The Solicitors' Journal and Reporter – March 1, 1862

In considering the various schemes for facilitating the transfer of land which are now under the consideration of Parliament, it is necessary always to bear in mind the distinction between the two main objects contemplated by them all. One is the obtainment of parliamentary or indefeasible title, and the other is to provide economical and efficient machinery for giving express notice of any incumbrances upon such title when obtained.

These two desiderata are by no means identical or even necessarily connected; although no doubt in both Lord Westbury's and Sir Hugh Cairns' measures they are to be found in intimate combination. Lord Cranworth's bills, however, clearly mark the distinction between the two questions; and we now propose to point out in the most general manner the leading features of these three different schemes - how far they agree, and how much they differ.

A cursory perusal of the bills now before us, will be sufficient to convince most practical lawyers that any of the plans suggested for obtaining a declaration of title must involve considerable risk and expense in all cases except those where the title is so clear and good that it requires no aid from any court. From the very nature of the proceeding every step must be taken with abundant caution, and after the fullest notice to all who may possibly be interested in it. It is not proposed to dispense with any of the precautions that are now usual in investigating title; the only difference will be that instead of having to satisfy the requisitions of a purchaser who may sometimes be satisfied in the absence of strict legal evidence, parties will have to meet every requirement of a technical system administered by an inflexible official. It is evident enough, therefore, that where much doubt, difficulty, or complexity exists, there must be much risk of disappointment and expense in attempting to obtain (under any system whatever) an immediate declaration of title. We admit, however, that it would be highly desirable to have some means of saving the repeated investigations of the same title, and the comparative uncertainty which are involved in the present system, and that for this purpose a judicial declaration of title, or something of the same effect, appears to be necessary. But the doubt is, whether all the schemes now before Parliament do not, and from their nature are not compelled to exact too high a price for these advantages.

We now turn to the second main object common to all these schemes. They all provide not only for a declaration of title, but also machinery for showing the state of the title subsequent to such declaration.

Lord Westbury proposes to record all the "existing estates, powers, and interests" in the land registered, and to enable every person having or claiming such interest in the land as would entitle him to object to any disposition thereof without his consent to lodge a caveat analogous to the "caution" provided in Sir Hugh Cairns' scheme. There is a wide difference, however, between the two schemes. Whereas Sir Hugh Cairns' provided only this uncertain protection for equities, Lord Westbury gives express notice of them upon the title such as there would be in any abstract now furnished to a purchaser. Under Sir Hugh's scheme, no doubt, conveyancing would gradually become simpler, as probably it would not be the custom to serve cautions as a matter of course; and thus land would very frequently be dealt with behind the backs of those who were beneficially interested in it; but, according to the Lord Chancellor's bill, all those who would now be proper parties to a deed of conveyance, will continue to be so. But both schemes, as we have already mentioned, provide not only for the absolute ascertainment of the state of the title when it comes before the Court, but also for a record of all the transaction by which the title may afterwards become affected. Every subsequence incumbrance is to be registered, or else it will be without effect. We shall hereafter have some observations to make upon the expense which such a scheme is likely to involve. At present, we desire only to lay before our readers the general effect of all the plans now before Parliament, and, therefore, proceed without further comment, to allude to Lord Cranworth's second (Security of Purchasers) bill. His plan is not to constitute any new or official machinery for the recordation of incumbrances, but to enable express notice of them to be given by means of a memorandum or memorial upon the title deeds, and thus compelling every person who creates an incumbrance to register it against himself. This proposal is by no means new, but to our minds it is not only more simple and economical than the public registration intended by Lord Westbury's and Sir Hugh Cairns' bills, but it is much more likely than they are to be completely effectual for the security of persons dealing with land; and so far, therefore, Lord Cranworth's proposal has our hearty support.