Registration Title to L^and CHARLES FORTEsCVE BRICKDALE F7765R \S86 '^ey St., W.C. UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY REGISTRATION OF TITLE TO LAND AND HOW TO ESTABLISH IT WITHOUT COST OR COMPULSION. BY CHARLES FORTESCUE BRICKDALE, B.A., In OP Lincoln's inn, barrister. LONDON: EDWAED STANFOKD, 55, CHARING CEOSS, S.W. 1886. VSSfc fe PREFACE. Very little preface is required for this work. The dif- ficulty of arrangement has been considerable, owing to the attempt to kill two birds with one stone — to produce a book intelligible to the lay public, and at the same time interesting to the legal profession. The separation of portions into notes and appendices is designed to effect this object as well as may be. I have to thank a number of friends who have given me the benefit of their criticisms and suggestions, whereby the constructive portion of the work has been greatly helped. I have also to thank the Editor of the ' Westminster Keview ' for permission to reproduce some portions of an article which I contributed to the July number of that periodical. C. F. B. 8, New Square, Lincoln's Inn, October 1886. nsW36 NOTE. While this work was in the hands of the printer, the Annual Meeting of the Incorporated Law Society took place, and resolutions were passed at it, expressing distrust of Registration of Title in any form. This led to certain letters on the subject in the Times. In one of these, Mr. Arthur Arnold stated that the Free Land League and its supporters would be satisfied with nothing short of compulsory Registration of Title : in another, Mr. Osborne Morgan drew attention to tlie Report of the Committee of 1878-9, of which he was chairman, declaring settle- ments to be the principal impediment to registration : and in a third, Mr. R. H. Holt, citing the high authority of Lord Selborne, urged that compulsion in some form would be necessary to success. That my faith in Registration of Title is not due to ignorance of the serious dangers and disastrous con- sequences that have attended its adoption liitherto, will appear from pages 27 to 34 : objections to compulsion are detailed at pages 3, 42, and 50, and in Cap. IV., Sec. 1, will be found a plan for introducing registration without it: also reasons are given at page 22 and in Appx. II. for believing that settlements are not properly chargeable with complicity in our failures. C. F. B. CONTENTS. PAGE List of Abbreviated Eeferences .. .. •• •• •• ^"* CHAPTEE I. THE AUTHOR'S REASONS FOR ADDRESSING THE GENERAL PUBLIC •• •• ^ CHAPTER II. STATEMENT OF THE LEADING FACTS OF THE CASE, AND INQUIRY AS TO THEIR CAUSES .. .. 6 1. The Natdbe op the Pkoblem to be solved .. .. 6 2. Short Explanation of Registration op Title as APPLIED TO Land 3. Attempts to establish Registration op Title in England and Ireland have failed H 4. Registration of Title has succeeded in the Aus- tralasian Colonies ^^ 5. How can this Contrast be explained? 1* (a) The suggestion that our failure is due to unavoidable circumstances (5) The suggestion considered and found unsatisfactory . . 17 (c) Hitherto unsuspected cause of the contrast, an organic difference in the two systems adopted 25 6. Review of Chapter, and Statement of a compulsory Scheme that has been suggested 40 VI CONTENTS. CHAPTER III. PAGE PEINCIPLES UPON WHICH AN IMPROVED REGISTRY SYSTEM SHOULD BE BASED 44 1. "Indefeasible" or "Absolute" Title is not to be AIMED AT : " Guaranteed " Title is all that can be offered .. .. .. .. .. .. ,. 44 2. The Guarantee Fund 47 3. The Office of Registrar will not be judicial in any sense .. .. ., .. ,. .. .. ,. 48 4. Boundaries should be guaranteed .. .. ,. 48 5. Adoption of the System should be voluntary in the widest acceptation op the term. And, herein, of Solicitors 50 6. Prescription and Limitation should remain .. .. 56 7. Liability of the Guarantee Fund defined .. .. 57 8. Recognition of Trusts .. .. ., ,. .. 61 9. Negotiable Mortgages .. .. ,. .. .. 61 10. Very Short Leases may be admitted to the Register .. .. ,. ,. ,, .. ,. (52 11. General Rules .. .. .. .. .. .. 63 12. Publicity avoided — Bankers' Mortgages .. .. 64 13. Metropolitan or Local Registries .. .. .. 64 14. Application to Copyholds .. .. .. .. .. 64 CHArTER IV. POINTS OF PRACTICE 65 1. How to procure Titles to be placed on the Register .. .. .. .. .. .. ,. G6 2. How TO retain Estates once Registered .. .. 71 o. How TO provide a Guarantee Fund 74 CONTENTS. Vll CHAPTER V. PAGE FINANCE 77 Scale of Fees— Gross Expenses— Gross Receipts and Sur- plus—Inauguration Expenses — Stamping Documents. CONCLUSION .. .. 86 SUMMARY OF ADVANTAGES 90 APPENDICES. I. Practical Results of Registration of Title in Australasia . . . . . . . . . . . . . . 92 II. Colonial Experience of Registration of Settled Estates .. .. .. .. .. .. .. 96 III. Legislative Suggestions, including the Outline op a Plan for permitting Unregistered Dealings with Registered Estates, and for guaranteeing the due performance op Trusts IV. The Prussian Registry of Title.. V. Employment of Solicitors for the Examination of Titles . . VI. Maps, Descriptions, and Boundaries VII. The Registrar's Duties VIII. Registration of Title to Copyholds .. 99 105 113 118 122 124 ( viii ) LIST OF ABBREVIATED REFERENCES. PARLIAMENTARY PAPERS. 1870. Report, Evidence, and Appendix of the Land Transfer Commission, appointed 1SG8. Price Is. Wd. 1872. Return on Registration of Title in the Australasian Colonies. Price 2s. 6(/. 1878, 1879. Report, Evidence, and Appendix of the Select Com- mittee on Land Titles and Transfer. Prices about 3s. each. 1881. Further Return on Registration of Title in the Aus- tralasian Colonies. Price 2s. 2d. 1882, 1884. Returns as to the Land Registry (Id.). Wolstenholme. Holt. Torrens. Statement. Land Transfer. OTHER WORKS. Paper read before the Juridical Society, Murch 10, 1862, by Mr. E. P. Wolstenholme, Jur. Soc. Papers, vol. ii. p. 538. Land Transfer Act, 1875. Price 7s, 6d. Essay on Transfer of Land by Registration of Title, by tl>e late Sir Robert Torrens, K.C.M.G. Cassells, price G(/. A Statement on the Land Laws, published by the Council uf tlie Incorporated Law Society. Spottis- woode, price Is., 188G. Published by order of the Bar Committee. Butter- worths, price Is., 188fi. REGISTRATION OF TITLE TO LAND. CHAPTER I. THE AUTHOR'S REASONS FOR ADDRESSING THE GENERAL PUBLIC. My excuse for asking the general public to consider the following somewhat detailed statement is twofold. 1. Little improvement can ever be expected until they take the matter up intelligently ; and 2. By not doing so they are at the present juncture exposing themselves to a very great risk. As to 1. The great fact in connection with the subject — before which all other facts are insignificant — is that registration of title has succeeded in Australia and has failed in England. Introduced into England in 1862, and amended again in 1875, it has been voluntarily adopted only by an almost inconsiderable number of landowners (about 500), and what is more, has proved very unsatis- factory to many of the small number who have tried it. Introduced into South Australia in 1857, it achieved a success so rapid and so thorough that it has been adopted throughout the length and breadth of the Australian continent including Tasmania, and in New Zealand ; in all of which places its popularity has been so marked as not B 2 APATHY OF THE PUBLIC. [Cap. I. only to induce other British communities (as British Columbia and Fiji), but even foreign nations, as Iowa, U.S.A., and the French colony in Tunis, to adopt it likewise. Further particulars illustrating this remarkable contrast will be found later on, coupled with various explanations of it that may be suggested; but for the present I wish to point out one single fact, from which it will appear how apathetic the general English public has been in comparison with the general public in the colonies in this matter. Within eighteen months of the passing of the South Australian " Real Property Act "—that is, before any one could possibly know from experience whether it was going to be successful or not — there were more than 1000 applications to register titles under it (1870, p. 112)— more than one out of every 100 of the population of the colony at the time (in 1855 it was not more than 80,000, see 1879, No. 1931). On the other hand, when registration was introduced into England in 1862, the number of titles actually registered in the first two years and two months was 16, and the acme, the zenith of our success, was 105 titles registered in 1866. Comparing the populations of the two countries, it appears that if the English public had come forward as the Australians did, we should have had here 200,000 applica- tions or thereabouts in the first eighteen months. No doubt some allowances should be made for owners of copyholds, to whom the Act does not apply, and owners of settled estates, who are nervous, and the smaller number of landowners per head of the population ; but no reasonable estimate of these allowances will explain the drop from 200,000 to 16, or to 60, or 600 either, supposing the appli- cations had reached even those, to us, stupendous figures. Nor is positive testimony wanting to bear out the evidence of figures. Lord Thring, one of the originators of the Cap. I.] APATHY OF THE PUBLIC. 3 Registration scheme, says, " I do not believe anybody cares much one way or the other about it. That the public do not care about the subject I have not the least doubt " (1879, Nos. 70, 72). Mr. R. R. Dees, a member of the Council of the Incorporated Law Society, having over forty years' experience of conveyancing among all classes, says, " They do not appear to consider it at all. I do not think that owners of property generally are paying much attention to it" (1879, Nos. 782, 785). Not one householder in a hundred has ever heard of the Land Registry, or even taken the trouble to ask whether such a place exists. In view of these facts, it would appear that if English people want to have the success the Australians have had, they must, in the first place, do as the Australians did — study the subject, make up their own minds, carry a measure, and back it up afterwards. As to 2. Many persons of experience * now believe that the cause of failure hitherto has been that the adoption of the system has been left to the voluntary choice of individual landowners, and that nothing short of compulsion will ever cause registration of title to be adopted effectively here : and this being so, it seems very likely that some scheme for bringing all titles com- pulsorily under the operation of a new Registry Act will be brought forward, and presently be passed. I wish td * The late Registrar, Mr. B. S. FoUett, Q.C. (1878, Nos. 11, 86); Mr. W. Barber, Q.C. (1879, No. 952) ; the present chief of the Registry Office, Mr. Holt (1878, Nos. 934, 977) ; several experienced solicitors who take an interest in the subject— Mr. B. J. L. Frere (1878, No. 1084) ; Mr. W. H. Bosanquet (1878, No. 2082); Mr. W. Bartlett (1878, No. 3261); Mr. W. J. Farrer (1879, Nos. 1260, 1353, 1384) ; the Surveyor-General of the Registry, Col. Leach (1878, No. 3586); and last, but not least, the originator of the Australian system, Sir R. Torrens (1878, No. 3160, and "Torrens,"pp. 44, 53). B 2 4 RISKS OF COMPULSION. [Cap. I. speak with the greatest respect of those who have declared themselves iu favour of such a measure. I am sure that they are, for the most part, fully alive to the objections which can be urged against it, and which I shall take occasion to point out (see pp. 42, 50). I think, too, that some of them have come to their present opinion with reluctance, and chiefly owing to despair of effecting the desired improvement by milder methods. These, at least, will not quarrel with me for urging upon landowners the need of considering what the alternatives before them really mean. Now considering that our registry has never yet succeeded in giving uniform satisfaction to those who use it, that such improvements as are now proposed are not founded on any successful experience, but are mere experiments, and that it is by no means clear that the system is a desirable one for all classes of property in this country, it seems not altogether impossible that by the universal compulsory imposition of such a system the old fable of the frogs and their king would receive a fresh and very lively illustra- tion. Disappointed with the ineffectual sway of King Log, some of us are now praying for a more energetic rule. Should the prayer be granted, and the new monarch prove to be King Stork, his regime would pro- bably be brief, it is true, but ever so short a duration of it might easily suffice to ruin many individuals, and further, its overthrow would probably involve what I can only regard as a great public calamity — namely, the putting off for a long time of all attempts to amend or improve the system. It behoves landowners therefore to look to themselves, and see that they are not led into a position which will tend to still further depreciate the selling value of a kind of property which is quite suffi- ciently unmarketable already. Cap. I.] RISKS OF C03IPULSI0N. 5 " It can hardly be denied that any proposal to force registra- tion of titles on landowners demands serious attention. The experience afforded by the failure of the attemjits which have hitherto been made in England to induce landowners voluntarily to accept registration of title is enough to show that the intro- duction of compulsory registration would be an undertaking of no ordinary difficulty, and perhaps for a politician of no ordinary risk. The evidence given before the Royal Commissioners of 1868 and Mr. 0. Morgan's Committee completely disposes of all such explanations as the ' hostility of solicitors.' There can be no doubt that if either the Act of 1862 or the Act of 1875 had been made compulsory, it would have proved to be an intolerable public nuisance ; that it would have effected an almost comj)lete obstruction of business ; that it would have provoked a formida- ble burst of rage and indignation ; and that it would have been repealed in the very next session of Parliament." — ' Land Transfer,' pp. 81, 82. I hope these two preliminary reasons may be enough to impress upon anybody intereste 1 in land or houses — whether leaseholder, freeholder, or beneficiary under a settlement — the need of forming au opinion for himself on the matters hereinafter set forth. ( 6 ) CHAPTER II. A STATEMENT OF THE LEADING FACTS OF THE CASE, and an inquiry into their causes. 1. — The Nature of the Problem, to be solved. What is the complaint that competent critics make against our present system of land transfer ? Is it that landowners are insecure ? No. Is it that" purchasers are ejected ? No. Or that tliey have unexpected money claims made upon their land, for which they have no redress ? No. Is it that mortgages are often found to be worthless? No. Is it even that the boundaries of estates are constantly being disputed ? No. "Whatever general impressions may be prevalent to the contrary, experience will be found to corroborate this statement, which is founded on the Report of 1870 (p. xx, para. 43). The whole matter of security, as distinguished from expense and delay, will be found well summed up in ' Land Transfer ' (pp. G3, and 68-78), where it is made to appear by the strongest evidence that the safety afforded by the ordinary practice is, to purchasers on sales, absolutely perfect ; and that even as regards mortgagees, losses through deliberate fraud are rare, their losses being chiefly due to certain mistaken doctrines of equity (there is autliority for a harder term), originally intended for their protection, and with whicli the practice of conveyancing has nothing whatever to do. \\\\\\.[ tlnn is the eom[)laint ? Cap. II.] NATUKE OF THE PROBLEM. 