, and these fees are so devised as to attach to certain portions only of his Work, leaving the rest to be done without fee. In matters of conveyancing, the whole trouble of the transaction is principally compensated by fees assigned according to the length of the various documents. Theoretically, in England, a solicitor is entitled to the same fees for superintending transactions relating to the smallest properties as to the largest. In Scotland, and many foreign countries, the work is principally compensated by a brokerage or commission ; a form of remuneration almost universally adopted by the usages of commerce for all other agencies. The changes we propose for the transfer of land, without materially altering the nature or extent of the more important services rendered by the solicitor, or the professional superintendence and responsibility involved, will interfere with those particular processes to which the Courts have thought fit almost entirely to attach the solicitor's right to remuneration. If, therefore, it is considered desirable to continue to prescribe by law a scale of remuneration for conveyancing business, it would seem right that an opportunity should be given for reconsidering the whole subject of solicitors' fees with reference to conveyancing. The services of solicitors will be necessary in the conveyancing transactions contemplated by the measure we propose, and reliance must still be placed upon their honor and character in performing the important duties and incurring the responsibilities which will still attach to every transfer. XCIV. We are reluctant to conclude this report without expressing our regret that it has not received the concurrence of one of the Commissioners who is known to have given much attention to the subject of registration, and who has embodied his opinions in a plan to which we have already referred, (a) While, however, we acknowledge that our report would have derived additional authority, had he felt himself at liberty to affix his name to it, we have the satisfaction not only of knowing that we have not failed carefully to examine the proposals which he has laid before us, though unable in the result to adopt them, but also that we have had the aid of his deliberations and suggestions in maturing our views and recommendations even where they differ from his own. All which we humbly submit to Your Majesty's Royal consideration. (i 4.5.) SPENCER HORATIO WALPOLE. (1.5.) J.NAPIER. (1.5.) RICHARD BETHELL. (1.5.) THOS. E HEADLAM. (1.5.) VINCENT SCULLY. (1.5.) ROBERT LOWE. (1.5.) WM. DAVID LEWIS. (1.5.) henry drummond. (1.5.) J. E. DENISON. (1.5.) ! W. STRICKLAND COOKSON. Received the 15th day of May, 1857. CR4ANWORTH C. MEMORANDUM

The I'emmiera tion of solicitor

(a) Paragraphs XXXJ, et seq.

