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BIL
PRTf
A LETTER
OS THK
BILL FOR QUIETING TITLES TO REAIi ESTATE
IN UPPER CANADA,
ADDRKSHKI) TO THE
HON. JOHN A. MACDONALD,
ATT0RNEY-(3<RNERAL FOR UPI'ER CANADA,
BY THK
HON. OLIVER MOWAT,
LATELY M.IM*. FOR SOUTH ONTARIO.
TORONTO:
PRTNTED AT TUB OLOnK 8TRAM JOB I'RE-JS, 20 AND 28 KFNO STREKT EAHT.
1865.
i
TO THE HON. JOHN A. MACDONALD,
Atiurnn/' General for Upper Canada.
Toronto, Feb. G, 1865.
My Dear Sir, —
I am very glad to know that the Bill for Quieting
Titles is to bo carried through Parliament this Session as
a Government measure. As I have taken great interest
in the subject to which this Bill relates, and have given to
it considerable attention^ it has occurred to me that I may
perhaps facilitate your work a little by stating my view
of the evils which the Bill was designed to meet, and of
the method by which the Bill proposes to remove them.
When I first introduced the Bill you were good enough
to express your approval of its principle and object, and
to go over its clauses with me very carefully and to sug-
gest to some of them amendments which I had great
pleasure in adopting.
The Bill as it now stands has thus had the benefit of a
careful revision by yourself. For the original preparation
of the Bill I frankly confess that I am entitled to no par-
ticular credit. My professional practice had called my
attention to the great and gi'owing evil of the insecurity
of our Titles, and my reading had brought to my know-
ledge the remedy first adopted in Ireland, afterwards ajted
upon in Australia, New Zealand, and elsewhere, and lately
applied to England itself. What I have done is the
draftsman's work of adapting laws already in force in other
countries to the circumstances and requirements of this
section of our own Province.
The leading objects of the Bill are to give greater cer-
tainty to Titles ; to facilitate the proof of them ; to expedite
transfers ; and generally to render dealing with real pro-
perty more simple and less expensive. Everybody is
interested in these important objects, for everybody either
owns property now, or hopes to do so some day.
The insecurity of Titles, which it is the purpose of the
Bill to remove, has often been the occasion of the greatest
possible hardship and suffering to individuals and fami-
lies ; and facility of transferring real estate, which it is the
intention of the Bill promote, is of the greatest importance
to a free country, and particularly to a young country, like
Canada.
The method by which the Bill proposes to accomplish
its design is by rendering Titles indefeasible whenever
they have been submitted with this special object to
the ordeal of a judicial investigation and their validity
has in this way been ascertained. This investigation
is not to be compulsory on owners, but the proposal
is that an owner shall have the right to have the
investigation made if he chooses, and though there
may be no adverse claimant. On his establishing his
Title, after due inquiry and every precaution by the
Court against error or fraud, it is proposed that the
owner shall receive a Certificate of Title ; and that such
Certificate shall operate as a new starting point in his title,
and shall be conclusive at Law and in Equity against all
the world that at the time mentioned in the Certificate
the land belonged to the person it names. Thenceforward
when the owner sells or mortgages, an intending purchaser
or mortgagee will only have to search for conveyances or
incumbrances subsequent to the Certificate — the work of
perhaps five minutes or less.
do
in
Ujl
of
th^
lis
As the Law stands now an OT.'ner may have an undispu-
ted and indisputable Title ; it may be easy for him
to-day to prove every deed and every fact on which
his Title depends ; but a dozen years hence the case
may be quite different. The proof may then be diffi-
cult, expensive and perhaps impossible ; witnesses whose
testimony he needs may be dead ; or if alive, it may
be impossible to find them ; or if found, they may be
where tlie process of our Courts cannot reach them, and
where therefore their evidence caainot be compelled. Or
if these difficulties do not arise, others may. In a dozen
years witnesses may forget important facts ; or some of the
papers on which the Title depends, may be mislaid or lost,
and there may be the greatest possible trouble in tracing
them, or proving by satisfactory evidence their loss and
their contents. The Bill proposes to give to every owner the
right, if he chooses, of producing his proofs now ; and if
they are clear and satisfactory, of being relieved forever
afterwards from the necessity of producing them.
