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THE LAW SOCIETY.PROVINCIAL MEETING.
J. $. Rubinstein, London, The report of the Royal Commission on the Land Transfer Acts issued in February last and the debate thereon in the House of Lords on the 19th July, when the Lord Chancellor announced that a Bill had been prepared for the purpose of giving effect to the recommendations of the commission, 'make the due consideration, of the subject of land transfer at this meeting one of vital import
Solicitors, as the one and only class in the community who havo a first-hand practical knowledge of the subject, have a duty in the matter to the community that they dare not ignore. It rests pre-eminently with us to take account of the position. It is for us to set out the facts in such a way as to ensure that the pro. visions of the measure to be introduced be adequately scrutinised. It thus depends solely upon our success in making matters clear whether or not the measure that will in due course become law will or will not be in the real interests of the public. The speeches made by the Lord Chancellor and by Lord Halsbury in the debate to not lighten the difficulties in this our path of duty. Their views are so opposed to the interests of the public and so disparaging to ourselves that it would be fatal for us to attempt to ignore them. We have nothing whatever to hide. On the contrary, the more light we can throw on the subject the better it is for the public and for ourselves. Our plan of cam. paign is thus marked out for us. We must be as outspoken as our Law Lords themselves. We have to show that the allegations made in the course of the debate are one and all absolutely un. founded. They can, I think, be fairly summarised as follows : (1) That the present system of conveyancing by deed is antiquated and expensive, and its continuance amounts to a scandal; (2) that the alternative system of registration of title is a far more benefi. cial one as regards simplicity, security, and cheapness ; (3) that all the foremost legal authorities have been and are in favour of the registration system; (4)_that the principle of registration of title has been accepted by Parliament after prolonged consideration; (5) that the fact that the registration system is in operation in other countries proves that it can be successfully worked here; (6) that the opposition to the system proceeds wholly from solicitors who are influenced by personal and selfish motives.-I fully realise that it is entirely unnecessary for me to satisfy you that these allegations are entirely without foundation. We must, however, be awake to the fact that the discussion in the House was not initiated without a set purpose-a purpose that it is easy to fathom. An atmosphere had to be created which would be calculated to bring to fruition the legislative weeds that there is every reason to fear are about to be planted. Judging by the number of leading articles that appeared in the Press dealing with the “scandal” that was emphasised in the debate, the discussion has apparently served its purpose. We cannot, therefore, if we would, remain silent. The refutations of these baseless assertions
to ourselves a thrice-told tale-must, however wearisome it is, bo once more repeated in the hope that our deliberations to-day will be noted outside. I see no other way of counteracting the anischief that will surely ensue if the assertions are left unanswered. We should not be doing justice to the strength of our case if we confined ourselves to joining issue on the points referred to. We must go further and prove affirmatively : (1) That our present system of conveyancing by deed secures simplicity, cheap. ness,' expedition, and safety; (2) that the compulsory system of registration of title now on trial as an experiment is, having regard to the conditions that exist in this country, complicated, dangerous, and expensive, and has been proved to be wholly un. workable; (3) that the supporters of the new system of land transfer are not to be found in the ranks of conveyancing experts, but are confined to interested officials and to theorists who have no practical knowledge of conveyancing; (4) that the statement that solicitors are opposed to the system from interested motives is a 'calumny that has been disproved time after time; (5) that thero is no public demand whatever for the substitution of the registration system for the present system ; (6) that the innumer. able attempts that have been made since the first Land Transfer Act was passed in 1862 to evolve a workable system of registration have one and all ended in failure, and that to-day no prospect exists that the system can ever be made a workable one; (7) that as close on a million of money has been spent since 1897 in the experimental trial of the system of compulsory registration of title in the county of London, the time has come for bringing to an end an experiment which involves the waste of £50,000 a year, and for recognising that the continued existence of the Land Registry Office is a public scandal.-I have thus indicated in the two sets of numbered paragraphs the points in controversy; I purpose dealing specifically with each of them, with, I hope, the result of demonstrating on which side the truth is to be found. An eminent French chemist once warned his pupils that in scientific research, unless they were very careful, they would find what they were looking for. His meaning was, of course, that in pursuing any investigation with a preconceived idea, it is exceedingly difficult to bring an unbiased mind to bear upon it and to see what is really there. The underlying thought is repro: duced in Bernard Shaw's axiom that " The cleverest man will beliove anything he wishes to believe, in spite of all the facts and
all the text books in the world." These reflections must be con.. tinuously borne in mind when considering the influences that have been and are at work in the attenipt to introduce an bfficial system of transfer. They will help to explain what otherwise would be inexplicable, the acceptance of the doctrine that "the end justifies the means by authorities whose claim to be considered men of light and leading passes unchallenged. In dealing with the subject I shall have occasion to quote somewhat largely from the speeches made in the course of the discussion in the House of Lords as reported in the l'imes. I am aware that some of the crude statements which were made were subsequently toned down, and that they did not appear in the official report. I am, however, I consider, justified in relying on the spoken words, especially as these formed the text for the many leading articles that repeated the most incisive allegations to which the speakers thought fit to give expression.
