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business matters, should be addressed to THE ALBANY LAW

a

WE

beginning has been made; admissions from The Albany Law Journal.

prominent members of the profession in both

coun:ries are heard, and the most influential ALBANY, OCTOBER 26, 1895.

papers devoted to legal literature are inter

ested. A minority, generally, cannot rule; Current Lopics.

but if we can only obtain a hard fighting body

of lawyers who are impressed with the absolute [All communications intended for the Editor should be ad- necessity of a change on agreed lines, they can Jressed siinply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other thoroughly thrash the large majority of immovJOURNAL COMPANY.]

able, inactive practitioners, and obtain

result which will be of practical benefit to E publish in this issue of the Law JOUR members of the legal fraternity and their NAL the address of Mr. J. Wreford

clients. Budd, President of the Incorporated Law Society, recently delivered at Liverpool, Eng- A subject which was also discussed at the land. It might seem at first that this paper is meeting of the Incorporated Law Society, was one which might have little or no interest in the registration of title and conveyancing rethe United States, but on a second considera- furm, and the paper on this subject was read by tion it is apparent that the subjects which are B. G. Lake, Esq. The desirability of a change discussed not only give us a clear insight into in our present methods of recording deeds and many English legal matters, but demonstrate mortgages, is evident. The suggestions which the development of the science and the desire appear in the paper of Mr. Lake will at least in our sister country of more appropriate legal enable some of us to formulate ideas which may methods. The question of land transfers is result in a system in which simplicity and econone which has been greatly discussed in this omy will be the main characteristics Mr. Lake country because of our present unwieldy and said: intricate systems. We have already published “The evidence clearly shows that the sysconsiderable in regard to the English Com- tem of registration of title established by the panies' Acts, which is, at least, in advance of act of 1875, requires complete remodeling, and, our own methods. Perhaps, though, the most as will be seen by reference to the report, the remarkable point of the address is the dis- Attorney-General scarcely disputed this. Mr. cussion of a better and more business-like Wolstenholme's evidence, from his wide experimethod of legal procedure. Taking the very ence and acknowledged eminence as a conveywords of Mr. Budd, he says: “Ordinary busi-ancing counsel, carried great weight, and was ness men having a dispute to settle, arising in well supported by that of our then president, the ordinary course of business, have for many Mr. Hunter, who devoted a great deal of time years past been found to prefer to resort to and labor to the subject, and by the numerous arbitration and other unsuccessful methods of witnesses, lay as well as professional, from difsettling their disputes rather than submit to ferent parts of the country, who proved the the expense and delay involved in recourse to great rapidity, cheapness and security with the tribunals of the country.” This is cer- which conveyancing of all kinds, especially in tainly an admission which we regret to say we small transactions, is now carried out. I do must concur in; it is a state of affairs which is not propose to do more than refer to the evilamentable and which many of the legal pro- dence so given. The evidence must, I think, fession in the round of their yearly toils fail have satisfied all who heard it that, although absolutely to consider; it is a state which may solicitors are naturally biased in favor of the cure itself or otherwise may seriously injure existing system of conveyancing, with which those whose lassitude and inactivity prevent they are familiar, and which, in their opinion, their taking active steps to remedy such cir- provides for all the requirements of land dealcumstances. It seems most unfortunate that ing, their opposition is not to registration of this condition of affairs should be recognized title as such, but to the proposal to make it as existing not only here, but in England. A compulsory, while yet untried and imperfect,

VOL. 52 - No. 17.

