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and same "bill, sects. 28 and 29, defining the nature of ‘the estate of a. purchaser for valuable consideration, and of a. voluntary transferee respectively, and the corresponding sections of the amended bills.
Section 8 of the original bill No. 1, contained an enumeration of the several charges and interests which were not to be deemed incumbrances under the act. Amongst them we find tithe rentcharges, quit rents, easements of various kinds, &c., but land tax was not noticed. In sec. 12 of the original bill No.2, which defined the various ‘charges to which all registered land was to be deemed subject, unless specially excepted, land -tax and quit rents were not mentioned. These defects have been cured in the amended bills; but whether land, in respect of which an indefeasible tithe has been procured, would be subject to parliamentary or parochial taxes (other than land tax), and rates of a general hharacter, seems to be questionable.
Section 34, original bill No. 1, provided that, when-the court had made a declaration or conveyance, all deeds relating to the land should be retained bysthe court. This section proves one thing beyond a doubt ; namely, that the framers of this bill were totally ‘ignorant of the ‘ordinary detail of the practice of conveyancing. The authors of it could never have perused a single abstract of title, or a set of conditions of sale, or a. covenant for production of -title-deeds, otherwise they must have known that title-deeds do mot always relate solely to the property of one individual, and
that some of the title-deeds relating to one property frequently "
relate to otherproperties, otherwise held under perfectly distinct titles.
Section 37 of the amended bill No. 1, is indeed rather a new clause -than an amendment of sec. 34. It properly provides that -all such deeds delivered to the court as relate exclusively to the -‘land, and are of no avail except for the purpose of substantiating the title to the -land, shall be retained by the court, and all other -deeds -shall be returned, marked in such manner as to give lnotice to any person inspecting them, of the proceedings of the -court in relation to the land comprised in such returned deeds.
Many of the powers which, under the original bill N o. 2, were ‘vested in the registrar, are by the amended bill taken from him, and vested in the Landed Estates Court. For instance, where, -upon the first registration of land, notice of an incumbrance has -been entered on the register, the registrar, on proof being -given to -him of the discharge of the incumbrance, was directed to enter -on the register a memorandum of the discharge (sec. 14). -By the amended bill,-sec. 15, the Landed Estates Court is to direct the lregistrar to enter such memorandum. Again, the registrar, on the requisition of the proprietor of a charge, or on -the production
of suflicient evidence that a charge had determined, was directed to “enter the discharge"—not a. memorandum of the discharge? on the register.—(Original bill No. 2, sec. 23.) By sec. 34 of the amended bill, the registrar is directed, on the requisition of the proprietor of a charge, or on the production of an order of the
anded Estates Court, to enter a. memorandum of the discharge
on the register; and a necessary addition to the section is made _
by stating that, upon such entry being made, the land shall be deemed to be discharged.
Instruments such as transfers and charges, which, under the original bill No. 2, were required to be attested by “lone or more witnesses, ” by the amended bill are required to be attested. by a_ solicitor—(See original bill No. 2, sec. 16, 24, and 30, and corresponding sections 1n amended bill.) This amendment is certainly a good one, for it lessens the danger of fraud.
For the word “ mortga e,” which occurred over and over again in the original bill -I50. 2, the word “ charge ” is substituted in the amended bill.
Section 19, in the original bill Njo. 2, provided that any mortgagee might, in default of payment of the mortgage money or interest, “enforce all such remedies against the mortgagor for the recovery of the money due to him, or for the foreclosure of the land, or otherwise howsoever as he might_ha_ve enforced, if such land were not registered, or as near thereto as circum
stances admit ; ” but what remedies the mortgagor might have
V enforced if the land had not been registered, could not possibly
have been determined by any one, not even by two conveyancers of ten years’ standing. The corresponding clause in the amended bill in strictncss ought to have been included in our list ofnew clauses; it is to the effect that the proprietor of a charge may enforce a foreclosure of the land in the same mannerin which he might enforce the same if the charge were secured by a conveyance of the land to l_1im,_subj,ect to redemption ; this clause is better than the one which it supersedes, yet it affords another example of awkward reference so common in, this bill, to something that might have been, but is not, done, '
Section 38 of the original bill No, 2, is as follows :-“ The husband of any female proprietor of land shall be entitled to be registered as co—proprietor with his wife of such land; ” but no provision was made for taking the name of the husband off the register upon his death. Sec. 39 of the amended bill directs that the husband shall be described as co-proprietor in right of his wife, and on his death the original registry of the wife, with a change of name if necessary, shall revive. This new section provides for the case of the husband dying in the lifetime of his wife ; Im how if the wife. should die first and the husband not
be entitled to the curtesy of England? The case has been
To show the effects of tinkering, we will print sec. 39 of the original bill, and the corresponding section of the amended bill
side by side.
