« EelmineJätka »
Registration of Titles. 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-Ist, 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 ficient to show the interest; but here the diffithen be seen, which do not at present occur culty arises, if a registered ownership may be a to any one, and means might perhaps be fiduciary one, how is a mere inspection to dedevised for removing obstacles.
termine whether the apparent be or be not the
actual owner, a consideration which appears to The proposition of a General Register, strike at the very root of the capacity of a reuntil the issuing of the present Commission, gister to form in such cases any test of title at was supported in a great degree on the all. ground of security to the purchaser against “Let this difficulty, however, be surmounted, fraud by the suppression of deeds of in- still even in the case of a party registered being cumbrance, and of security to the owners
at the same time the sole and absolute owner, of estates against the loss of deeds, and the whole difference in cost between the present further by rendering covenants unnecessary the difference between the cost of the attend
system and its proposed substitute would be for the production of deeds which were on ance and search at the registry office, including, the Register. These supposed advantages perhaps, the official certificate of the registrar are now abandoned. The instances of in-|(and judging from the analogy of wills depojury by the suppression or loss of deeds sited at Doctors' Commons, the latter and not have been found so exceedingly rare, and the former would be the natural cost), and the probably smaller in number than other cost of a copy or abstract of the instrument (or losses which would inevitably arise under possibly there might be a plurality) under
which the title is more immediately derived. any new system, from neglect, mistake, or
“On the other hand all official investigation fraud, that the argument of increased se involves the payment of official fees; and when curity is relinquished, and the whole question official fees have to be added to the ordinary depends on the anticipation of establishing professional ones, it is not difficult to see what, a cheaper system than the present. If this on the score of costs, would be the tendercy of anticipation should not be realised, there a registration system in the particular in queswould be an end to the controversy.
tion. We have therefore looked, with no small the consideration to the owners of land then
“Supposing the cost only about the same, interest, into the estimates which have been arises, into whose pockets they would prefer formed of the expense of registration as this cost to find its way, the registery officials now proposed, and the time which must or their own professional advisers ? The landed elapse before the experiment can be suffi- interest may not be enamoured of bills of costs,
Registration of Titles.
171 but it is not difficult to conjecture in favour of appointees after the same shall have become which of the two classes their vote would be due shall be a sufficient discharge for the given.”
same.' Considering then the other hypothesis, of expression and legal effect, be met by the
“All which might with equal precision, both that of the registered ownership being a simple clause. mere trusteeship for the beneficiaries, the "Upon trust for the said (wife] for her life for author says :
her separate use and so that she may not “Now, it may be presumed, this cannot be
have power to anticipate the income thereof.' placed on a higher footing than, to take the
“Or take the case of the ponderous receipt instance of stock, its inscription on the register ** Provided and it is hereby agreed and de
clause : in the names of trustees. “But the inscription in the names of A. B.
clared by and between the parties hereto so and C. D. of any given amount of stock or
far as they are respectively interested that quantity of land confers no information as to
the receipts or receipt in writing of the said what may be the interest of E. F. in it, or in
A. B. and C. D. or the survivor of them bis fact whether he have any at all, and the de
executors or administrators or other the velopment of that interest requiring, from the
trustees or trustee for the time being of very nature of things, deeds collateral to the
these presents shall be good and sufficient register to determine and declare it, the exami
discharges or a good and sufficient disnation of these deeds becomes necessary in
charge to all persons paying the same for order to arrive at the required information.
the trust moneys for the time being hereof “In this case, at all events, there must be
nor shall any such persons or person from the double course, that of an inspection of the
and after such payment and the taking of registry, and the examination into the docu
such receipt be obliged to see to the appliments, and, the latter being supposed to be
cation of what shall be so paid or be reabout the same under both systems, the only
sponsible or accountable for the misapplicaresult under this head would appear to be, a
tion or nonapplication thereof.' new burthen involved in the additional cost of be substituted with equal effect the clause :
“For all which cloud of words there might having a registry to deal with.”