instead of so improving and amending it as to inatters, would be intolerable.' Nor is this surmake it flexible and attractive, and then allow- prising, for the principle of the bill is to take ing landowners (as is the case generally in Aus- the title of every landowner out of his own care tralian colonies, except as to land alienated in and to place it in charge of State officials, with fee by the crown subsequently to the special the result that the landowner who, under the act introducing the system into each colony) present system, gets a title which is, or after the option of selecting whichever system might a certain number of years will become, absoseem most suitable to their needs. It was also lutely perfect, and who, under the present sysproved that the opposition was not confined to tem, cannot be dispossessed or prejudiced exsolicitors, though they, as having the most cept by his own act or default, will always be at practical acquaintance with dealings in land, the mercy of a careless, credulous, or fraudulent naturally took the lead, but was concurred in official, by whose neglect or act he may at any by the most eminent conveyancers, by bankers time lose his land altogether, and even if he be and by building and land societies. The chief entitled to compensation at all, will have paid argument in favor of compulsion was that the for it out of his own pocket, and will only obsystem would not otherwise become known or tain it after contested proceedings with their self-supporting, and the lord chancellor sugges- attendant cost and delay. The existence of ted that the practical failure up to the present this danger was scarcely contested, and, though time, of the system of 1875, was due to ignor- this was not admitted, witness after wilness ance of its advantages. But the suggestion was showed that, in their opinion, registration of deprived of weight when it was pointed out and title, as at present established, would add connot disputed that Sir R. Torrens, the foundersiderably to the cost of all transactions, as well of the Australian system which led to the acts large as small, with little or no advantage to of 1862 and 1875, refused to register his Eng- the present generation. Probably Lord Halslish land; that neither Lord Halsbury nor Lord bury, now again Lord Chancellor, will, ere Herschell, both of whom are landowners, had long, introduce a measure for extending the taken advantage of the act which they have so system of registration of title. If this be so, persistently endeavored to make compulsory on it is to be hoped that he will not be satisfied to others; and that no building or land society, follow blindly the views put forward by the notwithstanding the missionary efforts of Mr. land registry authorities, but will avail himself Brickdale and the advertisements issued by the of the knowledge and experience of conveyland registry, has as yet been induced to give ancing counsel and solicitors, and will introthe system a trial. In other words, dealers in duce a well-considered measure repealing the land, who have at present the option of either act of 1875, introducing the amendments which registering their property under the act of 1875 have been shown to be necessary, and providor of dealing with it according to the presenting for the establishment of a system of regissystem, have not been convinced that there is tration of title which, without being compulsory any advantage in taking the former course. or costly, will be flexible and attractive. FlexiAs was well stated by Mr. C. T. Saunders, bility can only be secured by vesting the con“the rigidity of the forms and regulations - trol of the registry in a small working board the want of elasticity to accommodate them with considerable executive powers, and comto ever-varying circumstances — the interpo- posed, in part at least, of practicing barristers sition of a government official who must take and solicitors. If, in addition, the power to cases in their order, regardless of emergency

remove land from the register were restored, the inability which must then exist of the so- landowners would be more ready to try the exlicitor being able to promise the client an all-periment than they are at present, when the step. important advance of money within a few days, once taken, is irrevocable, while the fear lesi as he now can the daily fret and annoyance the right of removal might be extensively exerarising from delays and official requirements in cised would lead the officials to do all in their the place of the present free and uncontrolled power to make the working of the system rapid mode of dealing with ordinary conveyancing and free from friction. The Lord Chancellor may feel assured that, if he should deem it land or a purchaser whether he had or had not right to follow such a course as I have ven- notice of its existence. Where the title to the tured to indicate, there will be every desire on property is well known, or the intending purthe part of solicitors to place their knowledge chaser is otherwise satisfied that there are no and experience at his disposal, and to give the trusts or undisclosed incumbrances affecting new system, if established, a full and fair trial. the property, the search could and would, Whatever may be the future of registration of no doubt, be neglected, as is often the case title (and I am still, as I long have been, at present. Provision should be made for an advocate of its establishment as an al- an official search, for communicating with ternative system which, if properly managed the register office through the post, and for a and modified from time to time as circum-short interval (say two days) until the expirastances require, may eventually supersede, in tion of which a distringas, though lodged, the case of many estates, the system of con. should not be of any effect against a bona fide veyancing which now exists), it is clearly our purchaser or mortgagee. This would make it duty to do our utmost to simplify, perfect and possible to complete sales and mortgages elsecheapen the existing method of dealing with where than at the register office. A deposit of land. The interests of solicitors and their the title-deeds would, as at present, be available clients are in the long run identical, and the

