THE LANDED ESTATES BILL.
WE have already shown the progress made in improving the machinery for attesting land titles and transferring land in Ire- land, the British West Indies, South Australia, and other colonies. It was quite natural that the subject should receive the first at- tention in the outlying provinces of the empire. In Ireland the necessity was most urgent; in the colonies the inconveniences to be remedied were very obvious, the labour comparatively simple, the Government comparatively powerful. In this country, if the subject is one that can be put off from time to time, the in- terests involved are very complicated ; those who are alarmed by disturbance possess a power in comparison with which that of the Government is not overwhelming ; and the interest of the English practising lawyers is truly formidable. It is natural, therefore, that the Metropolitan country should be late in the field with reform, and any measure which is to have a chance of passing must begin with very definite and limited aims. The want of a more simple machinery and law has been felt from the time of Sir Matthew Hale downwards. Two hundred years ago the uncommercial character of our dealing with land was re- marked as inconvenient. The very complications which deter men from reform create on each transaction endless trouble, de- lay, expense, and sometimess the loss of what is worth more than money. 0;the purchase of an estate, endless trouble, delay, and cost are incurred in ascertaining the title. Should the purchaser have occasion to borrow money on the security of his lands, he has to satisfy the solicitor of the lender by repeating the identical process, with the same trouble, delay, and cost ; and should he sell his land the whole has to be once more repeated. The aim of Sir Hugh Cairns is to correct these evils by a very simple process, and to do no more. He attempts no compulsory Encumbered Estates Act, no compulsory act at all. He seeks to establish an independent Court, which, novel in its functions, is to be untrammelled by past routine ; and is therefore to be entirely new in its construction. Before this Court the owner may make a declaration of such title as he conceives himself to have ; the Court will investigate his title, at his cost ; will challenge the pro- duction of contrary evidence ; after a lapse of twelve months will give a provisional title, and after three months more an absolute title ; the decision of the Court to stand good against all further investigation within the limit of the terms of the original declara- tion. During the proceedings any creditor or encumbrancer may lodge a caveat, the owner may state that there is an encumbrance on the estate, without explaining what it is ; and the advantage of the subsequent declaration will be, that the investigation into his title will be limited to the effect of that encumbrance, or to any new questions not included in his declaration. Separate from the Court, there is to be a registry of title ; a register quite dis- tinct from the present registry of deeds, which increases rather than diminishes complication.
No man can legislate on this subject without calling forth opposition of rather an earnest kind, from two entirely antago- nistic quarters. Many will object to any disturbance. " Quiets non movere ; let us muddle on as we are • do not expect any man to show title ; who has a title without a flaw ? " The other party is for overhauling the whole subject, and going at least to the " Encumbered Estates " length, with the result of making the transfer of land " as easy as that of Consols." The objections of this party to the Solicitor-General's bill are presented with very great distinctness by an able correspondent, who is a perfect master of the subject.
" We must bear in mind in the first place, that we are dealing now not with a colony where the local life is stirring and is mirrored vividly in newspapers, nor with countries where the estates are so encumbered that the interest of the owner, and consequently of those deriving from him, is almost nominal, but with England, a land full of old customs, of local and seclusive habits in some districts, and having, as in Wales, whole provinces not knowing the English tongue. We have also to take into account how many Englishmen emigrate or serve the Queen abroad. An owner under the new law can change his previous title into an in- defeasible title after (1.) submitting his title deeds, (2.) the publication of his petition in London and in the locality of his estate, and (3.) a delay of fifteen months. The submission of the title deeds is a precaution the value of which entirely depends on the good faith of the owner; and is therefore not in itself important. The publication of the petition to the court seems an effectual precaution, but we fear its value is overrated. There are many men of substance in country parts of England who never see a newspaper or who read it very cursorily indeed : and many Englishmen, having a distant interest in a property, are now in the remote districts of Australia, practically six months from an English letter, and perhaps many years from means of learning that a petition affecting the estate in which they are concerned has been presented to the Court. If the Court after a delay of fifteen months grant an indefeasible title—grant it on a partial array of documents and without hearing of the conflicting claims of those too dull or distant to defend their rights— what remedy exists for these who are wronged ? None. In South Aus- tralia, as you pointed out last week, any wrong done by the Court is com- pensated for out of a fund accruing from percentages on the estates dealt with, but in England, where owing to the extent of our empire, the ancient complications of title, the old-fashioned habits of some people,
and the roving habits of younger sons, mistakes may easily occur, there is no possible means of remedy for a person wronged by the Court. The estate may be worth 10,0001. a year or only 1001. a year, but the wrong is alike without redress.