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Sale and Transfer of Land. MEMORANDUM BY MR. HEADLAM. Agreeing as I do with many of the arguments to be found in the Report, and cordially approving of many of the recommendations it contains, I much regret that I am unable to sign it without comment, and that I am compelled to state shortly the portions with which I concur, and those portions to which upon consideration I entertain decided objections. In the first place, with respect to what may be called the general principle of the Report, namely, that a registration of title may be effected separate and distinct from a registration of assurances, I fully concur. I certainly think that there might be established what I should rather call a registration of the land itself, that is to say, that every estate of land should be accurately described and registered, with the names of one or more individuals, to whom and to whom alone a purchaser upon a sale would have need to refer. It is quite consistent with such a registration, that all the present various partial interests or modifications of esiates in land might continue to exist, though it is true that some change would necessarily take place in the means by which they would be secured and protected. The title of land so registered would be in many respects similar to the position of land that has been made the subject of a well drawn modern settlement, providing in rhe first place for a variety of interests and estates in the settled land, but providing also that there may be always in existence persons having the power of selling the land freed from all the estates and interests created by the settlement. The title of land so registered is moreover similar in many respects to the position of stock, frequently made the subject of complicated settlements which may altogether prevent a sale, but which never render it incumbent upon a purchaser to investigate the title. There seems no inherent difficulty in the legislature adopting a scheme, by which landowners may gradually and voluntarily put their land into a situation resembling that into which the most valuable estates are now continually placed, and thus, by exonerating purchasers from the expense and risk attending the investigation and acceptance of titles, increase the general value of land, and by facilitating its tiansfer, adapt it to the wants of a commercial age. It is obviously incident to such a plan, that tha most careful provisions should be made, to give persons entitled to partial estates and interests, ready facilities for securing their estates against a transfer on the register, by which their interests in the land would be utterly destroyed. Moreover, equal care would be required to protect absolute and registered owners of land from having their powers of transfer impeded or prevented by claims being improperly placed upon the register. It is true that some difficulty may be apprehended in reconciling the means necessary for ensuring these somewhat conflicting objects, but it appears to me that there is nothing insuperable in the task, and if the report had recommended one registration of land for the purpose of transfer, and pointed out generally the nature of the provisions for the purpose of protecting subordinate esiates and interests, I should have been glad to have adopted it without comment. The Report however, does not recommend one simple registration of land for the purposes of transfer, leaving all persons having subordinate estates in the same position to be protected by powers and facilities for preventing a transfer prejudicial to their interests, but it proceeds to make a distinction between mortgages and leaseholders on the one hand, and the owners of different partial estates on the other hand, and endeavours to confer on the former the benefits of a registration of their titles distinct and separate in kind from the privileges of the latter class. This distinction seems to me to be totally untenable in principle. Even supposing the two classes could be accurately and intelligibly defined, which I very much doubt, there is no reason why the one class should be put in a materially different position from the other. Moreover, it appears to me that the attempt to establish separate registrations of the same land is inconsistent with the principle of the plan. If it is possible that there can be one registration of a piece of land for the purpose of transfer, another registration of the same piece of land by a first mortgagee, a third registration of the same land by a second mortgagee, a fourth by a leaseholder, and that the benefits to a purchaser of registration can with respect to this piece of land still continue, then it seems clear that the same facilities of registration should be given to persons having charges upon land by will, to tenants for life, to claimants by executory devise, and to all other owners of partial or limited interests. If no security can be found in the plan, by restraints upon transfers sufficient to protect the interests of leaseholders and mortgagees, then it would appear that the plan is defective, in not !iroviding adequate security for mauy other claimants, quite as much entitled to consideration as easeholders and mortgagees. For

35

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Sale and Transfer of Land. For my own part, I think it is quite possible that leaseholders and mortgagees, and also every other person having a partial interest or estate in registered land, should be allowed (subject of course to proper precautions) to place upon the register a note of the nature and duration of his interest, and that during the continuance of his interest it should be the duty of the registrar and of the registered owner not to permit a transfer, except subject to his interest or with his concurrence. Moreover, there is no reason why the subsequent changes and devolutions of a partial estate so noted upon the register should not also be entered upon the register. It should, however be clearly and distinctly stated that a purchaser has never occasion himself to investigate the title for mortgages, leases, or for any other estates or interest in the land, accruing subsequent to the period of registration. If an estate should be offered for sale without incumbrance, the purchaser should have no other duty imposed upon him, than to see that the land is transferred on the register into his own name, without note of any claim or interest. If the land be so transferred, the purchaser should be safe, however wrongful the act; and the persons injured will be left to their redress against those who have transferred it. If again an estate be offered for sale, subject only to a mortgage, say, for £1,000 in A B, or to a jointure of £500 a year in C D, then the purchaser should have no other duty than to see that the estate is transferred into his name, with no other note or qualification than, in the one case, the mortgage in A B, and in the other the jointure in C D. I object to the plan, first, because it makes a distinction between mortgagees and leaseholders on the one hand, and the owners of all other partial interests on the other hand. I object to it, secondly, because it throws upon the purchaser the duty of searching for registered leases and mortgages, a duty which appears to me inconsistent with the principle of the scheme. It may be observed, that if it were deemed expedient to have a separate register with respect to the land contained in any conveyance of a partial estate—for instance, a lease, mortgage, or other subordinate seems no insuperable difficulty in pioviding in such a case that the original register of the land should be modified, and should then consist of the fee simple of the land, subject to the particular estate carved out of it. In this case neither a purchaser of the partial estate independently registered, nor a purchaser of the original estate, would have any further duty imposed upon him, than that of investigating the register itself, A transfer on the register, of either the one estate or the other, would express clearly what he purchased, and for what he had to pay. This, however, is inconsistent with the plan as it is now framed, which provides that " the right to dispose of and transfer the ownership of land in fee, including the right to charge and lease the same, will belong and be incident to, and in fact be taken as, forming part of the registered ownership."—See Par. LX. There is another material portion of the scheme recommended by the Report, to which I am compelled to object, I allude to the warranty of titles by the Government. The plan is this, that upon the registration by any person of his land, he may with the sanction of the registrar enter into a contract with the State, under which the State shall warrant the title to the land, guaranteeing to pay compensation out of the Consolidated Fund to all rightful claimants upon it, and receiving a certain premium from the landowner in consideration ot the guarantee. I think it is contrary to the general policy of the country to allow the State to enter into pecuniary speculations of any description; it is true that there are reasons for believing that the sum which landowners would be willing to pay for such a warranty would be more than equivalent to the risk incurred by the Government; or in other words, that the speculation would be a good one ; yet, as there is no experience on the subject, no confident opinion can be expressed ; and it is obvious that if at any time there should be carelessness or fraud on the part of the officers of the Government who have the management of the scheme, the loss to the State might of a most serious description. In the second place, there is a great objection to the plan, arising out of the manner in which it deals with the rights of individuals. It provides that any person establishing a claim on land guaranteed by the Government, shall forfeit his right or interest in the land itself, and in lieu receive a money compensation to be paid by the State, and apparently to be also estimated by the State. It seems most objectionable, that the contract between an individual and the State should be allowed to affect the rights and interests of a third person, who is not in any way cognizant of or a party to the contract. Independently

