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said that the registration should take its date from the purification of the title, and not to put the name on the register until a right and valid title should have been obtained.”—(Speech, pp. 23, 24.)
Now, what has since been done by the House with reference to Ireland is this:-It “came to the conclusion, by a bill that was passed last session , to arm the court, which before was called the Encumbered Estates Court, and now is called the Landed Estates Court, with power to give indefeasible titles to all purchasers, and to any owner of an estate who could prove a right to the possession, while at the same time its power with reference to the sale of encumbered estates was continued.”—(Speech,p.10.) But to give an already existing court new powers, and to create an entirely new court, are two very different things. In Ireland the machinery was ready, and no risk was run in applying it to new work. Even supposing that all the encumbered estates in that country had been disposed of, yet it would have been impossible summarily to dismiss the judges and officers of the court without pensions or compensation, and, consequently, the experiment was a fair and reasonable one. Should it fail, not much harm will have been done, or much extra expense incurred; and by ceasing to appoint new judges, and discontinuing the powers of the court, the whole matter would fall to the ground, and die a natural death. We cannot, therefore, think that the commissioners who were fully alive to the benefits conferred on Ireland by the Encumbered Estates Acts, would have been induced to recommend the adoption of the Irish system in England, solely because Parliament had thought fit to invest the Irish court with new powers.
But when the Solicitor general introduced his bills he knewor ought to have known-something more than he told the House. He admitted in committee on the 14th March last, that in the three months from November to February, during which the new Irish Act had been in operation, there had been
ly two applications for an indefeasible title under its provisions, and of these applications one had failed and the other was withdrawn. But, said the Solicitor-general, “How did that happen?
The rules framed by the court were published at the beginning of November, and they had afterwards to be maturely considered by the professional gentlemen who would be required to act under them before they could be finally settled.” So far, therefore, from feeling any thing like disappointment that only two applications had been made to the court up to the beginning of February, the sanguine Solicitor-general was surprised that in so short a space of time after its constitution even two cases had been prepared and brought under its jurisdiction.
Now, to introduce into England the plan of granting indefeasible titles because, in the space of three months, two applications had been made and had failed under a similar system in Ireland, seems to us clearly to prove that the principle and the details of Sir Hugh's measures were about equally well weighed and tested ; and, so far from agreeing with Sir Hugh, we think that his reason for adopting a system diametrically opposed in principle to the recommendation of the commissioners, is insufficient, if not ridiculous; and that, had the commissioners been in possession of the facts allụded to, they would have said, " the success of the Landed Estates Court has not yet been sufficiently proved in Ireland to induce us to recommend its adoption in this country.”
A. B., the writer of the Letter we have mentioned above, is not sanguine as to the success of Sir Hugh's plan, but suggests that it should be confined in the first instance to the county of Middlesex, and, if found successful, should be extended to the rest of England; for should the system when tried prove not to be successful, the disturbance would have been local only, and would be capable of being rectified, and the landowners of Middlesex would be amply compensated for the experiment by having got rid of their register.
This suggestion, coming as it does from a very high authority, is deserving of great consideration; but it appears to us that the experiment, unless there be a reasonable chance of its success, is one of too costly a nature to permit of its being attempted. The chance of success evidently must depend upon the solution
of the question, whether the evils attending the present system of conveyancing are so great, that landowners, not intending to sell or mortgage, would be induced to avail themselves of the new process, which to them must be an expensive one, may dangerous one, and would not after all lead to any present advantage. All who may desire to sell or mortgage without delay, would necessarily be excluded from making application under the act. Now these evils, says the Solicitor-general, are two:
“The first is the length of time which at present must elapse between the making of a bargain and the completion of the purchase. We know how the purchase of all other kinds of property is completed. If you buy stock
do not require to be told how many hours are necessary in which to make the trausfer. If you buy railway shares, in like manner you have your purchase completed and your money paiil in a few hours afterwards. Perhaps the most extraordinary facility of transfer obtains in the case of ships. In five minutes, and at an expense of less than five shillings, you may make a contract for, and actually transfer, such a ship as the Himalaya or the Great Eastern.”—(Speech, p. 5.) Mr. Hawkins in his
able pamphlet, says: “The office of a register is not to promote simplicity and cheapness of transfer, but notoriety. There appears to me a fallacy in supposing that there is any thing natural in a system of registration as applied to the transfer of property. Where there is a thing to be sold, the absolute property of the seller, it will most easily, as well as naturally, be transferred by a direct process from him to the buyer, without the necessity of both resorting to an office in London to complete the transaction. Registration, qua registration, is only an impediment. The analogy of stock is cited.
