168 Superior Courts: V. C. Kindersley.-V. C. Stuart.-Queen's Bench.-Common Pleas.

CLAIM FOR SPECIFIC PERFORMANCE
AGREEMENT TO SELL REAL ESTATE.-
SIGNATURE OF COUNSEL.

Held that the signature of counsel is not
necessary to a claim to enforce the specific
performance of an agreement for the sale
of real estate.

IT appeared on this claim coming on for hearing, and which was filed to enforce the specific performance of an agreement for the sale of real estate, that it had not been signed, although prepared by counsel.

E. Vansittart Neale, in support, referred to 1st order of April 22, 1850, section 8.1

The Vice-Chancellor held, that the signature of counsel was unnecessary.

1 Which enacts, that "in all cases of motions for a new trial upon the ground that the Judge has not ruled according to law, if the rule to show cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal, provided any one of the Which directs that " any person seeking Judges dissent from the rule being refused, or equitable relief may, without special leave of when granted being discharged or made absothe Court, and instead of proceeding by bill of lute, as the case may be, or provided the Court complaint in the usual form, file, or claim in in its discretion think fit that an appeal should the Record and Writ Clerks' Office," "in any be allowed; provided that where the applicacase where the plaintiff is or claims to be" "ation for a new trial is upon matter of discretion person entitled to the specific performance of only, as on the ground that the verdict was an agreement for the sale or purchase of any against the weight of evidence or otherwise, no property, seeking such specific performance." such appeal shall be allowed."

The Legal Observer,

AND

SOLICITORS' JOURNAL.

Still attorneyed at your service."-Shakespeare.

SATURDAY, JANUARY 6, 1855.

REGISTRATION OF TITLES.

ONE of the most important questions now under the consideration of the members of the Profession, in both its branches, is that of the Registration of the Title to landed Property.

every species of incumbrance,-one single deed conveying the fee simple will alone be entered. If trustees be appointed in whom the parties beneficially interested have full confidence, no caveat, distringas, or inhibition need be entered on the register. A mortgagee would, of course, be advised It was truly stated in the Petition of the to lodge an inhibition, but the entry would Incorporated Law Society in 1851, that be short. The deed effecting the incum"the subject of a General Registration of brance would be produced to the Registrar Assurances has occupied, at intervals, the and marked. attention of some of the greatest minds that ever adorned the Bench or Bar of this country, from the time of Lord Bacon to the present day, but hitherto no scheme has been suggested which was not open to insuperable objections."

In a large class of instances, however, though the entries would be concise, they would be as numerous as they are now, for parties entitled in reversion or remainder who had not the same confidence in the trustees as the tenants for life, would proIt seems now to be generally acknow-bably avail themselves of the right of enterledged that it is impossible to frame a safe ing their claims on the register; and wherand satisfactory scheme for the registration ever a sale or mortgage took place by the of all deeds and instruments relating to reversioner, an inhibition would, of course, land. The advocates of a General Register be entered. appear to have given up that comprehensive In all these cases we must assume there design as altogether impracticable, and would be no mistake in making the proper turned their attention to a mere register of entry, nor in due notice being given in case the holder of the legal estate, after the man- any application should be made to create ner of the stockholder in the Government another charge on, or to dispose of, the Funds.

property. Great care will, of course, be requisite in giving and proving the proper notices before the charge on the register could be removed.

The proposed reform of the Law is now avowedly directed to the diminution of the expense of all dealings and transactions with landed property. The complaint is that There can be no doubt that several of the the costs of investigating a title to, and com- objections which were urged against a Gepleting the conveyance of, an estate consti- neral Register of Deeds, are avoided by the tute a grievous and unnecessary burden new plan. The parties will be enabled to upon land, which ought to be diminished. keep possession of their own deeds, declarThe new plan for effecting this object is simple and ingenious. Instead of entering on the Register every deed in any way affecting the title to the property :-wills, settlements, trusts, rent-charges, mortgages, eqitable as well as legal, contracts, and VOL. XLIX. No. 1,400.

ing the trusts on which the legal estate is held, and the family arrangements and pecuniary transactions of the parties will not be exposed to interested opponents or idle curiosity.

