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proving either that no underlease had been granted by the original lessee, or any person claiming through him, or that every underlease which may have been granted had expired ; and we certainly do not see why leaseholders should be inconvenienced and put to expense in dealing with their property, in order that a supposed benefit may be conferred on freeholders.
Next with regard to cautions. The effect of a caution (sec. 51) would be, that the registrar could not register any dealing with the land until he had served notice on the cautioner. After the expiration of twenty-one days after the date of the notice (not after the day upon which the caution may be served), the caution is to cease, unless an order to the contrary be obtained from the Landed Estates Court; but by sec. 52, if before that time the cautioner, or some one on his behalf, should appear before the Landed Estates Court, that court may, upon a bond being entered into for indemnifying every party against any damage that may be sustained by reason of the delay, make an order on the registrar, requiring him to delay registering any dealing with the property for such further time as may be mentioned in the order. If a cautioner should happen to leave England, or should happen to have a brain fever, or should otherwise be prevented from attending to business, what would be his position ? Every man should, as soon as he enters a caution on the register, direct letters from the land registry to be sent to his solicitor,” is the answer. Good; there would be no great hardship in this. But who is to appear before the Landed Estates Court and petition for delay, and, beyond this, who is to enter into the bond ? The cautioner's solicitor? We do not think that many solicitors would be kind enough to undertake such a slight liability. No; it is perfectly clear to all except the framer and supporters of this miserable bill, that the system of cautions as carried out would be a dead failure, would work great injustice, and would afford facilities for fraud and cheating, which persons like those whose histories are told in the volume entitled “Facts, Frauds, and Failures," would avail themselves of largely. These remarks apply in some measure to the system of cautions in bill No. 1, but not to so great an extent ; for there the Landed Estates Court could protect the absent in the same manner as the interests of a purchaser are now protected by his counsel and solicitor ; but the Landed Estates Court would have no power over cautions on the register, except such as would be given by the act. It is not to be supposed that persons will enter up cautions without just
In the first place, the caution must be supported by an affidavit; and in the next, if a caution be lodged without reasonable cause, the cautioner would be liable to pay damages. For
our part we cannot see why it should not be the business of the registered proprietor to procure the cautions to be removed, and why it should not be left to him to petition the court, which could then protect the cautioners as it might think proper.
Section 68 is as follows :--“No purchaser for valuable consideration shall be affected by the omission to send, or by the non-receipt of, any notice by this act directed to be given.” If this clause is meant to apply only to a purchaser of registered land or of a registered charge, from a registered proprietor or mortgagee, it is unexceptionable, and ought to have been, though it was not, inserted in the original bill. To show how necessary the section is, we would observe that the title of every purchaser from a registered vendor might have depended upon the fact of a properly addressed letter having been sent to the cautioner; the mistake or negligence of a clerk in a name or an address, or in duly posting a letter, might have deprived a purchaser of his estate, without even leaving him any remedy under covenants for title. And these were the measures which were to give a purchaser an indefeasible title! When we read in the reports of the Postmaster-general, that numbers of letters are, in the course of the year, posted even without any address at all, and that such letters frequently contain bills and other valuable property, and are despatched, not by illiterate or ignorant persons, but by merchants—who usually manage their business far better than government officials manage theirs—were we to expect that the clerks of the Landed Estates Court, or of the Land Registry, would be infallible?
But we think that the term “purchaser for valuable consideration,” may be held to include others besides the purchaser of the registered land or charge. Suppose a registered proprietor holds the land in trust for X, and A purchases for valuable consideration from X; or if A should have a judgment against the registered proprietor, obtained for value, or should sell his judgment to B; or if A should be one of Sir Hugh M Calmont Cairns's secret mortgagees for value, or should sell his interest to B—would not A or B, in any of these cases, be a “ purchaser for valuable consideration ? and if the registered proprietor should then sell, but A or B (as the case may be) should not receive notice of the intended sale, would they be bound ? Certainly not, aocording to the legal meaning of the word “purchaser,"
,” which is not, so far as we can see, in any way restricted in the bill. Need we add that, under such circumstances, these bills for giving and perpetuating indefeasible titles would (should they ever become acts) be but snares and delusions to entrap the unwary, and those who confide in the ambitious but reckless experiments of men who, alike ignorant of the law as it is,
and as it ought to be, are too vain to seek information at the hands of the really learned and experienced lawyer.
The bills abound in minor inaccuracies ; for instance, the word “ land,” to which a particular meaning is given by 13 & 14 Vict., c. 21, s. 4, ought to have been used in all cases in these bills, and yet we frequently find the word “lands” employed.[See Bill No. 2, secs. 6, 8, &c.] No interpretation of the expression “The Court" is given in Bill No. 2, and yet that expression will be found to occur in Bill No. 2 as often as the term “ Landed Estates Court;" and this discrepancy is all the more puzzling, as in some sections “The Court" is used to signify a court other than the Landed Estates Court.—[See secs. 62 and 63.] Then in sec. 14 of the amended Bill No. 2, we find an “estate in fee simple” called a “state in fee simple," the like error having occurred in the corresponding sec. 13, in the original bill from which it was copied,
With respect to the forms in the schedule, we may remark that but one form of charge is given, and that one contains a
Section 85 declares that the forms shall be used in all matters to which they refer; but there is no power to vary the forms, or to omit any part of any one of them. "The Landed Estates Court may alter any of the forms, but cannot make additional forms; and consequently there is, and can be, no short form of a charge without a power of sale.
power of sale.