7 It is something of this sort. That, although land is really about as safe a thing to deal with as anything else, yet that this safety, instead of being proclaimed by competent authority, may constantly require to be proved by a difficult and costly process, to be repeated with useless labour and wearisome monotony every time a proj^erty is dealt with. This proce.?s is called Proof of Title, and is nothing more or less than a little history, seldom more than forty years old, often not so much, by which the owner of property shows that there have been no questionable dealings with it for a considerable time back. A purchaser of land has a right to demand this of his vendor, and therefore he usually does demand it. He could hardly be advised not to do so. It is no answer to this to say that goods are bought and sold without any such formalities ; for though the law of title to land is similar to the law of title to goods, yet there exists a great practical difference. As a matter of law, if either land or goods are wrongfully sold by a pretended owner, the real owner is entitled (as a rule) to recover the property afterwards, even from the innocent purchaser. But as a matter of fact, a real owner of stolen goods, however clear his title may be, can rarely if ever trace his lost property when it has passed through two or three hands, and thus it is that (as a rule) purchasers of goods run no risk by buying without inquiry as to their vendor's titles. A real owner of stolen land, however, has no diffi- culty at all in tracing 7i/s property, he merely has to come to the land, and demand possession, showing his title. This is one out of two or three reasons that may be given for the greater need of caution in buying land than in buying goods. Persons accustomed to the transfer of stock often 8 THE FACTS AND THEIR CAUSES. [Cap. H. ask what reason can be given why land shouhl not be transferred as easily as stock is, by an entry in a register. Two special difficulties in the way of thus transferring land can be easily stated. For one thing, there never can be any doubt about the description of a sum of stock : if A has been for fifty years the registered owner of a sum of lOOOZ. Consols, and he then sells it to B, there can be no doubt that B will obtain exactly what he wants if his name is put in place of A's on the register. But if A has been for fifty years the registered owner of the " Hill estate," and he sells it to B, it is not at all clear that B will get exactly what he wants by having his name entered in place of A's on the register. Eor the boundaries of " estates " are constantly being changed, by accident, by encroachment, by straightening of fences, by exchange, by outlying purchases ; and when B consults the registered description of A's property he will find perhaps that the very portion of the present " Hill estate " that he is most anxious to have, is not included in the registered title at all, but has been acquired in some informal way, since A was registered. Another difficulty is this. Mistakes must be expected sometimes. Now if a mistake is made in the register of stock, whereby some other person becomes (as he may) absolutely entitled to A's 1000?. Consols, A will neverthe- less be perfectly consoled for his loss if another lOOOZ. Consols are bought and placed in his name. He would hardly be so satisfied if for a similar cause he found himself expelled from his home in *' the Hill," and by way of compensation was offered " the Valley " (of the same worth) to make up for it. I do not say that there is no way of removing these difficulties and certain others that might be mentioned, Cap. II] REGISTRATION OF TITLE EXPLAINED. 9 because I think there is, but they form a sujficient answer to persons who cannot see any greater diflBculty in the registration of land than in the registration of stock. 2. — Short Explanation of Kegisteation of Title as APPLIED TO Land. The following description (for clearness sake) follows the simplest h"nes. The difficulties that arise in compli- cated cases will be dealt with later on. Suppose I offer to sell you a house. The important question for you is — is it mine to sell ? Where the title is not registered, all you can do to satisfy yourself is to peruse a number of documents I show you, to judge of their genuineness, their interpretation, their binding force : to inquire whether the history of succes- sive dealings which they disclose is in accordance with what the neighbours remember of actual occurrences. When all this is done, the conclusion will be something of this sort : — In the absence of forgery and fraud, and probably con- spiracy of a kind hardly to be met with in real life, and unless the legal advisers of several persons have over- looked faults with a persistence and unanimity scarcely more credible than creditable, I, the vendor, am now entitled to all the interest in that house which some gentleman who purported to sell the property some thirty or forty years ago possessed at the time of such sale : this being the case, it is so very unlikely that any matters impugning his right so to sell could now be raked up, that the chance of their existence may be neglected. An expensive and tedious process, and rather cold comfort at the end of it. But experience shows that it is enough. 10 THE FACTS AND THEIR CAUSES. [Cap. U. If then I execute a proper deed and deliver it to you, you may practically rely on it that the property is yours. But if my title is registered, I hand you merely a certificate of title. You read this and compare it with the actual register of which it is a copy. If all is correct, it will inform you in so many words and no more that I am the absolute owner of the house in question : if you act in good faith upon that, you are secured against every claim. Your name is then entered in the Register in place of mine, and by that act the property becomes legally vested in you. The establishment of a registry of title requires pro- vision to be made for a preliminary series of operations for registering titles in the first instance (known in Australia as " bringing the land under the Act," and which I shall call, for shortness, "First Registration"), and a set of rules for regulating all subsequent transac- tions with registered land (Registered Transfers). In First Registration the method is shortly this : The registrar receives an application containing a description of land and proof of the applicant's title to it, such as would be furnished to a purchaser on a sale. The registrar examines these and makes inquiries, similar to those ordinarily made by purchasers, and when all is satisfactory he registers the applicant accordingly. In Registered Transfers the registrar receives an order * desiring him to register somebody else in place of the registered owner. He satisfies himself that the order comes from (or has the approval of) the registered owner, * Both in England and in Australia these orders are called Instrumcuts of Transfer, and are worded a.s if they wore conveyances. But for Registry purposes they are merely orders, and I prefer to call them by that name. Cap. II.] FORMER FAILURES. 11 cancels the old entry, and makes the new one accordingly. Thus the ownership account is kept always posted up to date. 3. — Attempts to establish Registration of Title IN England and Ireland have failed. For more than thirty years past, leading members of both branches of the legal profession, including no less than five Lord Chancellors — Lords Westbury, Crau worth, Hatherley, Selborne, and Cairns — have been actively engaged in attempts to get over the difficulties above mentioned, and to establish a system of registration of title to land analogous to the register of ships or of stock. In 1862 the first English Eegistration Act (Lord West- biiry's — 25 and 26 Vict. cap. 53) was passed. Under its provisions, any freeholder or leaseholder for a substantial period, could apply for the registration of his title. In 1863, 8 titles were registered ; in 1864, 8 ; in 1865, 48 ; in 1866, 105 ; a slow but steady rise in four years, indicating that landowners and their advisers were not disinclined to give the system a trial — especially when we consider that the scheme was quite new, little known, and imperfectly understood. Nevertheless, the scheme failed. After 1866 the applications fell off: then several titles were removed from the register. In 1870 the number of titles registered in the year only amounted to 29 ; in 1875 the total was 4 (1882). In 1868 a Royal Commission had been appointed to inquire into the causes of failure, and in accordance with their recom- mendations another Act was drawn up — " The Land Trans- fer Act, 1875," 38 and 39 Vict. cap. 87 (Lord Cairns's), 12 THE FACTS AND THEIR CAUSES. [Cap. II. whereby it was confidently hoped that the system might be made to work better. How far that hope has been fulfilled may be judged from the fact that only 113 titles have been registered under it altogether (down to 23rd December, 1885, 'Land Transfer,' p. 61, n.). Another coroner's jury, in the shape of a Select Committee of the House of Commons (IMr. O. Morgan's Committee) sat upon this second fatality in 1878-1879. Their verdict was, " Death from force of circumstances " ; and so the matter has been allowed to rest ; and though registration of title is admitted on many hands * to be the most perfect system in theory, yet many high authorities have nevertheless come to doubt whether it can ever be estab- lished in England at all. The late Mr. J. Williams, Q.C., says, " To my mind the thing is obviously impracticable. I am sorry, because at one time of my life I was very anxious that such a scheme should be brought into use in England, as I know that it succeeds jjerfectly well in the colonies. At one time it was my anxious desire, if I possibly could, to help in the framing of a scheme of land registration, but the obstacles were so many, especially at the beginning, that I could not see my way to it. I have come to that conclusion with regret, but it is a conclusion to which I have deliberately come." " I do not think it possible to accom- modate the registration of titles to all the transactions that persons require in a highly civilised state of society " (1878, Nos. 390, 394.-end, 760). Mr. E. P. Wolstenholme says, " I am against registration of title altogether ; if you are to have registration of title, I do not know that there can be a better scheme than Lord Cairns's Act. I thought that it would never answer the everyday purposes of landowners and persons who want to ♦ Tliu lato Mr. J. Williams, Q.C. (1878, No. 424), Mr. W. Barber, Q.C. (1879, No. 907), nnd nf cour.sc Lord Cairns, Lord Thriug, Mr. B. S. Follctt, Q.C. I\Ir. R. H. Holt, Col. Leach, Sir R. Torreus, and Sir A. Blyth, passim. , Cap. II.] AUSTRALIAN SUCCESS. 13 mortgage and sell " (1878, Nos. 2463, 2464, see also No. 1397 —Mr. H. T. Young— and 1879, No. 303— Mr. Clabon). Many others too, as we have seen (p. 3), have come to think that if registration of title is ever to be established, nothing but compulsion will ever establish it. For Ireland an Act similar to Lord Westbury's English Act was passed in 1865 ("The Kecordof Title Act (Ireland)," 28 and 29 Yict. cap. 88). The success of this Act may be estimated from the following circumstance : — By the end of 1871 rather less than 500 titles had been regis- tered, while in 1879 the total seems to have reached only 681. Mr. Macdonell, one of the recording officers under the Act, stated an unfavourable opinion on the system to Mr. 0. Morgan's Committee in 1879, and averred that if he were purchasing land himself he would not put his own title on his own register (see more fully 'Land Transfer,' pp. 27-31). No further reference will be made to the Irish experience, except in so far as it differs, or may be thought to differ, from the English, which it resembles so closely as to the main point. 4. — Kegistration of Title has succeeded in the Australasian Colonies. What makes these failures all the harder to under- stand is that in the Australasian colonies a system gene- rally thought to be identical with our own — or at any rate with Lord Cairns's Act of 1875 — has been everywhere successful. Introduced into South Australia in 1857, by the late Sir Kobert Torrens, it achieved such a conspicuous success that it was adopted by Queensland in 1861, Tasmania in 1862, Victoria and New South Wales in the same year, New Zealand in 1870, and Western Australia in 1874. 14 THE FACTS AND THEIR CAUSES. [Cap. II. An account of some details of the working machinery of the Australian system may be found in Sir K, Torrens's Essay, pp. 18-26, and also in his evidence given to Mr. 0. Morgan's Committee, 1878 and 1879, and lately in speeches by the Hon. Sir K. C. Baker, late Attorney- General in South Australia, and others, reported in the * London Chamber of Commerce Journal,' December 1885, pp. 298-300. The effective results of the system are that all ordinary dealings can be conducted without professional help at a total expense beginning at five shillings for a mortgage, and averaging 11. for all trans- actions. Where a lawyer is employed, the charges seldom exceed three guineas, and as to expedition, the substance of a transaction is habitually got througli in less than a day, sometimes in less than an hour. One to three days suffice usually for the completion of every formality, while the most elaborate transactions seldom occupy a week from beginning to end. As doubts are sometimes expressed as to the thorougli- ness of the success of the system even in Australia, I have collected in an appendix (Appendix I, p. 92) some of the experiences related by colonial authorities. 5. — How CAN THIS CONTRAST BE EXPLAINED ? The facts just stated are little known, and even where known are apparently but little appreciated in England. See, for examples of such want of knowledge or appreciation in persons of distinction and large practical experience — 1878, No. 1413 (end), 2093, and 1871), No. 271 ; also " Arguments against registration of title," pp. 31-40 of the ' Statement ' — which could hardly have been put forward by writers conversant with the Australian experience. This is pointed out in detail in an article of my own in the ' Solicitor's Journal ' for March 13, 1886, p. 316. Cap. II.] " UNAVOIDABLE CIRCUMSTANCES." 15 Hence many persons regard registration of title as a dream, and consider our failure to establish it a suilficient proof of its visionary character. The few, however, who recognise its practical utility have to face the difficulty of accounting for our failures ; and among these a habit has arisen of accounting for them by reference to certain unavoidable circumstances in which England undoubtedly differs from the colonies, and which are supposed to render registration more difficult to introduce into this country. Occasion will be taken later on (p. 51) to notice a suggestion that has been made by some that our failure is in part due to the selfish opposition of solicitors. It is not appropriate here, for the colonists, by their own account, seem to have suffered a good deal from it, and so at the worst we are only quits with them on that score. " The solicitors opposed us very vigorously " (Sir E. Torrens, 1878, No. 3112), "It was carried against their opposition by the general public opinion being in favour of it — was that so ? — yes" (Sir A. Blyth, 1879, No. 1776). The leaders of the profession in Adelaide refused to countenance the new system. "At first there was strong opposition by the profession" (1872, p. 47, middle, and p. 153, answer 4). From Victoria we learn that "for years it had to be worked against the opposition of practising conveyancers " (1872, p. 96, answer 6). In Tasmania too it was "distrusted and disliked by their legal advisers " (1872, p. 136, upper part). (a.) The suggestion that our failure is due to unavoidable circumstances. These circumstances, as summed up by the Keport of the Committee of 1878-1879, are : i. The comparative facility with which Australian titles can be placed on the register in the first instance, owing to their recent origin in a definite Crown grant. 16 THE FACTS AND THEIR CAUSES. [Cap. II. ii. The ease with which registered laud can be described in Australia, owing to the Government survey upon which all grants are founded. iii. The prevalence in England of settlements, import- ing difficulty into registered dealings. " In Australia tlio title to all land, instead of resting, as may be the case with us, upon an instrument of difficult construction or doubtful validity, starts with an unimpeachable grant from the Crown, following upon an official survey. The effect is to give every landowner two things which are the stumbling-blocks of English conveyancers, a perfect root of title to his property, and a trustworthy key to its identity." Again, "If the law either recognised nothing but estates in fee simple, or gave the holder of land the same power of disposition " (only) " that the holder of stock now enjoys, the registration of title would be as easy as the title itself would be simple. But to legislate for the registration of titles without, as a preliminary step, simplifying the titles to be registered, is to begin at the wrong end " (1879, Eeport, pp. V. vi.). Besides these, the following other causes have been suggested. iv. That land is not so much the object of commerce (sale, mortgage, and lease) in this country as it is in the colonies, and so the advantage of easy dealing in the future is not tempting enough to induce the majority of landowners to incur immediate expense or inconvenience in order to obtain it. The trouble is certain, the benefit problematic (Mr. J. Williams, Q.C., 1878, No. 391). V. That, besides settlements, we have in England so many complicated " easements " and other partial rights — way, drainage, support, light, air, mining, &c., that no registration system can cope with them (ftlr. W. Barber, Q.C., 1879, Nos. 933-936 ; ]\lr. E. R Wolstenholme, 1878, No. 2467). Cap. II.] " UNAVOIDABLE CIRCUMSTANCES." 