«« « Provided that no person paying to the Passing next to the second head of cost, trustees hereof any part of the trust moneys in the case of settlement, the instrument hereof and taking their receipt for the same of settlement itself, Mr. Goodeve suggests
shall be responsible for the application by that it is not essential that the question of
such trustees of what shall be so paid.'” the cost of instruments should be tried by The Author then justly observes that acthe frame of deeds under the existing prac-cording to his experience in the conduct of tice, and under which the length of the de- the affairs of their clients, the great bulk of cument is the source of a large proportion professional practitioners, solicitors, no less of the cost. He says
than counsel, are actuated by the honest “ It has long been generally conceded that desire to transact the business, in which the structure of legal instruments might un- they are engaged, on the footing of ecodergo large reduction in point of length, with nomy and the saving of cost, rather than in no less improvement to the document itself as reference to their own personal emoluments; a work of art, than diminution of cost to the and, in matters of drafting, the instructions, unfortunate victim on whom the tax of need from solicitors to counsel, often actively en- less and embarrassing length is now levied.
At the same time it “For instance, take in the case of a settle join conciseness. ment the lengthy limitation of a separate estate happens, unfortunately that the existing to a married woman, which ordinarily runs system of professional remuneration, and somewhat in the form of :
particularly as administered under the pro“• Upon trust that they the said A. B. and C. D. cess of a taxation, fixes the emolument of a
or the survivor of them his executors or ad- transaction upon its more tangible subjects, ministrators do and shall during the life of often leaving that ill paid, or not paid at the said (the wife) receive and take the rents, all, on which most labour or skill has been issues, and profits thereof and stand possess- in fact bestowed, and this system is, in its ed of the same upon trust to pay the same as and when they shall become due into the results, somewhat antagonistic tó short
deeds. proper hands of the said [wife] for her sole and separate use apart from the said [E. F.] “On the other hand,” Mr. Goodeve remarks her said intended husband and so that the that "it must not be forgotten that if the length same may not be subject to his debts, en- of settlements be increased by legal verbosity gagements, or control and so that she may that length has its origin, to a great extent, in not have power to alien, charge, or incumber the complication of provisions to which the all or any part of such rents, issues, and pro- emergency of the case ordinarily gives rise, and fits but that her receipts alone or that of her is ofttimes augmented by the capriciousness
Registration of Titles. and whimsicality of the settlor; a capricious- never have on the register the title in possesness and whimsicality which it frequently hap- sion, until something got there to show the pens no judgment or remonstrance, on the death of A., and this by legal proof. part of his legal adviser, can restrain.
“ Suppose, again, an estate limited on the “In France, and some other countries, the registry (in the nature of a legal settlement) Jaw, to a great extent, regulates the relation to A. for life, with remainder to his children, ships of domestic life, and with this the dispo- equally to be divided between them; the title sition of the family property. Hence, settle- of the children, would require subsequent maments are frequently there nothing more than nifestation before it could be got on the rea declaration by the parties of the Article of gistry. It must be shown what is the number the Code under which it is intended that the of the children to take under the gift, and who, property is to be administered, and the instru- respectively they are, and the legitimacy of the ments exhibit accordingly comparative brevity. whole class must be established by proof of the Those best acquainted with the habits and marriage of the parents, with the correspondfeeling of the people of this country in dispos- ing proof of each of the parties being member ing of their property, and most familiarised to of the common class. In other words, a pedithe collection of their instructions on occasions gree must be shown and vouched before any of settlement, whether upon marriage, will, or interest whatever could be recognised under otherwise, will best be able to appreciate how the registry." far such modes of settlement would be likely to be recognised as model ones by the genius
This species of settlement, by the act of of the English people."
registry, would seem too to be practicable With this preface, Mr. Goodeve proceeds
only in transactions inter vivos, at all events to the question of cost as connected with under the existing state of the law. the preparation of the instrument of settle- “In the case of testamentary disposition the ment itself.
