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5. The Title to Landed Estates Bills, and the Solicitor-Generals
Speech considered. By F. W. HAWKINS, Esq., of Lincoln's Inn,
Barrister-at-Law. London: Maxwell, 1859. 6. Remarks for the Consideration of Landowners, Merchants,
Bankers, and Others, issued by the Manchester Law Association; and Report of the Sub-committee appointed by the Committee of
the Association. 7. Speeches of Robert R. Torrens, Esq., explanatory of his measure
for Reform of the Law of Real Property; to which is appended a copy of the Act, as passed by the Parliament of South Australia. 1858.
VIR Hugh MCALMONT CAIRNS, the solicitor-general, deli
vered himself in the House of Commons, on the 11th February 1859, of a speech of great ability, on moving to bring in bills for the simplification of titles to real estate, and the improvement of conveyancing. Many a county member was carried away by his admiration into the belief that there had now arrived, in the form of the new solicitor-general, that long-expected reformer who was to save, henceforth, the land-owner, the land-buyer, and the land-seller, from vexatious harassment and expense. Alas for such abused confidence ! Sir Hugh was only demonstrating afresh the truth of a trite remark—that clever things may be said about very foolish measures.
If speech was given to man to conceal his thoughts, speeches are permitted to members of parliament to cover the absence of thought. In the instance we are now referring to, the bills upon which Sir Hugh founded his brilliant address, are miserable examples of audacious incapacity.
It is a legislative crime of the first magnitude to bring forward draft bills, involving such interests as did these Landed Estates Bills, in the form which was stamped upon them when introduced to the House. It is no answer to say they were open to amendment at all hands; it is worse than no answer to say—“Why, we ourselves amended them largely and materially within three weeks after their introduction." If there is one means more
effectual than another for causing confusion, contradictions, omissions, imperfections, and “messes ” in our Statute Book, it is by a government officer pitching into the House an ill-conceived, ill-drawn, or partial draft of a bill, trusting to chance for its amendment in its various stages in passing through the House. In the process of tinkering one always risks making more holes than one mends; but when a score of tinkers of different strengths and notions all work at some weak tinman's frail manufacture, the moment it is returned into his possession and he puts his own head into it, even he, however short-sighted and dull he may be, must, upon examination, find it will not hold water.
The original bills either pretended to be, or professed not to be, prepared by competent persons properly instructed as to the principles and objects of the measures, and as to the important parts of the machinery to be employed under their provisions, This is a necessary alternative. If the bills did not profess to be more than sketches of the measures thought desirable, and were mere suggestions to be remodelled and modified, should they be accepted at all; or if they were intended to be discussed and then put by for the session; or if they were brought forward just as a little attempt of new bands pour passer le temps, or because it was felt something must be done to show diligence and redeem promises," then all we need remark is, that trifling with such a subject in such a way is an intolerable impertinence.
As such conduct, if proved, would incapacitate the men guilty of it from being henceforth trusted with any legislative measure of importance, we will assume the other alternative to be the true one; namely, that the bills professed to be prepared by competent persons—to be the result of mature consideration-to carry out a necessary reform in a complete, safe, intelligible, and practical manner—to meet all the well-ascertained wants in approved modes, and with machinery suited to the material to
1 It has been avowed that the Government Bankruptcy Bill of the session 1858 was brought forward because the public expected something, but with the intention of not passing it.
be wrought upon, the classes interested, and the days we are living in. Assuming all this, we will examine the original bills, which we are thus in courtesy forced to believe were in all material points those which the Solicitor-General meant to place, in their integrity, on the Statute book, and which he did not intend to submit to a process of wretched patching, tinkering, and cobbling, either at the hands of himself or of others. In so doing, however, it will be convenient, and in the result as astonishing as convenient, to compare these original bills with the bills as amended in committee by the learned, popular, but rash Solicitor-General himself.
The original Bill No. 1 contained seventy-seven sections. Of these, three were altogether omitted, fifteen were materially, and twenty-six verbally, amended by the Solicitor-General within three weeks of his imposing oration. But this was not all that was done to improve the bills; for, at the same time, the opportunity was taken of adding eleven entirely new sections. The thirtythree out of the seventy-seven clauses which escaped being tinkered by the master-hand are chiefly of the most ordinary kind, comprising provisions for appointments, salaries, stamps, &c., and probably will be found to contain only the mistakes ordinarily found in such sections.
The original Bill No. 2 contained seventy-nine clauses and a schedule of forms. The Solicitor-General's second thoughts induced him to omit six of these clauses, to alter twenty-three materially, and twenty-eight verbally, and to vary only two out of the five forms in the schedule. Thus were just twenty-two sections, and three forms left as primarily settled! The character of those latter sections is the same as that of the untouched clauses of Bill No. 1. In Bill No. 2, as amended, we find eighteen new clauses.
