MR. OSBORNE MORGAN'S COMMITTEE ON LAND.
THE simplification of the title to land and the mode of transferring it, is not a subject which will suffer from want of consideration. Two Royal Commissions have already dealt with it,—tho second so recently as 1870. In 1862, Lord Westbury's Land Transfer Act became law ; and in 1875, Lord Cairns's ; while two other important statutes— both intended to remove difficulties and facilitate convey- ancing—were passed in 1874. Such a nervous activity seems to show that there is an evil to be remedied, and one which presses on those who can readily make their views known in Parliament. There is also, apparently, an irritating sense in lawyers themselves that the expense attending the transfer of land is a blot on the system they practise, a feeling which prompts the most distinguished of the profession to initiate reform, when they are in a posi- tion to do so. And no doubt, under these circumstances, im- provements do and will gradually take place. But the last utter- ance on the subject, the Report of Mr. Osborne Morgan's Com- mittee' does not make one very hopeful of any sudden and radical change, and renders the direction in which improve- ment will come more doubtful than before. The general public, indeed, have been rather unreasonable, and must learn sooner or later to distinguish between what is possible and what is impossible in facilitating the transfer of land. The ease with which the other great element of English property—Consols, Stocks, and Shares—passes from owner to owner, has led to a demand for similar facilities with regard to land. But land is not Stock, and never can be transferred as simply. Consols are creations of the human mind ; they are expressions indicating the indebtedness of the Government of the country to a number of individuals who have lent it money. The Debt thus created may be divided into any num- ber of different parts, and the several portions may be passed from one person to another, according to such regulations and by means of such symbols as may be specified for the purpose by the borrowers, whose interest, of course, it is to make those regulations and symbols as simple and intelligible as possible. But land is an actual commodity, existing in nature, apart from
any artificial arrangements on man's part. It may be actually occupied, it may be cultivated, built upon, and otherwise dealt with, in an almost endless variety of ways. Like Stock, it is capable of subdivision, but one bit of land differs infinitely from another, and it is not sufficient to transfer from one person to another a certain quantity of land in the abstract ; a particular piece is required, and must be accurately defined, so as to ensure its distinction from any other piece. More- over, owing to the way in which land may be used, a number of different interests may exist in it. The actual enjoyment of it may be in one person, and the right to revenue from it and to pbssession under certain circumstances in another. Even the actual enjoyment may be much divided. The minerals under the surface may belong to one owner, the pasturage to another, and rights of passage over it to a third, or possibly to the whole nation. Again, certain rights over other people's land may be necessary to the enjoy- ment of one's own. It is of no use having land, if you cannot get to it, and it is often of the greatest importance to have an outlet for the flow of water off one's own land on to the land of another. It follows from. these causes, that there must always be many questions inci- dent to the transfer of land which do not arise in the case of Stock. Questions of boundaries, of the actual occupation of the land, of the modes of getting to it, and the means of enjoying it, may always have to be looked to, and to ascertain the truth upon such subjects means often a certain amount of ex- pense and delay. No simplification of the machinery of transfer can obviate attention to such matters, and no legislation, there- fore, can enable land to be transferred with quite the same ease as Consols. The difficulties which can be removed by legisla- tion are those connected with the instruments and technical mode of transfer, and those connected with the number of in- terests which are allowed, not in the occupation and enjoy- ment of the land, but in the legal ownership of it. It is to the first head mainly that the several efforts of law-reformers have hitherto been directed, and to this that the Report of the Land Transfer Committee is confined.
The application to land of the system of transfer in vogue with regard to Consols was the aim of both Lord Westbury's Act and Lord Cairns's. Lord Westbury's Act was defective in many respects. It proposed to establish a Registry, which should give an absolute and indefeasible title against all the world to a parcel of land by its metes and bounds. The conse- quence was that the title had to be proved not only with refer- ence to the preceding ownership for a long period, but as against every neighbouring proprietor, since it is clear that if you settle the boundaries of one plot of land, you settle the boundaries against it of the land adjoining it on each side. Thus one of the difficulties which must always differentiate the transfer of land from the transfer of Consols was raised in a peculiarly aggravated form. But there was a worse defect in Lord Westbury's system. It was proposed to register all the interests in the ownership of land, trusteeships, and limited estates, and the other complicated arrangements which are allowed by law. Now hero there is no fundamental difference between land and Consols. Consols may also be made liable to limited interests of every kind. But if these interests were registered at the Bank of England, traffic in Consols would be at an end. The Bank refuses to recognise any but absolute interests in Consols. The persons registered as the owners on the books of the Bank arc treated as such, for every purpose. And it, of course, follows that the only transaction which the Bank recognises is the simple and absolute purchase and sale of Stock. Any other interests which may be created—and it is, of course, perfectly easy and customary to settle Consols— must depend upon instruments outside the legal register, in- struments which, in fact, regulate the conduct of the legal owners of the stock, rather than affect the stock itself. Here, again, Lord Westbury's system of registration departed from the system applicable to Consols, and the ease of transfer attending the latter was lost.
