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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. 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, moreover, 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 :
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;
the result of which proceeding would be, that when application was made for declaration of title with reference to the land which was stated to be involved in the claim, the person lodging the caveat would be entitled to notice of such application. ****
"We propose that a Landed Estates Court should be constituted, with a chief and secondary judge. The qualification as to each of those judges, we propose should be this :--that he should be either a conveyancer in practice, and who has practised for ten years; or a person who has for a certain number of years filled the position of a judge in the Landed Estates Court in Ireland. *
* With regard to the salaries of the new judges, what we purpose to do is not to place them on a par with the judges who preside in the superior courts, but rather to regulate the amount of remuneration which they should receive with reference to the question of what might be considered a sufficient inducement for a conveyancer in good practice, and in all respects efficient, to accept one of those appointments. Looking upon the matter, then, from that point of view, we propose that the salary of the chief judge should be £3000, and that of the second £2500 per annum. We further propose that each of them should be provided with a secretary and a chief clerk chosen by himself, and that the new court should, with the concurrence of the Lord Chancellor, have the power to frame rules for the due regulation of the entire of its practice. We also propose that, as questions of law or fact may arise in the court, and involve a species of litigation which would be foreign to its constitution, it should be enabled to submit such ques. tions to the decision of some other tribunal. With respect to the financial arrangements connected with the court, we hold that, if our scheme should turn out to be successful, it will be as the Landed Estates Court in Ireland will be, to a considerable extent, if not altogether, self-supporting. It is, we conceive, considering the benefit to be conferred on the parties resorting to the court, no unreasonable requirement to ask those who come before this court to seek the boon of a simple and indefeasible title to their estates, to pay a moderate, sum in the shape of a per-centage for the work which they call upon it to accomplish in their behalf. If that be done then will the court be to a certain extent, if not altogether, self-supporting ; although of course it cannot be fairly expected that that will be the case during the first year of its existence."
The scheme relative to a registry of titles is embodied in Bill No. 2, and is described by the Solicitor-general as follows:
“We propose, having once got an estate into such a position that it may receive a declaration of indefeasible title, to give to the person who has that declaration of title a power to put his name upon
the register, and, once on the register, it must continue there. Whether the name is or is not, in the first instance, to be put on the register, is at the option of the owner.
It will now, perhaps, be desirable that I should describe how we propose to meet The case of dealing with the land which we have thus got fixed on the
VOL. VII. NO. XIII.
register, and I think it will be best to show, in the first place, what we do with regard to dealings which fall short of a transfer of the estate from one man to another. As to leases, I do not propose
that the bill should affect 21 years' leases when tenants are in possession. They will go on as at present, and will not be affected by registration. With regard to longer leases, we propose that the holder of such a lease should have a right to put on the register, when his title is once proved, a leaseholder's notice; not a registry of his lease, nor a description of it, but simply a notice of his name and address. Where this leaseholder's notice is entered, then, before any dealings with any estate can take place, the person so dealing will have notice, and the persons proposing to purchase will have notice that he is a leaseholder. With regard to mortgages which do not involve the transfer of the estate, what we propose is this :- Many people who borrow or lend money do not care a straw whether or not the fact is published at Charing-cross, while, on the other hand, many are unwilling that there should be any publicity. We shall endeavour to meet both of those
We propose that there shall be a power of registering mortgages, just in the same way as there are now registered mortgages of ships. These registered mortgages will thus be the title to the mortgage charge; they will pass, by transfer upon the register, from one man to another, and be in themselves a sort of estate in the charge ; and they will always appear on the register as a check upon any dealings with the property. That will meet the case of mortgages as to which there is no desire for secresy. But we propose that mortgages may go on unregistered, as at present, and that any person who has a mortgage may simply protect himself by a mortgagor's caveat, which will reveal nothing, but will entitle him to notice before any dealings to his detriment can take place with the land, while it will also serve as a notice to any person who is about to deal with the land that this mortgagee has an interest in it.
I pass now to sales and settlements. Under this bill any intending purchaser of an estate will have only to say to the vendor, 'I will give you so much money for your estate as soon as you show me that your name is on the register, and that there are no caveats. If there are caveats you must settle with them, and when you
have settled with them, transfer the estate to me, and here is your money.' As to settlements, when it is wished to settle an estate the course will simply be to transfer it to the names of the trustees of the settlement; and we propose to adopt a most valuable suggestion made in the report of the commissioners, namely, that those trustees should be tenants in common,
that the moment one dies there should be an incapacity to deal with the land until another is appointed in his place. That provision will keep up the number of trustees, and will, I hope, satisfactorily meet the case of a settlement. I have been speaking hitherto of transfers for valuable consideration. Here, as in the case of declaration of title, we propose that where the transfer is merely voluntary, and not for any valuable
1 The solicitor-general here refers to the report of 1856, upon the registration of titles.