When an owner has occasion to prove his Title at law,
this only gives him the opportunity of showing the legal
title. An action at law seldom touches the question of the
equitable Title, or of equitable interests in the property ;
and whatever such an action decides is bindin,: in the
parties to the suit only and affects no one else. Ti^e evi-
dence must be forthcoming, and may have to be repeated
in every suit with everyone who at any future time sets
up a claim to the property.
Then again many of the flaws on which a Title is de-
feated are such as, if known in time, could bo easily
and cheaply remedied ; but are beyond remedy when
the property becomes valuable enough to tempt the
cupidity of those who are entitled to take advantage
of the defects that are discovered ; or the original party to
the transaction may then be dead and his heirs may be
6
minors or needy, and for these or other reasons unable
or unwilling to correct or overlook the mistakes or omis-
sions which render the title defective.
All sorts of questions have to be considered in looking into
a title prior to making a purchase or accepting a mort-
gage. Are the deeds and wills through which the title is
traced, genuine Instruments ? or have any of them been
forged or tampered with ? Were they all duly executed '?
Have all the forms required by the Statute been observed
in the registration of them ? Were all the requirements
of the Acts affecting married women complied with ? Did
every testator possess the recjuisite mental capacity at the
time of signing his Will ? Was it read over to him ? Did
the witnesses subscribe their names in the presence of one
another ? Even in regard to these ordinary questions that
occur on almost every title, examples of misinformation
and misfortune have not been wanting.
But sometimes much more difficult questions than these
have to be determined, as to the construction of deeds,
and still oftener as to the construction of wills. Occa-
sionally difficulties of this class entirely escape atten-
tion when a Title is investigated, jind at other times a
wrong conclusion is come to in reference to them.
Then questions of identity and questions relating to
possible claims for dower have sometimes been overlooked
by former purchasers, and involve considerable perplexity
in subsequent investigations.
Again, persons dealt with as legitimate, sometimes turn
out not to have been legitimate ; or a person who has con-
veyed as eldest son and heir under the old law, is subse-
quently ascertained not to have been eldest son and heir.
So persons supposed to be all the children and co-heirs
under the new law, may only be some of the children ;
persons may not be dead who were supposed to be
dead ; or persons may not have been dead or not have been
I
I
boru at the dates supposed, and ou which important riglits
depend ; persons may have been aliens who were supposed
to be British subjects, or may have been British subjects
who were supposed to be aliens ; and persons may have been
absent from the country when the Statutes of Limitations
were supposed to have commenced running against them,
or may have been in the Province before the Statutes were
supposed to have begun their operation in barring their
rights.
There are even some causes of difficulty, delay and
expense in the case of Canadian Titles, which do not
exist to the same extent in England.
Thus we have not hitherto had any complete system for
the registration of births, deaths and marriages, and the
want of any has created much inconvenience.
Again, our population is less stationary than that of
Great Britain, or of the old countries of Europe. A much
smaller proportion of our people, than is the case in an
old country, remain permanently in one place ; and a
much larger proportion, after being concerned in the
ownership of land, or being witnesses to transactions af-
fecting the ownership, leave the part of the country where
they were known at the time, and perhaps leave the country
altogether. Native Canadians, or those who have lived
for a time here, are to be found in British Columbia, Aus-
tralia, New Zealand, and probably every State of the
American llepublic. The difficulty from this cause alone
of tracing witnesses or former owners, and of ascertaining
and proving the death of heirs and devisees, is sometimes
found to be very serious.
Then again, Canadian Titles have, in many instances, to
be tra(;ed through persons residing in Great Britain ;
through Deeds and Wills executed there ; and through
heirs who were born there, and who married and died there.