proprietor does not divest himself of the own. “And here let the question be considered cordingly, and not the registry, which is, in
ership during his lifetime. It is the will acupon the two alternative suppositions of the this instance, the real act of settlement, and registry, developing the beneficial
, or being re, before validity can be ascribed to any registrastricted to a representative, ownership. And tion of a will as constituting in itself, i. e. by first upon the former supposition. “Now, in the case in which the interest to would have to be gone through, and some ma,
the act of registration, a transfer, some process be conferred absorbs the ownership in a single chinery to be devised accordingly, which would donee, though difficult to devise the machinery, establish the validity of the will upon the same it may be possible to conceive the theory of the sort of principle upon which, in a testamentary register itself operating as the act of settlement. gift of personalty, the grant of probate of the
* A., for example, being the registered and Ecclesiastical Court constitutes a judicial warabsolute owner of an estate desires to make a
ranty of the title of the executor. gift of it to B.,-possibly the register might be made the medium of effecting the transfer, as Bank acts, to a given point, upon the testa.
“In fact, though in the case of stock the in the instance of stock. Of deeds, however, of this simple nature, the cost, as a general mentary title, that point is only to the extent of rule, at most is but trifling. In cases of set of the executor, and of the latter only, because
a recognition of the title, not of the legatee, but tlement the length of the deed does not ordi- the law of the land constitutes the grant of narily arise from the insertion of recitals, but from the provisions of the operative portion of probate by the Ecclesiastical Court conclusive the deed, and in a mere deed of gift from A. to
on the question of the executor's title. B. the latter would, from the nature of things, cession by heirship, would stand upon a some
“The case of intestacy, and the right of sucbe of the simplest and least expensive kind. "Were the gift to be effected through the
what analogous footing. medium of a registry still some cost must be testamentary disposition, to invest the executor
“It has indeed been proposed, in the case of 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 registration, would not exceed the cost of the representation, and in the instance of an in
testacy to create a real representative on the present deed.”
principle of the present constitution of a per " How the register can itself form the set- sonal one. This might obviate the difficulty, tlement, save in the instance of this com- so far as it would call into being a party complete absorption of the whole interest by petent to deal with and to direct the registrathe transfer to a single donee, remains to be tion, and with the concurrence of that party
the title, either as derived under the wil or explained.
under the intestacy, might be put upon the re“Suppose the simple case in which in the gister. Anything short of this would seem to example of an estate appearing on the registry leave the case to all the difficulties suggested as limited to A. for life, with remainder to B. above, as impeding the registration of this in fee simple, B. were to transfer the remainder species of will. to C.; notwithstanding the transfer, C. would “Supposing it to be practicable to deviae a
Registration of Titles.-Judgments Execution, &c., Bill.
173 scheme constituting the register an efficient aet orders of the Encumbered Estates' Comof settlement, yet, upon the theory of its de missioners in Ireland may be registered and veloping the beneficial interest, the registry enforced in England; and that decrees of must still play the part now played by the the Court of Chancery in England or Iredeed. There is no magic in the mere substitution of the machinery. The register mast land, or of Encumbered Estates' Commisrecord the intentions of the settlor, and, it sion in Ireland, may be registered and enwould seem, in pretty much the same terms as forced in Scotland. this record would now be accomplished by a It is also proposed, that where final judgdeed."
ment has been obtained in the Common Law On this point Mr. Goodeve refers to the Courts at Westminster the person entitled to case of copyholds, where the roll of the the benefit thereof may register a memorial manor is made the act of assurance, and of such judgment, and vice versa, and obtain where the form of settlement (so far as re-execution ; and where final judgment has gards the point in discussion) is precisely been obtained in the Courts at Westminster the same as in settlement of real property
or at Dublin, the persons entitled to the of any other tenure.