17 vi. Sir R. Torrens points out that registration is not altogether voluntary in the colonies; all Crown grants made subsequent to the establishment of the respective registries being placed on the register as a matter of law. Thus a large sample of registered laud was quickly made in each colony from which other owners were advertised of the advantages of the system (1878, No. 3112). vii. That the failure of Lord Westbury's Act threw a blight over the whole thing, and so Lord Cairns's Act never had a chance (Lord Thring, 1879, No. 7). (6). The suggestion considered and found unsatisfactory. Notwithstanding the high authority of the statement of the first three causes of failure, and the great weight of the opinions by which all the above "causes" are sup- ported,* every one of them seems open to serious ex- ception. Respect for the above names requires that this assertion should be supported by the following some- what detailed observations on the several suggestions enumerated. As to No. i. It appears on inquiry that the simple Australian title, " starting with an unimpeachable Crown grant," though commoner, no doubt, than such things are in England (1872, p. 153, ans. 5), is by no means so common an object as is usually supposed. " Many of the Australian titles, and those amongst the most valuable, date back sixty years or upwards" (the limit of an English marketable title was usually sixty years, which term is • The late Registrar, Mr. B. S. FoUett, Q.C. (1878, Nos. 78-83); Mr. H. T. Young, President of the Incorporated Law Society (1878, Nos. 1414, 1415) ; Mr. W. Barber, Q.C. (1879, No. 843) ; Lord Cairns (1879, Nos. 2865- 2868) ; ' Land Transfer,' pp. 88, 89. C 18 THE FACTS AND THEIR CAUSES. [Cap. II. now reduced to forty), "and owing in part to unskilful convey- ancing in the earlier days and in part to the frequency of deal- ings with land in new countries, complications and difficulties no less grievous than those which oppress the landed interest in this country had been superinduced on comparatively recent titles " ('Torrens,' p. 30). In South Australia (founded 1836), " it was astonishing to see the comidications that even in a short time arise. I have had bundles of deeds of a most complicated character, and titles of a most indifferent sort." In New South Wales, founded as a penal settlement in 1788, " being a convict colony, grants of land in early days were given in a very extra- ordinary way" (Sir A. Blyth, 1879, Nos. 1807, 1867) ; and as might have been expected, " many of the titles examined are very complicated " (1872, p. 3, last para.). " A title may originate in a Crown grant to X in 1795, followed by obscure half-obli- terated transfers to successive purchasers up to 1830 " (probably the date of the establishment of a deed registry), bankruptcy, or execution, or litigation may intervene, " or a pedigree traced through relations whose births, marriages and deaths in remote countries may be evidenced by various declarations, affidavits and certificates, all apparently authentic, but possibly fraudulent or mistaken." The applicant may have sold fifty detached or scattered allotments and apply for a title to the remainder ; " the above details are not imaginary, having already come before the examiners" (1872, p. 39, new sec, 27 A). In Victoria, "many complicated titles have been put on the registry, and, although abstracts of title are not commonly so long here as in England, yet, from the very numerous dealings, and the lax conveyancing which prevailed in the earlier years of the colony, our examiners of titles have frequently had very difficult titles to deal with " (1872, p. 96, answer 5). In South Australia again, " difficulties and defects of title of course often exist, such as the difficulty of the constructions of many wills prei)ared by testators themselves or by non-professional persons, a practice which has largely obtained here " (1881, p. 6, bottom). In New Zealand, " titles complicated by wills, settlements, &c., are not uufrcqueut, and but few have been rejected " (1881 p. 99, answer 5), and yet no special dissa- tisfaction, rather the contrary (sec next note), is reported in these complicated and difficult cases of iuitial registration. Again, it is rather dillicult to follow the reasoning ini- Cap. II.] AN EXPLANATION WANTED. 19 plied ill this suggestion. Even supposing all titles in England were a vast deal more difficult and complicated than any Australian title, it must be remembered that this circumstance, as it equally afifects hotli first registration and private transfer too, can hardly be cited as creating by itself an impediment to the transition from one system to the other, or as a reason for the reluctance of a people to incur any really unvoidable expense or trouble inci- dental to a change. So too in Australia ; just in propor- tion as simplicity of titles renders their first registration easy, in like proportion apparently would the ease of privately transferring them (due to the same cause) diminish the apparent saving of, and lessen the desire for, a change. " It strikes me the more complicated you have your dealings with land, the greater necessity there is for a system of registration of title " (Lord Cairns, 1879, No. 2870) ; and so the suggestion to a great degree fails to show why English landowners should have found the necessary effort of initial registration any harder to make than the colonists found it, considering the amount of trouble they were severally accustomed to on private investigations of title. It may be, however, that the ob- struction which the length of titles would otherwise place in the way of private transfer is mitigated in England in practice by methods which the registry has not yet been in a position to adopt in its investigations of title on first registration (how this might be accomplished in a new registry is considered in Chapter lY., p. 66, and Appendix v., p. 113) ; but this hardly ought to be put down as an " unavoidable circumstance." It is remarkable too that the colonial experience as far as it goes is the exact opposite of the English conjecture on this head. " Tasmania having now been settled for nearly sixty-seven years, the titles to property arc in many cases long and intricate, and C 2 20 THE FACTS AND THEIR CAUSES. [Cap. II. not a few of these have passed through this office. I may add that it is precisely in these cases, where a bulky pile of deeds, liable to loss, and utterly unintelligible to the vulgar, entailing lengthy abstracts of title and heavy law charges on every dealing with the property, are exchanged for a simple certificate of title, that the greatest sense of relief is experienced by the landowner" (W. Tarleton, recorder of titles, 1872, pp. 136, 137) ; in short, in some respects age of titles is rather a help than a hindrance to their voluntary registration. Again, the Irish registry was started under circum- stances which minimised the effect of this difficulty (1879, No. 1962), if difficulty it be, and yet the Irish registry failed. The Landed Estates Court (established virtually in 1849 for the sale of incumbered estates) was continually turning out clean, newly-created, indefeasible parliamentary titles, and it was specially provided (sec. 4) that a Court title might be registered without expense or trouble (1879, No. 2006). And yet it soon became almost a matter of course for purchasers of Court titles to fill up and sign a printed form of request, excluding the purchased property from the register (1879, No. 1999-2003; the reference is only for the fact). Further, if recent origin of titles (especially where coupled with simplicity of tenure and freedom from settlements) be a material factor in assisting first regis- trations, how do we account for the strange fact that out of an enormous class of English titles (leaseholds) in which these characteristics prevail, only seventeen have yet been registered? ('Land Transfer,' pp. 37, and 61 note). For the idea entertained by many, notably by the late Mr. J. Williams, Q.C. (1878, No. 484), that registration, to be useful, must be universal, is not at all borne out by experience. For in the year 1881 (when the last Australian reports were received) less than one-third of the occupied land of New Zealand was under the system Cap. II.] AN EXPLANATION WANTED. 21 (1881, p. 99), in Tasmania little over one-sixth (p. 158, middle), in Victoria less than one-eighth (p. 148, para. 5), in "Western Australia little over one-ninth (p. 102), and at a former period in Tasmania, when the system was reported as well establislied and popular, less than one-twelfth was under the Act (1872, p. 136, bottom). Thus the general registration of leaseholds might liave been a great success even if it had gone no farther. As to No. ii. The Australasian government survey as a help to registration is a pure invention of English people unacquainted with the fact tliat it was really one of the greatest impediments that had to be encountered. Sir Robert Torrens, commenting upon the passage in the report of 1870 above quoted, says : " The official survey here referred to is so inaccurate, that it constituted the most serious difficulty we had to deal with in locating parcels and defining boundaries, there being in many cases no occupation, and survey marks obliterated " (' Torrens,' p. 30). The Eegistrar-General of New Zealand writes : " The survey question is the practical difficulty in the way of iudefeasibility. Many of the older surveys of the colony, though sufficient for purposes of settlement, are dangerously defective and unreliable as tlie basis of a system in which accuracy in this respect is essential" (1881, p. 98, ans. 1). The commissioner of land titles in Western Australia writes : " A great drawback in this colony is the inaccuracy of early surveys ; in country districts the landmarks have in many cases disappeared ; while in the town sites for the most part no fixed starting point was taken, so that one allotment has to rely on its neighbour for position " (1881, p. 101, near end). In South Australia, again, difficulties exist " very frequently on account of inaccurate or imperfect descriptions of parcels contained in the applicant's title deeds " (1881, p. 6, bottom). Whereas, on the other hand, we find Colonel 22 THE FACTS AND THEIR CAUSES. [Cap. II. Leach, who conducted all the surveying for our registry, says (1870) : " The cases in which we have to require new surveys are very few (No. 316). The Ordnance map is invariably made use of when available " (No. 317), and besides this the tithe maps "are generally sufficiently correct for properties not to be dealt with as building property " (319). As to No. iii. Settlements. — Not one single opinion propounding it is given as the result of experience ; some high English authorities (Lord Thring, 1879, Nos. 162, 164; Lord Cairns, No. 2878) have stated their belief, with reasons (Nos. 2885, 2939-2948), that there is "nothing in it," and the entire weight of colonial experience (which is far greater on this subject than is commonly assumed) supports Lord Cairns and Lord Thring. I have collected the colonial authority as to registering settlements in Appendix II., p. 96. Again, even if settlements do import a difficulty, or at any rate a timidity, among those who are blessed with them, there are probably enough unsettled holdings in England to fill twenty registries of the average Australian size with the greatest ease. (There were only 152,000 titles registered in the seven Australasian registries in 1877 — 'Tor reus,' p. 20). Now considering that leaseholds* can only be settled by means of trusts, and that (as pointed out in the * Statement,' p. 49) trust settlements of regis- tered stock and shares are exceedingly prevalent, and " in no way affect the registration or transfer of such stock," it is clear that so far as this goes the whole of leasehold London might have been registered years and years ago. Finally, diiliculties have occurred in plenty in our office, but none are reported as arising out of settlements ; they have, it seems, all occurred in the common track of mortgage, transfer, and lease, which those who accuse * With the inconsidcrublc exception of executory bcqucbts. Cap. II.] AN EXPLANATION WANTED. 23 settlements rightly say ought never to cause tiie least trouble (esp. Mr. J. Williams, Q.C., 1878, No. 724). As to Nos. iv., vi., and vii. The allegation on which No. iv. is based, namely, that landowners are unwilling to incur present trouble and expense for what is called a " problematic benefit " (meaning a benefit which, though certain, may be remote), does not gain strength in the light of ordinary experience. In fact, it either accounts for nothing, or it proves too much. For however unwilling the general body of land- owners may have been to try legal experiments with their properties, yet there must always have been a considerable number whose circumstances were such as to render the promised advantages tempting enough to justify a venture : and if these pioneers had been satisfied with the results, there can be no reasonable doubt that the area of registry operations would have increased in a high geometrical progression iustead of making so very sorry an attempt as it has done to keep up to a bare arithmetical increase. If this be questioned, it will be difficult for the objector to avoid the furtlier position that no landowner or pur- chaser can ever be expected to spend money on the permanent improvement of his property — either for pur- poses of enjoyment or of disposition — a view of land- owners' sentiments which would not only separate them from the sentiments of all other classes of persons in every department of business or pleasure, but which is inconsistent with what we know of their practice in reference to the very matter of land transfer which we are discussing. For if future sale or mortgage is so " remote " and " problematic " an event that no land- owner will incur expense in providing an efficient remedy for its inconveniences, how is it that such events are invariably considered sufficiently near and certain to induce purchasers to make costly inquiries, and to collect 24 THE FACTS AND THEIR CAUSES. [Cap. II. a mass of formal evidence even (as often happens) when buying from vendors of whose titles they personally entertain no sort of doubt, solely m order to he able to satisfy 2>ossihIe future imrchasers or mortgagees ? This allegation in truth only affords one more example of a hastily formed idea which has gained currency on this subject, and, being passed on from mouth to mouth, at last appears as the deliberate opinion of high autho- rities who would be amongst the first to point out and illustrate its weakness if they were really to give the matter their serious thought. It will appear later on that it is not the occasion of possible benefit that is problematic, but the benefit itself is problematic, even should the occasion arise — two very different matters — one depending on the nature of things, the other attributable entirely to the faulty system we have chosen to adopt. But even supposing the allegation a correct one, neither No. iv., nor No. vi., nor No. vii., nor all of them together would do anything more than account for our progress being shiver than the colonial — they offer no clue to the mystery of our progress stopping suddenly in 1867 and never recommencing. Lastly, as to No. v. There is no evidence that ease- ments do not obtain (at any rate in the towns) in Australia as largely as here : again, easements are generally omitted both from registered and unregistered titles alike, so it is not easy to see their exact influence on this matter ; and, if we come to experience, we have the curious ftict tliat the English registrar says we never have had any difiiculty as to easements, "not the slightest" (1878, No. 349), while an Australian lawyer tells us that they have " had some trouble about them." (' Chamber of Commerce Journal,' Dec. 1885, p. 229). Cap. II.] THE CONTRAST EXPLAINED. 