The Present System of Conveyancing. The question whether our present system of conveyancing is antiquated and expensive and whether, as suggested by the present Lord Chancellor and his predecessor, its continuance amounts to
scandal,” or whether it secures, as I assert, simplicity, cheap ness, expedition, and security, is a question that, if considered impartially, can be answered without difficulty. I have already indicated that the work of conveyancing is almost entirely in the hands of solicitors, and that there are very few, even in the ranks of the leading lawyers, who understand the subject. Since 1850 there have been only two Lords Chancellor, Lord St. Leonards and Lord Cairns, who can in any sense be considered conveyancing experts, and they are the only two by whom important conveyancing, statutes creating real reforms have been passed. In 1859 Lord St. Leonards passed the Law of Property and Trustee Act. In -1881 Lord Cairns passed the Conveyancing Act and the Solicitors' Remuneration Act, and in 1882 the Settled Lands Act. The Acts I have mentioned are practically the only comprehensive Acts of real abiding value that have been placed on the statutebook within the last sixty years. Our present conveyancing system as finally settled by Lord Cairns' Acts of 1881 is based on the principle that all transfers, mortgages, and other dealings in property have to be carried out by means of deeds prepared by solicitors respectively nominated by the parties to the transaction. The deeds are so drawn as to embody in language intelligible to any person of ordinary understanding the nature of the transaction and to ensure that legal effect is given to the intention of the parties. In the case of conveyances, mortgages, and leases, custom has prescribed forms which are almost universally followed and which are readily understood. In the case of other dealings the deeds are framed in appropriate language capable of fitting every conceivable transaction. The deeds when completed are kept by the purchaser, mortgagee, or other beneficiary: This method of dealing with property is the method in vogue in every civilised country in the world with a few exceptions to which I will refer later. The allegation that prior to 1881 our system of conveyancing was long, complicated, and expensive was not without justification. Deeds were of undue length. Costs were ascertained by detailed item charges for every document perused, for every attendance, and for every letter, and were, in consequence, habitually out of proportion to the amount involved. Lord Cairns' Acts of 1881 brought this state of things to an end and completely removed every legitimate cause of complaint. Practically everything that tended to make ordinary deeds long, technical, and unintelligible was abolished. Titles
immensely simplified. The actual words necessary to convey property of whatever value were so reduced that they could be contained within the limits of a small sheet of notepaper. The costs payable on sales, purchases, and mortgages were fixed on a moderate ad valorem scale basis, thereby adopting the principle on which valuers, auctioneers, stockbrokers, &c., are remunerated
-a principle that is universally recognised as sound and just. The scale was largely the work of Sir George Jessel, one of England's greatest judges. It allows 30s. per cent. on the amount of the purchase or mortgage money up to £1000, decreasing to £1 per cent., and ultimately to 5s. per cent. as the amounts grow larger. In view of the skill and responsibility involved, the scale is recognised as fair and reasonable. The recent report of the Land Transfer Commission testifies to the fact that on the inquiry a great body of evidence from different parts of the country was “ directed to show the cheapness, expedition, security, and general convenience of present-day conveyancing." Anyone reading the recent discussion in the House of Lords would be justified in concluding that the Law Lords who took part in the debate had never heard of Lord Cairns' Acts of 1881. Their remarks might have had some point had they been directed to the state of things that existed prior to that date.' The Lord Chancellor enlarged upon the present system as "little short of a scandal,” as “almost unique for its futility and costliness. That "it often occurred” that after investigation a purchaser “ found himself still with a defective title.” The system led to the costly employment of a solicitor" and to “the costly reinvestigation of title on every transfer of land whether mortgage, sale,
That “ generally there was a condition of things attaching to the legal transfer of property in England which was nothing less than a scandal.” Further, that “the system was a clog on landed pro. perty, and it fell especially hard on poor people who liked to buy their own houses or small pieces of land." That it was “an oppressive tax on landed property, å hindrance in the develop.
mont of land and its acquisition by small owners, and that it depreciated the value of land." The Earl of Halsbury urged that “it was most unreasonable that after a title had been investi. gated and found to be good the whole thing should be gone over again whenever the owner desired to sell or to alter iis. qwnership, and that the expense of such a system was enormous." Looking at the matter from the point of view of the public, it is a grave misfortune that apparently there was not a single person in the House of Lords possessing a practical knowledge of the subject to point out how wide of the mark the allegations were. How useful it would have been had some qualified person informed the House that Lord Cairns' system has, since it first came into operation in 1882, worked and is to-day working without complaint or friction. That it is so simple that property can under it be conveyed within twenty-four hours and that probably 95 per cent. of the transactions are completed within a fortnight. That the scale charges are so reasonable that they do not hamper dealings in any way, and that even a working man who wants to purchase a house or a piece of land, say, for £300, does not begrudge his solicitor the scale charge of £5 for investigating the title and completing the conveyance. That a purchaser is not deterred from buying a property for £500 by the knowledge that his solicitor's fee will be £7 10s., nor if he is willing to pay £2000 will he consider a scale fee of £25 enormous. That the argument that on every dealing the old title has to be reinvestigated is entirely misleading. That property, it is estimated, only changes . hands every fourteen years, and that on each dealing the root of title has a tendency to shift to a date later than the date of the previous root. That this investigation is a great safeguard against fraud as the knowledge that titles are examined by trained experts is, of itself, sufficient to deter any person from attempting the commission of fraud. That what a purchaser requires is security and fixed charges reasonable in amount, and as these requirements are secured by the present practice the que3tion of title or whether it is long or short does not trouble him in the least. That, as a matter of fact, fraud is extremely rare, and that the Lord Chancellor's statement that it “ often occurred that after investigation a purchaser acquired a "defective title" was wholly unwarranted, and that such a statement went far to prove that the persons upon whom the Lord Chancellor relied for his information had either no practical knowledge of, the subject or else that they were wholly reckless in the statements they made in order to disparage the system. I have not yet nearly exhausted what can be said in proof that the present system works easily and smoothly throughout the country. I submit, however, that I have said sufficient to show that the word “ scandal ” applied to the system as finally fixed by Lord Cairns does not accord with the facts.
