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framer of the bill was, no doubt, that the section should apply only to a person who may become a purchaser subsequently to the date of the declaration, but the well-considered” section does not express this.
Again in sec. 18 we find that “any trustee of land with power to sell, and any donee of a power of selling land, may, with a view to a sale, apply to the court for a declaration establishing his title to sell .
and when a final declaration has been made, establishing the title of such trustee or donee to sell, any purchaser.”—this time it is any, not every purchaser" for valuable consideration of the land mentioned in such declaration, or of any part thereof, or of any interest in such land”-here again are the words “ or in any part thereof” omitted " shall be deemed to hold the same for the same estate, and with the same incidents, as if he hal purchased the same for valuable consideration of a person who had obtained a declaration establishing his title to such land." The vagueness in this clause is even more striking than in sec. 15; for may not “any purchaser” be construed to mean any purchaser from a cestuiquo trust? Moreover, in sec. 18, the power to apply is given to any trustee, not to a trustee having a power of sale extending to the fee simple only; and consequently a trustee for sale of land of any tenure, or of any interest in land, may, according to the strict terms of the section, apply to the court for the declaration. What construction the Landed Estates Court, or a Vice-Chancellor, or the Court of Appeal in Chancery, or the House of Lords, would put on this section, we dare not presume to say,
The bill contains provisions with respect to the mode of application; the notice to be given by the court, &c., in cases where an application for a declaration of title is made. Sec. 21 provides that these provisions “shall apply to cases where the court proposes to execute a conveyance to a purchaser, with the substitution of the word "vendor' for applicant ’ where the vendor is not the applicant, and of words relating to a conveyance by the court for words relating to a declaration of title." Let us apply this interpretation clause to one or two of the provisions. By sec. 6 the notice to be given by the court is, amongst other things, to invite persons interested in the lands to come before. the court and establish their rights, with a view of having the same reserved, or of proving that the applicant is not entitled to such declaration of title as aforesaid.” Supposing the vendor not to be the applicant, persons will be invited by the court to come forward to prove that “the vendor is not entitled to a conveyance by the court." Again, sec. 7 provides that “the court hall, before taking any proceedings in the matter of such appliation, renuire the applicant to give such security for costs as the
court thinks sufficient.” Should the purchaser make the application, he, we presume, should be the person by whom security for costs ought to be given; but if we apply the interpretation in such case, we find that the vendor is required to give such security. Now, no doubt in many cases a vendor might be willing to consent to an application to the court by the purchaser, upon condition of being put to no expense, and of his incurring no liability in the matter, and the purchaser would be willing to give security for costs; but this arrangement the court cannot entertain, for it has no option, but must take security from the vendor.
Section 46 provides that if, in the course of any proceedings before the court, any person intervening in such proceedings as principal or agent, shall, with intent to conceal the title or claim to land of any person other than the applicant, suppress any deed in his possession, or any fact within his knowledge, the person so suppressing shall be guilty of a misdemeanour, and upon conviction shall be liable, “at the discretion of the court by which he is convicted, to be kept in penal servitude, &c., or to be fined such sum as the court”-i. e., according to the interpretation in sect. 3, the Landed Estates Court_may award; and any declaration of title in respect of such land or conveyance, made by the court of such land, shall be void as against all persons guilty of any such misdemeanour.” Must not the expression “ the court,” be interpreted in the same manner throughout the section; and does it not appear, then, that the fine is to be fixed by the Landed Estates Court? It woulil be a somewhat novel experiment in our criminal procedure for a prisoner to be tried by one court, and the penalty to be named by another.
The next question that arises under this section is one of a peculiar nature. We all know that counsel and solicitors in large practice frequently have notice of facts, and indeed solicitors may be in possession of deeds, which affect the title to land ; but which, having come to their knowledge or possession in the course of proceedings in other matters, it has hitherto been their duty to keep to themselves. Are they or are they not affected by this section? If they are, no applicant would be safe in employing counsel or solicitors who, from their extensive practice, would be most competent to advise and act for him.
Section 47 declares that if, in the course of proceedings before the court, any person intervening in such proceedings should (amongst other things) fraudulently alter any deed, will, &c., he shall be guilty of a misdemeanour. Hitherto, any person fraudulently altering a deed, will, &c., has been deemed guilty of a felony, (Archbold's Pleading and Evid. in Crim. Cases, 13th ed.,
VOL, VII. NO. XIII.
477, 492.) In this section, we again find that “the court” is to fix the amount of the fine.
The Landed Estates Court may direct an issue to be tried before any jury, for the purpose of determining any question of fact (sec. 83); and the decision of such jury (which might consist of five members in a county court) is to be conclusive on "all persons whatsoever," unless the Landed Estates Court otherwise directs (sec. 84). This is somewhat startling. Should an issue be tried by a jury before Lord Campbell, and the verdict be contrary to the evidence, or should the ruling of my lord be considered by one party as improper, it appears that no court other than the Landed Estates Court could direct a new trial; but that court, consisting of two judges (conveyancers of not less than ten years' standing, and who must therefore be excellent judges of such matters), may or may not set aside the verdict, and thus the functions of the court of Queen's Bench in banco would in these cases be completely delegated to two conveyancers of ten years' standing !
As to bill No. 2, previously to completing the transfer of land or of a charge, the registrar is required to give notice to the transferrer of his intention to complete the same (secs. 27-33); but when a charge is created, no notice is to be given to the registered proprietor. It seems to us that, if notice be necessary in either of the first-mentioned cases, it is equally necessary in the last.