The easiness with which stock is transferred is not caused by its being registered; it would be bought and sold still more readily, if, like a watch or any other chattel, it passed simply from hand to hand; but being not a corporeal thing, but a debt due to the owner from government, its transfer is effected by entry in the debtor's books, not for advantage, but of necessity.”
Mr. Hawkins is not quite correct here. It is not a matter of necessity that the transfer should be effected by an entry in the debtor's books, for the debtor may give a bond transferable to bearer, as is done sometimes by our own government, and very generally by foreign states with regard to their debts, and the transfer by entry is an advantage to the creditor, inasmuch as it affords him more security than he would obtain by means of a
bond, which may be destroyed, lost, &c. But we agree with Mr. Hawkins so far as this, namely, that the system of registration does not of itself necessarily tend to simplify transfers, “The case of ships,” observes Mr. Hawkins, “is peculiar; a ship is required to be registered to ascertain its nationality; without a register it would pass by simple payment and delivery. Registration is in all cases an additional element introduced into the affair, and to be desirable, it must be shown to save more than it adds to the trouble and expense of selling the commodity.”
The Solicitor general, after having shown how easily stock and ships may be transferred-which Mr. Hawkins has shown might be more easily transferred if there were no register at all --turns to real property. He tells us that when an estate is bought, the purchaser cannot get possession of it until after a long lapse---sometimes no inconsiderable portion of a man's lifetime-spent in the preparation of abstracts, in the comparison of deeds, in searches for encumbrances, &c. “Not only months, but years, frequently pass in a history of that kind,” says Sir Ilagh, “and I should
that it is an uncommon thing for a purchase of any magnitude to be completed—completed by possession and payment of the price--in a period under, at all events, twelve months.” Had Sir Hugh had any experience as a conveyancer he would not have made this extraordinary statement, which is entirely without foundation. A. B., whose practice as a conveyancer, it may be said, is more extensive than that of any other man in the kingdom, says:-"It is known to all lawyers conversant with such matters, that the average time between a contract and the completion of a purchase in England, under the present system, does not exceed three months; and that of the exceptional cases which exceed that average, in a considerable proportion the delay proceeds from the fact of the purchaser being unprepared with the purchase-money."-(Letter, p. 5.) And we can fully corroborate this statement, from the experience of others as well as of ourselves. So much, then, for the first of the evils.
The second of the evils, says Sir Hugh, is this :—A buys an estate, investigates the title, is satisfied, pays his money, and obtains a conveyance. A year or two afterwards, A desires to sell or mortgage, as the case may be; B is willing to become the purchaser or to lend his money, but before he can do so there. must be a repetition of the whole process which took place upon A's purchase of the estate. B must have his own solicitor and his own counsel to investigate the title, because he cannot trust those of A. This is no doubt an evil
-a very great evil; but the question is-Is it essential, in order to do away with that evil, to introduce all the cumbrous and expensive machinery which forms the basis of Sir Hugh's plan? The answer is patent-It is not. “ The parliamentary title,” writes A. B., “and the new and somewhat formidable statute of limitations, are incidents which you found to be inseparable from your scheme; but they were not the objects you had in view, apart from the diminution of the cost and delay with which the transfer of land is attended”(P. 3). Indeed Sir Hugh admits this, for he says :-“We all know that in practice, meagre as are the means at the disposal of conveyancers, such a thing is hardly ever heard of as a title passed by a conveyancer afterwards turning out to be a bad title”—(Speech, p. 13); and further, he believes that, “in point of fact, there are very few titles in this country which are not good”—(Speech, p. 21). But we can quote a somewhat higher authority on this subject even than Sir Hugh M‘Calmont Cairns. Mr. Joshua Williams, in his evidence before the Registration Commissioners, said—“The case of a bonâ fide purchaser being evicted for want of title is exceedingly rare ”—(Rep., p. 307). It is clear, therefore, that a system by which indefeasible titles can be obtained is not in itself required in this country. All that is wanted is some plan by which the continued re-investigation of back titles may be obviated. We do not believe that the actual transfer in the register would be less expensive than an ordinary conveyance is now. A conveyance at the present day is a very simple instrument, and, except as regards the stamps,