25 Now it is not pretended that the above matters may not have had some influence on the progress of registration in England ; but it is submitted that when they have all been weighed they do not by any means present so sharp an array of contrasted material circumstances between Australia and England, as to account for the utter collapse that has occurred in this country, in view of the entire success that has been achieved in the colonies : and further, that there is at least room left for the discovery of some circumstance more obviously material, and more ex- clusively confined to England — supposing one can be found — on which to lay the principal blame. (c). Hitherto unsuspected cause of the contrast, an organic difference in the tivo systems adopted. By this time, I hope, the attentive reader is fairly puzzled. For the course of the preceding observations corresponds in the main with the course of my own studies in the matter. And here, to take the reader fairly into my confidence, was a veritable halting place with me for some time, and a disagreeable and almost a despairing one to boot. For it was clear that the success and the failure on both sides were perfectly genuine, and yet it seemed that no one had yet succeeded in assigning any cause or causes that would really account for it. The little chink which let light into the building for me was the latter part of the following passage in a report from the commissioner of titles in Victoria (1881, p. 147, ans. 4). Speaking of first registrations, he says : " The majority of applicants to bring land under the Act now employ solicitors ... in a few simple and clear cases the applicants conduct their own cases, but in nearly every case there are complicated and difficult questions and unsettled claims to be cleared up, which solicitors are more capable 26 THE FACTS AND THEIR CAUSES. [Cap. II. of dealing with than lay persons, from their better know- ledge of the subject and of how to go about the business. Applications to bring the land under the Act are gene- rally made when the parties are dealing with the land, and the expenses of passing the title through tlie office must vary according to the business to be transacted, hut must be much less thanivould have to he incurred m the investiga- tion and maMng good titles as hetiveen vendor and imrchaser under the old system, from the fact that requisitions are only made by the office upon questions involving some substantial interests, and the compliance with them is not required to be of such a formal character as would be the case under the old system. Besides this, the office has acquired much information upon the titles, which appli- cants have the benefit of," Now it has been assumed all along in England (and the practice under our Acts has certainly borne out the assumption) that the first registration of every title must at any rate be a good deal more trouhlesome than an investigation of the same title on a private sale would be ; and therefore the passage just quoted was exceedingly startling. But it was also encouraging. For, if true (and there is no reason to doubt it), the reluctance of English people and the eagerness of the colonists to register their titles is entirely explained, and explained in the most straightforward manner, namely, that the public volun- tarily apply for registration in the colonies because it affords them an immediate money benefit ; they fly from it in England because it entails upon them an immediate extra expense. Nor can it be said that this depends on circumstances which are peculiar to the colonies. Tlio registrar is not comparing Australia with England — no loophole of that sort exists — he is simply comparing the old system with the new in the same place, with the same Cap. II.] THE CONTRAST EXPLAINED. 27 subject-matter, and under the same conditions. The plain fact revealed is that by some means or other any given title in Victoria can be more easily registered as indefeasible than privately i^ivestigated on a sale. The understanding of this fact, and the reason of it, which follows immediately, forms the turning point of this inquiry. When the manufacture of porcelain, like that of China, was first attempted in Europe, it was found that the wares melted in the furnace instead of hardening. The Chinese, when they heard of it, said that the strangers had learnt how to make the flesh, but had forgotten the bones — which was literally true. What we have done with regis- tration of title is to provide the bones, omitting the flesh. A registered title stands up strong and firm enough it is true, but we have forgotten the clothing with which it is invariably indued in all the successful systems, and with- out which it is utterly unsuited for the every-day purposes of persons wishing to sell or mortgage or lease their land. The patient attention of the reader is requested to the following explanation. The nature of the indefeasible or absolute title conferred by the English (and Irish) Acts upon the registered owner for the time being is such as to give him an absolute right to the land against all prior claimants, registered or unregistered. The result of this is that any mistake made by the registrar (and we are all fallible) may lead to irreparable injury to somebody or other. For not only is the injured person deprived of his land, but there is no provision made even for compensating him by a money payment. The injury may happen on a first registration, or on a 28 THE FACTS AND THEIR CAUSES. [Cap. H, registered transfer. Thus, suppose you are the owner of an estate, and let it to me on a long lease. If I were to impose upon the registrar to the extent of inducing him to register me as absolute owner, and were then to sell to a purchaser and abscond, you will have lost your estate, and will have no redress from anybody but me, and I cannot be found. Or again, to put a still stronger case. Suppose you are the actual registered owner of an estate in posses- sion, and are living on your land in peace and quiet. I, an adept in personation and forgery, pretend that I am you, and, forging your signature, mortgage your estate to Mr. X, an innocent person ; X gets the mortgage registered, and I become bankrupt. In this case, under the English registry system, though your title is registered — in fact, lecause it is registered — unless you can pay off that mortgage, you will be entirely at the mercy of X, and liable to be sold out or ejected by him, though you knew nothing, and could not by possibility have known anything, of my proceedings. Nor does the Act contain any provision for making you the smallest reparation for the injury (25 and 26 Vict. cap. 53, sec. 5 ; ' Land Transfer,' p. 41 ; 38 and 39 Vict. cap. 87, sec. 30 ; 1870, p. 68, top second col. ; and 28 and 29 Vict. cap. 88, sec. 12). The evil effect of this is twofold. In the first place, cautious persons have naturally declined to have anything to do with such a system : and in the next place the little business that the office has had has been conducted under such a perpetual terror of making the slightest mistake or leaving the least loophole for imposition, and, as a con- sequence, under such stringent safety regulations,* that the process of first registration costs a great deal more in ♦ It certainly appears that the precaution.s talicn have so far succeeded that no mistake involving loss has as yet been made (thougli I have myself aecu a very grave inaccuracy). Cap. II.] ENGLISH REGISTRY PRACTICE. 29 trouble and time than all the law expenses of a sale of the property under the usual conditions, and, what is more, when at length all that trouble has been gone through, and the bill has been paid and the property is registered, the office procedure in registered sales and mortgages and all dealiugs is so cumbrous as constantly to delay the proceedings beyond the limits of time expended under the old system, and in many cases to result in greater expense to the parties than they would have incurred if the estate had not been registered ; most especially is this likely to happen in the case of small properties. As it is important that these facts should be thoroughly well realised by the reader, I append a number of instances from the English experience showing to wliat extremities of inconvenience and loss applicants for registration and persons dealing with registered land have been driven. To begin with Lord Westbury's Act. Mr. Butt, a Loudon solicitor, tells the commissioners of 1868 the story of the only three registrations he had himself conducted. The first was a title accepted by the Court of Chancery on a purchase. Eighteen months were spent in additional work before it was accepted by the office (1870,No.457). In the next case the private negotiations on purchase (including a delay, owing to the purchaser having to raise part of the price by mortgage) were completed in ten months (473). The registration occupied two years and five months in additional inquiries (454). The law costs of the purchase had been 79Z. (517) including stamp duty (518), the costs of the registration were 134Z. (518). The third title was precisely the same as the first (455) ; but though the registrar was informed of this (550-570), the rules obliged him to go all over the same ground a second time. Other cases were also mentioned to the commissioners. One title, accepted on a pm-chase in two months at a cost (less stamps) of 68Z., was taken to the registrar directly after ; it was still pending at the end of two years and a half, and the costs up to date were 92Z. (1870, Nos. 627-666). Another 30 THE FACTS AND THEIR CAUSES. [Cap. II. title, which was passed on a purchase in four months, at a total cost (conveyance and stamp duty included) of 56Z., registered im- mediately after cost 124/. and one year and eight months' delay, and at the end of it all had a "blot" endorsed upon it (1870, Nos. 667-681) — a long account of a technical defect, repre- senting so inappreciable a degree of risk that no lawyer would give it a second thought, but which would effectually prevent any ordinary man from touching the property without resort to professional help. If the reader suspects these as " show " cases, let him turn to p. 78 of the Appendix to the Report of 1870. There he will find particulars of twenty-five cases furnished by the registrar himself, as " affording a fair average illustration " of the time occupied in first registrations. The average time will be found to be about two years and three months apiece; one comes within nine days of five years ; only four are under a year. The shortest time on re- cord is also given, namely, four months and twenty-seven days. Also, on p. 79, may be found a similar statement of the fees received in the office in the same twenty-five cases. The average of these fees (omitting a very heavy case in which they amounted to 526Z.) is 521. From such information as I can obtain, it appears that these fees paid in the office represent less than one-third of the total expense to the landowner, so that the average expense of registering an ordinary title would appear to have been something over 150Z. In Lord Cairns's Act, it was thought that the evil could be remedied by empowering the registrar to accept any title which though open to objection is one " the holding under which will not be disturbed " (sec. 17, subs. 3), and the provision has been made use of (1878, Nos. 201, 991). " The convenience of this enactment in facilitating the registration of titles is obvious, but this convenience is manifestly gained by giving power to an official to confiscate dormant rights without compensation, if lie thinks them not likely to be prosecuted with effect (' Land Transfer,' p. 55). An Act may easily introduce a dangerous degree of laxity into its procedure, but no degree of laxity that could be regarded as tolerable, could possibly have effected the object aimed at. Some reduction may be effected in the neces- sary expenses, but the practical effect for this purpose of a mere Cap. II.] ENGLISH REGISTRY PRACTICE. 31 reduction is inconsiderable" (' Land Transfer,* p. 61). Accord- ingly we find tJie same difficulty complained of as under Lord Westbury's Act, namely, that the registrar is stricter than ordinary purchasers. " A landowner has to prove his title to the official (practically in the country we never prove a complete title on a sale), and his solicitor has to obtain a much larger mass of information than is usually rendered to purchasers " (Mr. G. Whitcombe, 1878, Nos. 2349, 2350). " If a man buys a house for 300/., to advertise under sec. 12 is quite out of the question." The cost of a purchase and mortgage to a building society is about 15Z., to register under Lord Cairns's Act would cost as much again (Mr. Higham, 1878, Nos. 2953, 3028). The registrar is beyond all question more particular than ordinary solicitors (Mr. W. J. Farrer, 1879, No. 1356). The expenses of the pur- chase of a particular estate were 621., registration under Lord Westbury's Act cost 13 IZ., and a careful expert estimated that under Lord Cairns's Act it would cost lOOZ. : but the boundaries are not guaranteed by this latter Act, and nearly the whole reduction was due to this cause (1879, Nos. 388-394). Passing on from first registrations to the even more im- portant subject of registered transfers — the harvest-time as it were of all the toilsome sowing above described — we find the results generally (if not invariably) disappointing. Lord Westbury's Act first. Mr. J. Williams, Q.C., bought a property registered under Lord Westbury's Act and afterwards mortgaged and then sold it. He says " I found a great deal of delay, and a great expense, more I think than would have been incurred if the property had not been on the registry. I am not at all sorry that I have sold it" (1878, No. 384, and for details see 395). In the sale of a registered property Mr. B. J. L. Frere says, " We have not derived any benefit from the registration" (1878, No. 1077). Mr. H. Bosanquet had to conduct a sale of registered land : " The execution of every party to every deed had to be attested by a solicitor who had to make a statutory declaration that he had seen the party sign, and also that he was well acquainted with him : there were three or four trustees and mortgagees, some of whom had to go fourteen miles before they could execute the deed" 32 THE FACTS AND THEIR CAUSES. [Cap. II. (1878, No. 2074). This is exactly the same under Lord Cairns's Act (General Kules, 20-23 ; Holt, pp. 178, 179). Mr. J. M. Clabon conducted a purchase of registered land : " The expense and trouble were very great ; you have to go to the land registry office on each transfer and produce evidence of identity, evidence of transfer, and so forth : that involves trouble and expense " (1879, Nos. 181, 353, 354). This is also the case under Lord Cairns's Act (Gen. R., 20 and 23), The purchaser for whom Mr. Clabon was acting, Mr. H. W. Elphinstone, says, "I formed a very strong opinion in favour of registration of title at first, but I have now had practical experience of it, and my experience has been very painful " (No. 359) ; he incurred over IIZ. extra expense (No. 365) and nearly three months' extra delay, owing to the title being registered (No. 367). " Red tape " in the office is complained of on transfers and all dealings (Nos. 410-414). " The more we see of the Act, the less we like it " (No. 416). Mr. E. R. Dees knew of a land company who regis- tered a title " and have regretted it ever since," and he regards the whole thing as an impediment rather than a facility for business (1879, Nos. 665, 669-680, 738). Further experience will be found in the answers of solicitors consulted by the com- missioners of 1868 in the Appendix to the Report of 1870. Under Lord Cairns's Act the registrations have been fewer, and the evidence was taken after only three years from its com- mencement, so it is not so plentiful. Mr. H, T. Young had a difficulty in a sale owing to the land being registered, which had occupied a whole month, and was still pending (1878, No. 1419\ Mr. E. H. Barlee had heard great complaints " because you not only incur an expense of transferring within the office which amounts to a sum exceeding what the members of building societies pay, but in order to approach the office you have to pay a professional agent to get the thing done for you" (1878, No. 1782). Mr. W. Barber, Q.C., relates his sole professional experience of Lord Cairns's Act, which was advising a landowner who had registered his title, and wanted to take it off again, that he could not do so, and the advice was " very unpalatable " (1879, No. 839). And, lest this evidence of lawyers should seem prejudiced, Mr. J. Higham, for thirty years secretary of building societies, and entertaining the usual fancy as to the Cap. II.] ENGLISH REGISTRY PRACTICE. 33 opposition of the solicitors (1878, Nos. 2993, 2997), yet admits that " the delay occurs in every transaction, and that is a very serious thing in small transactions (3001). There is no reason why the transaction should be anything but a simple one and very uncostly, but practically it is not so " (3034). The one case in which many would be disposed to advise registration, who would not do so in ordinary cases, is where an old estate is to be cut up into lots ; but even here experience shows an unsuspected danger. Mr. G. B. Gregory states, "It is an idea with many people that if the property is to be cut up after passing through the registry office, subsequent transactions are rather more cumbersome and expensive than if the property is not on the register" (1879, Nos. 509, 518, and Report, p. xxiv. para. 55). Nor are instances wanting to show how easily this may happen : — Mr. E. Butt acted for the vendor of a registered estate, being sold in building lots of 60Z. to 200/. value. " Our auctioneer stated at the sale that as we had an indefeasible title, the expense to the purchaser would be but trifling: as a matter of fact, however, we found that the expense was nearly double " (1870, No. 522). In these cases his firm would have given purchasers leases at a total cost of 5Z., including duty ; some firms in the country would have done it for 3Z. (523); but under the registry the actual cost in a case he knew of was 81. 