REFORM OF THE LAW OF REAL PROPERTY. — Na. II.
SIR—Pursuing the subject of my last letter, I will, as briefly as I can, place before your readers some practical suggestions for such a reform in our law of Reef Property as may render it marketable like the Public Funds—trans- ferable from hand to hand with absolute certainty as regards time and cost. That is the end to be aimed at. Short of that, we do nothing. All trifling emendatory changes in our present system, as tending to prolong it, are not simply nugatory, they are absolutely mischievous. They set the public upon a false scent, i
ent, and are sure to end in disappointment. On that account, I object to all schemes for the mere registration of deeds, which would per- petuate and indeed aggravate existing evils. What, then, is wanted to make land marketable like the Public Funds ? Obviously, that which makes the Funds themselves marketable—an official record of title, conclusive, self-proved, beyond dispute, and therefore ac- knowledged in all transactions as a sure basis for dealing. All the rest fol- lows—facility of transfer, cheapness, and certainty, with their attendant benefits.
It would not be difficult to prove that a public official registry of titles to land is in itself agreeable to reason, to the primary conditions of terri- torial law, to the usage of other countries, and to ancient principles of our own law, which recognized faintly but distinctly the absolute efficacy of title by record. It is, indeed, satisfactory to feel oneself treading the path of reason, experience, and authority ; but I rest my case upon the equally sure ground of self-evident utility, as sufficient even were my proposal a pure no- velty instead of a recursus ad fo.ntes. " Oh, but," says one, " it is impracticable" ; says another, "It will un- settle all titles" ; says a third, " It will be impossible to adapt it to existing circumstances." I will not be so clamoured out of a great good. I deny the alleged objections. Is it impracticable ? Says my objector, " You can't make the title to land like that of the Funds, because of the diference in the things themselves : land is not like the inscription of a public debt, the ownership of which in given proportions is exactly denotable by figures and names." Granted ; but maps enable us to identify land in all its divisions with perfect certainty for practical purposes . " Yes ; but think of the ex- pense of maps1" My answer is, " We have nine-tenths at least of the kingdom accurately mapped already." To reckon a charge of fe/. per acre, (one acre with another,) in order to complete perfect maps of the whole coun- try, would be an extravagant allowance : say it would cost a million and a half; once done, it would be done for ever. What is such a sum, reckoned against the fee-simple of the coat of conveyancing ?
I shall not stop to anticipate small objections as to the difficulty of map- ping town districts, or of marking small sections of property, or providing for after subdivisional changes of ownership. These are mere questions of machinery. Leaving them to be settled (as they can be) by practical surveyors, let us consider how we shall adapt these maps to a public registry of titles, and how we shall bring such titles under record.
Having attained this first desideratum—maps—the next condition requi- site for assimilating the title to land to that of money in the Funds, is to establish a responsible administration. The security of Funded property is grounded on the responsible administration of the Bank of Eugland—an adequate guarantee of safety to the fundholder. Whatever mistakes the Bank commits through error or fraud it has to bear the lose. It receives from Government a quid pro quo for the trouble and the risk. This responsibi- lity is ef a purely money kind. If I may venture to criticize other plans of a similar kind, they seem to me to have hitherto overlooked or under-estt- mated this essential desideratum. I am persuaded, (indeed I think it is self- evident,) that without a properly-organized scheme of responsible adminis- tration all such plans must fail. The title to land, in order to insure its marketability, must be known and felt to be secured by the best possible guarantees. A mere loose registry open to everybody, to record titles, real or imaginary, at pleasure, would be a palpable absurdity. The responsibility of the Bank of England for the genuineness of the stock purchased and the title to it gives the Public Funds their solid value. But we must not look for money responsibility in the official staff of a public registry of land- titles. We must, therefore, substitute for it (what is in general equally effi- cacious) personal credit and character of men placed in high trust, invested with important functions, and for whose fidelity and capacity we may ob- tain such guarantees as are usual in offices of that nature. It may be ob- jected that this will be insufficient. But such is the responsibility of judges 1p all their forms. The officer presiding over a public record or registry of titles would have a judicial character.