So from time to time it happens that births, deaths and
i
8
marriages which have taken place in the various States
of the Americun Republic, or in the other British Pro-
vinces on this Continent, or in Australia, or in the coun-
tri(;s of Continental Europe, form essential links in a Title.
It is obvious that the difficulty of searching for such facts,
and then of establishing them, must sometimes be very
great, even when the events are comparatively recent ;
but when they occurred many years ago, the difficulty
may amount to an impossibility. Every Title depending
on such events, becomes less safe with every year that
])asses ; and as the law stands now, no reasonable caution
and no moderate expense can make such a Title entirely
secure.
Again, in this country large blocks of farming land often
depend on a single Title ; or a farm lot is, in the forma-
tion of our cities, towns and villages, divided into building
lots ; and a flaw in the Title of one of those who owned
the property before the division of it, destroys the
Title not of one person only or of one family only, but
of many persons and many families.
It often happens too that the original Title is in such
cases less carefully examined than if there had been no sub-
division, and one person was buying all. Parties appear to
think that a weak Title acquires strength by the number of
persons who hold by it ; or everybody assumes that his
neighbour has examined the Title and found it correct, and
he trusts to this supposed investigation in order to avoid
the expense of an independent investigation of his own.
Were there an easy method for obtaining an indefeasible
Title, no one would think of sub-dividing his land without
first obtaining a Certificate of Title.
Our Registry law has, beyond all controversy, been of
immense advantage to the country ; and yet in regard to
any of the questions I have spoken of, it cannot be said
to afford any protection whatever; we need something
to supplement its provisions before our Titles can have
the reliability which it is very desirable they should pos-
sess. The Registry law in fact provides for but one source
of danger to a purchaser, namely unknown conveyances
affecting the property. It affords little or no aid in ascer-
taining the validity of conveyances, the proper construc-
tion of deeds and wills, or any events affecting Title other-
wise than by written instruments ; or in supplying the
future proof of such events. These things may be of greater
moment to an intending purchaser, than the possibility of
there being some Deeds affecting the property of which,
but for the Registry law, he would not have known. In fact
our people have been in the habit of trusting too much to
the Registry, and have in consequence neglected to preserve
their Deeds as carefully as prudence required. The Registry
law has not hitherto required a memorial of the whole Doed
to be registered ; and the Deed may consequently have con-
tained conditions, provisions and trusts, of which the memo-
rial gives no information. All that the Statute requires the
memorial to state is, the date of the Deed, the names of the
parties and of the witnesses, and the description of the
property. Even the estate or interest convoyed, need not
be mentioned. There may therefore be an interest under
a Registered Deed which does not appear in the memc^rial ;
and a man may have an interest as (for example) a mortga-
gor, remainder man, reversioner, or cestui qui trust, without
any intimation of this being given by the memorial. Mort-
gages have often been registered as absolute conveyances.
If the new Registry Law which the Government has in-
troduced should prevent this method of registering instru-
ments for the future, the chsnge will have no effect on past
transactions.
It is a further serious inconvenience connected with our
existing system, that if a purchase is effected or a loan
granted after an investigation which satisfies the Soli-
i:
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10
citor employed that the Title is good, the whole in-
vestigjitiou has to be gone over again upon every fresh
transaction in reference to the property ; and a title
that was satisfactory to one laAvyer may not be satis-
factory to another ; as among lawyers tiiere are all degrees
of professional skill and knowledge, a^id all degrees of
])rud(Mice and caution, as well as of experience. Besides,
the ablest and most cautious lawyer may occ asionally make
a slip or overlook a defect which an inferior man may hap-
pen to detect. Sometimes, therefore, one solicitor tinds it
his duty to reject a Title which another solicitor has
examiniul and ])assed ; and this is the case not only in
Canada, but in England also, where conveyancing is a
distinct branch of professional practice, and has received
a degree of careful attention which it is not possible
for general practitioners in Canada to give to it.
