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Law J. C. P. 84; Cross v. Seaman, 20 Law J.C.P.
ART. 1.–THE REGISTRATION OF ASSURANCES BILL.
1. The Registration of Assurances Bill.
2. Registration and Real Property Commission. First Report. 1850. NHE great experiment is at last on the point of being tried. .
It is highly probable that before the publication of these observations the fiat of the legislature will have established that mighty innovation-an, effectual General Register for all transactions affecting any lands in England or Wales.
In the whole range of subjects which embrace the mode of transmitting and ascertaining the rights to property, there is none that approaches in importance this question of the Registration of Assurances. The view of the question, as it arises in the simplest state of things, viz., where land is always held in absolute right, is very clearly put by the Real Property Commissioners in their Second Report. " In all civilized countries,” they say, “ the title to lands depends in a great measure upon written documents. The purchaser looks, and is empowered by law to look, for proof of the seller's right beyond the mere fact of his possession. It is obvious that a documentary title cannot be complete unless the party to whom it is produced can be assured that no document which may defeat or alter the effect of those which are shown to him is kept out of sight. It follows that means should be afforded by the law for the manifestation of all the documents necessary to complete the title, or for the protection of purchasers against the effect of any documents which, for the want of such means, have not been brought to their knowledge; in other words, that there should be a GENERAL REGISTER.
VOL. XV. NO, XXVIII.
In the state of things we have supposed, there can be no doubt that there should be a General Register; but it is quite another question whether, in the state of things which actually obtains, a General Register, now to be introduced for the first time, is expedient or even practicable. Nor are there wanting very important names in the list of those who maintain the inexpediency of such a measure, from the consequences, foreseen and unforeseen, to which it may lead ; that even apart from those consequences, the very dread of which is an evil, a General Registry will neither facilitate, nor cheapen the deduction of titles, nor give results more to be relied on than the measures now in use: while not a few, whose opinions, and even whose prejudices, are entitled to be treated with respect, insist, that whatever may be the case at present, all consideration of its expediency will very speedily have to be laid aside, for that any scheme of general registration will be found, after a short time, impossible to be worked ; and that a General Register would, in a very few years, be destroyed by its own enormous weight.1
The great majority, however, of persons qualified to judge, and who have had the whole matter fully before them, are in favour of Registration. The Real Property Commissioners, in 1830, were unanimously in favour of such a measure. So were the Select Committee of the House of Commons, to whom Lord (then Mr.) Campbell's bill was referred to in 1832,3 --unanimous at least as to the advantages in cases of large purchasers, though they spoke dubiously as to its effect upon small estates : and so lastly, are the present Conveyancing and Registration Commissioners, Lords Langdale and Beaumont, Messrs. Bellenden Ker, Coulson, Frere, Humphry and Broderip; the latter two gentlemen differing from their fellow-commissioners only as to the nature of the indexes, and not at all as to the propriety of a Register Office being established. We should feel disposed to bow to so eminent an array of authority, even if the reasons by which they support their opinions failed to convince us. Not only, however, do the reasons advanced by them seem unan
Sugden, V. and P. p. 997. ? The Commissioners were, Mr. (now Lord) Campbell, Messrs. Tinney, Sanders, Duval, Hodgson, Duckworth, Brodie and Tyrrell.
3 The names were, Mr. Campbell, Lord Morpeth, Sir J. Johnstone, Messrs. Littleton, Blamire, Labouchere, Sandford, Freshfield, Jones, Wood, Vernon, Stephenson, Lord Robert Grosvenor, Mr. Byng, Lord Milton, Lord Sandon, Messrs. Portman, O'Connell, Cutler Fergusson, Spence, J. A. Smith, Wigram, Bonham Carter, W. Brougham, Strickland, Paget, Jephson, Vernon, Burge: to whom were added, on different occasions, Messrs. Loch, Lascelles, Trail, Slaney, Sir Charles Wetherall, Mr. Hervey, Sir H. Williamson, Sir Thomas Freemantle, Mr. Buck, and Mr. Hodgson.-Comm. Jour., lxxxvii. 160, 227.
swerable, but many of the views and anticipations which have hitherto hindered the progress of opinion on this point, and delayed the establishment of a Registry, appear to us to be among the strongest inducements for making the experiment. For an experiment it certainly is : and there can be no certainty of what may be the immediate consequences, far less what may be the remote but not less necessary results, of the change. But so the same may be said of every new occur
A man who should be stopped by such a reflection as this could not perform the ordinary functions of life.