36

Sale and Transfer of Land. Independently of the foregoing obseervations, which apply rather to the principle of the plail there are great practical difficulties incident to its execution. Few of the titles to land would bear so searching an investigation as would be necessary to obtain a warranty. The costs of an application for a warranty would be serious and certain, the result of the application would be doubtful, and in the event of a refusal, a slur would be cast upon the title, and its defects made known and exaggerated. Independently, however, of the previous reasons, I do not think that the plan of guaranteeing estates is in any manner essential to the registration of land. The circumstance that the proposed registration will by itself in course of time work out* without the aid of a Government warranty, what is equivalent to a parliamentary title, is rather a reason against the necessity of a Government warranty as a part of the scheme. The only object of connecting the scheme of warranty with the registration of land appears to be, that it would in some few cases shorten the period at which a Parliamentary title would otherwise be acquired. It is undoubtedly true, that time will be required for the full accomplishment of the benefits of this scheme of registration. It is, however, in accordance with the habits and customs of the people of this country, that changes of this magnitude in the law regulating property should be gradual, voluntary, and accomplished without trouble or expense to individuals ; and it seems a perfectly natural and necessary consequence of the plan being thus adapted to the character of the nation, that some time should be required for its complete development. T. E, HEADLAM.

MEMORANDUM BY MR. J. EVELYN DENISON. In affixing my signature to this Report; I must qualify the approval by the observation that 1 should have preferred a more simple plan, and that I wish it had stopped short of a proposal for a warrapty of title. J. EVELYN DENISON. MEMORANDUM BY MR. V. SCULLY. In signing the Report, I have felt that I could concur with it, without receding from my known views, because its leading recommendations are in effect identical with those submitted to the Commission in my Plan and Bill to facilitate the transfer of land (a). In order, however, to obvhte future misconception, I shall now explain my understanding of the plan recommended by the Report, and the extent to which I still consider that its suggestions might be varied and improved. For this purpose, wi.h the permission of a distinguished member of the Commission (b) I have transcribed from his manuscript the following concise summary i— 1. A Land Registry Office shall be established in London (d). 2. District offices shall be established in the country under the orders of the London office 4 3. Any owner in fee-simple of freehold land, advowsons, or rent-charges, except tithe rentcharge, upon adducing evidence confirmed by his affidavit that he claims bona fide to be owner in fee-simple, without any or with specified incumbrances, may after proper notice, be placed on the register as Owner. 4. The registered ownership will represent the fee-simple, and be attended by the right to transfer, charge, or lease. 5. The registration will not, of itself, confer any title against claims existing at the time of registration, 6. If

Summary of Jleport (c).