Registration of Title. We have now to consider the system of registration of title and to determine whether it is in this country a “most beneficial system,' as its advocates contend, or whether it is a baneful system, and one that it is impossible to make workable in this country. The theory of registration of title is to abolish deeds and to substitute in their place an official registry wherein all dealings are recorded, the officials undertaking all classes of work incident to dealings with property. Every transaction has to be carried out in a prescribed manner, the registry being the sole evidence of title. * Registries of titles are of two sorts-(1) compulsory and (2) optional. The compulsory system is confined to Austria, Hungary, and Germany, and, under the Land Transfer Act 1897, to the county of London. The optional system exists in England outside the county of London. It also exists in Australia and New Zealand, where the system is known as the Torrens system. In places where the system is optional owners can utilise the registry or carry out their transaction by means of deeds as they deem best in their own interest.
The Torrens System of Registration. In considering how far a registration system is a workable and suitable one here, the argument that because it is in operation elsewhere it should succeed here is altogether fallacious. It might have force if the conditions of land tenure were the same. matter of fact, the conditions here are altogether different to what they are elsewhere. This distinction is recognised by everybody who has any real knowledge of the subject. In the House of Lords' debate the Lord Chancellor referring to the present system said,
““ For these evils no doubt 'a 'remedy could be provided," and then referring to the registration system the Chan. cellor said, " There had been 'a system of this kind for a long time in Australia and in New Zealand and also in Central Europe. After the first registration the expense of such a system was very small." That “every man who had held the Great Seal during the last sixty years had been in favour of this system,” and that “this fact might well be considered by those who were inviting persons to believe ' by interested oppositiòn that what practical in Australia and New Zealand impractical in England under the same law." How very valuable it would have been if someone with a knowledge of the subject had followed in the debate, and pointed out how strange it was that anyone claiming to speak with authority should not apparently be acquainted with the conclusions that had been come to by men of independent judgment who had made the subject à study. The House would have been told that the matter was thoroughly investigated by a very strong Royal Commission in 1869, and that in their report the commissioners said: "We have had our atten.
tion called to systems existing in other countries, but we believe that any attempt to imitate them would only mislead us. In Ireland an Encumbered Estates Court has been at work, and there has been a most accurate' survey'; in Australia and other colonies the land has been recently granted out by the Crown after official survey. The continental nations have (we believe) a more simple law, not admitting of the long settlements that prevail in England. Other nations, therefore, have starting points which we have not, and which preclude us from taking their example: as guides for ourselves!' The House would further have been reminded that' a Select Committee of the House of Commons also werit thorougtily: into the subject in 1879, and in their report they said " It has' been strongly urged upon your committee by Sir Robert Torrens; the well-known author of the South Australian land transfer system, and by other witnesses of colonial' experience; that in some of the Australian colonies, where the English system of conveyanc.: ing originally prevailed, the establishment of a registry of titles: has worked so well that public opinion has demanded and com. pelled its general adoption. In the opinion of your committes: the analogy is one which it would be unsafe to press' too far. In Australia the title to all land, instead of resting, as may be the
with us, upon an instrument of difficult construction or doubtful validity, starts with an unimpeachable grant from the Crown, following upon an official survey. The effect is to give every landowner two things, which are the 'stumbling blocks of English conveyancers, a perfect root of title to his property and a trustworthy key to its identity. Indeed, the best illustra!.. tion of the difference between the condition of the two countrieg." may be found in the fact that the universal registration of unim..! peachable or absolute titles, which has been found perfectly easy'ı in Australia, would, it is admitted by the strongest advocates, of registration, in England be simply impossible. The above quotations are surely a complete answer to the Lord Chancellor's.. assertions. Lord Cairns' views can also be studied with advant") tage if further authority is required.
Parliament and Registration.. The most cursory review of the history of registration of title: i in this country will convince anyone that Parliament has never: 1 accepted the principle of registration of title: Our Law Lords, urge the contrary view, so it is necessary to prove that Parliament'; has done no more than sanction a trial of the system as act: experiment. We must not weakly concur in the oft-repeated assert i tion that the matter is a chose jugée so far as Parliament is con: cerned. A review of the history will also go far to show thata." time after time the system has broken down, and that owing to : our conditions of land tenure it can never be made a workable one here. The first Act-Lord Westbury's Act of 1862-brought :the Land Registry Office into existence. The Act was purely; a : permissive one. It gave property owners throughout the kingdom the opportunity of registering their titles as "indefeasible.' At. the outset a few owners, attracted by the novelty, registered.: their titles. The difficulty, expense, and delay of registration.' were soon found, however, to be prohibitive, and when in course . of time it became known that dealings with registered property :: were far more cumbrous and expensive than dealings carried out under the then system the registry was absolutely ignored. The ,' Act consequently proved a dismal failure. In May. 1868.a. Royal..., Commission was appointed under the chairmanship, of Lord.com Romilly to consider the causes of the failure of the Aet, and inr , their report, issued in Nov. 1869, the causes are thus indi: : : cated : "We have now completed the first part of our task, viz., roi our inquiry into the operation of the system established by the ::: Act of 1862, and will here recapitulate the odnelusions, we have arrived at. We find that persons who came to register: their titles. are subjected to delay, expense, and vexation: far beyond what occurs in an ordinary sale; that these evils have deterred nearly. ;. all who have tried the system from persevering in it; that they are not to be attributed to shortcomings in the machinery of the office, or in the officials personally; but that they are directly... and visibly traceable to the main principle of the Act that is $0 :: say, to the necessity which it imposes of : (a) Showing a market. :'; able title ; (b) defining boundaries; (c) registering partial interests. That to compensate these immediate disadvantages there is no subsequent advantage to be hoped for, but, on the contrary, that a registered owner may rather look for : (a) Expense in future : entries; (b) a clouded title; (c) possible litigation at the option of.. the registrar or a judge of the Court of Chancery. · And that under. , , these circumstances and for these reasons the system has failed."'