Page images
PDF
EPUB

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 questions 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 couceive, 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.

[ocr errors]

*

cases.

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.

[ocr errors]

*

[ocr errors]

consideration, it should be dealt with according to the present law of voluntary dispositions, and that if there has been any fraud or impropriety the transfer should not confer a title on the transferee. The only other point in the scheme is that of caveats. We propose that caveats should be of two kinds-caveats proper and caveats of inhibition. Any person who thinks he has a right to be apprised of any dealings in respect to an estate upon the register may enter a caveat, the effect of which will be that no dealings can take place until the lapse of a certain number of days after notice to the cautioner, just as is the case in matters connected with stock. If the owner undertakes to satisfy the Landed Estates Court, by proper security to the extent of the whole value of the estate, that the caveat has been wantonly and improperly entered, he may then, without waiting the specified number of days, have it removed. 2 So, also, the court may order the caveat to be taken off after hearing the parties, and, if it has been wantonly entered, the person entering it will be answerable for any damage caused by the delay. Caveats proper, therefore, will be put on the register simply by individuals. Inhibitions will be of a more permanent and formal character. When there is a settlement for a great number of years, the inhibition will operate as a restraint upon sale, and will be put upon the register by the court itself, if it thinks fit to do so, until the expiration of a particular time, as, for example, until the children under a marriage settlement come of age. These inhibitions will be placed on the register by the court, and it will not be in

of
any
individual to enter them.

The question then arises—Where do you mean to have this registry ?

We propose that it should be a metropolitan registry simply

propose also that it should be self-supporting, by means of moderate fees taken in return for the services which it will perform, such fees to be a matter of future regulation ; and in this way we hope that very little charge will ultimately be imposed by the establishment of this office. I shonld add that, inasmuch as the register is to be confined to estates in respect of which there has been a declaration of title by the Landed Estate Court, and inasinuch as I have assigned a period of fifteen months to elapse before there can be any declaration of title, it will not be necessary that the work of the registry-office should commence at once. I

propose, therefore, that the operation of this act should be fixed by orders in council, according as it is found that the Landed Estates Court has made progress."

We now proceed to the examination of some of the details of the bills which Sir Hugh, in concluding his speech, ventured to hope would be found not ill-considered.

The three sections in the original Bill No. 1, which were discarded, are secs. 18, 26, & 28. Sec. 18 provided, that whenever a contract for sale was entered into, the parties to that contract, or either of them, might apply to the Landed Estates Court for a

* There was no clause to this effect in the bill.

the power

*

We

conveyance to the purchaser, with the restriction that the application should not be made by the vendor alone without the consent of the purchaser, or by the purchaser alone without the consent of the vendor, unless, in the latter case, the purchaser should give security for payment to the vendor of all such additional expenses as he might thereby sustain, beyond the expenses he would have sustained if no application had been made by the purchaser. Now, in the first place, it is unreasonable that a vendor should, at the option of a purchaser, be forced into a Landed Estates Court litigation ; secondly, while the purchaser might be prosecuting his suit in the Landed Estates Court, the vendor might prosecute his for specific performance in the Court of Chancery, and thus a conflict between the two courts might have arisen ; and thirdly, the judges of the Landed Estates Court must have had recourse to a clairvoyant to determine what the vendor's costs might have been had something been done which was not, and was not intended to be done.

Section 26 directed that the court should not execute a conveyance to a purchaser without the consent of the vendor, unless proof should be given of the payment of the purchase-money. This clause was objectionable, inasmuch as the Court, in the first instance, executes the conveyance provisionally, and the purchaser certainly could not be required to pay the purchase-money to the vendor upon the execution of a conveyance which might be annulled." The amended bill is silent as to the payment of purchase-money; but under the power to make rules for giving effect to the objects of the measure, the court could, we presume, make rules on this somewhat important point.

Section 28 gave the Landed Estates Court all the power of selling laud vested in the Court of Chancery, by the Leases and Sales of Settled Estates Acts; thus not only creating a new jurisdiction, concurrent with that of the Court of Chancery-the consequences of which might have been, that an application for a sale, refused by a Vice-Chancellor, might have been entertained and granted by the new court—but also giving the new court powers of effecting sales of settled lands of all tenures, and of every kind of interest in settled lands, whilst the rest of the bill applied only to estates in fee simple. This section must have been remarkably well-considered !

The eleven new sections in the amended bill No. 1, are secs. 2, 19, 27, 31, 33, 41, 42, 47, 49, 67, and 68.

Section 2 provides that the act shall apply to England only; a necessary provision, seeing that there was nothing in the original bill to limit the operation of the measure to that part of the united kingdom.

A trustee with power to sell, was empowered to apply, with a

view to a sale, to the court for a declaration establishing his title to sell; but the five years' possession clause, which is referred to in the Solicitor-general's speech, would have effectually prevented trustees not in possession or receipt of the rents of the trust estate, from taking advantage of the act. Sec. 19 of the amended bill, therefore, provides that possession or receipt of rent by any person, consistently with the instrument creating the trust, shall be deemed to be the possession or receipt of rent by the trustee.

Section 27 empowers the court to make rules as to the mode of executing and confirming a conveyance by the court, and of making modifications therein, or additions thereto.

It being considered doubtful whether, under the original bill, the court could make more than one declaration or one conveyance in respect of any one application, sec. 31 put an end to the doubt, by providing that the court may, to suit the convenience of the applicant, make several declarations in respect of, or several conveyances of, different portions of land in respect of which the application is made.

Where land is subject to any doubtful claims capable of being compensated by money, the Landed Estates Court is empowered to free the land from such claims upon payment of such a sum of money as the court may deem sufficient. By the original bill the money was directed to be paid into the Bank of England (where it would have lain idle), to an account to be named by the court. Sec. 33provides that compensation money may be paid to trustees approved of by the court, or into the Bank with the privity of the Accountant-general of the Court of Chancery, to the credit of such matter as the Landed Estates Court may direct, with power for that court to order the money to be invested on application for that purpose by any person interested in it. Now here we have a notable example of the dangers of tinkering. Sec. 3t of the amended bill is a repetition of sec. 31 of the original bill, with some verbal alterations; but these have not been made with regard to the new sec. 33, and thus we find that the Landed Estates Court is directed to determine the rights of persons interested in the compensation money “so paid into the Bank of England under this act," and to distribute the same accordingly; but what is to become of the compensation money if paid to trustees under sec. 33, the bill does not say.

Sections 41 and 42 relate to the notices to be given to persons by whom caveats may be lodged. A notice may be sent by post, or may be served upon the cautioner personally; and, if sent by post, the letter is to be registered and marked outside, “Landed Estates Court.”—(Amended Bill, sec. 40.) The original bill provided that the notice, if served by post, should be deemed to have been served at the time when the letter containing thu

« PreviousContinue »