(a) See Plan and Bill in Appendix A. (6) The Right Hon. Robert Lowe, M.P. (c) The italics in this Summary denote where the Report varies from Mr. Scully's Blan and Bill in Appendix A. id) The central office in London is for England and Wales i there should be a central office in Dublin for Ireland.

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Sale and Transfer of Land. 6. If such a title be desired, the registrar will examine (a) the previous title, and warrant it if good, on paymsnt of a small charge. 7- The warranted title will absolutely indefeasible, and any person prejudiced by such warranty will be compensated by the Consolidated Fund. 8. All estates other than the fee, except charges and leases, shall be excluded from the register and protected by caveat. 9. A caveat may be entered by the consent of the registered owner, or if that be improperly refused by the order of a Court of Justice. 10. The registered owner shall have absolute power to transfer, subject to charges and leases, if all caveats be withdrawn. 11. The registrar shall give to every registered owner a certificate, which may be pledged by way of equitable mortgage for temporary advances, and must be given up to the registrar before a transfer can be made. 12. The Court of Chancery shall have jurisdiction over the registered ownership. 13. Notice of an unregistered interest shall not of itself, without fraud, bind a purchaser. 14 Charges and leases may be manifested and transferred upon the register. Such being the outlines of the plan for a Registration of Title recommended by the Report, I beg to append the following observations :— Firstly—lt appears to me that a Land Tribunal, of high position and character (b), withi avowed judicial powers for deciding questions affecting registered land, and with equitable jurisdiction to enforce rights or to prevent fraud and wrong, would, upon several obvious grounds, be preferable to a Land Registry Office, professing to be merely ministerial, but in effect exercising quasi-judicial functions to confer and to transfer indefeasible titles. The Report, however, affirms the principle of Parliamentary Title ; and whilst professing to repudiate a judicial investigation, adopts it in substance by authorizing the Registrar to grant a warranted title, after an investigation by counsel and solicitors. It is a secondary question, or rather one of detail, whether the investigation shall be made by a Registrar and persons acting under his direction, or by a judicial tribunal. In either case the result is alike, and the investigation partakes of a judicial character. Thus it appears, as had been anticipated, that for the purposes of registration of title—" it will be necessary to institute some new jurisdiction, which may be called a Land Tribunal, a Land Court, a Land Register, or a Land Transfer Office" (c). The Land Registry Office will in effect be a Land Tribunal, but with inferior position and authority ; and deficient in those high qualities which ought to accompany an office of such grave trust, and so important to the best interests of these countries. Secondly—l cannot concur with that portion of the Report (d) which declines to adopt a l system of uniform Land Debentures, limited in amount and transferable by simple entry or delivery but proceeds to recommend an inferior description of Land Debenture, in the form of registered charges unlimited in their number or amount. Recent experiences in Ireland have shown that it is not desirable to confer upon landowners increased facilities for indefinitely encumbering tfleir land, and 1 retain the opinion that a good system of Land Debentures is essential to any perfect plan for simplifying the title to land and facilitating its transfer. Some of the advantages of Land Debentures have been already mentioned, along with authorities in their favor (c); which are now sustained by the additional evidence of experienced persons who have well considered the subject (f). One eminent witness (g) has, however, compared Land Debentures to the " Donegal Debentures," which were neither limited in amount nor with Parliamentary Title, but were impeached securities, issued by private persons, and were not charged upon land, but upon certain shares in a Canal Compan} (h). Debentures upon land have also been confounded with those French Assignats, which a revolutionary Government charged in vast quantities

Land Tribunal,

Land Debentures,

(a) " The Registrar shall cause the title to be fully investigated, by counsel aud solicitors, &c." See the Report, SGCt 'l? (6) The Right Hon. A. Brewster, to Question 3636 of Select Committee on Court of Chancery (Ireland) Bill of 1836 (c) See note to paragraph 7 of Mr. Scully's Plan in Appendix A. (d) See Sect. 29. (c) Appendix A., paragraphs 12 to 19 of Mr. Scully's Plan ; and Notes ibid. (_/) Sec evidence referred to in Note to Sect. 29 of the Report. (g) The Right Hon. A. Brewster, Attorney-General for Ireland, to Question 35. (/i) Ba. and 80. Rep. temp., Hart, p. 146.

