THE

SCOTTISH LAW REVIEW.

VOL. IX.

JUNE, 1893.

No. 102.

THE SMALL HOLDINGS ACT.

It is now nearly a year since the Small Holdings Act, 1892, received the royal assent, but, although during its progress through Parliament it received considerable public notice, it is doubtful how far lawyers regard it as a practical measure. The object aimed at is a laudable one, viz., to provide small agricultural holdings for persons who desire to buy suitable land, but who, without the facilities of the Act, would find difficulty in acquiring land,-provided they are themselves willing to cultivate the holdings. The Act applies to England and Scotland, but not to Ireland, that favourite child of agrarian legislation having already every variety of tenure supplied for her delectation; and to carry its provisions into effect large powers are conferred upon the council of each county.

Each council, if of opinion that there is a demand for small holdings in their county, may acquire land by purchase or on lease, or they may be moved to consider the matter on the petition of "any one or more county electors." Probably the intention of the Act is that the county council should purchase small properties and split them up into holdings, for it is difficult to see how otherwise they will be able to get land of suitable situation for persons who presumably are not to be entirely dependent upon their holdings, but who may be small shopkeepers in villages, with time enough on their hands and sufficient energy to combine a species of farming with their other avocations. The ground, when acquired, may be sold in holdings exceeding one acre, but under fifty acres, or which, if exceeding fifty acres, do not exceed in annual value for income tax purposes £50, but the Act facilitates the creation of leaseholds referred to in sec. 4,-of lands which either do not exceed in extent fifteen acres, or are not of more value than £15 a year. If the land is sold, it is for twenty years from the date

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of the sale to remain subject to the condition "that the holding "shall be cultivated by the owner or occupier as the case may be, " and shall not be used for any purpose other than agriculture,” and "that not more than one dwelling-house shall be erected on the holding;" further, "in the case of any holding on which, in "the opinion of the county council, a dwelling-house ought not to "be erected, no dwelling-house shall be erected on the holding " without the consent of the county council." These are serious restrictions upon the liberty of the owner of land, and it is sufficiently clear that in imposing them the Legislature have had in view the prohibition of the acquisition of lands adjoining a growing village, on cheap terms, by speculative persons. The object may be good, but it will probably work out in this way that county councils will find landowners very unwilling to sell ground near villages when the ground will be afterwards subject to such restrictions that the growth of the village and the increase of population (advantageous to the landowner from other points of view) will be prohibited. If such land cannot be purchased, then the county council will have to go further away in each case from every scene of rural industry and acquire lands where no speculative interest can be presumed to exist; but if so, the small holdings will not be open to the small shopkeeper as a paying form of investment, because their situation will be too far distant from the scene of his daily work to allow him to keep the quick eye of a master on his little holding. It may be said that it was not for such a class the Act was passed; it was for the benefit of the industrious labourer who will farm and do nothing else; to which it may be answered that such a person would find distance from a station or village all the more serious hindrance to the prosperous working of his holding in that, unlike the ordinary farmer, he will have no trap or cart of his own in which to make the necessary journeys backwards and forwards to the station or village, and the cost of hire will add to the expenses of the holding.

The mode of purchase is as follows:-The purchaser from the county council will, within one month of the purchase, pay not less than one-fifth of the price (sec. 6); one-fourth of the whole price may, if the county council think fit, be secured by a perpetual rent charge; the residue of the purchase price is to be secured (so far as Scotland is concerned) by a bond on the holding in favour of the council, and may either be repaid by half-yearly instalments of principal, with such interest and within such term "not exceeding fifty years from the date of the sale" as may be agreed upon by the council, or if the purchaser so requires, it may be repaid with such interest and within such period by a

terminable annuity payabie by equal half-yearly instalments. "The amount for the time being unpaid may at any time be "discharged, and any such terminable annuity may at any time "be redeemed in accordance with tables fixed by the county "council." This is vastly pretty, and certainly fifty years is a reasonable time within which to pay the balance of the price of a holding which cannot at the outside be of a value of more than £50 annually, and might be of a value of only £15, but we fancy the average agriculturalist will require a good deal of coaching before he understands the financial provisions of the Act. First, he is to pay a fifth of the price down; second, a fourth of the whole remains a perpetual rent charge; third, the balance is payable in fifty years, or disappears into a terminable annuity!

Mr. Shaw-Lefevre is abundantly favourable to reforms such as this, yet he observes in his new book on Agrarian Tenures, upon the purchase clauses of this Act, "The conclusion forced upon one by a consideration of the whole case is that very few men " of the class of agricultural labourers, or indeed of any other class, "will be found able, and still fewer willing, to advance one-fifth of "the purchase money for the purpose of purchasing small farms of from thirty to forty acres, with the intention of making a living 'wholly by them; that the Act in this respect will prove to be "almost a dead letter, and that, if put in force, it will almost certainly lead to financial loss to the local authorities who attempt it."