The desirableness of such a measure as you have brought
in and of there being no delay in passing it, further ap-
pears from the obvious fact that every year our Titles are
becoming more and more complicated by sales, mortgages,
wills, and settlements, as Avell as by deaths, marriages,
births, and all other events affecting Titles. Every instru-
ment that is executed, every transaction that takes place,
every event that affects the ownersliip, increases the evil ;
for th(5 more c()iii[)licated a Title is, the more numerous
the links in tlie tduiin are, the greater is the .chance of a
mistake being made in advising ujion it, the greater the
chance of there being some Haw which it may be dilHcidt
or impossible at tlie time to detect, and the greater the
chance of the ])ro()fs nt^ct^ssary to (!stal)lish the Title, being
lost, or for some reason not obtainabk^ when needed.
Even th(5 mere lapse of time until it is long enough to
give a title by possession, l)ut serves to enhance the
danger, through the death of witnesses, or their forgt^tful-
uess or mis-recollection of facts, and other causes. AVitli
can
11
timo })ropei'ty is increasing; in value ; the im])ortance of
the Title beinjj; unimpeachable, is augmenting ; and yet witli
time, until the period of prescri[)tion is actually reached,
come increased complication and increased danger.
Property more frecpiently changes hands in Cities and
Towns than in the Country ; ami at pi'eseut the evils which
the liill is designed to remove, are greater in the former
than in the latter. For the same reason they are
greater in those parts of the country which have been
long settled, than in those in which the lands have but re-
cently been patented. Indeed sonni cojiveyancers of great
ex])erience have expressed the opinion that, unless a riiuie-
ily is found, there will ilot in a few years be nniny markt^ta-
ble Titles in this part of the country. The evil is certainly
increasing and must increase cN'cry where, until our Titles
become as complicated, and the investigation of them be-
becomes as expensive, as in England itself. Tliere the
investigation usually occupies months; and it ap])ears
from our law books that ten yenrs and v.wn more have some-
times bee s])ent in making out a Title. Occasionally also
the expense has nc^arly e([ualleil the ])urchase money ; oin)
instance is mentioned by Lord St. Leonards in which a
Vendor gave the ])roperty to a ]mrcliaser for nothing, on
condition of the ])urchaser's relieving him from one part
of the expenses of the investigation, namely that of furnisli-
ing copies of the Title Deeds. On the otlu^r hand, the earlier
in a Country's history that some system is adopted for giv-
ing certainty to Titles, the easi(!r is the task, and the more
ert'ectual are the means which it is practicable to ado})t.
The truth is, that under the English system (which is also
ours) there are in a larger number of cases than I would
like to designate, no means by which any one. when iw,
buys a})i(5ce*'>f propin-ty uidess he; buys from the Crown,
can be absolut(;]y certain that he is g(;tting a good Title.
Even if his Grantor was the Patentee he nuiy not be per-
!.!
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12
fect^y safe, for there may have been a prior patent of the
same lot to another person, or the Patent to the Grantor
may have been issued through some fraud or mistake
which, on just grounds, may invalidate it. So a sale in
Chancery is only enforced if the Title on investigation
appears good ; but even this investigation, as the law now
stands, does not give perfect security, and in England
there are in the books instances of a Title obtained under
a Chancery sale, being afterwards successfully impeached
from some unexpected quarter.
I think you will agree with me that it is specially im-
portant with us that means should be adopted to give the
greatest practicable certainty and simplicity to our Titles,
because Immigrants and others are apt to take on trust
the validity of the Title of the apparent owner of the
property, especially if he appears to be a respectable man,
and are unwilling or perhaps unable to bear the expense of
obtaining competent professional advice in looking into the
Title for them ; and it is a cruel hardship that a man of
this class, or of any class, after buying a lot, entering into
possession, perhaps spending all his means and the
labour of himself and his family for years in improving it,
should be suddenly deprived of his property and perhaps
the labour and acquisitions of a life-time, through some de-
fect in his Title of which he had no suspicion. Yet in-
stances of this kind are unfortunately within the knowledge
of almost every lawyer.
