The Albany Law Journal: A Monthly Record of the Law and the Lawyers

The Albany Law Journal.

ALBANY, OCTOBER 26, 1895.

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beginning has been made; admissions from prominent members of the profession in both countries are heard, and the most influential papers devoted to legal literature are interested. A minority, generally, cannot rule; but if we can only obtain a hard fighting body of lawyers who are impressed with the absolute necessity of a change on agreed lines, they can thoroughly thrash the large majority of immovable, inactive practitioners, and obtain a result which will be of practical benefit to members of the legal fraternity and their

clients.

A subject which was also discussed at the meeting of the Incorporated Law Society, was the registration of title and conveyancing reform, and the paper on this subject was read by B. G. Lake, Esq. The desirability of a change in our present methods of recording deeds and mortgages, is evident. The suggestions which appear in the paper of Mr. Lake will at least enable some of us to formulate ideas which may result in a system in which simplicity and economy will be the main characteristics Mr. Lake

said:

E publish in this issue of the LAW JOURNAL the address of Mr. J. Wreford Budd, President of the Incorporated Law Society, recently delivered at Liverpool, England. It might seem at first that this paper is one which might have little or no interest in the United States, but on a second consideration it is apparent that the subjects which are discussed not only give us a clear insight into many English legal matters, but demonstrate the development of the science and the desire in our sister country of more appropriate legal methods. The question of land transfers is one which has been greatly discussed in this country because of our present unwieldy and 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. 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 flutely 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 any advantage in taking the former course. As was well stated by Mr. C. T. Saunders, 'the rigidity of the forms and regulations-trol of the registry in a small working board the want of elasticity to accommodate them to ever-varying circumstances the interposition of a government official who must take cases in their order, regardless of emergencythe inability which must then exist of the solicitor 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, as he now can the daily fret and annoyance arising from delays and official requirements in the place of the present free and uncontrolled mode of dealing with ordinary conveyancing

tration of title which, without being compulsory or costly, will be flexible and attractive. Flexibility can only be secured by vesting the con

with considerable executive powers, and composed, in part at least, of practicing barristers and solicitors. If, in addition, the power to remove land from the register were restored, landowners would be more ready to try the ex

once taken, is irrevocable, while the fear lest the right of removal might be extensively exercised would lead the officials to do all in their power to make the working of the system rapid and free from friction. The Lord Chancellor

may feel assured that, if he should deem it right to follow such a course as I have ventured to indicate, there will be every desire on the part of solicitors to place their knowledge and experience at his disposal, and to give the new system, if established, a full and fair trial. Whatever may be the future of registration of title (and I am still, as I long have been, an advocate of its establishment as an alternative system which, if properly managed and modified from time to time as circumstances require, may eventually supersede, in the case of many estates, the system of conveyancing which now exists), it is clearly our duty to do our utmost to simplify, perfect and cheapen the existing method of dealing with land. The interests of solicitors and their clients are in the long run identical, and the more dealings in land are facilitated the greater will be their number, and the more important and necessary will become the class of skilled agents to carry them out. How best to effect such reforms as may be necessary has been under consideration by the council ever since the address at Bristol last year of our then president, and the evidence of Mr. Wolstenholme, Mr. Hunter and others pointed out pretty clearly the direction which any such reforms must take. It may be reasonably anticipated that just as Mr. N. T. Lawrence's presidential address at Cambridge, in 1879, was the precursor of the conveyancing reforms of 1881 and 1882, so Mr. Hunter's presidential address of 1894 may prove the origin of further and more extensive reforms during the present Parliament. Mr. Wolstenholme had, in 1862, read a paper on the simplification of convey ancing, and during the inquiry before the select committee of the past session he handed in a summary of that paper, which will be found at p. 238 of the report, and should be carefully studied. Its proposals, if embodied into law, would reduce the title to land to a series of simple conveyances of the legal feesimple, or a rent-charge in fee, or a term of years absolute, apart from all equities.' Equitable interests would be protected by a distringas register, which would be the only search obligatory on a purchaser, whether as regards bankruptcy or otherwise, and no equitable interest not so protected would affect the

