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If evidence of
register of deeds; but how would it be possible to proceed without them, in case only absolute immediate alienations were recorded ? Another clue, which it is always most unsafe to neglect, is generally included in the very description of the land: viz., the indication of actual occupancy. If you can find an occupier, you are sure, in the first place, that there is really something to occupy; you are generally certain that he knows what is included in his occupation, as well as who preceded him in it; and so you are able to apply a practical test, generally not unsatisfactory, to the statements of the title-deeds. Indeed, there are cases in which occupancy forms really the sole basis of identification : witness the before-quoted instance of copyholds, in which tenements change hands with very tolerable security, under descriptions which no more resemble the fact than a tea-kettle resembles a fishing-rod.
XXV.-I doubt, indeed, whether even the most perfect map to, the Yand-regine will ever habitually dispense purchasers—even when every tercoolermore device that wisdom can suggest has been adopted to render
land marketable-from actual inspection, otherwise than during a crisis of land-fever. Lots in the “ Garden of Eden" may be bought unseen by unwary Chuzzlewits ; nor have I, indeed, any doubt that estates in New Zealand or Australia have been sold in this country, with perfect good faith, to purchasers who have never set their foot at our Antipodes; but these are merely the exceptions. In the ordinary course of things, a man will see land before he buys it; he will go over it, make inquiries of the tenant, generally try to pump one or more third persons. At any rate, in the absence of a map, evidence of occupanoy is the only resource to fall back upon under a register on the stock-registry principle, excluding retrospective inquiry. From the moment this is 80, your land-register is no more self-sufficient, self-contained; from the moment this is so, you admit that the assimilating land to stock, in its immediately marketable character, is a fallacy. The specific nature of the land re-asserts its claims as against your most perfect system of record. “Me, me, adsum,” it seems to cry to the purchaser; “I am no fiction,
which a pen-stroke creates, which a pen-stroke destroys. I am real property. Your register is my servant, not my master; it is made to facilitate the enjoyment of me, not to determine its conditions.” The landowner will not be able to go into the city at eleven o'clock, and come away at a quarter past eleven, having signed a transfer of his land, and with the money in his pocket-which is what we began by sighing for-unless he should chance to light upon the very man who knows the land and wants it. That hope must be given up altogether as a mere lovely dream. XXVI.—But now the question arises-Evidence dehors the If evidence ad
mitted as to register being admitted as necessary to complete it, how far is tity can it be such evidence to be allowed to correct or otherwise affect it ? occupancy? I go down into Shropshire to see if the Dale Close be really the Dale Close, situate in such a parish, bounded and occupied as described. I speak with John Thomas, the occupier, who tells me, of his own accord, that he holds under a fifteen years' lease. I notice, when I come upon the premises, that men pass to and fro upon a certain line through it; that there is at least the assumption of a right of way. The registryconfined to entries of immediate absolute alienations-conveys no bint of John Thomas's lease, or of any right of way. Am I, in buying the land, to have the right of turning John Thomas out the next day ? am I to have the right of treating all passers-by as trespassers ? or must my purchase be subject to the tenant's interest, to the public servitude? The more absolute partisans of registration say at once-No; unless either is protected by a caution or caveat. The stock-registry system says decidedly–No. The answer may be a right one; but observe where it leads you. It leads you to extend to questions of corporeal occupancy and enjoyment a rule borrowed from a subject-matter absolutely incapable of corporeal occupancy and enjoyment; it leads you to reject notice, not only in the very act of receiving it, but in the very act of seeking it. You are obliged to verify on the spot whether the Dale Close be really the Dale Close occupied by John Thomas ; you refuse to hear on the spot how John Thomas occupies it—to see how it is used.
If evidence ad. mitted as to occu
XXVII.-Well, it may be said, reserve all questions of occupanemiecan it be pancy proper, as the Solicitor-general's bill does ; retain the
exclusion of notice for all beyond. I had occasion to consider this question carefully some years back, and the misfortune to differ from some whose authority and whose experience I should have most gladly deferred to. I came to the oldfashioned conclusion of our law, that notice must prevail against the registry, provided that notice be actual. The great mischiefs which undoubtedly have flowed from the doctrine of equitable notice, appear to me to arise entirely through the carrying of men's knowledge from the indicative into the conditional—from what a man has known to what he might, could, should, or would have known; and the best idea of constructive notice perhaps which can be given is, that it is not notice at all. But, wherever there is actual knowledge or notice, there it seems to me that no mere written entry in a book can be allowed to blot it out,'in the eyes of the law, from the mind that holds it. Suppose your intending purchaser, on his visit to the Dale Close, learns that his intended vendor, the registered owner, is a trustee selling in breach of trust; that some caution which should appear on the register has, by mistake or accilent, failed to be entered: is this knowledge to go for nothing, whilst knowledge of the actual circumstances of the land is taken at its full value, perhaps also that of all matters relating to occupancy ? To draw a line between the two seems to me wholly arbitrary. To treat either as nugatory is surely equally dishonest.