Checks may be added for preventing, in a general way, personation and fraud. Errors will, no doubt, creep into the best-contrived system ; against which we must regard as an offset the frauds and errors of our present system.
I will notice shortly the technical arrangements of my plan. It will be convenient to establish local registry courts, each with its judicial head, and a central record office,. with a tribunal having appellate jurisdiction, to decide controverted points and rectify the errors of inferior courts. The mechanism of providing suitable books of registry, fitted by proper symbols to the maps, so as to connect such maps with the titles to be recorded,— these and other matters of detail, though important and requiring care in construction, present no difficulty beyond the labour of contrivance.
With such machinery, governed, as I have supposed, by competent judi- cial heads, we have, as it seems to me, the whole apparatus necessary for our purpose. But, for caution sake, it would be well to proceed warily, ex- perimenting at first on a small scale, so as to test our work, and remedy de- fects, before bringing it into general application. But now we have to set it in motion. Here the old conveyancer shakes his head, and imagines that we must inevitably come to a stand-still : he can- not imagine the possibility of the title—now skulking in obscure and filthy bundles of obsolete parchment, in abstracts, and opinions, and queries, full of quirks and doubts and difficulties, fearful of the smallest exposure to the rude gaze of the public—being transmuted into the clean, fresh, bold un- blushing title, which may take its place upon a public record, able to look the world in the face, and pass current henceforth without question. How are we to compass this end ?
There are two ways of proceeding. One compulsory, the other voluntary. I reject altogether the notion of the compulsory way, at all events at the outset. The work will be done more easily, more effectually, and better, by having recourse to ordinary laws, which insure the success of voluntary operations. Make it peoples interest to register their titles, you may be sure they will do so : offer them an adequate bonus, they will catch at it quite fast enough—faster indeed than convenience will at first require. Say to the owner of an estate—" Bring your title-deeds here, let them be examined : let your title, if proved, be recorded, and from henceforth (subject to a moderate allowance of time, and opportunity of appeal for rectifying chance errors in the first instance) it shall be guaranteed beyond dispute, and be for ever after transferable without question, as readily, as quickly, and as inexpensively as propert in the Funds. With a title so cleared, you
will in such oases be simply a trustee, like the trustee of stock, But that destrian.
But, setting aside this purely voluntary action, this I am sure of—no buyer or lender would look at a title till it bad first undergone this process of pu- rification. An unregistered title would be simply unmarketable. A is sell- ing his estate to B, or borrowing money from him B will say, " Be so good as to bring me your title clear and recorded ; then I am ready to buy or lend, not before." So the registration of title will become a necessary an- tecedent of every sale or mortgage; and thus, in the ordinary course of things, by rapid degrees, in a natural way, all property will be brought under registration. If some excepted parcels should from badness of title or any other cause remain unregistered, they will have to be dealt with (if any persons can be found to deal with them) in the same cumbersome, tedious, and costly way as heretofore, till the titles are mended, or circumstances compel or persuade the owners to have recourse to the registry. A moderate scale of fees would be a cheap substitute for the present cost of conveyancing, and would amply corer the expense.
It would be too long here to enter into minute practical details. Briefly I would say, that the order of proceeding in the first instance may be strictly analogous to present practice. The examination of titles conducted once for all by the registeringjudge and his officers, would stand in the place of the present investigation of titles by private conveyancers, and be managed pretty much in the same way. Title-deeds, once having passed the ordeal, may be transferred, as useless lumber, into remote holes and catacombs, to rot, whilst the title, of which they were the evidences, may be placed clean on the re- gistry, so as to be capable of future transfer without reference to its ante- cedent history. Once there, the after course of proceeding in future trans- fers would be simple enough. The practice in the case of the Public Stocks may serve as a guide. A title not taking its degree upon its first examina- tion may be plucked and sent back for its owner to cure, and when thought fit be brought up again. The effect of this would be, to set everybody upon putting his title to rights. One remark I make to quiet the scruples of country gentlemen about their mortgages. The system which I would propose, whilst safer and offering greater inducements to lenders of money, need not involve a betrayal of such delicate secrets : indeed, mortgage transactions under it may be very much less notorious than at present, for the registry may be made a sealed book, like the books of the Bank of England.