. The objections to the system indicated in the paragraph. I have quoted exist to-day as strongly as they did in 1869. Although the little work the Land Registry did was worse than useless, and noti withstanding that it was carried on at a yearly, loss that had.ta be made good out of public money, the office continued to stand well with politicians. Pressure was accordingly brought to bear. on Lord Cairns-then admittedly the greatest living expert in conveyancing—to frame a new Registration Bill. He had no faith in the registry, but he yielded to the pressure. The explanation, given by him subsequently was that finding the State in the.. possession of the office of the registry, which could not: be dis-is'. placed and must be utilised, I did not consider at that time that I had any choice but to endeavour to do the best I could with it.':, In framing the Bill that afterwards became the Land Transfer Act 1875, the first problem to be solved was to find a method of: placing titles on the register without subjecting puners: to the sots prohibitive expense and delay involved in adequately investigating :! | their titles. This it was ihought might be secured by three
svecessive degrees of 'titles-namely, possessory and “absolute. The office 'was to allow owners to register their title; as' ". possessory without investigation. This title' was not to absolve a purchaser from the need of investigation, but it was thought possible that after a certain lapse of time the same title could on a subsequent transfer be registered as “qualified, and that such a title would materially limit a subsequent investigation; and, further, that, after the title had been on the register a sufficient period of time, the original title might then automatically mature into an “absolute
This Act again was purely permissive. The Act of 1875 proved to be as great a failure as the first Act. It was soon found that not only did the old defects continue to exist, but that the altered practice created new and unforeseen difficulties. In Dec. 1878 the House of Commons appointed a Select Committee, under the chairmanship of Mr Osborn Morgan, to consider the cause of failure of the Act of 1875. Lord Cairns was one of the witnesses examined, and the evidence' he gave proves that he admitted that the Act was a complete failure, and that he fully recognised the causes that brought about this result. He also explained the grounds of his objec: tions to the registry. The committee in their report, dated the 24th June 1879, say: “ Your committee regret that the anticipations which were formed when the Act was passed as to the benefits likely to accrue from its general adoption have not been realised.
It is a significant fact that the total number of titles registered between the 21st Feb. 1878 and the 14th March 1879 was only seven, or an average of little more than one in two months. The Act, therefore, may be considered to have become for all practical purposes a dead letter. Your committee have next had to consider whether the system introduced by the, Act of 1875 could be remodelled or amended in such a way as to lead to its more general adoption.' But at this point of their inquiry they are met not only by the difficulties already detailed, but by the fact that the passing of that Act was preceded by one of the most comprehensive and searching inquiries that ever paved the way for any change in the law; that among its authors were some of the most eminent real property lawyers of the day, and that, during two sessions, its provisions were subjected to the keenest and most exhaustive criticism both in and out of Parliament. To say that the Act might advantageously be amended in some of its details is what might probably be said of every similar statute which has been three or four years in force, but with the experience of the last seventeen years before them, and bearing in mind the state of things with which they have to deal, your committee find it very difficult to believe that any system of registration of titles could at present be devised which, on its own merits, would be voluntarily adopted by the great body of English and Irish landowners. Without discussing the practicability of the various $chemes which have been propounded for the compulsory or quasicompulsory registration of titles, your committee think it sufficient to observe that it would be very difficult to force upon every purchaser or mortgagee in this country a mode of dealing with his property which not one purchaser or mortgagee in 20,000 at present adopts of his own accord. Your committee feel that, in arriva ing at the above conclusion, they are only acting upon the axiom which is laid down by the Royal Commissioners of 1868 in their report, and which they believe to be perfectly sound, that ‘for an institution to flourish in a free country it must offer to people the thing that they want.'" It is interesting to think what the committee would have said if they had realised that, notwithstanding their 'report, the Act of 1875 would be brought into compulsory operation some twenty years after their conclusion that The Act was dead and buried. It would have been a happy day for this country if the Land Registry had been brought to an end when the Acts of 1881 were passed. The office had been carried on for many years at an annual loss of over £5000, a loss which the country had to bear. Unfortunately, no step was taken to bring the office to an end, so it continued to exist in order, apparently, that the officials the system had brought into existence should be paid their salaries. The Land Registry realised, soon after Lord Cairns' Acts of 1881 had come into operation, that the registration system as a competing system was hopeless, and that their once chance of existence was to keep alive the view that the Acts of 1881 had effected little or nothing, and that our conveyancing system continued to be antiquated and expensive. The registry accordingly used, and is to this day using, all their resources and influence in propagating this view. When it is remembered that the subject is a technical one, and that the number of persons who have dealings in property are but a small fraction of the general public, it is not surprising that the efforts of the registry have had a perceptible measure of success. The agitation, largely kept alive by the Land Registry, led, in Nov. 1885, to the Bar Committee appointing a sub-committee, under the chairmanship of Sir Horace Davey (afterwards Lord Davey), and later of Mr Rigby, Q.C. (afterwards Lord Justice Rigby), to consider the sabject. Their report, adopted by the Bar Committee in March 1886, set out various reasons for the failure of the Act of 1875. Their view with regard to compulsion can be gathered from their statement that “ Lord Cairns Act of 1875 failed spicuously if possible than its precursor of 1862.
