THE MSTORY OF THE LAND TRANSFER QUESTION.
IT is now nearly thirty years since the first detailed plan for a simple system of Land Transfer, or as it was then termed, a Registration of Title, was laid before Lord Langdale's Registration and Conveyancing Commission by Mr. Robert Wilson. This plan, as well as some others which were put forward within a few years afterwards, was based on the estab- lishment, after the example of Belgium and other countries, of a Cadastral Public Map. Each separate piece of land having a number on the map was to be similarly numbered in a Land Index. Upon the sale of a field being, say, number 50 on the cadastral map of any parish or district, it would appear on turning to the Land Index that field number 50 belonged in fee simple to A, and if the case required it, there would also be references to a mortgage to B, a lease to C, or any other such lesser interests in land as were made admissible to the register. It being, however, impossible that all the various complex estates and expectancies which may be created under entails and settlements could be the subject of direct registra- tion, it has been a part of every plan of registration to keep the interests in land admissible to the register within manage- able limits, and to provide for the protection of excluded inter- ests by some system of entries which, under whatever name, would have the effect either of warning persons dealing with the registered owner of the existence of unregistered interests which it behoved them at their peril to have regard to, or even of actually restricting the registered owners, if trustees, from transferring the ownership except with such consents or on the production of such evidence as might suffice to protect the persons interested under any settlement or trusts affecting the property.
To combine security to all interests with the avoidance of an undue complication of registered interests must always be one of the two chief difficulties of the problem of registration, the other lying in the clear and easy identification of the land constituting the subject-matter of each separate ownership. In these two respects it is that a Land Registry differs essentially from a registry of the holders of shares or stock.
The introduction of the new system was, under the earlier plans, to take place either by districts or throughout the country simultaneously, and either by a general registration of presumptive ownership manifested by possession, or by making the register the only recognised means of land transfer, so that every portion of land must come under the system, when- ever it first became the subject of a transfer. The registration of an ownership merely presumptive, while bringing the land under the new system thenceforward, would leave the unin- vestigated previous title as it stood ; but if the landowner should deduce and prove his title before the registrar with the tame strictness which is now required by a prudent purchaser, he was to be registered with a title either indefeasible, or certified to have borne the test of a judicial examination.
In the year 1850 Lord Langdale's Commission reported in favour of the use of public maps for the purposes of registra- tion. At that time however, the materials for the formation of a Cadastral Public Map were far from what they are now. We believe that the present Ordnance Survey on the large scale of 23.344 inches to the mile for the country, and nearly eleven feet for towns, had not even been commenced. It was clear that any scheme of registration founded upon public maps must be a scheme for the distant future, and public opinion was beginning to run strongly in favour of something being done at once. The late Lord Westbury, then Solicitor- General, lent his authority to this view, and during the Session of 1853 drew a seductive picture in the House of Commons of the simplicity with which land might be made as easy of transfer as Consols. A Royal Commission followed, of which Mr. Walpole was Chairman and Lord Westbury the most important member. By the report of this Commission, made in 1857, was for the first time recommended the principle of voluntary or permissive registration which was embodied in Lord Westbury's Land Transfer Act of 1862, and which dis- armed all serious opposition, at the expense of converting the whole question from a very great into a very small one.
Other defects there were in the Act of 1862 which were
pointed out by the Royal Commission appointed in 1868 to in- quire into the causes of its admitted failure. It is available to such landowners only as are willing to undertake the costly process of deducing a full sixty years' title. While public maps are discarded, private maps are in every case required to be brought into the office ; notices are then given to all adjoining landowners, the boundaries are peram- bulated by an officer from the Survey Department of the Inclosure Commission, and as with most unnecessary minuteness even the ownership of party walls and boundary ditches and fences is required to be ascertained and shown, the expense of the proceedings connected with the map are considerable, and dormant disputes about boundaries are not unfrequently called into activity. Notwithstanding all this, however, there crop up now and then amongst the evidence before the Commission of 1868 some telling illustrations of what would be the benefit of a good general system of registration. One eminent solicitor ingenuously mentioned, while enumerating the drawbacks to registration, the case of a registered owner who required a loan, but found it extremely difficult to obtain one because, as there was no title to investigate, there could be little or no costs to the solicitor of the person making the loan. A land- owner who had without employing any solicitor registered his own title to a considerable estate, mentioned that he had afterwards sold one piece of land for £800, and another piece for £1,000, and that in both cases the almost total absence of costs, for want of a title to inquire into, had become the subject of complaints on the part of the solicitors engaged. As soon as Lord Cairns, after' gallantly undertaking, at the beginning of the present Session, to amend the Act of 1862 by introducing compulsory registration, had cut down his Bill ton merely permissive measure, it of course became evident that the Land Transfer question was not to be seriously grappled with at present. As the Bill now stands, it improves on Lord Westbury's Act by considerably relaxing the strictness of the evidence to be required from persons registering an indefeasible title, and also by permitting the registration of a presumptive or possessory title growing by lapse of time into a perfect title as the possibility of old claims dies away. The only startling feature of the measure is a provision that the description of the registered land shall not henceforward be conclusive either as to its extent or its boundaries. The extreme rigidity of Lord West- bury's Act with reference to the identification of the subject- matter upon dealings with land is to be replaced by absolute laxity. Certainty as to ownership is to be combined with uncertainty as to the thing owned. The success of such a combination appears to us most doubtful. It seems essential that a pur- chaser getting a registered title should feel assured that all the land he buys and pays for is held under that title. Many cases might be suggested in which, under the system now proposed, the purchaser could not be sure of this. Especially might such cases arise where the owner first registering had held adjoining land under different titles, one good, one bad, or where there had existed doubtful or disputed boundaries. In the latter case there might result two registered ownerships overlapping each other, and there might be a portion of land having at one and the same time two antagonistic owners on the register. As long as there exist any possibilities of this kind, retrospective in- quiries respecting former ownerships will continue to be deemed necessary by prudent purchasers, yet this is the very thing which it is the main object of registration to get rid of.
