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Share - registry systems inappli. cable to land, like stock-registry ones,
relation of ownership into the relation of debtor and creditor. The shareholder in the railway company is not properly a part-owner in the railway, but a part-creditor upon the railway for so much capital owed by it. We shall see that this distinction is an important one, and is perhaps pregnant in consequence as respects landed property itself. .
XXXIX.— If, therefore, my reasonings have proved correct hitherto, the share-registry system, which through the certificate offers the first shadow of applicability to landed titles, is really no less inapplicable to them than the stock-registry system, being the same at bottom, with only unessential differences. And, indeed, the attempts made to apply it prove this fact abundantly. Mr. Wilson professes to shew, as we have seen, “that the system of registration and conveyance, which has been applied with so much effect to the transfer of railway shares, is applicable in substance to the transfer of land." That system is obviously based upon the unity of the certificate, as representing the claim of the shareholder upon the company. But glance over Mr. Wilson's schedule of forms, as appended to the report of the Registration and Conveyancing Commission, 1850 (pp. 247—434), and what do you find ? A multiplicity of certificates, which are sought to be moulded to the different facts of ownership. Parish certificates and county certificates ; certificates of ownership unincumbered, of ownership subject to a mortgage, to a lease; certificates of lease; certificates of mortgage; transferee's certificates; certificates in favour of a judgment creditor, of a husband, of a wife, of a grantor of a lease, of a guardian; not to speak of an array of caveats. Was it seriously that all these documents were put forward to shew how the share-registry system was applicable to land ? To my mind, they only prove one thing; how mightily the specific character of land takes hold of any man honestly dealing with the question of title to it from any other point of view, even the most opposite,-wrests his attempts from their purpose, his words from their meaning, and compels him to supply the most irresistible demonstration of the fallacy of his own arguments. Nor is it less striking to observe that, when Mr. Wilson became himself a member
Mr. reasons do not
of the subject
of the Commission on the Registration of Title, he separated from his colleagues on the very ground that they proposed to establish a register of fee-simples, providing only for the registration of mortgages and leases, whilst he insisted on the registration “in particular” of title under settlement. In other words, whilst they were prepared to go two steps beyond his own model of the railway share, with its attendant registration of absolute immediate alienations only, he could not be satisfied unless they also went at least a third (see Report, p. 83).
XL-I shall not enter at length into any further discussion Wr. Wilson's of Mr. Wilson's views. Just as his observations are often, acute go to the heart as they are always, they never seem to me to go to the heart of the matter. For instance :—He admits himself, in his letter to Mr. Coulson, that in speaking of property he only means the personal privilege” or right of property, not the subject matter itself. He then would make "a comprehensive
definition once for all of the nature and conditions of the property." By means of this he would construct a “simple form of transfer"_“a printed form which never varies.” On this simple form of transfer “ depends” the efficient register, contrived as to record, not merely the transactions and events by which changes of ownership are produced, but these very changes of ownership themselves;” and the result of which would be that “absence of retrospectiveness” which is so admirable in the share-register. A very ingenious scaffolding, no doubt, but the only objection to which is, that it has nothing to stand upon; that the land itself, the stubborn subject matter of property, lies simply outside all this machinery; will not come within “comprehensive definitions," will not accommodate itself to "printed forms which never vary," nor to a system based on that which ought to be the rarest of all events in its history-absolute immediate transfer.
XLI.—The necessity or the absence of retrospective inquiry absence of retro does indeed, as Mr. Wilson expresses it in other words, depend upon the question, Whether eacb successive document deal- forms of conveying with the land, is or is not self-substantiated and self-suffi- the self-sufficcient? But it does not depend, except mediately, upon the menis.
spective Inquiry does not depend upon invariable
ance, but upon
invariableness of the form of conveyance, as Mr. Wilson argues, though it may be assisted greatly by it, as I shall presently show. It is too much forgotten that the recitals of deeds are simply imperfect and unauthenticated fragments of a registry. If you can imagine them at once perfect and authenticated, retrospectiveness of inquiry is at an end. If the recitals of your deed of conveyance showed fully, and were sufficient evidence of, a sixty years' title, not a scrap of parchment or paper beyond would you require. If the simple recital of the vendor's seisin, in whatever form of words expressed, were sufficient evidence of the fact, the same would be the case. The one conveyance might be as long as from London to Exeter, the other as short as any printed form; the wording might vary to a considerable extent; but in either case you would have, as in the instance of the railway share (to use Mr. Wilson's words), the title “postel up to the day, and not left sixty years in arrear.” And it would be easy to show that even Mr. Wilson's printed forms, through such instances as that of the “transferee's certificate of ownership subject to a mortgage," might lead to retrospective inquiry for periods little shorter, if at all, than those required at present.