12s. 6d. (528), and none could have been much less, according to the office procedure, but could easily be more (523). "A client of Mr. Hewlett's purchased five lOOl. building plots, part of a registered estate. If the title had been unregistered, he would have been able to complete this 500Z. purchase in two or three days at a cost of lOZ. to his client. As it was, with all diligence, it took him more than four months, and the costs came to 25/."—' Statement,' p. 22, note. No single witness in 1869 or 1878-1879 mentions any benefit obtained from registration. D 34 THE FACTS AND THEIR CAUSES. [Cap. II. Finally, Lord Cairns relates (1879, Nos. 2873, 2874) that when a compulsory scheme was being framed in 1874 he declined to allow it to apply to small properties, because he found that private solicitors constantly worked at a cheaper rate than his registry would. If I were asked to point to one circumstance which proves alone and by itself the utter misdirection of the whole course of our registration experiments, I should point to this. The most distinguished advocate and patron of our registration schemes here confesses that they are almost wholly useless for the very people, the very pro- perties, the very class of transactions which the system is of all others the best designed to accommodate. It is as if Sir Edward Watkin were to confess tliat his railway system was not suitable to third-class passenger traffic. Small properties are the most frequently dealt with of any : they are almost always held in fee simple or for some absolute interest : the dealings with them are usually * pure sale and mortgage, or a combination of the two, and notliing else ; and the present conveyancing system presses more hardly upon them than upon any others. And yet we have to confess that the doors of our registry had better — in mercy — be closed to them. To resume the thread of our argument from page 29. It is not of course pretended, but what there may have been cases — though it is strange, if there were, that none were ever mentioned in evidence — in which time and trouble have really been saved by an estate being on the register, but wliat I think I have shown is that the other cases have been so frequent as to cause a well-founded * It is not denied that eccentric instances to the contrary may be often enough met with in the practice of eminent conveyancers to whom all the curiosities naturally gravitate. But no solicitor in large general practice i?ould deny the statement in the text. Cap. II.] SUPERIORITY OF THE TORRENS SYSTEM. 35 distrust of the whole system among most persons who know how it has worked. Now in Australia, as is clear from the authorities quoted in Appendix I,, p. 92, all this is quite different. And why ? Because their acts are so framed that no mistake that a registrar can make will result in the ousting of a genuine landholder. Mr. Wolstenholme puts the difficulty which arises under the English Acts thus : " I am registered with an indefeasible title to-day ; the result is, I have a good title against all past owners : but you, a year hence, may put another owner on the register with an indefeasible title to a bit of my land." Sir E. Torrens answers that, according to the Australian rule, " the prior title is the one that in such case would be held valid as between two recorded titles" (1870, No. 791). In New South Wales, "the policy of the law is to sustain the registered title of every bond fide holder " (1872, p. 2,ans. 2 ; also in more detail, pp. 40, 41, sec. 115). The general policy is to protect a recorded owner in actual possession against any adverse claim (p. 51, bottom). In New Zealand, " without actual possession the certificate cannot be absolutely relied on " (1881, p. 98, top), except of course as giving a right to compensation out of the fund. The provisions of the various Acts by which this result is obtained will be found as follows :— (1872), New South Wales, ss. 40, 115, pp. 14, 32 ; Vic- toria, ss. 49, 138, pp. 103, 119 ; South Australia, ss. 40, 124, pp. 161, 176 ; New Zealand, ss. 46, 129, pp. 214, 229 : (1881), Queens- land, ss. 44, 123, pp. 42, 61, and Western Australia, ss. 48, 128, pp. Ill, 128. The only departure from the uniform respect shown for priority in the Australian systems is that the first registration gives an absolute title * against all unregistered owners to a pur- chaser. Though questionable in principle, this j^ractically works no hardship, as on a first registration there is time for inquiry on the land, and thus none but dormant claims can be registered away : these are the subject of compensation if ever they arise. * I am told, however, that some very recent decisions in S. Australia have exposed a weak point in the language of the Act as to this. D 2 36 THE FACTS AND THEIR CAUSES. [Cap. II. The scheme set forth later on, however, does not admit even this exception to the pure guarantee system, and absolute pre- servation of all existing rights to the laud itself. In cases of mistake or fraud on the register, resulting in a conflict of hond fide registered titles — as where a purchaser from a fictitious owner is confronted by a real owner — the real owner is left in possession, while to the purchaser "money compensation is payable by the Government from an insurance fund [subscribed by the owners of registered titles for that purpose] after ex- hausting all proper remedies against individuals justly liable" (1872, p. 2, answer 3; and see more fully in Chapter III., 7, p. 57). The result of this is that the registrar, in order to expedite the despatch of business is authorised to run the risk of an occasional error (1881, p. 152, para. 9). Therefore it is that (as we have seen) he is able in the first place to admit titles to the register actually on easier terms than ordinary purchasers will allow on sales. For of course, as he accepts titles by the hundred, he can rely upon averages, and, as he never has to show his title again, he can dispense with many of the formalities (if he is really satisfied) which pur- chasers usually insist upon in order to preserve evidence. Therefore it is that the expense of a first registration "must always be much less than would have to be in- curred in the investigation and making good titles under the old system." This is why " requisitions are only made by the office upon questions involving some substantial interests, and compliance with them is not required to be of such a formal character as with private purchasers '* (1881, p. 147). Victoria is not the only colony we have to rely upon for these results. Sir R. Torrcns tells us that in South Australia Cap. 11] SUPERIORITY OF THE TORRENS SYSTEM. 37 *' if it is found that a prima fade title is made out, and it is proved that the applicant is in possession, after advertisement, an indefeasible title is given to the applicant " (1878, No. 3083). ^' If the applicant's title is perfectly good or fairly good, the solicitors to the office bring it under the Act" ('Chamber of Commerce Journal,' Dec 1885, p. 298). Registration is not, however, recklessly granted, it is always " based upon a fair marketable, or at the least a good holding title " (1872, p. 136, middle). And in the next place (and here, as I believe, lies the true secret of the ultimate Australian success) the Registrar proceeds to register subsequent dealings in an easy and expeditious manner, adapted to the requirements of ordinary business, but yet sufficiently careful to protect the State amply, as is shown by the fact that the losses of the assurance funds are insignificant, while some of them are actually intact (see Chapter IV., 3, p. 74). The following regulation will illustrate this. For fear of personation, every instrument dealing with registered property in England " must be attested by a solicitor and duly verified " (Gen. Rules, 20-23 ; Holt, pp. 178, 179). The effect of this in " facilitating " the working of a system whose great claim is that it enables a plain man to dispense with professional help in dealing with land may easily be guessed, and has already been illustrated (pp. 31-33). In Australia an instrument may be attested by anybody, and the only " verification " required is either for a. The parties to attend before the Registrar-General, or a Justice of the Peace, or a Notary, or a Commissioner for Oaths, &c., &c., to whom they are personally known, and to acknow- ledge it to be their act — or, h. To swear before such person, if not personally known to him, to the like effect — or, c. For the witness to attend before such person and swear that the person whose signature he attested is personally known to him, and that he freely signed. In either case, the person before whom the acknowledgment or 38 THE FACTS AND THEIR CAUSES. [Cap. II. oath is made signs a note to that effect upon the instrument, and that is all : it may be sent by post to the registry, and the registrar acts upon it without more ado. The above is taken from the Regula- tions in force in Queensland (1881, p. 59, sees. 115, 116), where over 98 per cent, of the land of the colony has been on the register for some years (1881, p. 31). The other Acts will be found as follows : (1872) New South Wales, p. 27, sees. 94, 95 ; Victoria, p. 115, sec, 115 ; South Australia, pp. 170, 171, sees. 95, 96 ; New Zealand, p. 223, sees. 100, 101 ; (1881) Western Australia, p. 123, sec. 105). It would appear, it is true, that under this system a considerable opportunity is opened for frauds. The best proof of a pudding, however, being the eating, and a long experience showing no case of loss from this cause, it may be taken as proved that the matter is not so easy as it looks. The " Land Broker " and the " Licensed Surveyor " may be next mentioned as scarcely less important factors in the success of the Torrens system than the attestation arrangements just given. The former are business men of various kinds, mostly laud agents, licensed to represent landowners in the office, who readily acquire sufficient knowledge of the manners and customs of the registry to enable them to transact all ordinary business at very low fees indeed. The latter after a qualifying examina- tion are implicitly trusted in all matters concerning boundaries and descriptions of land. Further, immense facilities are evidently afforded for communicating direct with the registry office, personally or by letter, or oven by telegraph. Few, if any, of these facilities would bo permissible under the English Acts owing to the relentless severity with which absolute title is made to follow on every entry in the books, and our utter destitution of any means of repairing the mistakes which they must occasionally entail. The effective result moreover is, as may be seen from Appendix I, p. 92, that dealinf^s with registered land in Australia or New ZeaUind are uniformly easier, cheaper, and quicker than where the land is not registered, and incomparably easier, cheaper, and quicker than the same classes of dealings in tlie English registry. Lastly, as to wliat is f)lton coiLsidered the great dijJicuJtij of placing Cap. II.] SUPERIORITY OF THE TORRENS SYSTEM. 39 titles on the register for the first time — as the registrar is more easy to satisfy than an ordinary purchaser on a sale, initial registration is practically conducted at no expense to the applicant except his subscription to the insurance fund, for nearly all registrations take place immediately before or immediately after a sale or mort- gage (1879, No. 1831 ; 1881, p. 147). If before, the expense and trouble which the applicant incurs are less than what he would otherwise incur on the intended sale ; if after, he is put to no expense or trouble at all in the majority of cases, for the registrar is more than satisfied with the evidences which the applicant himself has just procured from his vendor. This mode of proceeding, be it observed, equally facilitates the registration of every sort of title — old or recent, simple or complicated, clear or doubtful. In England, to register before a sale has hitherto been impracticable, for no one ever knows when it will be concluded, and to register after a sale involves an indefinite expense of which the only thing that is certain is that its amount will be largely in excess of that under which the new proprietor is just smarting: and when the operation is at last concluded, and the bill paid, so far from its being a certain gain as it is in Australia, it may turn out to be no saving, even in the simplest transaction, but rather an impediment than otherwise. This difference is directly traceable to the difference in the nature of the registered title conferred by the two systems, and is quite independent of circumstances. 40 THE FACTS AND THEIR CAUSES. [Cap. II. 6. — Keview of Chapter, and Statement of a com- pulsory Scheme that has been suggested. The above series of observations are no doubt open to the serious objection that they are for the most part opposed to the expressed opinions of persons of high pro- fessional standing, and large general experience in this country. It would be neither politic to ignore this, nor proper to treat it lightly. But it may perhaps be sub- mitted that this is a matter which necessarily lies beyond the borders of direct experience, and that the views advanced in the preceding pages can at least claim such share of attention as may be deserved by studies of out-of-the-way facts. The object of this chapter has been to establish the belief that though very possibly certain unavoidable cir- cumstances of the case may have contributed to render their failure more decisive, yet that the English registra- tion schemes have failed principally owing to a grave inherent defect from which the Australian systems are exempt ; and to warrant the hope that a scheme may yet be framed for registration with guarantee of title, more closely imitating the Torrens system, which would prove acceptable to the public and the profession, and would be generally adopted, as the Torrens system has been adopted, without resort to the desperate expedient of compulsion. Before proceeding to lay before the reader tlie scheme by which I believe the desideratum may be obtained, it will be well to state shortly the leading features of a compulsory scheme* which has lately obtained consider- * For summaries of all the sclicmos sugj^cstcd, the reader is referred to 'Statement,' pp. 22-23, and 'Land Transfer,' p]). 81-80, 95-97. But this is the only one likely to come into practical form. Cap. II.] THE COMPULSOKY SCHEME. 41 able prominence. This scheme proposes to render com- pulsory a species of registration that has been optional under the name of " Possessory Kegistration " ever since 1875, being contained in Lord Cairns's Act of that year. Possessory registration does not warrant the title of the first registered owner, and therefore dispenses with the need of inquiries on first registrations. Its operation may be thus summarised. A person applies to be registered as possessory owner of given lands ; the registrar makes no inquiry as to his title, but registers him on his own and his solicitor's declarations. The registration confers no more title upon him than he possesses already — no immediate benefit accrues from it. But observe what happens as time goes on. The registered owner wishes to sell : he sends his order to the registrar, the registrar satisfies himself that the order is a genuine one, and enters the registered transfer. This confers on the pur- chaser, absohitely, whatever the first registered owner was entitled to at the date of the first registration. This will be sufficient title or not for practical purposes, according to circumstances. For instance, if a good long time — say twenty or thirty years — has elapsed since the first registra- tion, the purchaser will probably be quite content, for the mere fact that the registered owner, and persons deriving title under him, have not been disturbed since that date renders it practically certain that at the time of such first registration the first registered owner was truly entitled to the estate registered, or that, if he was not, all likely claims against him have been barred by lapse of time, and thus a practically absolute title is obtained by the cheap process of sitting still, without the need of an official ex- amination to begin with ; but in the case of sales made soon after tiie first registration this inference will be less clear, and purchasers will wish to satisfy themselves by 42 THE FACTS AND THEIR CAUSES. [Cap. II. examining some portion of the title prior to tlie first registration ; while supposing the sale follows very close upon the first registration it will effect no advantage at all. Hardly any possessory titles have been registered under Lord Cairns's Act of 1875 (1878, No. 20). The surprise which this announcement will probably produce may be diminished by the statement of four bills for possessory registrations — the only ones I have been able to obtain : they are ISl. 12s. 6d., 16Z. Is. 9d. (for a property worth only 105Z.), 15/. 17s. 2cl, 281. 