"Our next objection to the new Court is, that the title it gives to an t owner is incomplete and limited in application. The title i e s good only as regards change of ownership ; it is good if you wish to transfer your estate to a purchaser, but it is not good for settling the owner more firmly in the hereditary estate which he wishes to retain during his life and to transmit to his children. The Court will then be nothing more than a Government conveyancer's office to enlighten owners and purchasers and to tell them finally, and with the power of Parliament to back the opinion, whether the title in question is bad or good. It will be seen that this Go- vernment conveyancer's office' has one great advantage over the office of a private conveyancer; its opinion will be final and will shut out all further dispute. this isno doubt of great importance and is really an in- stalment of reform. But when we come to consider how far this Go- vernment 'conveyancer's office' will attract business, or to what extent it will bring the estates of England under its care, we must look at some counterbalancing disadvantages. If the owner intending to sell may hope for an indefeasible title—a boon no private conveyancer can give, he may also fear a rejection of his petition on the ground that his title is bad—a public stigma which no private conveyancer can inflict. We must remember that there are in England many owners having unde- niable solid titles with technical defects . such men will not like to bring their title-deeds to be overhauled by the Court. There are some legal anecdotes to deter them. Lord Eldon mentions a case where a cor- poration lost 10,0001. a year by the needless production of a title- deed. In the great case of the Marquis of Cholmondely, the whole of the immense estates were jeopardized on an apparently small point raised by a conveyancer, and at first imprudently disregarded. Our impression is, that comparatively few owners will care to avail themselves of the new Court. Those who have good old titles will let well alone ; those who have inferior titles will not stir the question ; but those who have bad titles may hope to vamp up a case to hoodwink the Commissioners. We have, under our present law, a practice which is somewhat analogous to the intended operation of the new Court. When a wealthy purchaser wishes to obtain a high opinion as to the nature of the title of the vendor, he can manage, by filing a bill in Chancery for specific performance, to obtain the opinion of the Lord Chancellor on the title. But this step is very rarely taken, and though the indefeasible title of the new Court will be naturally a greater object than even the opinion of the Lord Chancellor, we fear that the applications of owners for this title may be so rare as to make the new Court comparatively a failure. It must be remembered also that the expense of carrying an estate through the new Court will not be very small—it will, judging from the analogy of the Irish Court, be a matter of at least 3001. for each cause—with a stipulated delay of fifteen months. Is it to be expected that many own- ers will voluntarily incur this expense—not to secure themselves or their children an estate, but to secure the indefeasible right to sell it to some possible purchaser ?
"The whole question in England is complicated, and it requires delicacy as well as boldness to solve the problem. It will be said that there is a Landed Estates Court in Ireland working without objection, but it has been in operation hardly a twelvemonth, and our experience of it is ne- cessarily limited. And if Ireland is to be our example, why does the Solicitor-General introduce into his bill a restriction in the use of the indefeasible title (restricting it to change of ownership) which does not exist in the Irish law ? and still more, why is not the Encumbered Es- tates Act, which has worked so well in Ireland, introduced into Eng- land ? There are heavily-encumbered estates in this country, as con- veyancers and family solicitors could tell the Solicitor-General. It is not because this measure is what is called sweeping that the foregoing objections are penned. It is very possible that a much more sweeping measure would be a safer and more extensive reform. Re- formers who have thought deeply on the subject consider that we might properly abolish all feudal tenures,—converting all into allodial holdings, —so that we might at once register in one large book every owner of land in England ; making, of course, the possessor the actual owner of the land, to hold or to sell as if the land were so much stock in Consols. But it will be asked, how will you provide for cases of merely beneficial ownership ? You should provide for such cases as you do when property consists of Consols. You should vest the property in trustees, and allow, if you like, to all the persons havin& an interest a power of caveat, so that the property cannot be sold without their consent—a caveat corre- sponding to the distringas which can prevent the sale of stock. By this reform, the land and its owners throughout the length and breadth of England would be registered in a new Domesday-book, and for sale or transfer the land would be free as so much money in the funds."
These doubts are well worthy of consideration, though we must confess that we should consider it a great step in advance if the Solicitor General's Bill be enacted. It appears to us that the ju- dicial declaration of title would immensely simplify all ulterior proceedings, rendering all kinds of property much more available for owner, borrower, purchaser, or even cultivator. The registry would bring the transfer of land to a point not very distant from " the transfer of stock." Even stock is often made the subject of very complicated arrangements under deeds, wills, &c. ; but the register of stock only recognizes one interest,—that of the owner or trustee; leaving to any one having a collateral interest the effec- tual recourse to a dietringas in order to enforce his claims, or to have them recognized on transfer. Now a precisely similar course may be taken with land. Under Sir Hugh Cairns's bill, in the case of a qualified title, the qualification alone will be the subject of investigation ; in the case of a complete title, the substitution of the purchaser's name for the seller's will accomplish the transfer. In some cases all delay and expense will be absolutely shut out; in all, those evils will be greatly diminished. A further effect not stated by Sir Hugh Cairns, we regard as being of the highest importance. There is, perhaps, no impedi- ment to a good system of leasing land to tenants for the practical purposes of agriculture so serious as defects, real or supposed, in the title. They restrain the owner, or he imagines them to re- strain him, in dealing freely with his property. Wo believe that under Sir Hugh Cairns's bill, many a landlord who now affects prejudices against improvement, as a veil for these painful doubts, would soon show how far he knows the interest of landlord and tenant to be identical.
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