There can be no doubt that if either the Act of 1862 or the Act of 1875 had been made compulsory it would have proved to be an intolerable public nuisance, that it would have effected an almost complete obstruction of business, that it would have provoked a formidable burst of rage and indignation, and that it would have been repealed in the very next session of Parliament." The death
of Lord Cairns in 1885 and the appointment of Lord Halsbury as Lord Chancellor in 1886 both had an important bearing on the fortunes of the Land Registry Office. The influence of the Lord Chacellor in legal matters is necessarily very, great. · Lord Halsbury, unfortunately, had but little conveyancing experience, and the Acts of 1881 had been too short a period in operation for their value to be generally recognised. Imbued apparently with the idea that the old defects still existed, Lord Halsbury deemed it desirable to make another. effort to establish a registry of titles as the one and only system of Land Transfer. He adopted the view that the Registration Act of 1875 had broken down simply because it was
a permissive measure, and that it would have worked successfully if it had been made compulsory. Accordingly in 1887 he introduced a Land Transfer Bill to make the Act of 1875 compulsory over the whole kingdom. The Bill did not, however, reach the House of Commons till Aug. 1887—too late to be considered. In 1898 and again in 1889 Land Transfer Bills were introduced in the Lords, but they did not go further. In 1895 a Land Transfer Bill passed the House of Lords at the instance of Lord Herschell, who was then Lord Chancellor. In the Commons the Bill was referred to a Select Committee, under the chairmanship of Lord Loreburn (then Sir Robert Reid, Attorney-General). Lord Herschell was the first witness examined. Asked if he had any personal experience in conveyancing practice, his reply was : “I do not know that I could say I have had much experience in conveyancing practice. The only time I had any constant experience of it was during the years of pupilage with a conveyancer, period that takes one back to 1850, the year he was called to the Bar. With the exception of Lord Herschell, all the subsequent witnesses--some fifteen in 'number--were opposed to the principle of compulsory registration. · In 'July 1895, in view of the then 'impending dissolution of Parliament, the committee did not proceed further. A change of Government followed, and Lord Halsbury once more became Lord Chancellor. Lord Halsbury did not consider it desirable to go on with the inquiry, so it was not completed. As an alternative he: deemed it expedient to open negotiations with the known opponents of the Bill of 1895. The result was that in 1897 a Land Transfer Bill was introduced framed with a view to disarming opposition. The 1875 Act was to be applied compulsorily, but only by way of experiment in one county and for a limited period. The task of steering the measure through Parliament was, however, far from easy. One concession after another had to be made to meet the fears entertained by property owners and by persons in touch with banks, building societies, and land societies. Up to the last moment the fate of the Bill was, owing to the doubts entertained as to the wisdom of the measure, trembling in the balance. It passed the House of Lords on the 5th Aug., the last day of the session of 1897. In the light of what has since happened I venture to say that, apart from the officials, all who were parties to the compromise which resulted in the passing of the Act of 1897 have since bitterly repented that they were induced to withdraw their opposition to the Bill. Well may we marvel at their simplicity. They knew that the system embodied in the 1875 Act had broken down hopelessly. They realised the dangers of compulsion. They must have foreseen that the experiment would bring a crowd of officials into existence. They must have known that Parliament has not the power to recall any measure once it has passed into law except at the instance of the ruling authorities. The question as to whether or not the Act of 1897 was intended to be a permanent Actor only an experimental one has become a vital question. The authorities contend that it was and was always intended to be a permanent measure. There are many proofs that can be brought forward in contradiction of this view, including the following : (1) The Act itself provides that the operation of the compulsory provisions were not to extend beyond one county for three years. (2) The Act also provides that the Privy Council may at any time rescind an order applying compulsion to any county. (This provision alone is fatal to the contention that the Act was to apply for all time.) (3) The statement made by Lord Halsbury, then Lord Chancellor, when introducing the Bill was to the effect that the scheme was only to proceed by “the most gradual steps and only by the light of experience.” (This certainly can only mean and was taken to mean that if the experience was favourable the scheme would be discontinued.) (4) In the House of Commons various speakers, including the then Attorneys General and Sir Henry Fowler, spoke of the Bill as an “experi, ment only to be tried in one county. (5) The registrar, who was largely responsible for the framing of the Bill, in his work on the Land Transfer Act 1897, referred to the Act as a " legislative experiment ” and as one intended to “have a trial of at least three years in the county first selected.” (6) County councils were given the right to veto the application of the Act in their respective counties. This provision has proved the one real safeguard. It has stood between the authorities and the public. If it had not been in the Act the baneful system would undoubtedly have long since brought its army of officials into existence in every comty of England, and the system would have been working in full swing throughout the kingdom. It is now the avowed inten. tion of the authorities to remove the right of veto, and so deprive the public of any voice in the matter. It is only another insidions attempt to destroy the rights and liberties of the individual in favour of officialdom.