4s. lOd. (1879, p. 63). Kemember- ing that the possible advantages for some years after first registration are absolutely nil, these disclosures alone go some way towards accounting for the phenomenon. The proposal is to enforce the registration of a possessory title on every purchase of land after the passing of the Act. By this means the whole land of the country will gra- dually come on to the register, and every estate so regis- tered will, in the course of some twenty or thirty years after being so registered, be provided with a registered title, as good as absolute for the practical purposes of sale, if not of mortgage also. The disadvantages of the plan are that in any case it must somewhat increase the immediate trouble of all next sales, and, unless first regis- tration is made gratis, the expense also : this would be greatly felt in small properties. The benefit, supposing it to be beneficial, is not immediate : and it is open to three further objections, common to all compulsory schemes : first, in many instances it will impose itself upon property to which registration is probably not at all suited ; second, it will necessitate the sudden opening of a complete official establishment capable of dealing with the entire purchase and sale business of the country from the first moment of its existence ; and third, considering that ex hypothesi nearly all persons transacting business in the Cap. II] THE COMPULSORY SCHEME. 43 office will be doing so unwillicgly (for if they would go willingly, there is no need of compulsion), the chances of failure will be enormously increased ; in which case business will be impeded to a most inconvenient extent, and the entire system receive a serious if not a fatal blow. These objections may appear less weighty to some than to others, but at any rate they are objections, and the scheme hereinafter set forth is not open to any of them : it is principally founded upon a study of colonial experi- ence ; but it also includes sundry suggestions which are new, for adapting that experience to English requirements and for giving fuller scope to the strong points of the Torrens system than has hitherto been given them even in Australia. ( 44 ) CHAPTER III. PRINCIPLES UPON WHICH AN IMPROVED REGISTRY system should be based. 1. — " Indefeasible " or " Absolute " Title is not to be aimed at : " guaranteed " title is all that can be offered. No progress can be made until this is understood. The Australians have long ago recognised it in their Acts. One of their registrars thus writes as early as 1863 : " The popular idea of the new system as at first projected was that the indefeasibility was to amount to absolute infalli- bility of title in all cases, and this undue pretention naturally led many, who could perceive at a glance its impracticability, to ridicule the whole system as Utopian " (1872 p. 40, sec. 115). The impracticability here re- ferred to is this : indefeasible title, properly so called, confers on the bond fide registered owner for the time being a right to eject the whole world from the land registered. This principle is all very well as applied to stock, but it becomes an absurdity when applied to land without modification. First, the same land may be separately registered under two titles to two different people at the game time. For instance (to take the simplest case) where the boundaries of adjoining estates, as described on the register, overlap each other when applied to the land : in such case the two honci fide registered owners cannot h)i\\ have a right to eject each other, and thus " indcfeasi- Cap III.] GUARANTEED, NOT INDEFEASIBLE, TITLE. 45 bility " must break down for one or other of them. Or again (to take another simple case) no sooner have I, an owner, been entered in the books, and so acquired the right to eject all prior owners from the land there de- scribed, than I become liable to be ejected in my turn by you — a registered purchaser from one who has personated me, and so induced the registrar to enter your name in place of mine in the books behind my back. It is true that in such cases it might be made compulsory for you to accept compensation, instead of having the land ; but that is as much as to say that your " indefeasible title " is really not indefeasible at all, but defeasible, coupled, however, with a right to receive a money compensation should it ever in fact be defeated. But such a title as this has no right to call itself indefeasible, it is only guaranteed title : and the sooner we realise this difference, and mark it by correcting our nomenclature, the sooner will our system be started on its proper footing. " Guaranteed title " is the proper name for the system now in use in Australia, and which we want — a system, namely, which confers on the hond fide registered owner either a right to the land, or proper compensation for his loss if he cannot be given the land. We must look upon our register of titles as essentially a list of guarantees ; it is also a list of estates and rights in land, but this is secondary : the attempt to work it on any other principle must end in confusion. This distinction between indefeasible and guaranteed title has not been very clearly expressed either in the English or in the colonial Kegistration Acts. A perusal of their provisions, however, will show that the English Acts have aimed at " indefeasibility " in the strictest sense, while the colonial Acts (though they use the word " indefeasible ") in reality have most care- 46 IMPROVED PEINCIPLES. [Cap. III. fully provided (with one exception perhaps) that their titles shall only be guaranteed. A little thought will show that guaranteed title is clearly all that mortgagees want, it is usually all that purchasers want * (' Land Transfer,' p. 86), and it enables a quiet man to live in peace on his land without fear of interruption. Indefeasible title, on the other hand, in order to pretend to give to recent purchasers what they probably do not want even if they could have it, subjects the established owner and occupier to the risk of ejectment by force of operations carried on behind his back, and subsequent in point of date to his own purchase. The Australian exception (if it be an exception) to the guarantee principle above referred to is that by the Torrens system a preference is invariably given to a registered title as against all unregistered interests whatsoever, even though prior to the original registration. The primary object of this pro- vision is to prevent unregistered dealings with registered estates — a subject to which I sball advert later on in this chapter (sec. 5, p. 56), but an incidental result of it is that the title of the first registered owner is made indefeasible, almost in the strictest sense of the word. For, all unregistered claims being postponed to him, and prior registered claims being non- existent, his right to the land can never be questioned save where an entirely separate registered title has been previously entered in respect of the same land, which, as regards the substance of an estate, is practically impossible, though it is likely enough to happen sometimes as regards boundaries. Now, is it advisable to admit this exception in England ? I mean, is it advisable to frame our new Registration Act so that if a legal owner is overlooked on a first registration, a registered • Until the experiment had been made, this was of course doubtful ; for if the uncertainty of really getting the land was anything appreciable, purchasers would of course be dissatisfied. But now it is clear that the nio.st moderate precautions are enough to ensure a certainty that is practically equivalent to that obtained by the most exacting purchaser under the present system in England (see p. 58). Cap. Ill] GUAEANTEED, NOT INDEFEASIBLE, TITLE. 47 purcliaser shall have the land, and the overlooked owner shall have only the money compensation ? On the whole, I am strongly of opinion that it should be the other way, namely, that the old rights should be preserved, and the registered purchaser indemnified ; that is to say, that the first registered owner should get merely what every subsequent registered owner must of necessity be content with — a guaranteed title. Opinions diflfer considerably as to which way abstract justice points in such a case ; on this I express no opinion. But one enormous practical advantage follows from adhering to the guarantee system in first registrations, namely, that they can thus be conducted privately. As will appear in Chapter IV., the difficulties which have attended first registrations hitherto may thus be almost entirely removed, and all those advertisements and notices to all sorts of persons likely to have claims (which entailed so much expense, delay, and strife under the old Acts, and which still entail some avoidable expense to applicants, even in Australia) may be abolished, and what is otherwise almost an impossible task — registration of boundaries — may bo accomplished without difficulty. It must not be supposed that the distinction is one that will often be illustrated in practice. Under the Australian registries, out of several hundred thousand transactions, no single case has yet occurred of a purchaser losing the substance of his purchase through the operation of the rule ; and it may therefore be taken as tolerably clear that purchasers will obtain as much certainty as to the land as they get now, coupled with a right to compen- sation in case of mistake, which they do not get now. I shall assume for the future that the principle of guaranteed title is the one to be followed. It requires the establish- ment of a guarantee fund, which brings us to 2. — The Guarantee Fund. If the compensations are made payable out of the public revenue, the system is open to the objection that it " taxes 48 IMPROVED PRINCIPLES. [Cap. III. the general public to secure landowners' titles — a very questionable proceeding " (Wolstenholrne, p. 538). A separate fund must therefore be established (as in Australia), subscribed by the landowners themselves, for the purpose of paying all compensations. This we have never had yet, but no system of registration can be con- sidered perfect without it (' Land Transfer,' p. 42, top). How to establish this fund, and of what amount it ought to be, will be discussed later on in Chapter IV., 3, p. 74, 3.— The Office of Registrar will not be Judicial in any sense. Much weighty and valid objection has been made from time to time against our system of indefeasible title, in that it makes the registrar in effect a judge, who has power to determine the rights of parties : sometimes even in their absence. This has no application to the system of guaranteed title. The register book is not conclusive as to the rights of parties, the registrar's decisions are mere statements of the view which he will be prepared to litigate. Experience, however, shows that his decisions are "almost invariably acquiesced in" (1881, p. 148) by the parties, who thus gain a settlement of disputes which in England necessitate litigation. He is as it were a " semi- judicial " person : his decisions are of no legal but great moral effect. 4. — Boundaries should be Guaranteed. This is a vexed subject. The Australian systems all guarantee boundaries ; Lord Westbury's Act did so too, but the practical difiiculties of guaranteeing boundaries under that Act caused it to be abandoned in despair, in the Act of Cap. m.] BOUNDARIES GUARANTEED. 49 1875 (see sec. 83, subs. 5). But guaranteed title without guaranteed boundaries is clearly a very incomplete thing, and if ever any questions arise on these unguaranteed boundaries the public will receive a caution against trusting to registered titles that they will probably not forget. The abandonment of the attempt to guarantee boundaries " can ouly be regarded as another proof of the great anxiety of the promoters of the Act (of 1875) to construct almost at auy price a facile system. The precise ascertainment of the thing the title to which is registered would be one great benefit to be conferred by a perfect register. The concession manifestly amounts to a sacrifice of efficiency for the sake of expediency " (' Land Transfer,' p. 56). Sir E. Torrens says : " It was my in- tention to have put my land under Lord Cairns's Act, until I found out that it gave no title as regards boundaries " (1878, No. 3093). Mr. H. W. Elphinstone, " as a landowner and also as a convey- ancer," shows how worthless registration without guarantee of boundaries is (1879, No. 395), and it would appear that as long as this rule prevails a deed will be necessary in order to give a purchaser the protection which the private practice provides by express or implied " covenants for title " (No. 423, and Mr. G. B. Gregory, Nos. 587, 688). How important a boundaiy question may be appears from the following : " In a case in which I was engaged as counsel, it involved a matter of 40,000Z. or 50,000?., because there was a lode of copper found under a particular house, and the deed had not stated whether the boundary line was from the east or west of the house " (Mr. 0. Morgan, 1879, No. 396) ; and a case reported only a month ago — Williamson and the North Staffordshire Kailway Company, 32 Chancery Division, p. 399 — discloses a state of facts which illustrate in a startling manner how the reservation of a strip of boundary a yard, a foot, or, presumably, even an inch wide may be absolutely fatal to the acquisition of valuable rights created by Acts of Parliament in relation to public bodies. The commissioners of 1868 asked the following question of a number of solicitors (1870, p. 47) : " 21. Would it be practicable and advantageous to register title witliout 50 IMPROVED PRINCIPLES. [Cap. III. guaranteeing the precise boundaries as against the neighboui- ing owners ? " Twenty-two answers were received : of these, nine considered it both disadvantageous and impracticable ; seven considered it either disadvantageous or impracticable ; one thought the registering owner might be given an option to have it so, in view of the great difficulties ; one would allow it, but still " it would be a blot on the title " ; one thought it would be unfair on the adjoining owners (the unfairness ceases under the system now proposed, for if my neighbour registers a bit of my land as his, nobody knows any more about it than before) ; two say " if it could be done "and " if practicable" ; and only one " yes." This leaves not much doubt as to the leaning of those best qualified to judge. It should be observed that under the system herein set forth, the boundaries are registered and guaranteed, but the difficulty of making them conclusive as against adjoining owners is avoided. The plan set out in Chapter IV., 1. (p. 66), and Appendix VI. (p. 118), includes the guaranteeing of boundaries without necessitating the excessive trouble and expense which were incurred in that operation under the Act of 1862. 5. — Adoption of the System should be voluntary IN THE widest ACCEPTATION OF THE TERM. AnD, HEPvEiN, OF Solicitors. Primd facie, it would certainly appear that no system really beneficial to landowners would require to be forced upon them, and (of course) to apply compulsion to any system not really beneficial would be a wild injustice. Accordingly wc find several of the most distinguished authorities who approve of the system of registration of title, deprecate any such thing. " I should be very sorry if it were attempted " (Mr. J. Williams, Q.C., 1878, No. 603). Cap. III.] THE SYSTEM SHOULD BE VOLUNTARY. 