It is hardly a less cruel hardship that the law shorM be
in such a condition that a man who lends his money on a
mortgage under professional advice, is liable '^o lose his
money afterAvards from some latent defect in the title. I
have heard of one lender who in this way lost X11,000 in
one transaction. Even Building Societies and Loan Com-
panies occasionally meet with like losses, though for vari-
ous reasons they are more frequently heard of in the case
of private lenders.
13
in
But the advantage of our Titles being certain, is very
far from being confined to the particular cases in which
innocent persons might otherwise suffer. The country
generally would benefit by its being known that our Titles
were perfectly safe and simple, or could be made so. Such
a state of the law would tend to encourage both settlers
and those who have money to invest, while any doubt
or fear about our Titles discourages both.
The saving of time on all subsequent transactions in
relation to property after a Certificate is obtained, would
not be the least valuable result of the system which the
Bill proposes to introduce. Under the existing system
the investigation sometimes takes weeks, sometimes months
and occasionally (as I know from personal experience) even
years ; and the transaction is sometimes broken off in
consequence of the delay, or is only carried out when the
owner's purpose in selling or mortgaging can no longer be
answered. I have known some painful illustrations of these
results, and probably no lawyer in large practice but has
done so too.
Under the proposed measure if an owner has a Certifi-
cate of Title, he may complete a sale or mortgage in two
hours after bargaining for it. The preparation of the
Deed or Mortgage seldom occupies much time ; and the
search at the Registry Office for mortgages or convey-
ances subsequent to the certificate, would be the work of
but a few minutes.
The existing system exposes parties in taking or acting
on a Title to the danger of the Title turning out to be bad
through some unperceived flaw or some unknown fact ; to
the danger of losing the evidence of a Title that is really
good ; to delay in the investigation when expedition
is an object ; and to constantly increasing expense in the
investigation and proofs. The Bill proposes by a short,
inexpensive and just method to remove these evils. I say
14
ji just method, for I do not know that any one will think
it unjust or objectionable that latent claims will be shut
out by the Certificate. Wo already by our Registry law
recognize the propriety of such a provision ; and so great
and undeniable are the advantages the country derives
from the law, that the tendency is to extend and not to
restrict it. Under its operation latent claims are ex-
cluded without any of the precautions which the Bill pro-
poses that the Court should observe before a Certificate is
granted ; and I think there can be no reasonable doubt that
when a person is in possession of property as apparent
owner, when his Deeds and papers appear on a rigid ex-
amination of them to establish clearly that he is owner,
when the Registry Ofii(3e gives no intimation of an adverse
claimant, when none can bo discovered in answer to public
advertisements, it is but just that the law should protect
the person who ]iurc;hases from such an owner, rather
than protect the interest of some unknown person who
afterwards sets up a claim of which he had taken no
steps to give others warning.
The principle of the Act exists in Lower Canada where,
I believe, Hhoriff's sales give an indefeasible Title. I have
been informed that a Hlieviifs Deed is in consecpience re-
garded in Lower Canada as the best, and indeed only
entirely safe, Title that a man can have.
The machinery which the Bill adopts, is in piinciple
that which was adopted in the Statutes regarding L-ish
Incumbered Estates, and which was found to work so
beneficially in L'eland that it was afterwards made to ap-
ply there to all lands, instead of being (u:)nfined as it
Avas in the first instance to Incumbered Estates. It has
also, Avith th{} cor<lial approbation of English Law Re-
formers of all parties, lieen lately exteu'led to England ;
though the opposition of the Solicitors lias ])revented much
use being yet made of it there. In this Province the
15
i
interest of the legal profession is not against the proposed
measure. Conveyancing forms a smaller part of professional
business than in England, and the incidental advantages of
the proposed measure will more than compensate Solici-
tors for their loss of profit through the general simplifica-
tion of Titles. Had it been otherwise, I am bound to
express my conviction that Canadian lawyers would have
been found too liberal and patriotic to prefer theii* own
interest to an important Reform in the laws of their
country.