I pass on to some points which must be distinctly considered. It will be necessary, in order to assimilate the title to land to that of money in the Funds, to keep the legal ownership and power of absolute disposal single and entire. As the Bank of England admits no partial subdivision of interests in its books, but every registered owner of stock is its absolute legal master, so the disposing power over land upon the public registry must be single, en- tire, and absolute. There must be no fragmentary divisions of this legal right, such as tenancies for life, or in tail, or trusts, involving investigation or assents ; for that is the evil we seek to cure.
"How, then," eays my objector, " will you provide for that multiplicity. of partial interests of all kinds which you notice, and which are inseparable in- cidents of real property ? What will you do with settlements and money- charges ?" I reply by asking whether Funded property is not subject in like manner to partial interests of the same kind. How are they provided for ? By collateral trusts. The same means will surely answer in the case of real property. Partial interests may be created, and provision made for them, fully to the same extent as at present, b trust-deeds. The registered owner plies, it may be said, a dangerous power in the trustee, at least if he is to have ant ttered dominion over the inheritance. I might reply by referring again to Public Stock, which is left thus unguarded ; but 1 would not be con- tented with this. A check like a distringas on stock, call it a caveat if you please, entered on the public registry, would be an effectual bar to improper dealings with trust estates ; and the presiding judge would exercise the same general control over, and give effect to trusts in the same manner, as the Court of Chancery now does, only in a simpler, cheaper, and more effectual
As regards mortgages, it would be tedious to describe at large the vices of our present system. Having no public record of titles, upon which a well- arranged system of hypothecation may be based, we have recourse to miserable shifts and devices to effectuate securities upon laud to the great scandal of our law, the great detriment of landowners, and the great inse- curity of lenders of money. Our theory of mortgages is a strange medley, the product of antagonistic systems; a law of tenures governing the legal owner- ship of land, and equitable doctrines borrowed irom Boman jurisprudence, with very clumsy attempts at adaptation. Every mortgage purports to convey the mortgaged property to the mort- gagee ; it professes to be a " tmditao in mortuo vadio," a transfer of the pledge to the creditor, to be held by him in simple pawn. But that is not the meaning or effect of the transaction. The mortgage is a formal lie : until foreclosure, the mortgagee has none of the rights of ownership transferred to him. Again, every proviso for redemption is a lie it professes to work an absolute forfeiture upon default in payment on a given day. It does no such thing ; foreclosure alone effectuates the forfeiture. Again, every covenant that a mortgagor shall have undisturbed power over his estate until default, is a lie. The mortgagor is compelled to part with his legal title and his title-deeds, without which he is debarred from exercising a single privilege of ownership, except by tacit licence from his creditor. These are all bad contrivances to evade the difficulties of a radically un- sound system. All securities for money. are with us, or ought to be, properly hypothecations : what we want is an intelligible system to express the true character and intention of such transactions. Hypothecation implies cer- tain conditions,-1. a conditional right in the creditor, upon default in pay- ment of money lent, to have recourse to or possess himself of the property in security for payment of his debt; 2. an undisturbed right in the debtor to hold the property pledged until such default. An official record of titles (as public er as private as you please) would effectuate' these rights and re- medies, simply, speedily, cheaply, and according to their true intention. The creditor who advanced money upon security of land, would indicate (in some appropriate form) the particulars of the transaction to the registering officers—would cause his hypothecation to be notified on the registry ; the ef- fect of which would be to suspend the owner's power of disposal, and to con- fer en the creditor conditional remedies for securing payment of his debt, by entry, by sale, by foreclosure : until default, the debtor would retain the or- dinary privileges of ownership. A registering judge, having jurisdiction analogous to that now exercised by the Court of Chancery, would supply the very tribunal wanted to give effect to a good system of hypothecation. My letter is intended „to be suggestive merely, not exhaustive. so wide a field many subjects of importance can only be glanced at. I notice, because I must not be supposed to have overlooked, the case of leasehold and copyhold and other derivative tenures, and incorporeal rights, such as