benefit thereof may register a memorial of
such judgment in Scotland, and obtain exe« Copyhold settlements do not cost less than cution. freehold ones,-in fact, the fees payable to the steward constitute a separate head of charge,
Decreets of Court of Session, or of Sheriff and additional to that incurred with the profes
or Burgh Courts in Scotland, may be regissional advisers of the parties. Judging from tered in England or Ireland, and execution this analogy, it may be inferred, that under the obtained thereon. proposed system, an official would not be likely Consequent on these amendments, it is to be a cheaper settlement than the private one proposed that the rule by which the defendwhich is now effected by deed; on the con- ant is entitled to security for costs, where trary, the tendency would appear to be the the plaintiff resides in a different part of other way.”
the United Kingdom, shall be abolished; Turning, then, to the hypothesis of the and costs are not to be allowed in actions register being based on the representative on judgments, unless by order of Court. principle only-here, says the Author, the
The Judges are empowered to make rules analogy of stock settlements will strictly for the execution of the Act; and the Judges apply. All settlements of this nature are at Westminster and Dublin to issue altered accompanied, or, rather, it should be said, writs of execution, if necessary. The Act is created, by a cotemporaneous deed, which not to affect defendants residing out of the deed is, in fact, the settlement. So must it jurisdiction of the Court at the commencebe in the case of a transfer of land to the ment of the suit or action. registered owner for the purposes of settle- The clauses of the Act are as follow :ment. The only effect of the change, there- So much of the Act 41 Geo. 3, c. 90, as is fore, as to this point, would be to add to contained in the 5th and 6th sections thereof, the cost of the deed of settlement the re- and also so much of the Act 12 & 13 Vict. c. gistration of transfer. Indeed, unless the 77, as is contained in the 14th section thereof, whole beneficial proprietorship were to be is hereby repealed; and after the passing of left exposed to the jeopardy of the dealings this Act, on production to the registrar or of those in whom the legal ownership be other proper officer of the Court of "Chancery
in Ireland of any decree or order or of an office came vested by the transfer, even the deed and the transfer would not together make been made or shall hereafter be made by the
copy of any decree or order which shall have up the whole cost. There would, it may be Court of Chancery in England for the payment supposed, have to be added that of the ca- of any money, and on production to the clerk reat, which is proposed as the protection of the entries of the report office of the Court against the risk
of Chancery in England of any decree or order or of an office copy of any 'decree or order
which shall have been made or shall hereafter JUDGMENTS EXECUTION, &c., BILL. be made by the Court of Chancery in Ireland,
or by the Commissioners for Sale of EncumEXECUTION OF
IN IRELAND, bered Estates in Ireland, for the payment of SCOTLAND, &c.- SECURITY FOR COSTS. any money, every such decree or order shall be
Thts Bill, which has been again intro- entered in the registrar's book of the Court of duced by Mr. Crauford, proposes that de-Chancery of Ireland or England, as the case crees and orders of the Court of Chancery may be, by the officer to whom the same or an
office copy of the same shall be produced, and in England may be registered and enforced such entry shall be certified by the proper ofin Ireland, and vice versd, and decrees or ficer at the foot of such cree or order or
Judgments Execution, &-c., Bill. office copy, and every decree or order so en- memorial so registered shall from the date of tered'shall from the date of such entry be of such registration have the effect of, in all rethe same force and effect in all respects, and spects, and may in all respects be acted upon may in all respects be acted upon and dealt and dealt with as, a judgment of the Court in with, as a decree or order made in a suit by which it is so registered, to all intents and purthe Court in the registrar's book whereof it poses as if such judgment had been originally, shall be so entered : provided that any decree obtained or entered up in such Court : provided or order which may have been enrolled under always, that no proceeding to revive such the provisions of the said Acts before the pass-judgment shall be taken, nor shall any writ of ing of this Act may be enforced in like manner error be brought on any such memorial regisas if the said sections of the said Acts had not tered under the authority of this Act, been repealed.