51 Lord Thring says : " Is it the province of the Legislature to compel a man to do with his own estate what he does not want to do ? " and if only a few improvements were made, " you would get the public to come in and register " (1879, Nos. 57, 82). " It will be evaded at once, if people do not like it" (Mr. H. W. Elphinstone, 1879, No. 409). "Lord Cairns's Act was a great improvement on Lord Selborne's Bill, in not trying to make it compulsory " (Mr. W. Barber, .Q.C., 1879, No. 848). " There is in the first place the question how far you have the right to make the adoption of a particular system compulsory " (Lord Cairns, 1879, No. 2871). "It would be very difficult to force upon every purchaser or mortgagee in this country a mode of dealing with his property which not one purchaser or mortgagee in 20,000 at present adopts of his own accord" (Eeport, 1879, p. vi., last para.). (This is an exact description of what is now being pro- posed.) Or again, in view of past experience, is it wise to make any Act compulsory before it is proved that it works well ? The present compulsory schemes assume that if the primary difficulty of getting titles on to the register can be removed, the speedy and cheap dispatch of business in the office can be confidently hoped for from certain alterations which it is proposed to make in the office practice. This may be so, but is it sufficiently clear that it will he so to justify its compulsory enforce- ment ? It was confidently hoped that certain alterations in the procedure would render initial registration speedy and cheap under Lord Cairns's Act; and with what result ? Whence comes the cry for compulsion ? There is not the slightest doubt that it had its birth in a belief, that once prevailed extensively, that the failure of the system was due to the selfish hostility of solicitors. " English E 2 52 IMPROVED PRINCIPLES. [Cap. III. landowners being an attorney-ridden people, option in these matters, though nominally given to the proprietor, is virtually given to his solicitor " (' Torrens,' p. 44) ; and hence, having heard of some instances in which solicitors advised their clients not to register, and others in which they even went so far as to insist on titles being taken off the register before they would have anything to do with them, the distinguished originator of the Australian system persuaded himself that success would be impossible until landowners were protected from this " unfair pressure " by having no option left them in the matter. But there is no excuse for persons holding this opinion now. " The evidence given before the Koyal Commissioners of 1868 and Mr. 0. Morgan's Committee (in part above extracted) completely disposes of all such explanations as ' the hostility of solicitors.' The people who had tried registration state very clearly that it had caused serious expense and inconvenience without doing any appreciable good in return " (* Land Transfer,' p. 82). The commissioners themselves say of the solicitors, " These gentlemen were not hostile to the plan of regis- tration; on the contrary, they came into the office sincerely intending to use its machinery for the benefit of their clients " (Keport, 1870, p. xv., para. 12), and in the next eleven paragraphs they take the trouble to collect the evidence on this point, which they rightly regard as most serious. In another place also the com- missioners, after pointing out what a highly lucrative operation to solicitors registrations always were, proceed to sum the matter up thus : — " There is always in all callings of life a large number of individuals who dislike and suspect all change as such, but these always follow when a load has once been made in a good direction, and Cap. Ill] THE SYSTEM SHOULD BE VOLUNTARY. 53 it is clear in this case that the dislike to the existing system proceeds from men who have honestly tried to work it and who wish for some workable system, and are in such a position that their houses would not only have set an example which, if successful, others must eventually follow, but would of themselves have supplied the registry with as much business as its present staff could discharge " (1870, p. xvi., para. 20). Few of those who make this accusation appear to have any appreciation of its intense gravity : they pass it off with good-natured jokes, likening the case to that of a stage coachman and the railways, and so on, quite forgetting that if a solicitor is anything, he is, in the first place, a trusted confidential agent, and that to suggest a want of disinterestedness in his relations with his clients is to accuse him of neglecting his most obviously para- mount duty. Another suggestion less objectionable at first sight but really scarcely less derogatory to the honour of the pro- fession has been made, to the effect that if premiums were offered to solicitors for effecting registrations, the number of applicants would be largely increased. This proceeds on the assumption that solicitors are ignorant of the advantages of registration (as we have seen, they are only too well aware of its ^/sadvantages), and require an appeal to their pockets to apprise them of what they ought to do in the interest of their clients— not a very flattering suggestion. The common practice of insurance offices of paying pre- miums to solicitors who introduce business is sometimes quoted in support of this plan. The practice referred to is unobjectionable only because it is now so universal with insurance offices that it has long ceased to have any deter- minate effect, but it is one which reflects but little credit on the persons to whose easy notions its present univer- 54 IMPEOVED PRINCIPLES. [Cap. III. sality is due. It is hoped no Government department will ever stoop to follow so doubtful a precedent. Altogether the language used with regard to solicitors gives considerable justification for the remark made by- one of them to the commissioners of 1868, that the blame so often thrown upon them was " a calumny invented by the authors and abettors of a bad piece of legislation with a view to find a plausible excuse for its failure " (1870, p. 75). While on this subject, the following words of Mr. H. T, Young (of Walters, Young, Walters and Deverell), a former President of the Incorporated Law Society, seem valuable : " What the lawyers look to chiefly is that they shall be properly remunerated for such business as they transact, and not be left dependent for profit on high allowances for incidental matters of form and routine, thus giving a premium to inferior practitioners rather than to the most competent " (1870, p. 74). Apart from the " hostility of solicitors " what excuse for compulsion remains ? On what ground can it be justified for a moment ? Is it part of a man's public duty to im- prove the selling value of his own property? Are a man's own successors in title to be clothed with a corporate existence, and endued with rights against him, enforceable by risk of dispossession should he ignore them ? Whom does it hurt if a man cannot readily prove that his property is his own ? Does it damage the neighbours ? Is it a public nuisance ? Does it offend against the general morality ? Does it deceive any one to his hurt ? Does it prejudice posterity any more than many another unbusinesslike thing that a man may lawfully indulge in, such as neglecting his shop, or not weeding his garden ? Why^ should the landowner or the purchaser of land (be- longing, as he usually does, to a class which is better educated iind more enlightened than any other in the Cap. III.] THE SYSTEM SHOULD BE VOLUNTARY. 55 community) require to be taught his own interest by pains and penalties, when all other people are trusted to find them out for themselves ? Or, if to register be not to his own interest, why should he be forced to confer benefits on strange and unascertained persons against his will, at his own expense, and probably at a very appreciable amount of immediate inconvenience ? If the new system is really a good one, it may rely on its own merits to promote it : the demand for any other promoter sounds far more like a confession of weakness than an assertion of strength. In short, either compulsion is unnecessary or it is unjust ; but apart from this, there are two special prac- tical advantages attending a voluntary system : one is (as stated by Sir R. Torrens himself) that the increase of work is gradual: "If the system was voluntary you would not have the pressure: because the nervousness that people have would prevent it coming into operation all at once " (1878, No. 3158), and the first applicants will be the friendly ones. The other is that the public is thus furnished with an excellent index of the real usefulness of the system, and the danger of an outburst of popular indignation in case of failure is averted. If the adoption of the system is to be voluntary, there must be complete liberty to remove titles from the register too. " No harm could be caused by giving this power, as, if the registration worked well, it would not be acted upon, whilst, if the operation of the Act were otherwise, it would be only fair " (1879, Report, p. iv., last para.). The want of this power has, in the opinion of every witness who was questioned on the subject by the committee of 1878-1879, exercised a deterrent effect on intending applicants. They have done without such a power in Australia it is true, but considering- the deservedly bad name that registration of 56 IMPROVED PRINCIPLES. [Cap. III. title has obtained in England, no voluntary system is likely to succeed without its insertion. Another less obvious species of compulsion is com- monly met with in the existing systems of registration of title, namely, an enactment that all registered estates and interests shall talce priority over all unregistered estates and interests. As a consequence of this rule, no mere ordinary conveyance of a registered estate can be accepted by a prudent purchaser under any circumstances. This in itself is clearly a disadvantage ; and it is my own belief that such a rule, though necessary in deed registries, and necessary in registries of title so long as " indefeasibility " is relied on as the groundwork of the system, is quite un- necessary under the system of pure guarantee here advo- cated. A discussion of this important subject, somewhat too technical for insertion here, will be found in Appendix III., p. 101-104. 6, — PuESCEirTION AND LIMITATION SHOULD REMAIN. In order to perfect " indefeasibility," Lord Cairns's Act of 1875 provides tliat " a title adverse to the registered proprietor shall not be acquired by any length of posses- sion" (sec. 21). Considering that the Act does not profess to guarantee boundaries (s. 83, ss. 5) it would appear that as time goes on the enforcement of this provision will involve an increasingly obscure and complicated inquiry. At any rate, if ever it comes to bo enforced it must result in great hardship to the ejected occupier. It has also been censured as interfering with a very convenient and prevalent practice of adjusting boundaries without legal formalities, and as being opposed to the general policy of the law (* Land Transfer,' p. 57^. WIhm'o " inde- feasible" title is attempted, this may be a necessary pro- Cap. III.] LIABILITY OF THE GUAEANTEE FUND. 57 vision, but where only guaranteed title is given it is quite unnecessary. The Torrens system is worked without it in some of the Australian colonies, and it would seem that it would work just as often against the guarantee fund as in favour of it (see Appendix III., p. 100, and Appendix VI., p. 121). The parties may safely be left to the existing law as to their rights to the land, while the guarantee fund can be sufficiently protected by the operation of the principles set out in the next section. 7. — Liability of the Guakantee Fund defined. The liability of the fund (or the Government in default of the fund) to make good all losses suffered by reason of defects in registered titles, is tempered in the following ways under the Torrens system. First : neither under the Torrens system nor under Lord Westbury's system (see 25 and 26 Vict. cap. 53, sec. 30) does the first registered owner, or any person holding "voluntarily" (that is by gift or succession, as opposed, for instance, to purchase, or mortgage, or lease at a rent) through him, get the benefit of the guarantee. There is no good reason why such persons should get such benefit Eegistration, it must be repeated, is not required for the quieting of the minds of actual owners of land, or of persons who have bought land under the advice of their own solicitors in whom they have confidence, nor to show that titles which are in fact undisputed are indisputable ; it is only required for the easy satisfaction of purchasers, and other strangers, when owners are about to deal in some way with their land. Broadly speaking, under the Torrens system all that the first registered owner of land really gets is — poiver to offer the Government guarantee at a moments notice to any 58 IMPROVED PRINCIPLES. [Cap. III. honest purchaser, and this is what he chiefly wants. There- fore if a mistake is discovered before the first registered owner, or his " voluntary " representatives, have sold or otherwise dealt with the property, the certificate is simply recalled and cancelled or corrected, as the case may require, and no compensation is paid. The only instances in wliicli a certificate of title has been ordered by the Supreme Court [of South Australia] to be cancelled are as follows : — 1. A certificate in the hands of voluntary transferees from a person who had succeeded in bringing his land under the Act and obtained a certificate of title in his own name by misrepre- sentation and a fraudulent abstract of title. The " volunteers " were trustees under the will of the first certificate holder, and they subsequently transferred to the jjersons entitled under the will. Such subsequent transferees were also of course only " volunteers." 2. A certificate in the hands of voluntary transferees from a person who was proved to have been insolvent at the time of executing the transfer, the transfer being therefore void as against creditors. The above decisions are in accordance with the provisions of the Real Property Act, and no case has arisen [in twenty-two years' work] in which the title of a purchaser for value has been disputed (1881, pp. 5, 6). Second : even if the mistake is not discovered till after a dealing-, the fund is by no means necessarily impinged upon. For the purchaser is bound in the first instance to attack the person responsible for the mistake ; the fund is only resorted to " after exhausting all pioper remedies against individuals justly liable" (1872, p. 2, answer 3). The enactments on this head arc: New South Wales (1872), pp. 32, 34, sees. llG-124; Victoria, pp. 120, 121, sees. 144- 151 ; South Australia, pp. 17G-178, sees. 12.5-132 and (1881), p. 18, part X.; New Zealand (1872), pp. 220-231, sees. 130- Cap. Ill] LIABILITY OF THE GUARANTEE FUND. 59 137; Queensland (1881), pp. 61-64, sees. 126-137; Western Australia, pp. 129-131, sees. 129-136. The provisions of the latter Act on this head are in substance as follows. (I may perhaps be forgiven for thinking that the desired effect might be obtained by a simpler legislative expedient (for which see next note), but the adjoined form has stood the test of experience.) If, under the operation of the Act, any person is deprived of land, or loses a right of ejectment or recovery, owing to (1) fraud, or (2) an initial registration, or (3) a subsequent registered dealing, or (4) error or misdescription, his first remedy is an action for damages against the fraudulent person or the original applicant for first registration, or the adversely registered owner, or any person deriving title through such fraud or misdescription, the measure of damages being the full value of the land at the moment of deprivation or loss of right. Exceptions : (1) No purchaser for value is liable at all, (2) other persons deriving title through the fraud, error, or misdescription, who have transferred the land since, are only liable for the amount of the consideration they have received for it. In this latter case, or if the above remedy be inapplicable, or if the person liable be dead, or bank- rupt, or absconded, the fund is liable (sees. 129, 130, 131). The fund is not liable for breaches of trust (sec. 136), and is protected by a limitation clause (sec. 134). The fund can recover from the estate of the dead or bankrupt delinquent, or from the absconded one, and may take out execution against any of his property that may be found (sec. 135). (The other Acts are similar, but this is given as the latest.) I should propose, however, a modification of this, which would be more satisfactory to the registered owner, and not really more onerous to the fund, namely, to make the fund ^primarily liable to the registered owner, and to give the registrar a right of action against the delin- quent in proper cases. The ultimate effect of this arrangement in no way differs from the Australian method, provided the latter be fairly and liberally acted upon (as apparently it is), while at the same time the individual 60 IMPROVED PRINCIPLES. [Cap. m. claimant is not sent running all over the country in the first instance, to try and find his defendant. When it is remembered that the claimant in these cases is one who has committed no fault beyond trusting the register as the Government has invited him to do, it must be clear that quick and full reparation ought to be afforded him direct ; and the better this is understood, the more ]iatronage the office will obtain. It would appear that the effect proposed may be obtained by a simpler enactment than that adopted by the colonial legisla- tures, somewhat as follows : — 1. The effect of registration to be in all cases alike, namely, something closely resembling the possessory title of Lord Cairns's Act (and see Appendix III., p. 100). 2. Every application to imjDly a covenant by the applicant (who in cases of transfers will always be in reality the vendor, see J). 10) with the registrar, similar, according to circmn- stances, to the ordinary vendors' covenants for title now implied in conveyances (Conveyancing Act, 1881, sec. 7). 