38

Sale and Transfer of Land. ties upon the future produce of the Royal and Ecclesiastical Estates, and forced into circulation under heavy penalties, to the utter subversion of public credit. It is manifest that the Donegal Debentures and French Assignats have no resemblance whatever to the proposed Land Debentures, which would be first-class securities, bearing, perhaps, some resemblance to Railway Shares (a). The leading difference is, that Land Debentures, being primary charges for a limited amount, would be far safer investments than Railway shares, and would not be liable to depreciation, save in a very extreme and exceptional case, such as might never occur in practice (b). The more close analogy would be Railway Debentures, which are limited in amount; and, being primary securities, are not subject to depreciation, except such as arises from ordinary fluctuations in the market value of money (c). Land Debentures resemble, also, the Debentures issued by the Board of Public Works under the Irish Land Drainage Acts, and which have been found to work successfully in practice (d ) The proposed limit to the amount of the Debentures would not interfere with additional loans to a registered owner, who could at any time deposit his certificate of ownership as a perfect equitable security for further advances. One advantage of Land Debentures would be, that the landowner could pay off the debt at his convenience and in driblets. Whenever he might have £100, he could make provision for paying off one of the £100 debentures, and thus gradually lessen the charge upon his property. Under the present system, the payment of a mortgage of £10,000 is almost an unknown occurrence, which scarcely ever happens to any landowner out of the savings of his property, or otherwise than by some unexpected windfall, or by making new arrangements for obtaining a larger advance of money in order to prevent a foreclosure of his estate. Upon this subject Mr. Christie, in his evidence before the Registration Commission, thus gave the results of his great experience: — "It never falls in one's way to see a charge paid off in Ireland. The estate comes to be sold, or sometimes there is a new mortgage —a large mortgage, which consolidates all existing charges ; but as to any owner of an estate, but his personal thrift, or even by money which he has otherwise got, except by a fresh loan, ever applying it to so unprofitable a purpose as paying off charges, that never occurs I may notice a fact, which is very observable on titles in both countries—the extreme rarity of a man who mortgages his estates ever redeeming. A party who once enters on that downhill course hardly ever recovers himself." Indeed it is well known that under the present system the history of any large incumbrance very much resembles that of a snowball. The incumbrance accumulates as it rolls along, from generation to generation, and from age to age, through new arrangements with successive mortgages, until the whole estate is finally rolled into the Court of Chancery, where it usually melts away. One of the chief objections usually felt to the investment of money in the purchase of land is, that capital so invested becomes permanently locked up, and its available usefulness thereby much diminished. This objection would be obviated, and the value of all land be greatly increased to its owner, if he could use it at any time as a soit of circulating medium, by possessing a limited power to charge it with transferable Land Debentures. He might thereby from time to time, without expense or delay, raise sums of money to pay his debts, to give portions to his children, to improve or stock his farms, and to meet his current engagements. The principal of Land Debentures could be advantageously applied, for the purpose of effecting a voluntary conversion of all charges that now affect landed property. By converting property in the land into Land Debentures of equivalent value, it would become as transferable as personol property. The debentures, or the money value which they represent, might be put into settlement; and there would nolonger exist the necessity for having intricate settlements of land. The land would be represented, by these transferable debentures, and in lieu of a complicated system of acts, deeds, and incumbrances of vaiious would thenceforth be substituted the most simple forms of charge and transfer. Property in land would also thus become conveniently distributed, without leading to any minute sub-division or morcellement of the land. The proposed Land Debenture would possess more advantages than now belong either to the best mercantile bill of exchange, or to the most secure mortgage. It would combine the negotiability of the one with the stabi'ity of the other. It would arouse the capital which lies dormant in the land, and infuse an active vitality into inert matter. These debentures would be eagerly sought after by bankers and capitalists, as secure investments for their unemployed funds. The only expense would be some trifling office clu-rges, and some small stamp duties; which, from their frequency, would produce a large income to the State. This species of revenue would resemble the Post Office charges. It would be another description of public taxation, cheerfully paid for value received. The