4. Where final judgment in an adverse suit 2. Where any decree shall have been pro- shall have been obtained or entered up, or nounced or shall hereafter be pronounced, or shall hereafter be obtained or entered up, in any order shall have been made or shall here- any of the Courts of Queen's Bench, Common after be made for the payment of any money, Pleas, or Exchequer at Westminster or Dublin by the High Court of Chancery of England or respectively, or in any Superior Court of ReIreland, or by the Commissioners for the Sale cord in England or Ireland for any debt, daof Encumbered Estates in Ireland, on produc- mages, costs, or rent, on production at the tion at the Office in Edinburgh_kept for the office kept at Edinburgh for the registration of Registration of Deeds, Bonds, Protests, and deeds, bonds, protests, and other writs regisother Writs registered in the books of Council tered in the books of Council and Session of a and Session of such decree or order, or of an memorial of such judgment, in the form conoffice copy of such decree or order, such decree tained in the schedule to this Act annexed, or order shall thereupon be registered in a book signed by the proper officer of the Court where to be kept for that purpose, and to be called such judgment has been obtained or entered the Register for English and Irish Decrees up, and sealed with the seal of such Court, and Judgments, in like manner as a bond exe- such memorial shall be registered in the Recuted according to the Law of Scotland, with a gister for English and Irish Decrees and Judgclause of registration for execution therein- ments, in like manner as a bond executed accontained, and every decree or order so regis- cording to the Law of Scotland, with a clause tered shall from the date of such registration of registration for execution therein contained; have the effect of, in all respects, and may in and every memorial so registered shall from all respects be acted upon and dealt with as, a the date of such registration have the effect of, decreet of the Court of Sessions, to all intents in all respects, and may in all respects be acted and purposes as if such decree or order had upon and dealt with as a decreet of the Court originally been obtained or pronounced in the of Session, to all intents and purposes as if Court of Session.
such judgment had originally been obtained or 3. Where final judgment in an adverse suit pronounced in the Court of Session. shall have been obtained or entered up, or 5. On production to the senior Master of the shall hereafter be obtained or entered up, in Court of Common Pleas at Westminster, or to any of the Courts of Queen's Bench, Common the Master of the Court of Common Pleas at Pleas, or Exchequer at Westminster or Dublin Dublin, of an extract, in the form contained in respectively or in any Superior Court of Re- the schedule to this Act annexed, of any decord in England or Ireland respectively, or creet of the Court of Session in Scotland which any debt, damages, costs, or rent which shall have been obtained or shall bereafter be shall have been thereby adjudged to be obtained for the payment of any debts, da. paid, on production to the Master of the mages, or expenses, signed by the extractor of Court of Common Pleas at Dublin, where the Court of Sessions, or other officer duly such judgment shall have been obtained or en- authorised to make and subscribe extracts, or tered up in any of the said Courts in England on production of an extract, in the form conor to the senior Masters of the Court of Com- tained in the schedule to this Act annexed, of mon Pleas at Westminster, where such judg- any decreet of any sheriff Court of Burgh ment shall have been obtained or entered up in Court in Scotland, which shall have been obany of the said Courts in Ireland, of a memo- tained or shall hereafter be obtained for the rial of such judgment, in the form contained payment of any debt, damages, or expenses, in the schedule to this Act annexed, signed by signed by the clerk of such Sheriff or Burgh the proper officer of the Court where such Court, or other officer duly authorised to make judgment has been obtained or entered up, and and subscribe extracts, such extract shall be sealed with the seal of such Court, such me- regietered by such Master in a register to be morial shall be registered by such Master in a kept in the Court of Common Pleas at Westregister to be kept in the Court of Common minster and Dublin respectively for that pur. Pleas at Dublin and at Westminster respec- pose, and to be called the Register for Scotch tively for that purpose, and to be called in the Judgments, and such extract when so regisCourt of Common Pleas at Dublin “The Re- tered shall from the date of such registration gister of English Judgments," and to be called have the effect of, in all respects, and may in in the Court of Common Pleas at Westminster all respects be acted upon and dealt with as, a • The Register of Irish Judgments," and every ljudgment of the Court in which it is so regis