London as the Trial County. While the Bill of 1897 was still before Parliament the promoters appear to have come to an understanding with certain people in
authority at the London County Council that the county of London should be selected as the trial county. Subsequently in Nov. 1897 the council received a formal intimation that London had been selected, and the council was asked to give its consent, The council thereupon sent a letter to the London local bodies and others interested in property intimating that the question was very important and inviting the various bodies to furnish their views on the subject. The result of the inquiry disclosed a' crushing consensus of opinion against the experiment being tried in London. The opposing bodies, numbering about sixty, included the Corporation of the City of London, twenty vestries and authorities, all the leading railway companies, such representative bodies as the Law Society, the Auctioneers’ Institute, the Building Societies' Association, the Institute of Bankers, the Ecclesiastical Commissioners, and many of the leading land and building societies. Twelve local bodies were alone in favour of the experiment. I have set out in the appendix the list of the bodies that replied. The formal consent of the London County Council was given at a meeting held on the 15th Feb. 1898, and on the 18th July 1898 the order was issued applying compulsion. London being too large an area to be brought at once under the Act, it was to apply on the 1st Jan. 1899 to a limited number of named parishes, other parishes coming in at later dates, finishing with the City of London on the 1st Jan. 1901.
Compulsion in Operation." Before the Act could come into operation rules had to be made by the Rule Committee constituted by the Act of 1875 as amended by the Act of 1897. This proved a most difficult task. The committee met time after time in the effort-hopeless as it has since been proved--to frame rules that would make the system a workable one... Finally, in Nov. 1898, after many months of hard work, 280 rules were passed with an appendix that included sixty-seven forms. These rules' have since been repealed, and from time to time other rules have been issued. The last set came into operation on the 1st Jan. 1909, consisting of 369 rules, seventy-two forms, and some schedules. As predicted, the working of the system has given rise to the utmost dissatisfaction. The system, it is true, now offers the choice of various titles, ' absolute, qualified,
possessory,” and “ good leasehold,” but before any one of these can be acquired the title has to be investigated by the purchaser's solicitor, and the conveyance has to be completed under the practice established in 1881. No one wanted or could acquire a better title than was obtained under that practice. Property owners failed to see what advantage they secured by being forced into a Government office to obtain a second and inferior title, and for which a very large sum had to be paid in addition to the scale charges. A table showing. the additional payments on purchases or mortgages up to £1,000 will be found in the appendix. The absolute qualified ” titles are hardly ever asked for; the “ possessory was soon discovered to be worse than useless. The title anterior to the date of régistration has still to be investigated, and, indeed, it is found far easier and cheaper to transfer property not on the register than to transfer registered property. The following table gives the number of titles that were registered between 1899 and 1910. The titles marked with an asterisk are good leaseholds.'
with the practice that, the new rules would establish when they came into operation on the 1st Jan. . 1909. - , Anything more un. satisfactory can hardly be conceived. Of course, the officials said the practice under the new rules; would prove most satisfactory-a stereotyped statement made on every previous occasion when it was found necessary to issue new rules. The last rules have been in operation now for nearly three years, and they have been found in practice to be far more oppressive than any set of rules preyiously issued. One feature of the last rules is the fact that the heavy fees payable on first registration are largely increased on subsequent transactions of £1000 and upwards. For instance, on a mortgage of a property for £3000 the fees on first registration are £7, and the amount is increased to £9 on a transfer of the mortgage. As the transfer of a registered property should only involve a simple entry on the register, it is ilagrantly, unjust and diametrically opposed to the alleged cheapness of the scheme that the fees should be thus increased. The claim made that the system is a simple one falls to pieces at the first touch. Thé complicated division into titles of varying character is alone sufficient to indicate an inherent vice of the system which will always prevent it from succeeding. The judgments delivered in the cases of Capital and Counties Bank v. Rhodes (1903); Marshall v, Robertson (1905), Attorney-General v: Odell (1906); "Weymouth v; Davis (1908), Willé v. St. John (1909, Court of Appeal 1910), and Voss and Saunders' Contract (1910) give some idea of the difficulties which the system introduces. The registrar relies on the fact that only a small number of cases have come into court as proof of the satisfactory working of the system. It is nothing, of the sort. Innumerable questions of more or less moment have from time to time arisen, but in practically every case the registrar cbtains his own way. This is not because he is in the right, but because it is recognised that it is hopeless to fight a Government office.' It is only a very daring or a very rich man who will venture upon such an unequal contest. The defendant in the case of Attorney-General v. "Odell considered that he had as the registered proprietor of a mortgage a claim on the State for the amount of the money he lost. He succeeded before the judge, but he gained nothing by his initial success, as the Treasury promptly took him into the Court of Appeal, where the decision in his favour, was, reversed. Had he won in the Court of Appeal, the Treasury would in all probability have carried the case to the House of Lords. It is surely a solicitor's duty to use all his influence to deter a client from entering upon a contest with the authorities, . unless, indeed, a very substantial capital sum is involved.
*** Possessory” Titles. Under Lord Cairns' system only one title, in effect, an "absolute title, is known. This title is also the only one recog. nised in the few countries where registration of title exists. Parlia, ment passed the Act of 1897 in the belief that possessory titles would in time mature into “ absolute” ones. When once it is perceived, as it must be perceived, that these titles cannot
so mature, then clearly the whole for registering possessory
The fact that a possessory
never mature and that it is in itself a useless and dangerous title can be easily proved. I will enumerate one or two matters that will make this clear. The registrar, speaking in May 1902 at the Building Societies Congress, agreed that in the case of " “possessory titles
many matters had to be dealt with outside the register until “such moment arrives as he ” (the owner) “thinks he may as well try for an absolute? title and get it settled for good.' The registrar thus recognised that a
possessory” title could never of itself automatically mature into an "absolute' title. Mr Justice Warrington, in delivering judgment in Marshall v. Robertson in Nov. 1905, said : “ It seems to me that this case illustrates in the most forcible manner the extreme danger which was introduced in 1875 of allowing a person to register himself as the owner of land with 2 possessory title.