XLII.-There are indeed two ways in which a document can can be made self be made self-sufficient. The one by including within it a record
of all the facts on which its sufficiency depends; the other by throwing upon some officer the responsibility of declaring its sufficiency. The former may lead to endless length, the latter may be brought to an extreme of brevity. Apply the latter method to registration, and you make it what is called judicial. Such, in fact, is the registration of the share and stock registry systems. The Bank of England clerk in the one case, the Company's secretary in the other, are really, on all ordinary occasions, the judges whether the transferor has a right to transfer, and so dispense the transferee from inquiring further into the matter. You might indeed, if you chose, invest a land-registrar, in any state of the law whatsoever, with similar authority, and thus obtain on every occasion self-substantiated instruments; but our English individuality, common-sense, self-reliance, distrust of officialism, protest against such a
Within what limits the register
course. We feel instinctively that the judicial power of the registrar must be confined within narrow limits, such as simple forms may trace out for its exercise; and thus it will indeed be true that, through the medium of that authority, simplicity of forms may help to dispense with retrospective inquiry. But the most perfect register, not being made judicial, cannot of itself secure such simplicity. The length of our forms represents mainly the difference between the law and the practice; it is the law of real property which requires to be amended into conformity with practice, before the form can be thoroughly simplified. Once make the law an embodiment of the ordinary relations between vendor and purchaser, lessor and lessee, mortgagor and mortgagee, trustee and cestui que trust, &c., and it will become possible to reduce the document constituting each such relation, in ordinary cases, to a simple expression of the fact, varying only in certain definite particulars of date, person, subject matter, &c.; and to intrust, without practical danger, to an officer recording such documents, the authority to determine whether they do contain all the conditions necessary to the expression of the fact which they have to record. At the same time I believe that, to provide for cases in which the ordinary practice is departed from, it will be necessary to allow the insertion at full length upon the registry of any clauses the parties may think fit, the registrar not being responsible for their sufficiency, nor for their bearing upon the title.
XLIII.-Of course it will result from what I have said here, ... Registration of that I consider a registry of title in respect to land, as distinct unless title con from a registry of assurances, as a mere fallacy. You may re- assurance. duce the title in a great measure to the registered assuranceyou may reduce the registered assurance in ordinary cases to a simple entry; but this involves a vast amount of previous hard work-of steadfast, skilful quarrying into the very bowels of the law-the work, not of consolidation, but of codification properly so called. To attempt to engraft a registry of title upon our present law would appear to me- -I must use the word-a wasteful absurdity. For either title must be confined to the register, and then you must place upon it all the special
a fallacy, fined to
obligations and stipulations which stuff out our deeds in correction of the law, falling back, in fact, on the old registers of full length assurances; or you must leave to the deeds substantive validity dehors the register, for the purpose of those special obligations and stipulations, and then you simply superadd register searches to the ordinary investigation, as in the case of the old registers by memorial. You only reduce the bulk of the register by confining registration, as the Registration of Titles Commission proposed, to certain special interests in land. You apply in reality to freehold property the rules hitherto applied to copyhold, and the result of which is deemed so little beneficial that the tenure is sought to be got rid of altogether. For the court rolls are, after all, in the main, a register of fee-simple estates, admitting a few simple modifications of interest, such as surrenders upon condition, surrenders for life with remainder over, surrenders to the use of a will. The register, however antique in form, serves to simplify the documents of title by dispensing with references to previously recorded transactions. But we all know that it neither dispenses with the necessity for other deeds, covenants to surrender, deeds of covenant, settlements, &c., nor yet with retrospective inquiry. Thus much, by the way, to show the connection of the registry question with that of the simplification of forms of transfer, &c.
XLIV.-It will not be necessary, after what I have said, to say much of the Solicitor-General's “Registry of Landed Estates Bill.” In starting from the parliamentary title to be conferred by the “ Landed Estates Act,” I think it proposes a good root of title. It makes no provision for identification of the land, and throws the purchaser entirely upon personal inquiry as respects almost all matters connected with occupancy, landtax, tithe rent charges, quit rent's, rights of common, rights of way, water and other easements, rights of fishing and sporting, heriots, manorial rights and franchises, and occupation leases and agreements for twenty-one years and less (sec. 13). I have before stated how impossible it seemed to me, where inquiry was resorted to for such purposes, that its results should not prevail to a further extent yet, and make notice
The Registry of Landed Estates Bill.