land or a purchaser whether he had or had not notice of its existence. Where the title to the property is well known, or the intending purchaser is otherwise satisfied that there are no trusts or undisclosed incumbrances affecting the property, the search could and would, no doubt, be neglected, as is often the case at present. Provision should be made for an official search, for communicating with the register office through the post, and for a short interval (say two days) until the expiration of which a distringas, though lodged, should not be of any effect against a bona fide purchaser or mortgagee. This would make it possible to complete sales and mortgages elsewhere than at the register office. A deposit of the title-deeds would, as at present, be available to create an equitable security, which could either be made absolutely safe by means of a distringas, or, as at present, rest on the practical impossibility of dealing with the property without their production. Such a reform would not only greatly simplify the existing system of conveyancing, but would take away all justification for making registration of title compulsory. Any landowner who preferred to keep his deeds and be his own registrar could and should be allowed to do so. The distringas register would not require the aid of a map, which is a fertile source of difficulty and expense; for whether for a distringas or an inhibition—i. e., a stop-order-it would be sufficient that the name of the house or estate of the parish or township, and, in case of town property, of the street in which it is situate, with the number or distinctive name of the house, should be entered in the register. If, in addition, power were given to the cautioner or inhibitioner to declare, on receipt of a notice of proposed dealing, that the distringas or inhibition did not affect the property about to be dealt with, or that the dealing might proceed notwithstanding the distringas or inhibition, and without prejudice to the distringas or inhibition as against other property not dealt with, the trifling inconvenience of a register with its attendant search would be reduced to a minimum. Of course, a caution would be lodged at the risk of the cautioner being made liable in damages if it were lodged without good cause. When lodged, it should

tem, cannot be dispossessed or prejudiced except by his own act or default, will always be at the mercy of a careless, credulous, or fraudulent official, by whose neglect or act he may at any time lose his land altogether, and even if he be entitled to compensation at all, will have paid for it out of his own pocket, and will only obtain it after contested proceedings with their attendant cost and delay. The existence of this danger was scarcely contested, and, though this was not admitted, witness after witness showed that, in their opinion, registration of title, as at present established, would add considerably to the cost of all transactions, as well large as small, with little or no advantage to the present generation. Probably Lord Halsbury, now again Lord Chancellor, will, ere long, introduce a measure for extending the system of registration of title. If this be so, it is to be hoped that he will not be satisfied to follow blindly the views put forward by the land registry authorities, but will avail himself of the knowledge and experience of conveyancing counsel and solicitors, and will introduce a well-considered measure repealing the act of 1875, introducing the amendments which have been shown to be necessary, and provid

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 alsolutely perfect, and who, under the present sysproved that the opposition was not confined to solicitors, though they, as having the most practical acquaintance with dealings in land, naturally took the lead, but was concurred in by the most eminent conveyancers, by bankers and by building and land societies. The chief argument in favor of compulsion was that the system would not otherwise become known or self-supporting, and the lord chancellor suggested that the practical failure up to the present time, of the system of 1875, was due to ignorance of its advantages. But the suggestion was deprived of weight when it was pointed out and not disputed that Sir R. Torrens, the founder of the Australian system which led to the acts of 1862 and 1875, refused to register his English land; that neither Lord Halsbury nor Lord Herschell, both of whom are landowners, had taken advantage of the act which they have so persistently endeavored to make compulsory on others; and that no building or land society, notwithstanding the missionary efforts of Mr. Brickdale and the advertisements issued by the land registry, has as yet been induced to give the system a trial. In other words, dealers in land, who have at present the option of either registering their property under the act of 1875 or 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. As 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, as he now can the daily fret and annoyance arising from delays and official requirements in the place of the present free and uncontrolled mode of dealing with ordinary conveyancing

Flexi

land or a purchaser whether he had or had not notice of its existence. Where the title to the property is well known, or the intending purchaser is otherwise satisfied that there are no trusts or undisclosed incumbrances affecting the property, the search could and would, no doubt, be neglected, as is often the case at present. Provision should be made for an official search, for communicating with the register office through the post, and for a short interval (say two days) until the expiration of which a distringas, though lodged, should not be of any effect against a bona fide purchaser or mortgagee. This would make it possible to complete sales and mortgages elsewhere than at the register office. A deposit of the title-deeds would, as at present, be available to create an equitable security, which could either be made absolutely safe by means of a distringas, or, as at present, rest on the practical impossibility of dealing with the property without their production. Such a reform would not only greatly simplify the existing system of conveyancing, but would take away all justification for making registration of title compulsory. Any landowner who preferred to keep his deeds and be his own registrar could and should be allowed to do so. The distringas register would not require the aid of a map, which is a fertile source of difficulty and expense; for whether for a distringas or an inhibition-i. e., a stop-order-it would be sufficient that the name of the house or estate of the parish or township, and, in case of town property, of the street in which it is situate, with the number or distinctive name of the house, should be entered in the register. If, in addition, power were given to the cautioner or inhibitioner to declare, on receipt of a notice of proposed dealing, that the distringas or inhibition did not affect the property about to be dealt with, or that the dealing might proceed notwithstanding the distringas or inhibition, and without prejudice to the distringas or inhibition. as against other property not dealt with, the trifling inconvenience of a register with its attendant search would be reduced to a minimum. Of course, a caution would be lodged at the risk of the cautioner being made liable in damages if it were lodged without good cause. When lodged, it should

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