(a) Professor Hancock, to Question 3. (b) Same to Question 34. Even in the extreme ease there referred to, the Land Debentures, if issued, would not in fact, have become depreciated. (c) 5 & 6 Vict. c. 89. s. 100. and 8 & 9 Vict. c. 69. s. 9. (d) Mr. Griffith, LL.D., to Question 35 ; Colonel Larcom, R.E., to Question 36 ; and Sir M. Barrington, Bart, to Question 35.

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Sale and Transfer of Land. The great benefits which the industrial classes, as well as the owners of land, have already experienced in Continental countries, through the possession of a simple mode of transferring or changing their landed property, were explained ii 1859 by Mr. Stewart, in the following evidence before Mr. Slaney's " Savings Committee :" "In England dealings in land are a luxury that a rich man may indulge in—that a poor man cannot indulge in. In Belgium there is acl >ss we should call stock brokers; but they are connected with dealings inland, mortgages, and transactions in land, and any person wishing to invest a large or a small sum, going to them, has no greater difficulty in having the transaction arranged, safely and properly, than we have in buying stock, and going to a broker for that purposs. It is just as simple and easy. In Hamburgh and in Frankfort all persons, such as our bankers and brokers, if they have any money that they wish to make available, instead of laying it out as our bankers would in the funds, or in Exchequer bills, or other securities, would invest ie in land, which we, according to the present state of the law, do not cuiisider an available security. The difference is, in fact, quite reversed. A banker in Frankfort takes this investment in land, as not only the safest and the best, but because it is most readily turned into money, with less deductions, or less influence from any circumstances. The} prefer these securities to bonds or to bills, or to any other securities that are at all available to them as men dealing in money, The Government also have agreatadvantage from the constant dealings with land. It brings in a stamp-duty, and a much larger sum is raised in that manner by way of revenue, than is raised in this country." Referring to those propositions, which had been shortly before urged upon Parliament by the petition of Irish landowners, the same witness states : " It is proposed, after an examination of title, to give a Parliamentary title secure against all the world ; and then the suralent is proposed to be dividedinto debentures, and these debentures are intended to be transferable. Nothing can be safer, nothing can be better, and nothing can be more practicable. Such a system is in force in Prussia, and has been in use for centuries, or one that is very much the same ; and I cannot see why it should not be introduced with advantage into this country. It is certainly surprising that the landowners in England do not insist on some such machinery, which I believe might be introduced with even greater safety here than in Ireland. In Belgium, Prussia, and other parts of the Continent, there is a perfectly easy mode of lending money on land. It is an affair of an afternoon. It will be found that, where the law is simple, the less rale of interest there is, and the larger the quantity of capital which takes that direction. The landowners are able to borrow at a less rate of interest than they are in this country. In Belgium there is no difficulty in vesting money in land as the savings-bank of the country. Persons there invest their money usually, if they have a small saving, in land." In some evidence given before the same Committee, by the eminent economist Mr. John Stuart Mill, he thus expressed a similar opinion with respect to the beneficial effects of Land Debentures in foreign states: — "In Germany, one of the safest and most usual invastment for small sums is a kind of L-ind Debentures. The mortgages there were divided into shares, and the documents which conferred the right to those shares were very generally in use as investments by all classes, and were found veiy convenient, and increased very much the facilities of moitgaging land for its value. They also increased the value of land." Upon all this evidence, it is certainly surprising that the landowners of England do not insist on some such machinery as that already possessed elsewhere, and as that demanded in 1850 by the landowners of Ireland in their petition for increased faciliiies " to sell their estates in a cheap and effectual manner, and to give simple and available securities for their debts." Although differing from the Report with reference to Land Debentures, I freely admit that England does not yet possess those facilities for introducing the system which exists in Ireland, through its Ordnance Survey and General Valuation. It should, however, be permissable for any landowner to charge his own land with uniform debentures to a limited amount; although the qualities of such debentures would not be of equal value with those of the proposed judicial debentures. The Report is, perhaps, also correct in intimating that the subject of Land Debentures does not fall stiictly within the scope of the inquiry before the Commission, and it certainly is of sufficient importance to form a distinct question for future consideration. It is chiefly with the latter view that I have again discussed its merits.