Looking, however, at the vast magnitude

L

of many of our cities and towns, and the in- ciently tried. On this part of the subject, creasing activity of every part of the empire, Mr. Goodeve (whose pamphlet we noticed -at the unceasing and rapid changes which last week) investigates-1st, the cost of the are taking place in the freehold, but especi- settlements of property; and, 2nd, of the ally in the leasehold property of the country, sale of property. For the present we shall -the difficulties of a Register of the trans- confine our attention to the first head, esactions in land have increased a hundred-pecially as it is estimated that two-thirds fold since the project of a General Register of the landed property of the kingdom is was first contemplated. held under deeds of trust and settlement

It has been urged by several practitioners and are seldom brought into the market for that after the Commissioners have examin-sale.

ed such witnesses as they think proper, and Mr. Goodeve observes, that the register after obtaining answers to the questions must be based on one of two principles. they issued in the Long Vacation, a de- Either it must develope the interest of the tailed plan of the proposed mode of opera- beneficiaries, or it must vest the property in tion should be published for the considera- representatives of the ownership as trustees tion of the Profession. The questions for the benefit of the real owners, leaving which have been issued seem indeed to be that ownership to be developed by cotempreliminary to the formation of a plan. A poraneous documents. On the first hypogeneral impression may prevail that a Re- thesis, the knowledge in question is cergister would be beneficial, at a future period, tainly not likely to be obtained at less cost if not at present; but to judge of its prac- through the medium of a registry than that ticability the whole scheme should be de- of a deed. veloped, the forms of registration, the mode of entry of the original deed, the in- the absolute owner of the property, and the "To be sure if the proposed settlor be in fact hibitions, certificates of registry, notices, theory be, that in the absence of anything to and in short all the machinery by which it the contrary apparent on the face of the register, is supposed the plan would work practically the party registered is to be taken as the owner, and beneficially, should be laid before the a mere inspection of the register would be sufpublic. Difficulties and objections might then be seen, which do not at present occur to any one, and means might perhaps be devised for removing obstacles.

The proposition of a General Register, until the issuing of the present Commission, was supported in a great degree on the ground of security to the purchaser against fraud by the suppression of deeds of incumbrance, and of security to the owners of estates against the loss of deeds, and further by rendering covenants unnecessary for the production of deeds which were on the Register. These supposed advantages are now abandoned. The instances of injury by the suppression or loss of deeds have been found so exceedingly rare, and probably smaller in number than other losses which would inevitably arise under any new system, from neglect, mistake, or fraud, that the argument of increased security is relinquished, and the whole question depends on the anticipation of establishing a cheaper system than the present. If this anticipation should not be realised, there would be an end to the controversy.

We have therefore looked, with no small interest, into the estimates which have been formed of the expense of registration as now proposed, and the time which must elapse before the experiment can be suffi

ficient to show the interest; but here the diffi culty arises, if a registered ownership may be a fiduciary one, how is a mere inspection to de

termine whether the apparent be or be not the actual owner, a consideration which appears to strike at the very root of the capacity of a register to form in such cases any test of title at all.

"Let this difficulty, however, be surmounted, still even in the case of a party registered being at the same time the sole and absolute owner, the whole difference in cost between the present the difference between the cost of the attendsystem and its proposed substitute would be ance and search at the registry office, including, perhaps, the official certificate of the registrar (and judging from the analogy of wills deposited at Doctors' Commons, the latter and not the former would be the natural cost), and the cost of a copy or abstract of the instrument (or possibly there might be a plurality) under which the title is more immediately derived.

"On the other hand all official investigation involves the payment of official fees; and when official fees have to be added to the ordinary professional ones, it is not difficult to see what, on the score of costs, would be the tendency of a registration system in the particular in ques

tion.

the consideration to the owners of land then "Supposing the cost only about the same, arises, into whose pockets they would prefer this cost to find its way, the registery officials or their own professional advisers? The landed interest may not be enamoured of bills of costs,

Registration of Titles.

but it is not difficult to conjecture in favour of which of the two classes their vote would be given."

Considering then the other hypothesis, that of the registered ownership being a mere trusteeship for the beneficiaries, the author says::

"Now, it may be presumed, this cannot be placed on a higher footing than, to take the instance of stock, its inscription on the register

in the names of trustees.