It is the registration of the possessory title with the power of producing the certificate of registration which has done all the mischief in this case, and has induced the defendants to lend their money, which, of course, they will now, as a result of this judgment, lose. I think it right to point that out, because it does seem to me to illustrate very forcibly the danger which the registration with possessory title introduces.”, The Select Committee on the Housing of the Working Classes Bill, appointed in 1906, examined the registrar, and, notwithstanding that they refused to hear any evidence on the other side, they felt compelled in their report to say that "the mere possessory title now given by the registry is a useless additional expense to the ordinary conveyance, bringing with it no real security of title.” The Land Transfer Commissioners' Report, issued in January last, says (par. 56) that “
* Much complaint is made, and in our opinion. with good reason, that the immediate advantage to be gained from possessory registration is in no way commensurate with the expense and inconvenience that it entails.
It is not too much to say that up to the present time the effect of compulsory registration with possessory title in London has been to place a purchaser there at a disadvantage as compared with a purchaser elsewhere." In view of these enunciations of opinion, it surely cannot be right for the registry to continue the issue of possessory titles, and it is clearly cruelly unjust to force owners to accept them.
* Absolute” Titles. The fact that possessory
” titles are of no value has, as I have shown, been known at the registry for a long time past. The
Abso- | Quelilate. ted.
The figures in the above table are most significant. It will be noticed that in the twelve years only 494 * absolute” freehold and 359 “absolute” leasehold titles were registered, as against 32,868 “possessory
freehold and 99,047 “possessory” leasehold titles. As the registry is open to the whole of England and Wales, the number of “ absolute titles both freehold and leasehold (numbering 853) barely averages one case per annum for each of the fifty-two counties. Again, every person who, under compulsion, registered a possessory title might have applied for an “absolute” title. The fact that such persons have rejected an “absolute” title proves how gravely it is distrusted. In July 1908, about the date when the Royal Commission was appointed, the Land Registry realised that their then practice would not bear investigation,
so once again a series of new rules were formulated for the purpose of introducing an amended practice. The evidence of the registry officials taken by the commission between October and December 1908 proves that their examination was principally concerned, not with the practice that had hitherto prevailed, but
officials assert, however, that if people will only accept "absolute." the last sixty years had been in favour of this system of registratitles all will be well. It is not, I consider, difficult to prove that tion. The only Lord Chancellor of whom no record remained as "absolute' titles are for practical purposes equally useless and to his opinion was Lord Chelmsford,”, but that there was no embarrassing, and that owners act wisely in refusing to apply for reason to suppose that he was not also in favour of the system. them. The suggested virtues of an "absolute" title are: (1)
How valuable it would have been had the hypothetical person Simplicity of transfer; (2) saving of expense ; (3) appreciation in possessing the necessary qualifications taken part in the debate and value of property,; (4) State guarantee. A few words will show reminded the House that a knowledge of conveyancing does not that the merits claimed do not stand on any real foundation. (1) come by intuition and that the value of a. Lord Chancellor's The suggestion that no responsible work is involved in the transfer opinion on a technical subject had to be measured by the same rule of an
"absolute" title does not accord with experience. A as would be applicable to any other person, and was solely proproperty held under an ordinary title can in nearly every case be portionate to his knowledge and experience; that not one of the quite as easily, if not more easily, transferred. I have set out in Lords Chancellor who had been named, with the exception of the appendix the detail of the work involved on the transfer of an Lord Cairns, had had any practical experience of conveyancing ; “absolute" title--work which no prudent purchaser can safely that the Lord Chancellor had strangely overlooked Lord St. leave undone. (2) The saving of expense is a very doubtful point, Leonards, who held the Great Seal in 1852; that Lord St. Leonards especially in view of the increased ad valorem fees exacted under shared with Lord Cairns the distinction of being the only two the rules last issued. The registrar, in atempting to prove his
Lords Chancellor in the last sixty years who had a practical case by comparing the solicitor's full scale charges under the 1881 knowledge of conveyancing; that as regards Lord St. Leonards, his practice with the fees payable under the registration system, loses rejection of the system of registration of title and his strong sight of the fact that the scale charges can be and are frequently opposition to Lord Westbury's Act of 1862 were notorious ; that modified. No modification can ever be made in the case of the as regards Lord Cairns, the inclusion of his name as a believer in registry fees. (3) Assuming even that in some instances costs registration of title because he passed the Act of 1875 is surely could be saved, the amount saved would go a very small way to
disingenuous, because the evidence Lord Cairns gave in 1879 is make up for the loss if it is a fact, as I submit it is, that an absolutely conclusive of his disbelief in the Land Registry Office “absolute; title distinctly lowers the selling price of a property.