Thirdly—Whilst concurring with the Report that adequate protection should be provided for all beneficial interests affecting registered land, I think that better and more convenient modes of protection can be devised than through the proposed system of caveats, unlimited in number or duration and undefined in amount or interest. The probable consequences of such a system are suggested in the answers of some professional gentlemen '(a), who appear to have closely studied this branch of the subject; and with whom I agree in thinking permanent caveats, without restraint or limit, whilst insufficient to protect the helpless or inactive, would cause useless expense, would often increase the existing

Caveats,

40

Sale and Transfer of Land. existing impediments to the transfer of land, and would, probably, come back in effect to a bad registry of assurances. Conveyancers would soon require a general caveat by consent, in respect of every beneficial interest, however minute or otherwise well piotected. The caveat would not disclose the caveator's claim, and would absolutely prevent a transfer until removed from the register, by some active proceedings, frequently against dead or absent or unknown claimants, and their representatives or assignees. The result would often be, to render the transactions relative to registered land, more expensive aud more complicated than similar acts are at present. There are various modes by which effectual protection could be given to all beneficial interests in registered land, without unduly impeding its transfer. That passage in the Report has my entire concurrence, which adopts the suggestion that—"a simple provision, to prevent the devolution or the registered ownership upon a smaller number of persons than those first registered, will operate as an almost perfect protection to all parties who have or may have any kind of interest in the registered land, under any settlement of which the registered owners are trustees." (&) This is effected by a short entry of the words " No Survivorship," to intimate that the jus accescendi shall not arise. As a further protection, it could be provided, that an entry of the words " Trust Estate" should denote that the proceeds of any sale must be lodged in court for distribution among the parties interested, as is required with regard to land taken for public purposes under the Lands Clauses Act (c.) The lodgement of the money could be accompanied by a short affidavit, from both seller and purchaser, of the bona fides of the sale for full value; and such lodgement would in all cases obviate any motive for fraud upon the occasion of a purchase ; whilst the entry of "' Trust Estate" would attach upon the land, notwithstanding any transfer to a mere volunteer. Other practical protections could easily be provided in special cases, either by order of a Court or by the parties interested in the Registered Land, without encumbering it with numberless caveats. For example:— The Certificate of Ownership (d), might be retained in the Registry Office, or be deposittd in the Court of Chancery, or with a mutual depositee. The Land might be registered in the name of an Official Trustee (either alone or with other Trustees), whose duty it should be to transfer it on the request of beneficiaries, but so as not to prejudice those under disabilities (c). A temporary caveat or injunction from a Court of Equity might be obtained, pending any necessary proceedings to remove a registered owner, or to establish alleged rights ; but persoi.s should not be allowed to enter caveats mera muto nor to retain them except pendente litte (f). Should some unforeseen case arise, in which increased protection might be deemed desirable in order to obviate all possible injustice to parties under disabilities, the Court could have power to authorise the necessary measure of protection, in a defined and specific form. I have been thus precise in mentioning some practical means for protecting all conceivable interests in registered land, because the Plan and Bill submitted by me to the Commission were not sufficiently explanatory in this respect; but simply suggested that (notwithstanding a registration of tith) family settlements and trusts might still be sufficiently effectuated through personal confidences, and the inherent powers of a Land Tribunal to grant injunctions and to frame general rules for giving full effect to its objects (g.) My apprehension was, that advantage would be taken of any express protections to beneficial interests, in order to devise subtle contrivances for attaching the trust upon the title to the land, and thereby again evade any new attempt to convert uses into possession, through a simple measure for the Registration of Title. Fourthly.—There are some other details in which, I think the Report might have been usefully ' altered. It appears to me, that when any land is first brought upon the registry, paitial interests then in existence should be admissible to registration ; and that a tenant for life or in tail, as well as in fee * might

O tiler protections.