We have now given specimens of some few out of the multitude of inaccuracies and defects in the details of these bills. To specify all of them would be useless, and indeed impossible, without devoting more space to this subject than can be allotted to it. We have, however, mentioned a sufficient number to prove that it is untrue that these measures were well-considered before they were brought forward. The brilliancy of the popular speech of the Solicitor-general, referred to at the outset, was derived from the habit which a skilful advocate acquires of getting up rapidly (for the purpose of making a telling effect) a brief prepared for him, and which brief may be indifferently on the right side or the wrong one. The case he opened so plausibly has, so far as the evidence is concerned, failed miserably. If, unhappily, he had forced his bills through the legislature, they would have been wretched abortions, and have done more harm to the cause of genuine reform of the law, than six clever
Solicitor-generals, all making “brilliant” speeches, could have remedied.
“It is not re-assuring,” observes the writer of the Letter numbered four at the head of this article, "to find, that instead of a great measure, such as you have in hand, having been maturely considered, and deliberately weighed, and tested in all its parts, your bills turn out to be off-hand productions, the clauses and provisions of which shift and vary from day to day.” Such being the case, what proof is there, we would ask, that the principle embodied in these bills has been more maturely weighed and considered than their details? We know that the registration commissioners, in their report of 1856, gave it as their deliberate opinion, that the introduction of such a Landed Estates Court as Sir Hugh M.Calmont Cairns now proposes to introduce here, would not be advisable; on the other hand, with all due respect for Sir Hugh's talents, we are bound to say that he has not, in the details of these bills, displayed so profound a knowledge of real property law as to render his unsupported opinion on the subject of much weight. The commissioners say:
“ The conclusion to which we have come is adverse to the institution of a Land Tribunal, with judicial powers to decide conclusively upon all titles to land. Such a court may advantageously be established where estates generally are so heavily encumbered, that their owners can neither emancipate themselves from existing burdens, nor discharge the duties which attach to the ownership of land. The object, in that case, is to obtain altogether a new proprietary, and to provide for payment of debts; but the same principle is hardly applicable in a state of society where there is no paramount need of encouraging absolute changes of ownership, as contradistinguished from temporary charges or family settlements, and where a considerable portion of the property will, not improbably, whatever may be the state of the law, still remain in the same family." -(Rep. p. 17.)
And again :
“We think a compulsory investigation of title, though only required as a preliminary to registration, would be highly objectionable; and we do not recommend it. It would involve, as has been pointed out in the evidence before us, the necessity of having every title to every
1 This letter, it is understood, emanates from a conveyancer of the highest eminence, and merits perusal.
acre of land thoroughly investigated by a competent judicial tribunal. It would be distasteful to landowners, who would be very reluctant to disclose their titles, and it would occasion the bringing forward of many stale and ill-grounded claims-would give rise to litigationand would, when completed, be of no practical benefit to any, except those who contemplated selling their estates.”—(Rep. p. 26.)
And further :
“We do not think that in order to pass from our present system to a register of title, it would be necessary, as has been suggested, to create a jurisdiction in commissioners, applicable to all land, whether encumbered or not, similar to that of the Encumbered Estates Court in Ireland, by which an absolute or parliamentary title to the land subject to leases or tenancies, should be declared. On the contrary, we concur in the opinion of one of the witnesses who has given evidence before us, that to make a judicial or quasi-judicial examination of title an indispensable preliminary to admission to the register, would greatly narrow the benefits of registration. The
alone of the examination, would exclude nearly all small properties; and the trouble and expense combined, would exclude many others. Defective titles would necessarily be excluded ; and we do not see why a defect in the title to land, anterior to the introduction of registration, need deprive that land of the benefit of an improved mode of transfer subsequently.”—(Rep. p. 28.)
Now we freely admit that we have little confidence in commissions or commissioners. But it is not necessary for us to consider whether these Registration Commissioners did their work well or not; it is sufficient for our present purpose to know, that Sir Hugh M‘Calmont Cairns thinks they did. Speaking of the report, he said:
“With respect to that report I feel a difficulty in speaking in any terms wbich can justly convey to the House the very profound impression which its perusal has left upon my mind. look at the names of the commissioners who took a part in that inquiry, I think they will carry the greatest possible weight with the House on a question of this kind.
We have adopted, and we propose to the Honse a scheme founded to a very considerable extent upon the report of this commission. I say to a considerable extent, because we confine our plan of a register of titles to those cases in which a declaration of title has in the first instance been obtained. I venture to think that if, at the time this commission made their report, they had possessed the knowledge of that which has since been done by this House with reference to Ireland, they also might not have been indisposed to confine their recommendations in the same way; and after devising means of purifying the title once for all, have.