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(East), M P.P* Sib, I have, by chance, seen the Bill lately introduced by you, nominally on subject of Registry Offices and Privileges and Hypothecs. As it involves considerable changes, aflfecting numerous in- terests, public and private, it deserves more attention and ex- amination than are usually given to our Acts of Parliament. This is my apology for taking up the subject in this letter, which I take the liberty of addressing to you, because you have introduced the Bill referred to ; because, not only as a public man, but as a private citizen, you have had many opportunities of forming opinions upon the matters treated of, and because Ihi- lieve that I have had some. I beg that you will believe tha 1 1 am not moved by party considerations. The subject is not generally very clearly understood. I do not pretend in this letter, written in the midst of professional occupations, to do more than state some ideas. Their publication may suggest more. Let us enquire into our present system of registration, and of purgation of hypothecs ; what are its defects ; how improve it ; does your Bill remove defects acknowledged ? Our Registry system may be said to have been created by the Ordinance 4 Vic, which has been followed by a number of Acts passed subsequently. It is true that portions of the Province had, previously to y'" r 1841, been subject to STich laws ; but the Ordinance of the 4 Vic, first introduced o general system, and it made great changes in the law, while some of its enactments were retroactive. After an experience of nearly twenty years we are warranted in saying that the predictions of those who thought that that Ordinance would do harm have not been verified to any material extent ; few have suifered from non-o'oservance of its re(iuire- ments ; its beneficial influence has been felt in many ways. The 4 Vic, has been altered by several Statuses, and some of these by others ; portions of some, nearly of all, of them are in force, and portions repealed ; some enact the same thing twice over with additions. It must be conceded that the system is not perfect. We may say of it, nevertheless, what a celebvated writer said in 1833 of the then French one, " take it altogether, its defects are neither so enormous, nor so numerous, as some people think." It has defects which your Bill omits to remedy. There are now too many modes of registration. I wish you had abolished one of them, that by extracts. The other two are ample ; in fact, the mode hy transcription is so far superior to all others that it has been, nearly universally adopted. Only in special cases is that by memorial resorted to. In Montreal, during twelve months, not one dozen memorials have been re- gistei'ed, exclusive of those for arrears of interest. I CONSIDER IT ANOTHER defect that actions en resolution de vente for non-payment of price are not restrained. Where the vendee may have transferred the land to a third person, bona fide registered purchaser, I would not allow the vendor to bring the action en resolulion, though his vendee may not have paid him* At present, the vendor has two guarantees : one entitling him to the resale of the land, in order to his obtaining his due, out of the proceeds of sale, the other entitling him to the action resolutaire, the judgment in which annuls the sale, and gives him the land again ; the former is subject to publicity, not so the latter. A vendor may neglect registering, announce no claim, and yet eject third persons, and ruin tliemy or hypothecary creditors. This ought not to be, and therefore I wish that there had been in joar Bill an enactment such as hasy at UaU been made in France for the protection of third persons in good faith. It is a defect in our system that a man may sell what he does not own. And there is an anomaly, for while he may do that, he cannot do the less thing, mortgage what he does not own. The sale of the property d\autru{ should be null and pro- hibited. You WOULD have done good by abolishing the 7 Vic, c. 22, § 9, and the 8 Vic, c. 27, § 7. At present, nothing shows to a certainty who is proprietor of a land. You may treat with a person having all the appearance of owner, and be disappoint- ed. Under a sound system this could not be. The hypothec from a judgment is, at present, confined to land owned by the Defendant at the date of it, so the judgment is of less use against a Defendant having no land, but likely to acquire some afterwards, than it ought to be. Injustice often results. In France a judgment registered strikes the lands of a Defendant, though acquired after its date, and the original in- scription suffices to aifect even the after acquired lands. In Up- per Canada, in New York, and in Louisiana, a judgment may affect after acquired lands of a Defendant in the same way. It would be an improvement to give like privilege to future judg- ments registered in Lower Canada. The law regulating Purgation op Hypothecs is the 9 Geo., IV. It is not such a bad law as sometimes represented. Never- theless, it might be improved. The chief complaint against it has been gotten up in the interest of absentees, and persons present neglecting to fyle oppositions. It is said that such per- sons have sometimes suffered ; and so they