"But the inscription in the names of A. B. and C. D. of any given amount of stock or quantity of land confers no information as to what may be the interest of E. F. in it, or in fact whether he have any at all, and the development of that interest requiring, from the very nature of things, deeds collateral to the register to determine and declare it, the examination of these deeds becomes necessary in order to arrive at the required information.

"In this case, at all events, there must be the double course, that of an inspection of the registry, and the examination into the documents, and, the latter being supposed to be about the same under both systems, the only result under this head would appear to be, a new burthen involved in the additional cost of having a registry to deal with."

Passing next to the second head of cost, in the case of settlement, the instrument of settlement itself, Mr. Goodeve suggests that it is not essential that the question of the cost of instruments should be tried by the frame of deeds under the existing practice, and under which the length of the decument is the source of a large proportion of the cost. He says

"It has long been generally conceded that the structure of legal instruments might undergo large reduction in point of length, with no less improvement to the document itself as a work of art, than diminution of cost to the unfortunate victim on whom the tax of needless and embarrassing length is now levied.

"For instance, take in the case of a settlement the lengthy limitation of a separate estate to a married woman, which ordinarily runs

somewhat in the form of:-
"Upon trust that they the said A. B. and C. D.
or the survivor of them his executors or ad-
ministrators do and shall during the life of
the said [the wife] receive and take the rents,
issues, and profits thereof and stand possess-
ed of the same upon trust to pay the same
as and when they shall become due into the
proper hands of the said [wife] for her sole
and separate use apart from the said [E. F.]
her said intended husband and so that the
same may not be subject to his debts, en-
gagements, or control and so that she may
not have power to alien, charge, or incumber
all or any part of such rents, issues, and pro-
fits but that her receipts alone or that of her

appointees after the same shall have become
due shall be a sufficient discharge for the
same.'

"All which might with equal precision, both
of expression and legal effect, be met by the
simple clause.

"Upon trust for the said [wife] for her life for
her separate use and so that she may not
have power to anticipate the income thereof.'
"Or take the case of the ponderous receipt
clause:-

Provided and it is hereby agreed and de-
clared by and between the parties hereto so
far as they are respectively interested that
the receipts or receipt in writing of the said
A. B. and C. D. or the survivor of them his
executors or administrators or other the
trustees or trustee for the time being of
these presents shall be good and sufficient
discharges or a good and sufficient dis-
charge to all persons paying the same for
the trust moneys for the time being hereof
nor shall any such persons or person from
and after such payment and the taking of
such receipt be obliged to see to the appli-
cation of what shall be so paid or be re-
sponsible or accountable for the misapplica-
tion or nonapplication thereof.'

"For all which cloud of words there might be substituted with equal effect the clause:"Provided that no person paying to the trustees hereof any part of the trust moneys hereof and taking their receipt for the same shall be responsible for the application by such trustees of what shall be so paid."" The Author then justly observes that according to his experience in the conduct of the affairs of their clients, the great bulk of professional practitioners, solicitors, no less than counsel, are actuated by the honest desire to transact the business, in which they are engaged, on the footing of economy and the saving of cost, rather than in reference to their own personal emoluments; and, in matters of drafting, the instructions, from solicitors to counsel, often actively enAt the same time it join conciseness.

happens, unfortunately that the existing system of professional remuneration, and particularly as administered under the process of a taxation, fixes the emolument of a transaction upon its more tangible subjects, often leaving that ill paid, or not paid at all, on which most labour or skill has been in fact bestowed, and this system is, in its results, somewhat antagonistic to short

"On the other hand," Mr. Goodeve remarks that "it must not be forgotten that if the length of settlements be increased by legal verbosity that length has its origin, to a great extent, in the complication of provisions to which the emergency of the case ordinarily gives rise, and is ofttimes augmented by the capriciousness

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"Were the gift to be effected through the "It has indeed been proposed, in the case of medium of a registry still some cost must be testamentary disposition, to invest the executor incurred by the operation, and it may be ques-with the character of a real as well as a personal tioned whether the fees, and other expenses of representation, and in the instance of an inregistration, would not exceed the cost of the testacy to create a real representative on the present deed."

principle of the present constitution of a perHow the register can itself form the set-sonal one. This might obviate the difficulty, tlement, save in the instance of this complete absorption of the whole interest by the transfer to a single donee, remains to be explained.