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Land may be leased if not exceeding fifteen acres in extent. This we regard as the best feature, theoretically, of the Act in the facilities it offers to labourers who wish to improve their position, but practically we have little hope of much good from it, and again we reluctantly agree with its candid friend, who says, "It is scarcely to be expected that labouring men will be "able to cultivate or to stock more than three to five acres at most. More than this they cannot manage while they remain "labourers, nor can they make a living wholly out of so little as fifteen acres of average farm land valued at £15 a year. "If any lettings of more than three or five acres are made, they "will probably be to village tradespeople” (Agrarian Tenures, pp. 257-8).

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The provisions regarding Scotland in the Act are awkwardly introduced, and it may require some skill to apply them properly. There is apparently, in sec. 23, a provision for the appointment of some new kind of official to prepare the titles, &c., of small holdings, but it is not clear what exactly he is to do, or whether he should be an accountant or a solicitor. Probably the county clerk could quite satisfactorily discharge

the work. A committee of a county council appointed under the Act with respect to the adaptation of land for small holdings, and the sale, letting, and management of the holdings, is in Scotland to consist of (1) the county councillor representing the electoral division in which the holdings are situate, (2) two other members of the county council, and (3) two persons to be elected triennially by the county electors in the electoral division where the holdings are situate, "in accordance with such regula"tions as the Secretary for Scotland may from time to time "prescribe, whether preliminary or incidental to such election." So far as public intimation goes, up till now the Secretary for Scotland has made no regulations. We understand from sec. 21 that the electors are the same persons as the electors under the Local Government (Scotland) Act, 1889, but we scarcely understand the composition of the committee of the county council. It appears to be assumed that there will be small holdings in only one electoral division. What is to happen if there are holdings in two or more divisions we cannot learn, unless we are to understand that the phrase committee of a "county council," in sec. 24, should be "committees of a "county council," and that each such committee is to consist of five persons. Otherwise, if there is to be one committee with local representatives, the influence of the local representatives, i.e., of persons not members of the county council, might, along with that of their electoral representative on the county council, quite overpower the will of the "two other members of the "county council;" yet it is the county council and not the electoral division that is to work out the complicated finance of the Act. We are very curious to see how the Small Holdings Act will act; with all its benevolent intentions, and advanced and up-to-date statesmanship, it would be a pity if it remained a dead letter.

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BURGH REGISTERS.

By the 25th section of the Conveyancing Act of 1874 it is enacted that proprietors of burgage property shall be entitled to grant feus thereof in the same manner as if such property had been held by feudal tenure, and that the titles of all such feus granted before the commencement of the Act shall be unchal lengeable on the ground that such titles have been recorded in the burgh register of sasines. It would appear, therefore, that it was quite legal to grant feus of burgage property prior to the commencement of the Conveyancing Act of 1874, and that the register in which the titles of these feus should have been recorded was the county register. The section then goes on to

say that writs affecting land which, immediately prior to the commencement of the Act, was held burgage shall be recorded in the burgh register of sasines. Read without reference to

the context, these words would undoubtedly cover feu charters of burgage subjects. Feu charters of burgage subjects granted before the commencement of the Conveyancing Act and feu charters of burgage subjects granted subsequent to the commencement of the Act would accordingly fall to be recorded in different registers. This would be an anomaly. The county register is, in the first part of the section in question, undoubtedly fixed as the proper register in which to record feu charters of burgage subjects granted prior to the commencement of the Act, and surely the Legislature can never have intended to appoint a different register for charters granted after the commencement of the Act. Was the Act not intended rather to provide for a uniform registration of feu charters of burgage subjects, while at the same time saving from challenge all those which had been recorded in the wrong register? and do the words to the effect that writs affecting land which, immediately prior to the commencement of the Act, was held burgage shall be recorded in the burgh register of sasines not refer only to writs affecting land which continues to be held burgage? It would be peculiar if the Act in the first part of the section in question declared, in effect, that the county register was the proper register in which to record feu charters of burgage subjects, and then in the latter part directed that feu charters of burgage subjects granted after the commencement of the Act were to be recorded in the burgh register. The words "and which continues to be held "burgage" should therefore be read into the section after the words "was held burgage." This would not be doing violence to the spirit of the section, but would rather elucidate its true meaning. The wording of this section of the Act is certainly contradictory, and this has caused doubt as to its interpretation. Agents differ very much as to the true meaning of the section in question, and in order to put an end to all doubt on the point it would perhaps be well if a short Act of Parliament was passed stating in explicit terms the register in which feu charters of burgage subjects are to be recorded, and enacting that any charters which may in the past have been recorded in the wrong register are to be unchallengeable on that account. This would do away with all doubt which exists in the minds of agents, and would avoid double recording and searches in both registers. It would be a saving of money to clients, as many agents feel it necessary for their own safety to record and make searches in both registers. Probably the best remedy of all would be to