have. Some would therefore have the law not to prejudice absentees ; but if land be worth having it is worth attending to, and persons intending to absent themselves ought to appoint somebody to watch their interests. Provision might be made, however, for a particular notice to them. You have had in view to protect such persons. I attribute to / i; ■ your desire so to do tbe enactments in your Bill to the following effect : — The applicant for a judgment of confirmation shall, at the time when be makes his application for such judgment, file in the office of the Court, a certificate of the Registrar of the proper County or Registration Division, shewing the hypothecs which' are registered : 1. Against the property to which the judgment is to apply, whenever any hypothec is so registered ; or 2. Against any party who, within ten years next preceding the date of the title sought to be confirmed, has been the owner of such property ; or 3. Against the immediate auteur of the party who owned the property at the commencement of the said ten years ; 4. And which do not appear by the Books of such Registrar to have been Tvholly discharged ; Such certificate shall state also the date of every instrument registered as creating or evidencing any such hypothec, the date of its registration, and the name of the Notary or Notaries before whom such instrument was passed, if it be notarial, and shall mention, as to each hypothec, any partial discharge regis- tered, and the sum which appears to be due for principal and interest ; and if the registration of any such hypothec has been renewed, the certificate shall mention every such renewal and the date thereof ; 6. If the applicant is willing that the judgment of confirm- ation be rendered subject to the hypothecs mentioned in the Registrar's certificate, he shall file, in the Office of the Court,, a declaration to that effect, and it shall be so rendered accord- ingly ; 2. But if the applicant desires that the judgment of con- firmation shall discharge the hypothecs upon the property, he shall, when he files such certificate, pay into Court the price (if any) mentioned in the Title to be confirmed, or which he has made up by bidding in the manner allowed by the said Act ; and if it appears by the Registrar's certificate filed as aforesaid, that there are no charges on the property, and if no opposition is filed, or maintained by the Court, — or if such price be suffi- cient to pay all the charges mentioned in the said certificate and in the oppositions (if any) filed in the case and maintained by the Court, and all costs, — the judgment shall, in either case, be pronounced purely and simply ; \ iV 3. But if such price be not suflScient to pay such charges and costs, — or if there be no price mentioned in the Title to be confirmed, — the Court or any Judge thereof shall, at the in- stance of the Applicant for the judgment, appoint two Experts, and the Applicant shall appoint one» and such three Experts, or a majority of them, shall value the property, and report the value thereof on oath, in writing under their hands, to the Court ; 4. And if the value so reported be either less than or not greater than the price paid in by the Applicant as aforesaid, such price shall be deemed to be the value of the property, and the judgment shall be pronounced purely and simply ; but if the value so reported be greater than such price, or if there be no price mentioned in the title to be confirmed, the Applicant shall pay into Court the difference between the price and the value so reported or the whole of the value if there be no price, and the judgment shall then be pronounced purely and simply. 8. The price or value, so paid into Court, shall be distri- buted by the Court in due course of law, among the c^jposants (if any) and the privileged and hypothecary creditors mentioned in the Registrar's certificate, according to the order and rank of their respective privileges and hypothecs, and as if each of them had filed an opposition according to the practice heretofore in use ; 2. The Registrar's certificate shall be prima facie evidence q£ the facts therein mentioned ; but any such fact, or any mat- ter to which such certificate relates may be disputed, or the pay- ment or part payment, prescription, or extinction in any way, and in whole or in part, or the non-exigibility for any cause or reason whatever of any hypothec mentioned in the Registrar's certificate, may be alleged and pleaded by any party interested, and the Court may then receive evidence contradicting or modi- fying any statement or the effect of any statement in such cer- tificate and give judgment accordingly, and no notice of any such proceeding, to or upon any party not appearing in the case shall be necessary unless specially ordered by the Court. Means might be contrived, and easily contrived, to give par- ticular notices to all hypothecary creditors. If such notices were provided for, the enactments you propose would be uncalled for. Had our Registry Ordinance ordered an election of domicile to be made by persons registering, we might amend the 9th George IV., by ordering a notice to be given to creditors at such elected domiciles. We have only to do a little more now : enact a clause or two, and so secure to creditors, absent