It is indeed to the ultimate consequences of a system of General Registration that we look forward as about to furnish the best proof of its utility; and also the best means of rendering the Register itself more simple and cheap. The reforms in Conveyancing which the Registry will, we hope, be the means of introducing, will
, probably, in their turn, afford opportunities for the gradual formation of a more perfect system of Registration than in the present state of the theory and practice of the Law of Real Property it is possible to establish. This was also felt by the late Real Property Commissioners; they commence their
remarks upon the subject of Registration, which occupies the whole of their Second Report (1830, xviii., Parl. Papers), by observing “ that this subject appeared to them to exceed in magnitude and importance all the other subjects within the scope of their Commission; that it had excited general interest; and they had found it to be so connected with almost every part of the Law of Real Property that the nature and details of any improvements to be suggested must greatly depend on the question, whether all deeds and instruments affecting the title were to be registered, or whether the security of titles was still to rest on other expedients.” The experience of a General Register will, it is hoped, suggest, and render practicable, many reforms which would otherwise remain unmeditated or unattempted. The most apparent of these are the abolition of the doctrine of notice, and a shorter period for carrying back a title than the monotonous sixty years now universally exacted.
The object of all legislation on this subject ought to be to render the transfer of land as cheap, as simple, and as secure as possible. This appears to us to be all that is required for the interests of the community. The community, however, is merely the aggregate of individuals; and the paramount object of every individual proprietor since the time of the Conquest has been to alien or charge his land secretly, without either proceeding to perform any ceremonies on the land itself, or depositing
or registering any memorial whereby the terms of the disposition, or even its very existence, could be ascertained. So jealous are men of doing what they please with their own; so jealous also, it may be, of any knowledge or suspicion moving abroad as to their real position in the world; the rich, to avoid solicitations; the needy, to avoid contempt. This object, secrecy, has at all times been pursued by proprietors in preference to simplicity and security, and under the avowed necessity for increased expense. The constant efforts of the legislature, on the other hand, were for many centuries directed towards the publicity of all transactions affecting land. A history of that struggle, and of the similar struggle for the power of devising lands, and the holding land in mortmain, would be a history, if not of the whole real property law, at least of so much of the groundwork of that law as would leave little or nothing untold, except manifest explanations, deductions or corollaries.1
The old Saxon custom was to transact all conveyances at the County Court or Shiremote, and enter a memorial of them in the chartulary or leger book of some adjacent church or monastery; and when this fell into disuse, the ancient feudal method of conveyance, by giving corporal seisin of the lands, answered in some measure the same purpose, though insufficiently, for there was merely the notoriety of giving possession, without the more accurate memorial, as in the Saxon times. But the many inconveniences which, while the lands remained subject to the incidents of feudal tenure, accompanied this open mode of investment—the liability to forfeiture, the incapacity to devise, the inconvenience and delay of a journey to the land itself-instead of leading men to abolish the system of tenure, upon which mainly these inconveniences were chargeable, led them to the contrivance of uses; by means of which a beneficial fee simple, not liable to forfeiture or other feudal exactions, and
The legislature at length changed sides on the subject of devises, and by the Statute of Wills, 34 Hen. 8, c. 5, authorized as to the legal estate what had long been, surreptitiously at first, but afterwards quite avowedly, the practice as regarded the use or equitable estate. It was at last considered (reversing the policy of the common law) that the power to devise lands was beneficial to the community. And see in Blackstone (2 Com. 268—273) a quaint rehearsal of the series of attack and defence between the legislature and the clergy on the subject of mortmain, in which however parliament got the better. It is well known that in the course of these struggles uses and common recoveries were invented or adopted, which more than any other contrivances or artifices have given the peculiar tone to English real law. The long terms of years, which so long were the curse of our conveyancing system, were also a contrivance of the monks and their legal advisers.
2 2 Bl. Comm. 342; and see ante, Vol. xi. N. S. 249, where a description of the ceremony is given, extracted from Hickes's Dissertation.