Sec. 39. Where land is registered in the joint names of husband and wife, no registered disposition of such land shall be made until the wife has been examined by the Landed Estates Court, &c., and has assented to such disposition, after full explanation of her rights in the land, and of the elfect of the proposed disposition.
Sec. 40. Where land is registered iu the joint names of husband and wife, no registered dealings with such land shall take place until the wife has been examined by the Landed Estates Court, &c., and has assented to such disposition after full explanation of her rights in the land, and of the effect of the proposed dis
Now, the use of the term “ such disposition,” when no disposition has been mentioned before, is, to say the least, not very accurate.
Section 42 of the original bill No. 2, is divided into six subsections: of these two have been altogether omitted, and three have been amended in the corresponding section of the amended bill (sec. 43), which also contains four new subsections. The section defines the rules to be observed with respect to registry. The fourth subsection was to the effect, that no alteration should be made in the registered description of the parcels except upon the requisition of all parties interested, and upon the production of such evidence as the registrar should approve of. The omitted subsections (Nos. 5 & 6) are as follows :—No. 5, “ The registrar shall not be compelled to recognize any description of any parcel other than the registered description;” and No. 6, “ Where the description by which any parcel was originally registered is altered, each proprietor shall be responsible for the identity of such altered parcel with the parcel as originally described.” What the draftsman meant by being “ responsible” it is impossible to imagine; nor was it clear to whom “each proprietor” referred, or for what each proprietor would be responsible. The fourth subsection in the amended section provides, that no alteration in the parcels shall be made except under the order of the Landed Estates Court. No registered owner, therefore, would be able to sell a part of his estate without subjecting himself to the trouble, annoyance, and expense of resorting to this new Court of Chancery I
Three of the new subsections relate to succession duty. No transfer of any registered-land, and no creation of a charge, is to
be made until a certificate has been obtained from the commissioners of inland revenue, that no succession duty is payable in respect of the land. The commissioners of inland revenue are required to give such certificate upon such declaration being made, or such other evidence being produced as the commissioners may require, and the registrar is directed to see that such certificate is duly obtained; but no transfer or charge once entered on the register is to be invalidated on the ground that the certificate was not obtained, or on the ground of any informality. These three subsections would not affect alease, though it might be for a thousand years, at a peppercorn rent. The fourth new subsection provides that when an instrument, required to be attested by a solicitor, is executed out of England, it may be attested by a solicitor of the Court of Chancery in Ireland, a writer to the signet, a consul, vice-consul, or notary public.
By sec. 76 of the original bill No. 1, a scale of costs, to be paid to persons other than the officers of the registry, was to be fixed by the Landed Estates Court; by sec. 84 of the amended bill this scale is to be fixed by the Lord Chancellor, with the assistance of the Lord Justices and the judges of the Landed Estates Court; and the section moreover contains a valuable addition, namely, that the scale of costs may be based either wholly or in part on an ad valorem principle.
It is very remarkable that, even in the clauses relating to stamps, some amendments were necessary. The draftsman, had he taken the trouble to search for precedents, might have found plenty that would have served his turn, and saved him from bungling; for instance, in sec. 70, original bill N0. 1, and sec. 74, original bill No. 2, it was provided that, when any fees are payable in respect of any document, a stamp denoting the amount should be afiiwed to the document. An impressed stamp is often found to be more convenient than one that requires to be alfixed; and the amended bills provide that stamps may be aflixed or im ressed.
Some of thlia inaccuracies and defects which are to be found in the amended bills we have already noticed in the foregoing remarks; there are yet others——many others—a few only of which we now propose to consider.
Section 15 of bill No. 1 has been given in ezctenso in a previous page. The expression, “every purchaser for valuable consideration of the land mentioned in such declaration,” in that section, is somewhat vague. The person whose title is established may, in the strict legal sense of the word “ purchaser,” be a purchaser for valuable consideration of the land mentioned in such declaration; does this section apply to him? The meaning of the
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 ofa power of selling land, may, with a view to a sale, app y 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 donoc to sell, any pmrchaser”—-this time it is any, not every purchaser-—“ forvaluable consideration 0F the land mentioned in such declaration, orvofany part thereof, or of any interest in such land ”—here again are the words ‘F 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 had 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 cestuique 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 fbr 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. Vvhat 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 pro-. vides 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 afbresaid.” 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 appli-, stion, renuire the applicant to give such security for costs as the