or present, a particular notice of applications for Ratification of Title. It might be enactpd that any hypothecary creditor mi{»ht enter a caveat in the office of the Clerk of that Court to which applica- tion for a sentence of Ratification or Confirmation, as regards land on which he has a mortgage, can be made ; such caveat to be signed by the creditor, to describe the land mortgaged, and to mention some certain place of address, within the jurisdiction of the Court, to which notice respecting any application for con- firmation might be sent, the maker of such caveat to be entitled to notification, at the place mentioned, (a peine de nullite) of the deposit of any Title Deed for purpose of Ratification, and of the day when, and the Court where, application is intended to be made ; the Ratification to be signed in duplicate by the propos- ing applicant, or his Attorney, and one part be served by a Bailiff or Notaiy, within 15 days after the day of deposit of the Title Deed. Of course it would be required to go into some details, such as ordering the Prothonotary to keep a book for entering such caveatSf for granting access to it freely to the public, for inform- ing the Court of any caveats entered, &c., &c. If such enactmen';s were made, if greater publicity were or- dered to be given to the advertisements of applications proposed for Sentences of Ratification, if more ample notices were ordered, and if one or two provisions were made towards compelling, but only in certain cases, the deposit of the price, or value, of the land, our Act of Geo. IV. would work not badly. Four pub- lications in the Canada Gazelle might be ordered, instead of three, and mention might be ordered to be made of all the pro- prietors of the land during the ten years next before the date of the Deed, instead of during the three years only as at present. The Crown ought to be bound by the Purgation of Hypo- thecs' Act, as it is by the Registry Law. Your proposed changes will lead to delays and embarrass- ments, and will sometimes prevent transactions. They will impose great labor and responsibility upon the Registrars. The Certificates required by your Sect. 2 will be confused. Any person acquainted with Lowe* Canada, the kinds of claims registered, and of certificates given by Registrars, will be able to judge of this. All manner of Deeds and papers have been registered. Many are obscure, and of doubtful construction, giving a right to M, if one construction be correct, and if another to N. Registrars' certificates in many cases shew claims against Estates long after they have been extinguished. It may be hard to get radialions in some cases, and your act may give confi- dence to some people in bad faith to deny payments made years ago. Nominal creditors, per such Registrars' certificates, may be dead or may not appear, and evidence to contradict their claims, to the ^satisfaction of Courts and Judges, may be hard to get. The second, third and fourth sub-sections of your Sect. VI. will tend to make Real Estate less saleable than at pvcsent. It would be better not to make it, in all cases, where purgation of mortgages is sought, necessary to pay into Court the price. There are many cases in which this would be an idle, and in- convenient ceremony. If those creditors who alone have interest in the price, who alone can be paid out of it, consent to the Judg- ment passing without the price being really " paid into Court," why order it to be paid. The third sub-section referred to will hinder people in selling their lands. Many a man will agree to buy a land, but only at a fixed price — say dC500, or XIOOO. A person under your you proposed sub-section would be foolish to buy without stipu- lating for a Ratification and without a clause resolutoire in his Deed ; for, after his buying say at jC500 an expertise being ordered, such as you propose, the land bought might be reported worth X550, or £50 more than he agreed to pay, or would be willing to pay, for it. Yet he could not, when there were more creditors than the value of the land could satisfy, get a Ratifica- tion without paying such .£50; I need not say that unless Ratifications can be assured to purchasers fewer sales will be. If you wish to bring capital into the country, make land easily transferable, make purgation of hypothecs easy ; it can u^ 10 be done without wrong to any body. Give creditors the full vnlue of their gaa\ But let something depend upon their own common diligence ; compel them to oppose. Let them overbid if the price mentioned in any Deed appear unfair, or too small. Give them particular notices. All this can be done by our pre- sent law with a few additions to it, such as I have mentioned. Section 16 of your Bill looks out of place. It has little to do with a Bill intituled as yours is. It does not look like your work. Depend upon it that the tendency of such legisla- tion cannot be to make landed proprietors quiet, or to bring capital into the country : the object you have in view. Here ia the section I refer to : 16. And for the avoidance of doubts, it is hereby d^dared and enacted, that no adjudication of any real property uy the Sheriff, or in any case of Forced Licitation, has vested or shall vest in the adjudicataire any greater or better title to such