Recent political occurrences have rendered the withdrawal of these bills necessary; but we may expect that their introduction into the next parliament, either in their present shape or with further amendments, will be attempted. An examination of their details at the present time is, therefore, not out of place; and,
Dioreover, it is from such an examination that the incapacity of the promoters of the measure ever to deal with any reform of real property law can be clearly proved. But before we enter upon the consideration of the bills in their original inspiration, their amended wisdom, and felicitous additions, contradictions, entire omissions, partial retractations, and experimentalizing provisions, it is necessary to put before the reader a brief outline of the whole of the proposed scheme, and this outline Sir Hugh M‘Calmont Cairns has furnished us in his speech. The scheme embodied in Bill No. 1, he thus describes :
We propose that any owner in fee simple of land, or any one who has power to dispose of the fee simple of land for his own benefit, and who has been in possession or in receipt of rent by himself or predecessors for a period of five years, may come to the court which we propose to establish, and which I will presently describe, and apply to have a declaration affirming his title to that particular land. He will have, in the first instance, to supply to the court an abstract of his title, and a description of the land he claims. It will be the duty of the court to see that two things are done-first, that there is shown in the document submitted to them a primâ facie title, and next that the petitioner shall declare his willingness and give a sufficient pledge to meet such costs as may be necessarily incurred in the further investigation of the title by the court. When that is done, the court will proceed, by advertisements in the newspapers, and by notices served on and in the vicinity of the land in question, to make public the application which has been made to them. It will be incumbent on the applicant to the court, if he does not claim a clear fee simple, to state that he claims a title subject to certain encumbrances, and the court may announce that the application to them is for a title subject to certain encumbrances. **** If, however, any encumbrance is withheld from the knowledge of the court, the publication of the notice will enable the encumbrancer to appear, and we provide that the costs of such appearanee, when the claim is proved, shall be paid by the applicant. The same course may be taken where two or more persons constitute the owners of an estate. We have fixed upon two periods in respect to which the court shall be governed in granting declarations of title, at the end of the first of which the court may make a provisional declaration of title, and at the end of the second an absolute declaration. Those periods, although open to further consideration, are these twelve months for the first, and three months for the second. We have selected those periods because we find from a statement of Mr. Hargrave, that the average period in which a sale is completed, and the money distributed by the Encumbered Estates Court, is 15 months. During that time publicity continues, and there exist opportunities for persons to come forward and make claims if
they have any; and, considering we are dealing at once and for ever with a title, I do not think we ought to fix upon a shorter period. There are certain things which every title must be subject to, and which we do not propose to interfere with-tithe rent-charges and burdens of any description, and easements which can only be discovered by an inspection of the property, such as rights of water and other matters of that description. So also with respect to leases :—We take 21 years as the ordinary maximum duration of an agricultural lease ; and in those cases in which there is a lease which does not exceed that period, and the tenant is in possession, we do not propose to interfere in any way with that lease or holding, and the title will as heretofore continue subject to every instrument of that description. These are all matters which can be ascertained by any person who may be desirous of doing so on the spot, and not matters as to which there will be any necessity of giving notice of title. Well, when the declaration of title is made, we propose that its effect should be as follows:-That it should be efficacious in substance, for the purpose of change of ownership—that is to say, that it should be a declaration which will enable a valid title to be conferred on sale, or mortgage, or lease, or settlement of landed property ; in short, on any kind of dealing described in law as taking place for valuable consideration. We do not propose that the declaration of title shall be indefeasible, so long as the land is really held by the person who obtained it, or from him by a voluntary transfer without value. We propose that, to serve the purpose of alienation for valuable consideration, it shall operate, and that it shall not come into action unless there is some purpose of that kind to serve. We further propose, that office copies should be furnished by the court under which the provisions of the bill, if it should be passed into a law, will be administered, which documents will constitute the certificate of title of the owner of the land. We also propose that the same process should be pursued upon the occasion of a sale, if the vendor or purchaser should deem it desirable to receive from the court a declaration of title of this kind : in that case the vendor and purchaser will jointly apply, and there will be a conveyance by the court to the purchaser. We, in addition, provide that in the case of any claim upon an estate which from its nature is reducible to a simple money claim, and which does not go to the possession of the land itself, the court shall have the power to require that a sum should be deposited with it previous to the declaration of title, or sale for the purpose of meeting the charge, should the necessity for its payment subsequently arise. We propose, moreover, that this power of conferring a title on sale should apply to sales under the Settled Estates Act, and also to estates under the control of the Court of Chancery, the new court in such cases having a discretion to decide whether or not an indefeasible title ought to be given. We also provide
*** * that if any person should consider that he has an interest in an estate-be that interest ever so unascertained or remotewhich he may think would be likely to be overlooked in a declaration of title of this kind, he should be empowered to lodge with the courte a caution or caveat, setting forth the land to which his claim applies ;