y rights of common, mines, fisheries, and the like. may carry your property to market and obtain for it at any time the increased I do not say that care and thought are not requisite in any practical mea- value which so circumstanced it will be sure to command." With such in- sures for guarding private rights of this nature, whilst we are aiming at ducements, I believe there would be a voluntary adoption of the proffered I the great public end of cleansing titles. But this I am confident of, boon to a great extent at once; I am sure it would rapidly increase. The that beginning on a right plan, and settling upon a sound foundation the man whose title was so put upon record, would look upon his unregistered title to the freehold, the base and substratum of all rights over real pro- neighbour like a well-mounted horseman upon the weary and foot-sore pe- petty, every subordinate interest will in due course fall into its proper place. The rights just referred to must be looked at in two way's : first, as affect- ing and in a manner encumbering the title to the freehold; secondly, as classes of ownership in themselves. As to the first, such interests are (or at least, according to all right rules of public policy, ought to be) strictly of an occupational kind. It would take too long to theorize upon this question, but it might be shown without difficulty that our present law sins against every principle of reason and sound jurisprudence in permitting the ownership of land to be infested with all kinds of anomalous and exceptional interests. When we have once set ourselves upon a right course of improvement, these things will open upon us more clearly : at present I would merely touch upon them practically in reference to the particular object before us—how to deal with them upon a registry of titles.
So far, then, as these interests are of an occupational kind, the common notorieties of ownership will effectually guard the public in their dealings with land affected by them. We need not trouble ourselves with the case of yearly tenants at rackrent, or with other plain and patent occupational rights, which are always the subject of preliminary inquiry, and upon which, in fact, the value of property itself depends. But even these it would be very useful (and for the future it may be necessary) to notice upon a public registry as far as possible; which might be done without difficulty, and without sensibly damaging the simplicity of the record. But a line will have to be drawn somewhere, (I need not stop to discuss such a mere point of detail,) between rights of a strictly occupational kind, such as I have last mentioned, and those other interests which, though par- taking in some respects of the same form, differ essentially from them in principle. I refer particularly to long extravagant terms of years. These are encumbrances on the title, against which, as against any other form of adverse claim, it must be the especial object of a registry to guard purchasers and mortgagees. Recent acts of Parliament have made vast steps towards extinguishing these mischievous interests ; a registry of titles would com- plete the work. But the second point remains to be considered : how shall we deal with interests such as I have last mentioned regarded as classes of ownership ? As to this, I am content for the present to put this subordinate work aside. We will proceed by degrees. Let us first clear the title to the freehold. As we advance and gain wisdom by experience, we may be able to extend the benefits of registration to all classes of ownership : but if we are obliged to postpone or even to set aside the prospect of benefiting these inferior titles by a better system, let us not on that account hesitate to apply the good offered to the utmost extent practicable. Why should not the Duke of Bed- ford get the benefit of a reentry of his freehold title, because we are not able at once to contrive a similar benefit for each of his derivative lease- holders ?
Let me add a word on the importance of a public record in the case of wills, intestacies, and descents ; the proof of which may be said under our
present system to be wholly unprovided for. It is difficult to calculate the amount of useful work which an efficient registry court may be made to do in this way. And as everything truly useful is always found to answer at the same time many indirect purposes of utility, I can see shadowed out by the same plan, a cheap local machinery for doing small Chancery work, just as the County Courts are doing the work of Common Law.