pro- perty than was vested in the party or parties upon whom it was seized, or as belonging to whom it was put up for sale in such case of Forced Licitation ; And that no such adjudication did or shall remove or discharge any servitude to which the property was theretofore subject, and that all servitudes in favor of any property so adjudged, have passed and shall pass with it and be enjoyed by the adjudicataire and his ayant causey nor shall any opposition to preserve any such servitude be allowed, and if any be made, it shall be dismissed with costs. If that section pass into a law it wiU unsettle some estates, and give rise to miserable law suits. Nine years ago, A may have bought a lot of land at Sheriff's sale, upon which was a servitude occulte, not announced at the sale, and in respect of which no opposition a fin de 'charge was fyled A so buying that laud took it freed from that servitude. Nobody can dis- pute that. Seven years ago ho may have sold to B, with pro- mise of warranty against all dowers and servitudes ; 5 years ago B may have sold to with like warranty. C, B and A ought to feel quiet in their properties. The law teUs them to feel so ; at present they need not doubt, but may be quiet ; let your Sections pass, and what may be the result ? An action may be brought against C, claiming right to that servitude occulte / i 11 this action may repose chiefly on your declaratory law. C in such case will be troubled and condemned with costs, and he will go against B, or B against A. During 59 years, up to this the moment of my writing, the law has not been as, or what, you propose to declare. I place in parallel columns your proposed enactment, and the law : THE LAW. 41 Geo. Ill, c. 7, § xi. [p. 114, Re- vised Statutes of 1846.J And be it enacted, &c., That no opposition to the sale of any im- moveable property seized by the Sheriff, by virtue of a writ of exe- cution, whether such opposition be a fin d'annuller or a Jin de distraire, the whole or a part of the property so seized, or ajin de charges, on SERVITUDES in the same, shall be lodged in the hands of the Sheriff, or received by him, except previous to the fifteen days next before the day fixed for the sale and adjudi- cation thereof; ♦ ♦ • provided that the Sheriff shall have made known, in his publication of the sale of the said immoveable pro- perty, that such opposition shall not be received during the fifteen days previous to the sale of the same, as above enacted : Provided, nevertheless, that the person who shall neglect to make such oppo- sition before the fifteen days above mentioned, shall still have the power of converting his right to such opposition to an opposition afm de conscrver on the proceeds of tlie sale of the said property, which he may always fyle within the time fixed for lodging such op- position afin de conserver. — Ouyot. Jiep.'iVo. ^' Servittide." The first portion of your section XVI is plausible, and looks reasonabk It seems just, that no purchaser at a Sheriffs sale should get more than the saisi had, or land otherwise than as the auisi held it. Still, in the case of the servitude occtdte which I havre mentioned, anl in several other cases, the purchaser of land, at Sheriff's sales in Lower Canada, has heretofore, fre- YOUR SECTION XVI. And for the avoidance of doubta, it is hereby declared and enacted, that no adjudication of anv real property by the Sheriff, or m any case of Forced Licitation, has vested or shall vest in the adjudi- cataire any greater or better title to such property than was vested in the party or parties upon whom it wafl seized, or as belongipg to whom it was put up for sale in such case of Forced Licitation ; and that no such adjudication did or shall remove or discharge any servitude to which the property was theretofore subject, and that aU servitudes in favor of any pro- perty so adjudged, have passed and shall pass with it and be enjoyed by the adjudicataire and his ayant cause, nor shall any opposition to preserve any such servitude be al- lowed, and if any be made, it shall be dismissed with costs. ^ i I ' i'- quenily, after the sale, had a property more free than the saisi held it. I could easily state other cases in which your section XVI will work gross injustice, if it pass. I could drive half of the capital now in the Province out of it, by one or two short declaratory enactments. Suppose you were to declare that no Bank Stockholders ever had limited liability, but always were and shall be held liable in solido for all debts of the Bank. It would strike people as outrageous. Your section XVI is as unjust as would be such legislation. Time fails me for many more remarks on the present occa- sion. Suffice it to say that your ideas on the subject of Plans of all Registry Districts, and of all lands in them, seem good. Tour seventeenth section, translation from the Code Civily is also good. And now, dear Sir, begging that you will excuse the imper- fections of this epistle, I remain, Your obedient servant, - R. MACKAY. MONTEBAL, May 16th, 1860. P. S. — 'I see by the Papers of this morning that your Bill has passed in the Lower House, with amendments. Neverthe- less, the circulation of my letter may do no harm. R. MACKAY. 19th May, 1160. i ■•< Hon. G. E. Cartier, Atty. General, cfcc, Quebec. I ■*