and of compulsory registration of title; that the unfortunate fact Not a single witness who on the recent inquiry gave evidence for
that the authorities misunderstand and as a result misrepresent and the registry was able to say that he had on the sale of any land attempt to destroy the great conveyancing reforms Lord Cairns received a penny more than he otherwise would have obtained by effected by his Acts of 1881 shows to what extremes the greatest the fact that his title was registered as * absolute.” On the other
be led when dominated by their predilections. hand, a number of witnesses testified that the sale of lands registered as "absolute" had been hampered by that fact, and that
The Extension of Compulsion. the land had consequently been depreciated in value. It was proved, for instance, that land societies would not buy land with
One statement made by the Lord Chancellor in the recent debate registered titles, as experience had proved that the fact that every
was thai " the present position of the law in England as regards transaction had to go through the registry seriously embarrassed
the title to landed property and the methods of transferring it the development of the property and the freedom a society requires
except where there existed registration of title in the county of
London was little short of a scandal. It was almost unique for in dealing with its members. (4) In the Land Registry return issued in July last the registrar plaintively refers to the fact
its futility and costliness." The Lord Chancellor appears that "although in many cases 'absolute' titles are offered entirely
labour under a singular misapprehension. The registration system gratis to persons who have asked for 'possessory
is open to every landowner in the kingdom. The only difference titles
is that in London the system is compulsory and in the rest of only a large number have been refused either for no
the country it is optional. The contrast the Lord Chancellor reason at all or for reasons which are entirely inadequate.”—The amazement of the registry officials that owners refuse "absolute
drew between the present system of conveyancing and the system titles with a State guarantee discloses. how they live in a world
of compulsory registration in London indicates the aim of the of their own, far removed from and completely out of touch with
discussion. The intention was to prove the need for determining the outer world. A few. words may help to make it clear to the
the present system of conveyancing, and to pave the way for the
introduction of a measure which is to leave the authorities free authorities why no man who understands the position would dream of attaching, any, value to the guarantee.
to extend compulsory registration to every county. If the regis
The authorities are wholly wanting in candour when they omit to explain that the
tration system was as good as it has proved to be bad the questions person who first comes on the register with an
would still remain-Are the authorities justified in forcing the
“ absolute" title is not entitled to any guarantee. On the contrary, he places him
system on the people in opposition to their wishes, and is there any self in a dangerous position. He can
legitimate way by which it can be done ? On these points Lord
never free himself from the liability of being called upon to make up the loss any
Cairns is, it must be admitted by everyone, commanding subsequent registered owner may suffer if deprived of the property
authority, and fortunately his views are on record. He was or adversely affected in consequence of any flaw in the title. This
the principal witness who gave evidence before the Select Comsubsequent owner may have the right to call upon the State to
mittee of the House of Commons in 1879, and with reference to make up the loss, but in that case the State can fall back upon
compulsion he said : " The difficulty with regard to compulsion the first registered “absolute"
has always struck me in this way. There is in the first place the owner to make the loss good. Solicitors would, indeed, incur a heavy responsibility if they were
question how far you have the right to make the adoption of a to advise a client to apply for an absolute
particular system compulsory; but there is a question of still
title, knowing that as a result he was liable to be “shot at” for all time.
greater importance-namely, how far it is possible to make it
The same liability appears to attach to the person who first registers
compulsory. Now, as I have never yet seen any way by which
it could be made compulsory, Another difficulty is, if good leasehold title. This title is wholly misleading as it does not in any way take account of the lessor's right to grant a
you make the registration of land compulsory, you must at once lease. A person may have a
open throughout the whole of the country, from the north to the good leasehold ” title to a lease that may subsequently turn out to be invalid. Needless to say,
south, and from the east to the west, a complete system of local he is not guaranteed against this—the really serious liability.
offices, because you cannot make it compulsory upon a man to People who have at times had occasion to apply for a return
come up to London to register a few acres of land; you must have of an overpaid tax, such as estate duty or income tax, are
your whole machinery ready before the Act begins to work; that aware that the return of their money is not obtained without
is an enormous thing in this country, and frightful to contemplate ;
and in the next place you must take care to do it at an expense trouble. They can, therefore, form some idea of the difficulties that would have to be faced if they had to 'obtain from the
very much smaller than any fees of registration have been proTreasury under the suggested guarantee a sum of money quite
posed to be.
I cannot say that it would be either apart from and not represented by any
expedient or safe to introduce compulsion generally; and, if so,
sum paid into the Treasury. The case of Attorney-Generať v. Odeli indicates the
do not think that it would be safe or expedient to introduce it
into one county. way the claim would be met.
The following questions put to Lord Cairns People who value their peace of mind as well as their pocket should certainly steer wide of an
and the answers he gave are also clearly in point : "I do not
know whether it has occupied your Lordship's consideration, absolute' title. I give this advice notwithstanding, the abuse the registry habitually levels at the heads of the members of our
assuming that there were to be district registries in England, what
number of district registries would be sufficient !-I am afraid profession who advise their clients to keep away from the registry. that there would have to be a very formidable number indeed.
One hundred and fifty thousand titles changing hands in England The l'iews of our Legal Authorities.
every year, would not the machinery of the Act necessarily Lord Robert Cecil recently called attention to “the curious
become very expensive ?-I should think very expensive indeed." belief in their own infallibility which is so characteristic of those
It is clear from the above extracts that the suggestion to extend who, like bishops, judges, and schoolmasters, habitually speak
compulsory registration would not have found any favour in Lord without fear of contradiction.' This belief has beyond question
Cairns' sight. Further, we may be sure he would not have been strongly held by men who have held the Great Seal. They closed his eyes and ears to the glaring defects the working of appear to consider that it is approaching the sacrilegious to
the system has disclosed, and to the universal demands for its venture to question whatever views they entertain. The Lord repeal from everyone who lives under its operation. Chancellor in the recent discussion seemed to think that the value of registration of title was placed beyond doubt when he alleged
The Royal Commission. that "Lords Westbury, Hatherley, Selborne, Cairns, and In the recent discussion the Lord Chancellor said the Royal Herschell had all taken part in the endeavour to pass Registration Commission
* appointed at the request of the Law of Titles Bills. But the principal mover, the most successful Society doubtless in the hope that it would condemn the legislator on this subject, had been the noble earl, Lord registratior of title." The statement does not appear to be quite Lalsbury. . Every man who held the Great Seal during accurate. The circumstances that led to the appointment were, I