With a view to the Land Transfer system of the future, however, it is perhaps not undesirable that this experiment should be tried. The satisfactory identification of the subject- matter is, as already mentioned, one of the two main problems of such a system, and it is herein that lies the main distinction between registering the ownership of land and that of Stocks. Our own belief is that the ultimate solution of this problem will be found in the adoption for registration purposes of Cadastral Public Maps. That the best and clearest way of describing the surface of land is by a map seems to be settled by the common practice of mankind. If anybody doubts it, let him try to teach geography or convey an idea of the rela- tive position and configuration of the English counties without a map. And if maps are admitted, there are many good reasons why they should be public maps. By means of public maps alone can there be a really complete Land Index, leading from each piece of land to its owner, as well as an index of owners leading from each owner to his land. Without public maps the latter, and for registration purposes less valuable, Index alone is attainable. Moreover, upon public maps alone can it be perfectly shown by colouring or otherwise how much of the land of the country has been at any particular moment brought under the system of registration, and how much has not. The main objection that has been made to public maps is founded on the difficulties arising from the changes constantly going on in the divisions of land. It is, however, far from impracticable that if two or three fields are thrown into one, or a single piece of land is cut up into building lots, these alterations should be shown by means of supplemental maps or otherwise. It has been forcibly urged that if the public map of each parish or district were used for rating purposes as well as registration purposes, it would of necessity be kept much more up to the day than if used for registration purposes only. That the costly Ordnance Survey now in progress on the great scale already mentioned is expected or thought to be capable of serving important public purposes of some sort may, we pre- sume, be taken for granted. If otherwise, it would appear that a vast outlay has been undertaken merely for the purpose of presenting every landlord in the kingdom, at the public expense, with a beautifully executed survey of his estate.
The introduction of a really good system of Land Transfer would be one of the greatest practical improvements effected in our day. But it will also, when seriously attempted, be found one of the most difficult. It is idle to say that the in- tereats of the powerful profession of the Law are not affected by it, or that the public can be saved the vast costs now incurred upon the transfer of land, and yet that the class to whom these costs are paid shall continue as before. A large measure of compensation will no doubt arise to solicitors out of costs at- tending the introduction of the new system, and from the multiplication of transactions afterwards. Still, in the main, what photography has been to portrait-painting, that will a cheap and ready system of land transfer be to the present system. It is not in human nature that the change should be submitted to without a struggle. Nor would it be easy to overrate the influence of Solicitors as a body, or their ascen- dancy over the minds of landowners upon a question of this kind. For the success of a measure to which such powerful opposition is to be anticipated, there will be needed an earnest and reforming temper of the public mind, and a Minister reso- lute to effect what the state of public opinion renders feasible.
We sincerely hope, nevertheless, that Lord Selborne's amendment making registration compulsory may be again debated in the House of Commons. Lord Cairns's main argu- ment against it was based upon the system, much adopted of late years upon small transactions, of bringing down the cost of land transfer almost to nothing by dispensing with all ex- amination of title, and by using a printed form of conveyance. In other words, the present system is so oppressive that rather than submit to it, men will incur all the risk involved in having no title. Yet though if a title be properly examined a buyer runs no serious risk, if he takes a title absolutely for granted he undoubtedly runs a risk. Illiterate buyers of land, trusting to the representations of respectable men, are just as likely to be deceived as illiterate depositors in Savings' Banks, or any other illiterate class. The very fact that land was held under a title so dangerous that ordinary purchasers would not accept of it, might itself induce a dishonest owner to sell it in small lots to purchasers having no alternative but to take the title upon -trust. Yet the existence of this contrivance for evading the existing system constitutes the moat available argument that Lord Cairns can discover in favour of the maintenance of that system.
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