to create an equitable security, which could more dealings in land are facilitated the greater either be made absolutely safe by means of a will be their number, and the more important distringas, or, as at present, rest on the pracand necessary will become the class of skilled | tical impossibility of dealing with the property agents to carry them out. How best to effect without their production. Such a reform would such reforms as may be necessary has been not only greatly simplify the existing system of under consideration by the council ever since conveyancing, but would take away all justifithe address at Bristol last year of our then cation for making registration of title compulpresident, and the evidence of Mr. Wolsten- sory. Any landowner who preferred to keep holme, Mr. Hunter and others pointed out his deeds and be his own registrar could and pretty clearly the direction which any such re- should be allowed to do so. The distringas forms must take. It may be reasonably antici- register would not require the aid of a map, pated that just as Mr. N. T. Lawrence's presi- which is a fertile source of difficulty and exdential address at Cambridge, in 1879, was the pense; for whether for a distringas or an inprecursor of the conveyancing reforms of 1881 hibition-.l., a stop-order-it would be suffiand 1882, so Mr. Hunter's presidential address cient that the name of the house or estate of of 1894 may prove the origin of further and the parish or township, and, in case of town more extensive reforms during the present property, of the street in which it is situate, Parliament. Mr. Wolstenholme had, in 1862, with the number or distinctive name of the read a paper on the simplification of convey house, should be entered in the register. If, ancing, and during the inquiry before the in addition, power were given to the cautioner select committee of the past session he handed or inbibitioner to declare, on receipt of a notice in a summary of that paper, which will be of proposed dealing, that the distringas or infound at p. 238 of the report, and should be hibition did not affect the property about to be carefully studied. Its proposals, if embodied dealt with, or that the dealing might proceed into law, would reduce the title to land to a notwithstanding the distringas or inhibition, series of simple conveyances of the legal fee- and without prejudice to the distringas or simple, or a rent-charge in fee, or a term of inhibition as against other property not years absolute, apart from all equities.' Equit- dealt with, the trifling inconvenience of a able interests would be protected by a dis register with its attendant search would be tringas register, which would be the only reduced to a minimum. Of course, a caution search obligatory on a purchaser, whether as would be lodged at the risk of the cautioner regards bankruptcy or otherwise, and no equit- being made liable in damages if it were lodged able interest not so protected would affect the without good cause. When lodged, it should

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instead of so improving and amending it as to inatters, would be intolerable.' Nor is this surmake it flexible and attractive, and then allow- prising, for the principle of the bill is to take ing landowners (as is the case generally in Aus- the title of every landowner out of his own care tralian colonies, except as to land alienated in and to place it in charge of State officials, with fee by the crown subsequently to the special the result that the landowner who, under the act introducing the system into each colony) present system, gets a title which is, or after the option of selecting whichever system might a certain number of years will become, absoseem most suitable to their needs. It was also lutely perfect, and who, under the present sysproved that the opposition was not confined to tem, cannot be dispossessed or prejudiced exsolicitors, though they, as having the most cept by his own act or default, will always be at practical acquaintance with dealings in land, the mercy of a careless, credulous, or fraudulent naturally took the lead, but was concurred in official, by whose neglect or act he may at any by the most eminent conveyancers, by bankers time lose his land altogether, and even if he be and by building and land societies. The chief entitled to compensation at all, will have paid argument in favor of compulsion was that the for it out of his own pocket, and will only obsystem would not otherwise become known or tain it after contested proceedings with their self-supporting, and the lord chancellor sugges-attendant cost and delay. The existence of ted that the practical failure up to the present this danger was scarcely contested, and, though time, of the system of 1875, was due to ignor- this was not admitted, witness after witness ance of its advantages. But the suggestion was showed that, in their opinion, registration of deprived of weight when it was pointed out and title, as at present established, would add connot disputed that Sir R. Torrens, the founder siderably to the cost of all transactions, as well of the Australian system which led to the acts large as small, with little or no advantage to of 1862 and 1875, refused to register his Eng- the present generation. Probably Lord Halslish land; that neither Lord Halsbury nor Lord bury, now again Lord Chancellor, will, ere Herschell, both of whom are landowners, had long, introduce a measure for extending the taken advantage of the act which they have so system of registration of title.

