ON THE TRANSFER OF LAND.
September 1866.
The importance of an inexpensive transfer of land is so grata, that no apology is needed for an endeavour to bring the subject within the com- prehension of lay readers, and to enable them to judge for themselves be- tween the various schemes that are propounded from time to time. The difficulties that attend the transfer of land arise from the compli- cated nature of the ownership permitted by law to subsist in that species of property, and the consequent necessity of investigating each branch of right and obtaining the concurrence of all interested parties.
An example contrasting a bequest of stock with a devise of land will render this clear. Suppose that John Smith dies, having by his will be- queathed 10001. Consols to John Jones on trust to pay the interest to Han- nah Smith, the wife of John Smith, for life' and after her death to divide the principal amongst his three children. John Jones accepts the trust, procures a transfer of the stock to be made to himself, and for some years performs his trust faithfully ; at last he becomes embarrassed, and sells the stock to William Brown, who takes a transfer in the usual form.
Now what is the result of the above transaction ?—why shortly this : William Brown acquires a good title to the stock ; the wife and chil- dren of John Smith are defrauded; and their only remedy is to institute a suit against John Jones for a breach of trust. Such, then, being the law with respect to stock, it is obvious that little difficulty or expense can arise in dealing with it: the registered owner for the purposes of transfer is deemed to be the absolute owner ; and if be abuse his power the persons by whom he has been trusted suffer, and not the purchaser. Now, adopting the same names, let us suppose that John Smith devised
Bleckner° to John Jones on trusts similar to those of the stock, and that John Jones commits a like breach of trust. In this instance, the transfer of Blackacre to William Brown will be effected by a deed of conveyance; and if William Brown employed a lawyer to investigate the title, the latter will be justly blamed for not having perceived that a trust was created. The re- sult, however, to the parties interested, is widely different. By the convey- ance, William Brown has acquired a legal title to the land in the same wa.y as he acquired a legal title to the stock by the transfer ; but here the eimi- larity ends : a court of equity steps in, and declares that William Brown, having notice of the trusts, shall be decreed to perform them • and in effect William Brown loses the estate, while no injury is (as in them; former in- stance) sustained by the wife and children of John Smith.
An examination of the difference in the results of the two cases that have
been put will exhibit the difficulties that attend a transfer of land, and at the same time suggest the mode of overcoming them. It will be observed that the crime of the trustee is the same in the transfer of the stock as in the con- veyance of the land. The distinction is, that in the former instance the par- ties entitled under the will suffer ; and in the latter the purchaser. The rea- son of this is obvious : in the case of stock no trust is allowed to be entered in the Bank books, the purchaser therefore who procures a proper transfer of the stock to be made to himself, or in technical language has the legal title is unaffected by the trust ; on the other hand, in the case of land, the trust is as it were, attached to the land itself, and the purchaser, who acquires the legal title to the land, incurs at the same time an obligation to perform the trusts annexed to it. The remedy for all this complexity is obvious,—establish a register of owners of land, and forbid the registry of trusts, or in technical. language register trustees for sale of land, and the difference between land and,'" stock for the purposes of transfer will at once vanish. The registered owner will have an absolute power of disposition. It is true that he will be amen- able to a court of equity if he abuse his power ; but notwithstanding such abuse the purchaser will acquire a good title to the property for which he has paid.
Thus far the scheme for transferring land would appear so simple as
scarcely to require the support of argument ; but it must be admitted that formidable difficulties remain to be discussed. To begin with one a prin- ciple—Will the great landowners of this country consent to any plan that will place their complicated settlements at the mercy of fraudulent trustees ? The answer to this is, that no such danger need exist : a system of caveats or prohibitions may easily be devised, forbidding a sale of any specified property for a given number of years' or during the existence of particular people. Again, what will become of partial interests in land, such as tenancy for life, leases, and mortgages ?—These interests may be secured in various ways: tenants for life and lessees may enter their names as part owners of the land, or may be entitled to a caveat or prohibition ; while mortgages and similar pecuniary charges may be entered in the register-book, and form a burden, subject to which the land may be sold. A third difficulty, how- ever, must not be passed over even in this short sketch. How is the register to be commenced ?—if the first registered owner have a bad title, the taint will affect every person taking through him, and the register will be useless. The Irish Encumbered Estates Bill supplies a precedent for curing this de- fect. Allow any person, at his own expense, to submit his title to a judicial investigation : if it turns out that he is absolute owner, or has an absolute power of sale, make a decree to that effect, and enact that such decree should convoy a certain title. It is possible, however, that in the ma- jority of cases a less degree of certainty will be required. It may be well, then, to permit any person to register himself as owner on producing prime facie evidence of title : the effect of such a registration would btf,"ehat the title would require to be investigated up to the date at which the registry commenced, but no further ; and in a very few years the registered title would become valid by mere lapse of time. The scheme proposed in this letter does not claim to be new ; on the con-
trary, it founds itself on the precedent of the Merchant Shipping Act, which was carried in the year 1854, by Mr. Cardwell, then President of the Board of Trade. The second part of that act relates to the registry of shipping, and provides that two interests only shall, for the purposes of registry, be re- cognized in ships—namely, absolute owners and mortgagees. The rights of both those parties are defined with precision, and, as no trusts are admitted to registry, ships under that system are transferable with little more expense or difficulty than stock. This precedent is insisted on with the greater confidence that it was pre-
pared under the direction of a Minister who was himself bred a lawyer, and is possessed of an eminently practical turn of mind. However, it dealt with interests as valuable as land, and of no less national importance ; and lastly, it is carried into effect without any difficulty by the officers of Customs at the various ports throughout the empire.
It is impossible in a letter to suggest, and therefore impossible to meet, all
the objections that may be made to the proposed method of transferring land. Analogous objections were raised and considered by Mr. Cardwell at the time of the passing of the Ship-llegistry Act. The important principle to be borne in mind is, that a registry of land should be a registry for the purposes of tranefer only, interfering in no degree with the present law of settlement or with existing interests), but simply providing means by which a trust for sale may be annexed to land, and wheriLlio annexed May be exercise& without the delay, expense, or uncertaintLerpresent attending transfers of landed property.
Previous page
