Page images
PDF
EPUB

available against the register, which, however, one bill aims at excluding. Still, viewing the machinery of the bill as an application more or less exact of the views which Mr. Wilson has set on foot either by his plans or his theories—views, as we have seen, by this time far outstripping either--this provision represents a wholesome concession to fact so far as it goes. There are, in like manner, many details in the bill which seem to testify to a sincere desire to render it praotical; but, on the whole, I own it appears to me one of those pieces of tentative legislation of an innocently audacious character, whose framers interfere with principles without seemingly being aware of it, and never think that the roof is coming down so long as they can stuff a clause into every separate crack. For instance-covenants being dispensed with in order to obtain a neat certificate of transfer, it is thought sufficient to say that the transfer will confer an indefeasible estate in fee-simple,” subject to registered incumbrances, and to any unregisterable charges. Of the relation between transferor and transferee, in the event of any flaw or subsequent disturbance of ownership, not a word is said; the registrar, however, being exempted from liability on account of bonâ fide acts or omissions. XLV.-If now I am asked, to what practical conclusions I Negative results

of this inquiry. wish this inquiry to lead ? I would say that it is sufficient for me if I have pointed out what cannot be done, what it is idle to attempt ; if I have satisfied others of the impossibility of assimilating specific land to unspecific stock or shares, and thereby of constructing a land-register upon the model of a stock or share-register ; of the fallacy of a “register of titles,” if considered otherwise than as a register of assurances, reduced to their simplest expression by means of a searching reform of the law. If it be said that these are poor conclusions, my answer is-No doubt; but then we have forgotten principles. I have simply endeavoured to shew

upon what quicksands our land-registry schemes of the day are built; upon what foundation a solid superstructure can be raised. But now I will endeavour to do more. I will try to shew that at the bottom of the wildest dreams of the new

a

Applic the share-register

lity of

charges.

school there has been a true instinct ; that the stock or share-registry system may have an application in reference to land.

XLVI.-The stock and share-registry systems, I have said, system to land- cannot be applied to the land itself, because land is specific;

because they are framed for unspecific subjects. I have shown also, that if you can render interests in land unspecific, those systems become at once applicable: witness the railway share itself. And I have shewn that their applicability depends simply on this—the resolving of the relation of ownership into that of debtor and creditor. Now, if we look at land in this light, I think we shall find that those systems, whilst inapplicable to the ownership of land, are, with more or less slight modifications, applicable to charges on land. As respects a charge on land-except when created for ulterior objects—the specific nature of the land is solely important as an element of value; whilst again, the amount of the charge is almost the sole element of consequence as respects the land. Hence it happens, on the one hand, that so long as there was a good margin of value originally, and the interest is duly paid, it matters nothing to the holders of the charge who is owner of the land : on the other, that so long as no remedies are used under the charge, and no fresh costs incurred, it matters little to the owner of the land who is holder of the charge. Hence, again, the comparative unimportance of identification in mortgages, so long as the margin of value is certain. What does it signify to the mortgagee of Ash-tree Park estate whether his security comprises the Hill Close or the Dale Close, so long as he has either way a clear one-third of value over and above his advance? It is only with reference to a prospective sale that the question can interest him. As to his security, what he most wants is that it should be easily marketable. He is not tied in the least to Ash-tree Park. He would change to-morrow to Elmtree Park if there were the least advantage; he would sell his security and buy into the funds the next day, if that were the better plan. Here are surely all the requisites of a stock-registry system. There is the relation of debtor and

ter and register

creditor as the groundwork; there is the prominent importance of the right of alienation as the pivot. In the exercise of this right of alienation, even at present, reigns as much simplicity as is compatible with the present law: the cases are rare when special clauses are inserted in a transfer of mortgage. Supposing the law of charges to be effectually amended, so as to dispense with the need of personal covenants, and special powers and provisions, I believe it would not be impossible to reduce them to a simple entry in a register, no longer than that of a bank transfer.

XLVII.–From this I draw the conclusion, that a land- The land-regisregister, properly so called-meaning a register of titles to land, of charges should

be distinct. and a register of charges on land-should be kept essentially distinct, and conducted on opposite principles. The landregister, I have said, should be constructed with reference to ownership, and, for the convenience of ownership; it should strive to record all modifications of ownership; it should be inclusive. The register of charges should be constructed with reference to the relation of debtor and creditor, for the convenience of the creditor (such convenience being always, considered on a large scale, that of the debtor himself); it should record nothing but the charge, the immediate alienation of the charge, in whole or part, and the discharge, by sale or otherwise, if it ever takes place : in other words—it should be exclusive (a).