The remedy of the proprietor of a charge under an instrument conferring a power of sale, is, that he may at any time, after a day to be mentioned in such instrument, transfer the land as if he were registered proprietor (sec. 20). Now let us consider the effect of this clause. In the first place, would the registrar be required to give the mortgagor notice of the proposed transfer? We think not; for, as the proprietor of the charge may transfer as if he were registered proprietor of the lands, the notice must be given to him. A registered proprietor, therefore, who may borrow money and give the lender a power of sale, might find himself deprived of his property without any notice whatever of the intention of the mortgagee to proceed to sale, and without being required to pay the mortgage money ; for there is no provision in the bill requiring the proprietor of a charge to give the registered proprietor notice, although such a provision might easily have been inserted without affecting the title of a purchaser, in the same manner as a clause to the same effect is now inserted in all mortgage deeds containing a power of sale. Moreover, as we have already noticed, there is no implied covenant for payment of principal or interest; and the consequence of these defects is, that no person could safely borrow,
and no person could safely lend, money on the security of registered land, without requiring an ordinary deed of mortgage to be executed in addition to the registered charge. Then the question arises, whether such ordinary deed of mortgage would require an ad valorem stamp? The 17th section provides that the instrument of mortgage shall be stamped in the same manner as if it were an unregistered mortgage. Now, if this instrument falls within the description of any of the instruments charged with ad valorem duty on mortgages under the stampacts, the special enactment would be unnecessary, and therefore it must be concluded that it does not, in which case the additional ordinary mortgage deed would not come within the provision for the exemption from such duty contained in the 55th Geo. III., c. 184, tit. « mortgage," which is to the following effect :-Provided always that, where several distinct deeds or instruments, falling within the description of any of the instruments charged with the said ad valorem duty on mortgages, shall be made at the same time for securing the payment of the same sum of money, the said ad valorem duty, if exceeding £2, shall be charged only on one of such deeds or instruments, &c. Thus we apprehend the mortgage deed, as well as the registered charge, would be liable (at least the commissioners of inland revenue would hold such to be the case) to ad valorem duty.
A transfer of registered land, or of a registered charge, may be made by endorsement on the land certificate, or on the certificate of charge, or by such instrument as the Landed Estates Court may from time to time direct (secs. 25 and 31). The instrument of transfer is to be delivered to the registrar, and detained by him, (secs. 26 and 32). The land certificate, or certificate of charge, must, if the instrument of transferis endorsed thereon, necessarily be handed over to the registrar; but, supposing that the Landed Estates Court should direct that a transfer may be made by an independent instrument, there is no provision in the bill which requires the land certificate, or certificate of charge, to be delivered to the registrar. This omission would preclude the Landed Estates Court from permitting a transfer otherwise than by indorsement.
Sects. 35–43, relate more or less to the transmission of land and charges. They are in many respects extremely defective. The draftsman does not appear to have contemplated the possibility of two or more persons, not trustees, being registered as joint proprietors. Suppose a registered proprietor should devise his land to A for life, with remainder to B in fee, the persons who ought to be registered are A and B as joint proprietors ; for there can be no reason, in so simple a case as this, for the intervention of trustees. Should A die first, his name ought to
be erased altogether; but none of the clauses seem to be exactly applicable to such a state of affairs; they all seem to have been prepared with a view of appointing new trustees. Moreover, there is nothing in the bill which expressly declares whether two or more joint proprietors, in the absence of a memorandum on the register, are to be treated as tenants in common, or as joint tenants. Here, again, the case of trustees alone has been contemplated.
We must next consider how leasehold interests would be affected. A leaseholder may, with the consent of the registered proprietor, or by an order of the Landed Estates Court, put a notice of his lease on the register (sec. 48): as no man would be so foolish as to take a lease from a registered proprietor without binding him to consent to an entry of such notice, this clause would probably so far work well. But let us suppose that the leaseholder desires to sell his lease. He could find no purchaser without proving that notice of his lease is on the register, and the bill provides no means of proving this. The leaseholder is not entitled to require any certificate from the registrar of the entry of the notice, nor can he inspect, or authorize any other person to inspect, the register; he may, if he can, procure the permission of the landed proprietor for that purpose (which we hardly need say would in most cases be refused), or he may apply to the Landed Estates Court for an order to permit inspection, but the court is not bound to give it to him. Surely the leaseholders of England ought not to be placed in such a position as this, by which their property may become unmarketable ? Again, suppose P the registered proprietor leases to A, who underlets to B: B cannot put a notice of his underlease upon the register, because between him and P there is no privity. P buys A's lease, and has it surrendered to him, and applies for the withdrawal of the notice. What will become of poor B, of whose underlease there can be no notice on the register? The Landed Estates Court is to make rules for the withdrawal of notices of leases; but is it fitting that parliament should entrust to any court the power of making rules which may not sufficiently provide for the safety of a single underlease in the kingdom ? Is the vast amount of underleasehold property in England to be trifled with in this manner? Why not as well leave the whole of the detail of registration to the court? The difficulty in this case arises from dealing with the subject of registration in a piecemeal fashion. Had leasehold property been included in the scheme, there would have been no difficulty, where now there appears to be an almost insuperable one. We cannot see how any leaseholder could be permitted to withdraw notice of his lease without coming before the Landed Estates Court, and