XXVIII.-And, indeed, it is worth while observing that stock-register, a the exclusion of notice as against the register is, in the stock
register system, founded upon quite another principle, is justified by quite another set of circumstances, than it can be in a land-register. The notice there excluded is the notice of the debtor, the Bank; here there is no debtor to be exempted from it. As between vendor and purchaser of stock, it is really no law nor regulation which excludes it, but the practice of the Stock Exchange, the very course of human transactions. Purchaser A knows nothing of vendor B; nothing even of what vendor B has to sell. The £10,000
The exclusion of notice as to the
mere result of actual facts.
Consols which he buys may be the property of half-a-dozen different owners ; £5,000 of the £10,000 may be part of another sum of £10,000, sold by B to half-a-dozen different parchasers, including himself—all the sellers and all the purchasers being equally ignorant of each other, and of any thing but their own particular act of buying or selling. B may be a trustee, fraudulently appropriating trust moneys; but his very broker need know nothing of the fraud : nor would his knowledge of it, even if he had any, be that of the purchaser's broker or of the purchaser himself. If, indeed, you could imagine a case in which the knowledge of a dishonest act were traced through all the four links of the chain, from the vendor through both brokers to the actual purchaser, who could doubt but that a court of equity would give relief in some shape or other? But what would you require to do for such a purpose ? You would require to ear-mark the particular stock; in other words, to strip it of its general character, as a mere aliquot part of an aggregate mass of annuities—to render it specific. Once do that, and your notice attaches.
XXIX.-Now, if this be the case, is it not wholly artificial The exclusion and illogical to say, that that which is a mere result of facts in sary to the land the instance of stock, and is 80 essentially connected with the ed on the relation unspecific character of stock, that, if stock could once be purchaser. made specific without alteration of the present law, the result would cease to follow-ought to be applied by law to land, the specific substance par excellence, as an arbitrary rule running in the very teeth of daily facts? Yet I quite admit that, if the relation between vendor and purchaser is to be the foundation of the stock register-if its sole or main purpose be to make land marketable, and emulate, as nearly as possible, the ease of transfer of funded property,-the rule of the exclusion of notice, however arbitrary, however unjust, is a necessaryone(a). I am far from saying that such exclusion is impracticable, whatever may be the logical results of the specific character
(a) Mr. Wilson, indeed, it should be observed, seems hardly prepared for the absolute exclusion of notice.-See Report of Registration of Title Commission, p. 107.
register, if found
of vendor and
Stok exists to be bought and sold, should above all things be con. vertible.
of the land. To do so, I must shut my eyes to the very stringent registry system which has been applied to a subjectmatter quite as specific as land, though greatly differing from it-I mean that of the ship-registry acts. But now the question arises, which appears to be almost entirely overlooked now-a-days: Is the relation between vendor and purchaser the true foundation of a land-register? Should its sole or main purpose be to make land marketable ? Does land exist mainly to be bought or sold ? Quiet assumptions on this head form, I am afraid, one of the very premises upon which the reasonings of the new school are based; it is this vicious premiss which makes those reasonings seem irresistible.
XXX.--I have endeavoured already (Nos. X. and XI.) to therefore show how the ownership of stock in the funds is a matter of
private, the ownership of land a matter of public, or at least semi-public concernment. Not that the whole community is not interested more or less directly in the manner in which every individual member spends his income, whencesoever derived; but that in the one case the subject matter of ownership, and the relation between that subject-matter and the income derived from it, are essentially invariable, so far as any efforts of the owner are concerned; in the other case essentially variable. The most virtuous and able man cannot make £100 Consols yield more than 8 per cent. dividend, the wickedest fool cannot make it yield less. It is precisely this fixed, invariable quality which makes stock such an appropriate measure, such a delicate test, of national, we might almost say of universal, credit and prosperity. And in order that it may act as such a measure, such a test, it is essential that it should be easily, instantly convertible. Nor is it less natural that it should be converted, that absolute immediate alienation should be the most habitual mode of dealing with it. As one sum of stock is as good as another, there is seldom any object in making any particular sum the subject of formal security. When you want to raise money, you sell out of the funds, you borrow on your land. Mortgages of stock are quite the exception-mortgages of land, practically the rule. In the present state of the world, Consols exist, you may say, to be