XLVIII.—The confused perception of the want of such a Registration register of charges, is what explains the favour shewn by many by landowners 10 landowners to the new schemes of reform. One wonders for credit of

(a) The distinction sought above to be established appears in the French Code, and those founded on it, in the difference between “transcription," or registration in full, applied to certain deeds of alienation ; and "inscription," or registration by entry, applied to hypothecary charges. (I may, perhaps, refer on this head to a paper by myself on “Registration in Foreign Countries,” Appendix to the First Report of the Registration and Conveyancing Commission, p. 206.) It will be seen that, to simplify my observations, I have kept mainly in view, as the typical instance of a charge, mortgages in fee-simple. Mortgages of partial interests could be dealt with on similar principles, but under modifications of detail. Charges by settlement or will would follow either model, according to the interest sought to be conferred, and the subject matter.

mainly requiied

obtain the

their land.

the time to hear them chiming in with the land-speculator in the cry for the stock-registry system. Landowners are not very fond of selling; they can generally afford to spend some time over a purchase, especially if they obtain possession meanwhile. I have already pointed out that–inversely from stock-mortgages of land are the rule, sales the exception; the difference not in the least depending upon any question of title-since the difficulties in that respect are the same either way—but simply on the fact, that land is a property which most men seek to keep in specie, and therefore incumber rather than sell : stock, a property which, in specie, has no value, and which we therefore are indifferent to parting with as such. What the landowners want is, to be able to borrow money with ease on the security of their land; what they need is, that land should enjoy its full meed of credit, undeteriorated by the corruptions of the law of real property. Their claim is entirely just: the interests of the landowner and of the moneyed man exactly coincide on this point. A register of charges, modelled as far as possible on the share, or even stock-registry system, would meet this want, would reconcile these interests. I am glad to see that the Solicitor-General's bill

proposes to distinguish the register of charges from the land-register.

XLIX.-But, if we make this distinction, the question arises general regis---How far is it to be carried ? Are both to form only separate

portions of one machinery, set to work in one building ? Is there—as Mr. Duval's plan proposed, and as the SolicitorGeneral's bill proposes still—to be one "general registry ?” The point seems taken for granted ; and yet it is obvious that it is precisely that upon which all previous registry bills have gone to wreck-upon which the most strenuous opposition, lately at work against the Solicitor-General's bill, was turning. If you look into the reasonings against the one central registry, you will find them at bottom resolve them

selves mainly into this—the intense dislike of the landowner The land-regis. to have, as it is said, his title open to all the world.

L.–Now, if we bear in mind the principles upon which the de charges gene- two registers are to be founded, I think we shall see that they

Question of a

try."

ter should be local, the register

ral

Secresy a con

may help us to a solution of this difficulty. The land-register is to be constructed from the point of view of the landowners, who are scattered all over the country: it cannot be for their benefit that it should be in London. The register of charges is to be constructed from the point of view of the moneycapitalist; but London is the capital mart of the world, therefore the register, or the main register of charges, should be in London. A combination of local land-registers, with a central register of charges, forming, if you will, a focus of speculation not in land, but in land securities, is therefore what these two points of view lead us to. It would be perfectly possible, however, to annex to the local land-register a local register for charges of small amount, created for the benefit of local capital, but conducted on the same principles as the general register, which indeed, I suspect, will always prove cheaper in the long run for estates of any value.

LI.—But how should the combination be effected ? If you dition of the yelook into the landowner's repugnance to show his title, you will gister of charges. find again that, at bottom, what he most dislikes, is to show the incumbrances upon it. Nor should the mercantile man cast a stone at him for so doing, seeing the almost entire failure of the act for the registration of bills of sale of personal estate. If experience shows that a trader cannot practically submit to render public the charges upon his stock in trade, why should the landowner be compelled to render public the charges upon his land ? It was no doubt the great attraction of the stock-registry system in the landowner's eyes, that by keeping all processes of title— beyond the act of immediate alienation-off the register, it seems to guarantee that secresy which he deems indispensable.

LII.-A plan might, I think, be sketcherl out, by which these Reform of the difficulties could be met, and the end be obtained, of securing landowners against the wanton disclosure of their incum- formation of a rebrances, yet affording persons dealing with the estate the means of tracing those incumbrances, whilst at the same time giving incumbrancers a marketable security. For the secresy which is needed, be it observed, is not that of the existence of the charge as a claim in the land-register, as a charge in

substantive law a necessary preli

gister of charges.

« EelmineJätka »