Page images
PDF

register, and I think it will be best to show, in the first place, what 1 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. \Vith 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 leaseholdei-’s not-ice 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. VVe shall endeavour to meet both of those cases. 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. * * -a * 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 tmstees =\= * * * should be tenants in common, * * e »i= 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.

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 >l10l1l(l 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 tho 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. * S0, 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 the power of any individual to enter them. * * * -i= The question then arises—Wl1ere do you mean to have this registry 'l We propose that it should be a metropolitan registry simply -r * at We 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 oflice. I should 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 Ianded Estate Court, and inasmuch 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-oflice 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 Ianded 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 whenevera. contract for sale was entered into, the parties to that contract, or either of them, might apply to the Landed Estates Court for a 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

1 There was no clause to this efiect in the bill.

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 perforniance 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 conveyunce 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 he required to pay the purchase-money to the vendor upon the execution of a conveyance which might be annplled. The amended bill is silent as to the payment of purchase- monéy; but under the power to make rules for giving efiect 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 land 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 al 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 l

The eleven new sections in the amended bill N o. 1, are secs. Z, 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 hill 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 la

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. 1-9 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. 3% 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 poet, 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 the

same would be delivered in the ordinary course of the post (sec. 37); but the amended bill provides that no proceeding shall be taken on the faith of the notice having been served, until after the expiration of such period, not less than five days, as the Landed Estates Court by general order may appoint (sec. 40); and the new sec. 41 directs the Postmaster-general to return to the “Registrar”-we think that the words “of the court” might have been added—all letters so marked as mentioned above, and addressed to any person who cannot be found.

Section 42 provides that no purchaser, for valuable consideration, shall be affected by the omission to send, or by the non-receipt of any notice. There is a similar section in the amended bill ‘No. 2, and on this last we shall have to make some remarks byand-by, which will be applicable to both sections.

The original bill imposed a penalty on persons suppressing documents or evidence in the course of proceedings before the court. -Sec. 47 of the amended bill imposes also a penalty on persons fraudulently altering any documents in the course of such proceeding, or giving false information to the court, knowing the same to be false.

Section 4-9 provides that nothing in the act shall entitle any person _to refuse to make a. complete discovery by answer to_ a. bill in equity, or to answer any question in any civil proceeding in the courts of law, equity, bankruptcy, or insolvency; but no such answer is to be admissible in evidence against such person in any criminal proceeding under the act. How it happened that the law-oflicers of the crown should have put their names on the back of the original bill without seeing to the insertion of such a. clause, must be a matter of astonishment to all.

The original bill directed that the court should hold its sittings at a. place to be provided by the Treasury, and empowered the Judges to sit in chambers either together or separately, and gave the Judges so sitting the same powers as if sitting in open court; but whether the judges were to sit together or separately, or for what purposes they were to sit in open court, the bill did not mention. Sec. 6-7 remedies this defect, by providing that the judges shall sit together in open court for the determination of such questions arising upon the examination of titles as may be reserved by them—the words “or either of them ” are omitted-— for discussion in open court.

By the original bill any person might have appeared before the court as agent for another; sec. 68 declares that no person shall be entitled to appear for another in any proceeding in the court, unless he is a barrister, solicitor, or certificated conveyancer.

We now turn to the original bill No. 2, the omitted sections of

[ocr errors]
« PreviousContinue »