From those difficulties Lord Cairns's Act of 1875 is free. It provides for the registration not only of indefeasible titles, but of those titles which are accepted upon pur- chase every day, marketable or proprietary titles. It does not endeavour to settle the boundaries of the land against adjoining owners, and it seeks to put upon the Register one absolute owner, leaving all limited interests to be protected by a system of caveats and inhibitions. In fact, Lord Cairns seems to have made his Registry as nearly analogous as possible to the Registries of Console and other Stocks, and it seems to have been admitted by Mr. Osborne Morgan's Committee, that
it was impossible to suggest any substantial amendment in it. Unfortunately, the system has been almost inoperative. The Act came into force on January 1st, 1876. Only forty-eight titles were registered under it down to March 14th, 1870, and between that date and the preceding February '21st the num- ber was only seven, showing apparently that the adoption of the Act was not gaining, but losing ground.
Now, side by side with these inchoate Land Registers has existed for many years, in certain places, a registry of the deeds relating to land. Some great conveyancers (Mr. Joshua Williams amongst them) have asserted that conveyancing reform should take this direction, and Mr. Osborne Morgan's Committee have devoted the larger share of their labours to a consideration of the rival merits of the two systems. In the result, a small majority of the Committee has de- clared in favour of the registration of deeds, adopting the report of the Chairman embodying this view, in pre- ference to that of Mr. Shaw Lefevre, which declared in favour of Lord Cairns's Act, and against the Registration of Deeds. The Committee therefore propose that District Registers of Deeds and other instruments of title should be es- tablished in convenient local centres in England and Wales, such Registers being provided with indices, referring not only to the persons, but to the property, comprised in the registered instrument ; the Ordnance Map being made use of for the purpose, wherever it is possible, and the party regis- tering having the option of recording either the instrument itself, or a memorandum of its contents. The use of these Registers the Committee propose to make obligatory, by en- acting that (except in cases of actual fraud on the part of the party registering) every instrument shall rank in priority, according to the date of its registration.
We believe that the great majority of lawyers will view the recommendations of the Committee as retrogressive. The ex- perience of London lawyers certainly is not favourable to the registry of deeds, for as it exists in Middlesex, it simply adds expense to every transfer or dealing with property in that county. It is, no doubt, generally admitted that the Middlesex Registry is bad of its kind ; and the Registers existing in Yorkshire, in Scotland, and in Ireland seem to be much more popular. Moreover, Mr. Osborne Morgan's Committee propose to avoid expense by appointing a staff of Official Searchers, who should be competent to give certificates showing the state of their re- spective Registers with respect to the property in question. One objection to this is, that it places enormous power in the hands of officials, and reimports a certain (though probably only a slight) risk of that fraud to prevent which seems to be the chief object of Deed Registers. But apart from this, and assuming the system to be worked in the best possible way, what is the object of having a double chain of title,—a set of original deeds, and also a set of copies or memoranda of these deeds preserved in a particular place ? Such a duplication must entail expense and delay, and the chief countervailing advantage seems to be that it would tend to prevent some of the great land frauds which have from time to time startled society. That it could prevent such frauds entirely is not likely, since the fraudulently disposed person would set himself to find some other weak place in the armour, and would probably occasionally succeed. It would make fraud more difficult ; it would also, if the deeds were entered in full, but not other- wise, facilitate the tracing back of a title, and in many cases, save trouble in the hunting-up of deeds ; but the question is whether, for these objects, it is worth while to hamper and add to the expense of the enormous number of dealings in land which continually take place in England,—a number estimated by the Lord Chancellor at a thousand a day. The registration of deeds, in fact, seems hardly at all to aim at increasing the facilities of transfer, but is designed chiefly for quite another and subsidiary object ; and it would almost seem as if the recent Committee had considered that their special aim was to devise means of preventing fraud, rather than to deal with the larger subject. But if the registration of deeds is objectionable, and (as this Committee itself admits) the registration of titles is the system to be preferred—indeed the only system which will radically simplify and cheapen the transfer of land—on the other hand, it is most difficult to see how the latter system is to be introduced. The framers of the Act of 1875, Lord Cairns and Sir Henry Thring, consider it impracticable to make the adoption of the system compulsory. Mr. Lefevre, in his report, suggests that the system should be popularised and commended by the Government to the public ; and no doubt the evidence before this Committee has shown that the Act is little known and very imperfectly understood. But we cannot help thinking that if the system is worth introduction at all, it is worth while to compel its adoption in some such mode as that suggested by Lord Selborne,—viz,, by making it ap- plicable, after a certain date, to all property which should change hands from time to time. And perhaps the readiest and most practicable way of attempting this would be—as suggested in Mr. Lefevre's report—to confine the compulsion to certain districts in the first instance—e.g., to the County of Middlesex, which has always been hampered by a very bad registry of deeds, and would, therefore, the more easily fall in with a new system of registration. Another very obvious, though more restricted, means of introducing Lord Cairns's Act is pointed out by Mr. Lefevre, the closing of Lord Westbury's Register, and the transfer from it to Lord Cairns's of the 500 titles registered upon the former. The Committee make some valuable suggestions, apart from the question of Registration. The most important, perhaps, is a proposal that the powers now conferred upon a lender by a legal mortgage should be conferred by statute on the holder of a simple charge on land. This suggestion, if carefully worked out, would no doubt greatly lessen the cost of mort- gage transactions, and would tend to bring into the market an increased number of sound securities, especially of a smaller class, to the benefit of both lender and borrower.
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