Partial interests,

(a) Commissioner Longfield, Q.C., to question 17-23 ; Commissioner Hargreave, Q. C, to questions 7424 ; and Mr. J. B. Murphy, to question 17, 18. See afao Mr' Ayrton to questions 18-24. {b) See the Report, Section 66, ; also Commissioner Longfield to Question 24 ; and Suggestion of the Eight Hon T, B.C. Smith, M. R.,in Appendix. (c) 8 Vict c. 18 ; and see Section 79, of the Report. (<T) See Section 75, of the Report. (c) See Master Brooke, Q C, to Question 25. (/) Commissioner Longfield to Question 23 ; Commission er Hargreave to Question 17 24. iy) See Pars. 7 and 10 of Mr. Scully's Plan ; and Section XIII. of his Bill, in Appendix A.

41

D—l

Sale and Transfer of Land. might be safely allowed to apply to have his land registered, in the form I have already suggested (a), but with a discretion to the Court or Registrar to grant or reject such application. It may, however, be more politic to introduce a new system in the simplest form, by confining it to a registraton ; of the fee-simple ownership, subject only to registered charges and leases, as recommended in the Report. I think, also, that a short entry oi every leasehold interest (though for a less term than twenty- Leaseholds. one years) should appear upon the proposed local register of the particular district; so that the purchaser may not have to institute collateral inquiries concerning unregistered documents. Though I do not agree that a mere "dread of disclosures" (V) ought to constitute a valid objection subordinate Re to a general registry of assurances, I am, for other reasons, entirely averse to any such registry, even B'stryin the modified form of the " Subordinate Registry" (c) suggested in various passages of the Report which, however, do not affect the plan recommended. In Ireland, at least, I consider that the Ordnance Maps ought to be made binding and conclusive Maps, as to the boundaries (d) of any land which be registered with a warranted title first giving due notice notice to adjoining proprietors, as is now done by the Irish Encumbered Estates Court. I wish to guard against being committed to the details of either of the Bills referred to in the Proposed Bills. Report(e), as I consider that their provisions might be usefully simplified, thoughl readily acknowledge the valuable assistance derived from them. I have felt it necessary to append the above observations to my signature, le st it should appear that by adopting the Report I had abandoned any material portions of my own recommendations, to which I still adhere, with this one qualification, derived from the various discussions upon the Commission, which have now convinced me that, in order to render any plan for a Registration of Title acceptable to the land-owning classes and their legal friends, it will be necessary to provide express modes for the due protection of unregistered interests, and that it will not be considered sufficient to give implieS, or inherent powers for providing adequate protection to a Court of Equity or a Land Tribunal. In conclusion, I may add, that the leading recommendations of the Report appear to be all in the right direction, though the plan may stop short of perfection in some few respects, which, however, will admit of being modified and improved. But, as Lord Coke might quaintly say ; — Nihil simul inventum est, atque perfectum Est quodumprodire tenus, si non datur ultra. VINCENT SCULLY.

(a) See Sections 1. and IV. of Bill in Appendix A. (6) See Sect, 20 of the Report, (c) -See Sections 45, 50, 67, and note, and 89 note. (d) As to Maps, see the Evidence of Colonel Dawson and Mr. Blamire ; also thei answers of Colonel Larcoro, R.E. Mr. Griffith, L.L.D.; Lord Dunalley; Lord Monteagle; SirM. Barrington; Sir R. Kane; Mr. C P. Brassington; Mr. John Locke; Mr. R. W. White; Right Hon. T.B. C. Smith, M.R. ; Mr. James Major, Q. C. ; Mr. M R. Sausse Q-C. Mr. R. Longfield, Q.C, ; Mr, Willeock, Q,C, ; Mr. Burrows; Mr, Hazlitt; Mr.Meadows White and Mr. Kainr ' (0 See Sections 83, and 90,