12 FEBRUARY 1859, Page 15


IRELIND has had the start of England in law reform ; the West Indies, as we showed last week, have facilities for disencumber- ing estates which we do not possess ; and South Australia has possessed since the beginning of last year a new law relating to the titles and transfer of property in land. The provisions of this last mentioned reform of the law are remarkable, and well worthy the attention of English legislators.

The colony of South Australia, it seems, was in a position which made this reform especially desirable. More than any other of our colonies it has a numerous yeoman proprietary. In fact, it has a greater number of landed proprietors in proportion to population than any country in the world except France ; with this difference, that in place of the French holdings of four or five acres, the South Australian proprietor cultivates farms of from eighty to a hundred acres. In the early days of the colonies, these properties changed hands in a hurried and irregular man- ner ; consequently a large portion of the property in the colony was held by men having titles either radically defective, or titles good enough for possession, but not good enough for sale. An immense mass of deeds affecting the lands had accumulated. In the Registry Office at Adelaide there were 70,000 deeds, in rela- tion it must be remembered to the property of a population of 110,000; and this was irrespective of land grants and deeds exe- cuted prior to the passing of the Registration Act. In fact, the documents relating to the land were calculated to equal the whole population. The law as to the transfer of land was naturally a simple importation of the English law : the same careful and expensive examination of the abstract of title, and of all the do-. cuments supporting it, by a solicitor or conveyancer ; and the same examination, tedious and uncertain from the multiplicity of documents, to be gone through again and again whenever any transaction took place affecting the property in the land. It must also be well borne in mind that no process of this kind, however costly and complete, is final. The title may be thoroughly inves- tigated today by one solicitor who traces it back through mort- gage deeds, releases, conveyances, settlements, and wills perhaps even as in South Australia to a grant from the Crown, and finds all good ; but should a new transaction be proposed tomorrow, the in- tending purchaser or mortgagee, or other person about to be in- terested, is obliged to have the same process of examining ab- stracts of title, mortgage deeds, releases, conveyances, settlements, wills, again gone through by his own solicitor. This state of the law which we endure in England with comparative patienee, was felt keenly in south Australia, and the colonists, freer, perhaps, from old prejudices than their English fathers, and naturally bolder in a new land—determined to reform it. An Act, assented to in the beginning of last year, took up the old system and re- formed it altogether. The following is, therefore, the present state of the law in South Australia, as to the purchase or transfer of property in land.

1. A purchaser direct from the Crown receives as before a land grant which gives him an indefeasible title recorded in one docu- ment. 2. A purchaser buying land from one who holds this land grant obtains the transfer by going to the Registry Office, where the vendor surrenders his land grant which is destroyed, and a new land grant is made out to this second purchaser, who thus holds direct from the Crown, and has an indefeasible title recorded in one document. If the purchaser wishes only to buy part of the -property included in the original land grant, that document is, notwithstanding, destroyed, and two new land grants are made out, one to the purchaser for the part to be transferred, and the other to the vendor for the balance of his ori- ginal holding. 3. A purchaser buying land from a person who holds not a land-grant but a derivative title under a will, insol- vency, mortgage, settlement, or incumbrance, must submit to oertain investigations which are necessary lest wrong should be done to any of the parties interested in the estate. In these cases the intending vendor lays before the Registrar all docu- ments affecting the title to the property, and if on exami- nation the title be apparently good, the Registrar, through the Land Titles Commissioners, gives public notice of the in- tended transfer, so that all parties possibly interested may have opportunities of interposing, and at the expiration of a fixed time, (not less than one month, not more than twelve months,) if no caveat be entered, the transfer is effected.. If, on ex- amination, the commissioners find evidence that some of the par- ties interested are kept in the dark, a longer delay takes place (not less than two months, not more than three years), and, more ex- tended publicity is given to notices of the intended sale : or if the title be decidedly defective they can reject the applica- tion altogether. When after these precautions an estate is sold, the new purchaser receives as in the former cases a land- grant from the Crown and thus acquires an indefeasible title re- corded in one document. Here, in short, is the strong point of the scheme : it gives, instead of the many and intricate documents of the old law, a compact title behind which no man need look. In cases where land is transmitted by will, or intestacy, marriage settlement, or the operation of insolvency or bankruptcy, or in any other way by due course of equity or law, the documents and proofs of such changes are submitted to the Registrar who examines them, issues advertisements if necessary, endorses the change of ownership on the original land-grant, and registers it in his hook opposite the record of the original title.

It will be naturally asked, Suppose the Commissioners, with all their precautions, recognize in the wrong man the right to sell, and give an indefeasible title to a purchaser who has paid money to this wrong man and not to the right owner : what remedy has the right owner ? His remedy is, in the first place, against the wrongful vendor of the land, and should that fail in affording him compensation, he is, by a very remarkable provision, to obtain the full value of the land out of a fund accruing from a small percentage on all estates which have come under the operation of the Act. But this does not affect the bout fide purchaser who still holds his indefeasible title recorded in one document. In cases where this document is stolen, the Registrar prosecutes the wrongful holder ; and no transaction can take place on a docu- ment lost or stolen as all sales must be effected through the Re- gistrar.

So far, the Act regulates the complete transfer and devolution of property in land. In cases of transactions affecting the pro- perty only by way of mortgage or encumbrance, all bills of mort- gage or encumbrance—drawn according to simple specified forms —are registered in the same book in which the title itself is registered. By that means there is found opposite the title of each property, memoranda briefly describing the encumbrances which affect it. Any mortgage or encumbrance not registered is treated as non-existent. In cases where an estate less than an estate in fee-simple is transferred, a memorandum of the transfer is registered and the certificate of such registry is a valid title of the holder to such limited estate.

The author of this Reform—author in the most thorough sense, for he first gathered public opinion for it, and then carried it in detail through the local Parliament—is Mr. Robert It. Torrens, late Chief Secretary of South Australia. In any discussion of the whole question of reform in the laws of landed estates at home, the scheme is well worth candid consideration.