The English law as to the sale of Goods in marlrt overt,
is an illustration of the principle on which our Registry
Law and the Bill in question alike proceed ; and for up-
wards of three hundred years a like doctrine was allowed to
prevail to a considerable extent in regard to lands also, by
the operation of fines and recoveries. Lord Coke said
that " the Law had ordained the Court of Common Pleas
'• ;is a market oiurt for assurances of land by fine ; so that
" he who shall be assured of his land not only against the
" seller but against all strangers, it were good for him to
" pass it in this marlrt overt by fine." But the change of
manners gradually destroyed the value of the precautions
Avhich originally were fi sufficient protection to persons
wlu) were no ])arties to the procecnling, and ultimately
rendered necessary' the abolition of fines and recoveries.
For it will be remembered that tliere was no inves-
tigation of the Title by the (^ourt in such cases ;
all that was required was, that the person who "levied
tlie fine" should ])e in possession of a freehold by
right or l)y wnmg, amj. that no adverse claim should be
duly made ; and the only notice; given was tin; rehearsal
of a fii^titious fornmla coucIkhI in technical and obsolc^te
hmguage to an unint(^r(^st(Hl audiiMice in i\\o. Court of
Common Pleas at Westminster. The Pine bound all
persons who were not under disability, even thougli they
were entirely ignorant of the proceedings.
■ i;!
16
To prevent possible injustice from the working of the new
system, the Bill provides all reasonable precautions. The
Court, before declaring a Title good, is to make, by itself
or a competent officer acting under its own supervision, a
thorough examination of the Title Deeds and evidences of
Title in the possession or power of the party ; a thorough
search at the Kegistry Office is also required ; and copies
of all memorials are to bo produced that relate to Deeds
of which the originals cannot be found. An affidavit is
required from the owner that he knows of no adverse
claim ; and a certificate from his Solicitor or Counsel that
he has examined the Title and conferred with the owner,
and beUeves the affidavit true and the Title good. There
will thus be the best possible security that nothing is kept
back. Notice of the application for a Certificate is further
proposed to be given, not only to any one having an ad-
verse claim, but to any one whom the Judge thinks it
prudent to notify. In addition to all these precautions,
notice is to be published in the Canada Gazette^ and in
any other newspapers the Court sees fit, in order that if
there is any claimant whose Title neither appears on the
Deeds nor in the Registry, nor is known to the claimant
or his professional adviser, such claimant may still, if
possible, receive an intimation of what is going on and
have an opportunity of establishing his right. But if any
one has a claim which is not shown by the Deeds or the
Registry, and which the astuteness of the Court and its
officers cannot detect, and which even advertisements can-
not bring to light, the Bill assumes that the public interests
require that such a claim should thenceforward be ex-
cluded as against honest purchasers or their representa-
tives.
If, notwithstanding all the precautions referred to, a
Certificate of Title should happen to be obtained through
fraud or false statements on the part of a petitioner,
17
the Certificate is declared (§47) to be void iu such a case
as respects the petitioner, and to be valid only in favor of
a purchaser for value who had no notice of the fraud or
falsehood. The chance of the Act working injustice in any
possible case, is thus reduced to a minimum ; while on the
other hand it is especially declared that the Act is to be
so construed and "carried out as to facilitate as much
*' as possible the obtaining of indefeasible Titles by the
" owners of Estates in Lands, through the simplest ma-
" chinery, at the smallest expense, and in the shortest
"time, consistent with reasonable prudence in reference
" to the rights and claims of other persons-"
The machinery provided is so simple that I do not see"
that, with the exception of the disbursements for publishing
and serving notices, the expense of a judicial investigation
need be much greater than that of one thorough investi-
gation out of Court on a sale or mortgage of the property.
It will certainly be less than of two such investigations ; and
the judicial investigation wiU have the immense advantage
of being made once for all, instead of having to be repeated
at every new sale or mortgage of the property ; and will
have the further advantage of being certain and conclu-
sive, instead of being forever open to question. I am
satisfied that a measure which secures these advantages
will prove a great boon to the country.
I remain,
My dear Sir,
Yours truly,
O. MOWAT.