If this be so, persistently endeavored to make compulsory on it is to be hoped that he will not be satisfied to others; and that no building or land society, follow blindly the views put forward by the notwithstanding the missionary efforts of Mr. land registry authorities, but will avail himself Brickdale and the advertisements issued by the of the knowledge and experience of conveyland registry, has as yet been induced to give ancing counsel and solicitors, and will introthe system a trial. In other words, dealers in duce a well-considered measure repealing the land, who have at present the option of either act of 1875, introducing the amendments which registering their property under the act of 1875 have been shown to be necessary, and providor of dealing with it according to the presenting for the establishment of a system of regissystem, have not been convinced that there is tration of title which, without being compulsory any advantage in taking the former course. or costly, will be flexible and attractive. FlexiAs was well stated by Mr. C. T. Saunders, bility can only be secured by vesting the con“the rigidity of the forms and regulations - trol of the registry in a small working board the want of elasticity to accommodate them with considerable executive powers, and comto ever-varying circumstances - the interpo-posed, in part at least, of practicing barristers sition of a government official who must take and solicitors. If, in addition, the power to cases in their order, regardless of emergency --- remove land from the register were restored, the inability which must then exist of the so- landowners would be more ready to try the exlicitor being able to promise the client an all-periment than they are at present, when the step, important advance of money within a few days, once taken, is irrevocable, while the fear lest as he now can the daily fret and annoyance the right of removal might be extensively exerarising from delays and official requirements in cised would lead the officials to do all in their the place of the present free and uncontrolled power to make the working of the system rapid mode of dealing with ordinary conveyancing and free from friction. The Lord Chancellor

may feel assured that, if he should deem it land or a purchaser whether he had or had not right to follow such a course as I have ven- notice of its existence. Where the title to the tured to indicate, there will be every desire on property is well known, or the intending purthe part of solicitors to place their knowledge chaser is otherwise satisfied that there are no and experience at his disposal, and to give the trusts or undisclosed incumbrances affecting new system, if established, a full and fair trial. the property, the search could and would, Whatever may be the future of registration of no doubt, be neglected, as is often the case title (and I am still, as I long have been, at present. Provision should be made for an advocate of its establishment as an al- an official search, for communicating with ternative system which, if properly managed the register office through the post, and for a and modified from time to time as circum- short interval (say two days) until the expirastances require, may eventually supersede, in tion of which a distringas, though lodged, the case of many estates, the system of con- should not be of any effect against a bona fide veyancing which now exists), it is clearly our purchaser or mortgagee. This would make it duty to do our utmost to simplify, perfect and possible to complete sales and mortgages elsecheapen the existing method of dealing with where than at the register office. A deposit of land. The interests of solicitors and their the title deeds would, as at present, be available clients are in the long run identical, and the

to create an equitable security, which could more dealings in land are facilitated the greater either be made absolutely safe by means of a will be their number, and the more important distringas, or, as at present, rest on the pracand necessary will become the class of skilled | tical impossibility of dealing with the property agents to carry them out. How best to effect without their production. Such a reform would such reforms as may be necessary has been not only greatly simplify the existing system of under consideration by the council ever since conveyancing, but would take away all justifithe address at Bristol last year of our then cation for making registration of title compulpresident, and the evidence of Mr. Wolsten- sory. Any landowner who preferred to keep holme, Mr. Hunter and others pointed out his deeds and be his own registrar could and pretty clearly the direction which any such re-should be allowed to do so. The distringas forms must take. It may be reasonably antici- register would not require the aid of a map, pated that just as Mr. N. T. Lawrence's presi- which is a fertile source of difficulty and exdential address at Cambridge, in 1879, was the pense; for whether for a distringas or an inprecursor of the conveyancing reforms of 1881 hibition-1.1., a stop-order-it would be suffiand 1882, so Mr. Hunter's presidential address cient that the name of the house or estate of of 1894 may prove the origin of further and the parish or township, and, in case of town more extensive reforms during the present property, of the street in which it is situate, Parliament. Mr. Wolstenholme had, in 1862, with the number or distinctive name of the read a paper on the simplification of convey. house, should be entered in the register. If, ancing, and during the inquiry before the in addition, power were given to the cautioner select committee of the past session he handed or inhibitioner to declare, on receipt of a notice in a summary of that paper, which will be of proposed dealing, that the distringas or infound at p. 238 of the report, and should be hibition did not affect the property about to be carefully studied. Its proposals, if embodied dealt with, or that the dealing might proceed into law, would reduce the title to land to a notwithstanding the distringas or inhibition, series of simple conveyances of the legal fee- and without prejudice to the distringas or simple, or a rent-charge in fee, or a term of inhibition as against other property years absolute, apart from all equities.' Equit- dealt with, the trifling inconvenience of a able interests would be protected by a disc register with its attendant search would be tringas register, which would be the only reduced to a minimum. Of course, a caution search obligatory on a purchaser, whether as would be lodged at the risk of the cautioner regards bankruptcy or otherwise, and no equit-being made liable in damages if it were lodged able interest not so protected would affect the without good cause. When lodged, it should

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