3. Every registration to imply an absolute indemnity from the registrar (officially only) to the registered owner, against all unregistered estates, rights and interests subsisting, or capable of arising at the time of such registration. This limiting of the gnarantee to the indemnifying of purchasers and others in a like position, and the continu- ing liability of the person responsible for the mistake, does not take off from the value of the registered title to a reasonably vigilant owner, and they form together a very important safeguard to the fund. In fact, when their effect is carefully considered, they appear to reduce its total liability (a) in respect of mistakes made on initial registrations to an amount certainly not exceeding the total amount of ultimate lo.ss from mistake and fraud suffered by purchasers under the present law, which we know to be trifling; while (h) as to losses occurring on Cap. III.] EECOGNITION OF TRUSTS. 61 registered dealings afterwards, the statistics of the Australian funds show (Chapter lY., 3, p. 75) the utter insignificance of the claims that will arise if we copy their mode of dealing. 8. — Eecognition of Tkusts. A colonial authority (Hon. Sir R. C. Baker, ' Chamber of Commerce Journal,' December 1885, p. 298) says: " Trusts in Great Britain are so numerous, I can see no reason whatever why they should not be recognised the same as incumbrances, by placing upon the parchment certificate of title — ' This title is subject to trusts declared in declaration of trust, dated so and so, and filed number so and so,' which any one can go and look at. It is a matter of great importance, but one which can be discussed when it is desirable to introduce the system into Great Britain." This suggestion may recommend itself to some people. In Appendix III., at p. 104, will be found a plan for guaranteeing the due execution of trusts without the dis- advantage of affecting purchasers with notice. But in reality the Australian experience collected in Appendix II., p. 96, furnishes very good reason for believing that the cautions inhibitions and restrictions of Lord Cairns's Act are quite enough protection. These provisions have not always been sufficiently studied by those who have criticised that Act. 9.— Negotiable Mortgages. Hitherto I have made no mention of the Prussian registry of titles. It is similar to the Australian in all its main features, was introduced in 1872, and has proved a very successful piece of legislation. A short description 02 IMPROVED PRINCIPLES. [Gap. III. of it will be found in Appendix IV., p. 105. But it pos- sesses a feature which would be well worth studying, aud which is I believe almost unique, namely, " the negotiable mortgage " (Grundschuld). These are registered charges on land, exactly like mortgages, except that they are (1) quite independent of personal indebtedness, and (2) are transferable by delivery or endorsement exactly like a bill of exchange. No one but the holder can enforce them, or give a discharge. Ordinary mortgages are not abolished. A few further details will be found in the Appendix. I believe that the want of something of the sort has been expressed among commercial men in England, and so I would suggest attention being paid to the results of the experiment, which has now been tried for about four- teen years in Prussia, before framing our new measure. 10. — Very Short Leases may be admitted to the Eegister, Under Lord Cairns's Act (sec. 11, subsec. 1, sec. 18, subsec. 7, aud sec. 50) few terms of years having less than twenty-one years to run can be registered. Considering that the registration of a lease on its first grant, or before it has been dealt with, cannot involve any trouble beyond what a most moderate fee would entirely pay for, there seems no reason for excluding terms that have not been dealt with — no matter how short — from the operation of the Act. The frequency of tlie subsequent deahngs, usually of the simplest kind, that take place with respect to short leaseholds would make it appear that the regis- tration of this class of property would be of a most profitable character, both for the registry and for the parties interested. Cap. Ill] MISCELLANEOUS. 63 The Australian Acts do not all go so far as this, but they admit much shorter terms to the register than we do. In Victoria, a lease of ten years may be independently registered (1872, p. 101, sec. 29). In Western Australia it is the same (1881, p. 108, sec. 29). In Queensland a lease of registered land of even less than three years may be registered if in a given form (1881, p. 73, sees. 11, 18). In South Australia, apparently all leases of registered land must be registered unless for under one year with the tenant in actual possession (1881, p. 11, sec. 21). The process under Lord Cairns's Act is very simple. The lease is left with the registrar, and may be copied officially, the copy becoming in effect the lessee's certificate of title ; after which it can be transferred and mortgaged for ad valorem fees beginning at 5s. and 2s. 6d. respectively, or rather, it would be, if only the parties were allowed to act for themselves (38 and 39 Vict. cap. 87, sec. 16, and Gen. Rules, 34, 35 ; Holt, pp. 57, 187, 224). 11. — General Eules. Considering the importance of detail in these matters, it would seem well that the general rules under which the details are to be regulated should be prepared with the Act, and enacted in the first instance, that people may have an opportunity of judging of the system as a whole. Power to alter these from time to time would'of course be given (as usual) to a proper authority. In this respect, in that it relegates details to general rules capable of altera- tion without recourse to Parliament, our system is acknow- ledged by a colonial authority to be superior to theirs (1872, p. 93, last three paragraphs). I should advocate the widest extension of the general rule system, enacting nothing but the barest matters of principle in the Act ; leaving all the procedure to the discretion of the officials subject to the veto of the Lord Chancellor. 64 IMPKOVED PKINGIPLES. [Cap. III. 12. — Publicity avoided. — Bankeks' Mortgages. By way of anticipating an often expressed apprehension, it may be stated that registered titles may be made abso- lutely secret, save to the registered o^Yner, and persons properly authorised to inspect them. Also, that in Australia mortgages to bankers are made by deposit of certificate, just as in England by deposit of deeds (1881, p. 21, sec. 63). Under a registry the banker has the extra security of a "caution," entitling him to notice of any intended dealing. This need not be objected to by the borrower where the register is not open to general public inspection. 13. — Metropolitan or Local Registries. This is a point on which authorities are much divided. All the Australian registries are metropolitan; so it is clear that the point need not be decided at first, if we start on a voluntary system; for the central registry will suffice for all needs to begin with, and it can easily be arranged to admit of disintegration should occasion require it later on. 14. — Application to Copyholds. Copyholds have hitherto been necessarily excluded from the operation of registry of title, but the exclusion appears necessary only so long as an absolute or inde- feasible system is used : guaranteed title could be ex- tended to copyholds witliout serious difficulty. Further, it seems that the extinction of these inconvenient tenures might be very much expedited if the registrar were allowed to invest the guarantee fund in the purchase of manors. An outline of suggested operations on these tenures will bo found in Appendix VIII. (p. 121). ( 65 ) CHAPTEK IV. POINTS OF PRACTICE. All tlie practical topics fall under one or other of three divisions : — 1. How to procure titles to be placed on the register. 2. How to keep them there afterwards. 3. How to provide a guarantee fund. As pointed out in Chapter 11., the altered nature of the registered title, and the provision of a guarantee fund ought to work a great improvement in the practical treatment of the first two topics. For, under the pro- tection thus afforded, the registrar has confidence that his mistakes will not result in loss to any individual, nor (within reason) to the public revenue ; and therefore he is able to proceed both in his original investigations of title and in his mode of registering subsequent dealings with a freedom that gives satisfaction. He cannot hurt the public revenue, for the guarantee fund is provided by the landowners, and he cannot hurt any individual, because, as the registered title is not indefeasible but only guaranteed, his error will not affect the legal owner of the land, registered or unregistered, and the registered purchaser will be entitled to full compensation in case he is disappointed. P GO POINTS OF PEACTICE. [Cap. IV. 1,_H0W TO PROCUEE TiTLES TO BE PLACED ON THE Register. Under the system of guaranteed title, registrations, if thought expedient, may with perfect propriety be con- ducted privately, without notice or advertisement, as they do not affect the rights of third parties. The present inquiry therefore merely comes to this : — (a) What is the least amount of investigation which it will be safe to give to each title before guaranteeing it ? (h) How can this amount of investigation be most economically applied? (c) How can people be induced to come to the registry in the first instance ? Let us consider these in their order. (a) The amount of investigation now usually given by purchasers would seem to be an amply sufficient amount for the office to require. Why in the world should the reo-istrar, with a guarantee fund at his back, want more certainty than ordinary purchasers who have no guarantee fund? The present private purchasers' system is well known to result in absolute safety (see p. 6). (&) The most economical way of applying this inves- tigation would obviously be by using the same agency that is now commonly used — solicitors. If the registrar were to employ solicitors in the ordinary way, on the ordinary terms as to remuneration, responsibility, employment of counsel, &c., as for a willing purchaser, half the titles in the land would be placed upon the register without risk or difficulty. As long as wc abstain from cmi)loying solicitors, and especially local solicitors, to investigate titles, the office will Cap. IV.] FIRST EEGISTRATIONS. 67 practically be closed to a large number of landowners to whom it would be a great benefit. In the case of very small pro- perties, people often get transfers now for a pound or two, without any investigation of title at all, from local solicitors who know that the title is all right (Mr. II. T. Young, 1878, Nos. 1495-1501). "In the country the larger estates are known by the professional men practising in the district ; when a conveyance comes from a well-known estate, they do not have expensive investigations of title" (No. 1735). "In the country we never prove a complete title on a sale — all sales in the country are under the most stringent conditions " (Mr. G. Whitcombe, 1878, Nos. 2349, 2363), the real safety being the local repute of the vendor or his solicitor. Mr. Barber, Q.C., is informed by a country solicitor in large practice, " that in a country place he knows the titles of everybody round, no investigation of titles is required, the transaction is completed for IZ." (1879, No. 884). Lord Cairns speaks of several solicitors in the Midland Counties and populous towns in the south of England who work for 10s. or 11., in small matters (1879, No. 2873). How can these very little holdings — obviously the very ones for which registration is most likely to be useful — ever get on to the register if their titles are to be investigated, however leniently, by an entire stranger ? Those titles which solicitors would not be disposed to declare safe, and which counsel thought contained a serious flaw, would be sent in for the registrar to consider. Some of these he would be empowered to accept on a principle commonly used in insurance business, and which has been adopted with success in some Australian registries, namely, extra charges for extra risks. In Australia it is found that many apj)licants are willing to accept a reasonable offer of this kind. No rights of third parties are put in danger, as already pointed out ; only, the applicants get the benefit of the law of averages. The difficulty in the way of employing solicitors is that F 2 G8 POINTS OF PEACTICE. [OAr. IV. jealousy might arise if such an enormous patronage were to be placed in the hands of a Government office. In Appendix V. (p. 113) I have set out some explanation and detail of the plan, from which it will be seen that this may be made to settle itself automatically, as it were, in the vast majority of cases. (c) The best way — the only way perhaps — to make a beginning, is by holding out a ready hand to purchasers on sales. It is often said that a landowner who has got his land and his conveyance and his deeds, has no motive to register. No more has a man whose tooth has got a hole in it any motive to get it stopped. Why should he incur expense and unpleasantness for a problematic benefit ? He may die the next day, and so have had his trouble for nothing. But this conviction, though sound and genuine, is liable to alteration under force of circum- stances. An acute attack of toothache, for instance, will alter it. The owner of the property referred to will then act (with the greatest inconsistency) as though a con- siderable expense and almost any amount of present pain were preferable to what is really only a more or less distant risk of future suffering. Now Australian experience shows that a vendor or purchaser of land is in very much the same situation. For at this juncture he will incontinently register, though quite unwilling at other times. And when, as will presently be shown, the land registry can afford to the actually smarting purchaser an analogue to the attractive announcement, " Gas extractions," with no extra charge, and not the slightest twinge being felt by the patient — why the landowner must be either more or less than human if he does not embrace the offer. If the oflico, in short, were to undertake to investigate titles on sales, through the purchasers' own private solicitors, on the usual terms, but with a fair chance of Cap. IV.] FIRST REGISTRATIONS. 69 the registration of a guaranteed title resulting from the operation without any extra expense, a considerable number of persons would avail themselves of the offer. " If it could be got for nothing," says one solicitor, "it surely would be a great advantage " (1878, No. 2360), and many more would agree. Owing to the recent establishment of an ad valorem scale for solicitors' conveyancing fees, a great facility is now possessed by the office of offering to conduct the whole transaction in all cases for a fixed fee, which did not exist in 1875. There is no need to multiply testimony to the effect that a fixed charge would induce many to apply to the office who are now debarred by the uncer- tainty of the expense of all communications with it. Lord Thriug himself says, "I have bought land myself, and my solicitors have asked me whether I would register it, but as they gave me no information as to what it would cost I did not care to register it. If I could get easily at what the expense would be, I should certainly register " (1879, Nos. 11, 14). In the purchasers' cases, however, it will be virtually done " for nothing," and supposing only a few purchasers, comparatively, wish to come under the system at first, yet a new beginning will thus be made, which will gra- dually be improved upon, if only it is not choked off (as it undoubtedly was in 1867) by people finding the system impossible to work satisfactorily afterwards. Enough suggested detail will, it is hoped, be found. in Appendix V., p. 113, to enable the reader to judge of the practical value of this plan, should he wish to do so. Alternative Plan. The above project, of farming out the work of investi- gating titles, and accepting any title which a purchaser 70 POINTS OF PRACTICE. [Cap. IV. has accepted on an actual sale, is no part of the Australian method, but has suggested itself to the writer as practicable in England, and, if practicable, highly economical and advantageous, If it be thought safer, however, to insist on the direct investigation of every title by an official personage, matters might still be arranged so as to admit of an im- mense number of titles being safely registered (as in Australia) immediately before or immediately after sales or mortgages at a very trifling extra expense to the appli- cants — a pound or two at the outside. It has been shown already that, under the pure guarantee system, the accept- ance of any ordinary title, such as a purchaser would accept under reasonable conditions of sale, is a perfectly proper and also an obviously safe course for the registrar to take. If it were well understood to be the practice of the office to behave as ordinary willing purchasers do, there is no reason apparent why any but the very smallest vendors and purchasers in England should hesitate to avail themselves of the occasion of sale or mortgage to register their titles (ju!