The Express.
London, England, 1851-06-21 00:00:00

THE EXPRESS, SATITA A V EITaIij,IITII4;;, ;TNT: 21.
D .

VIZ SCRIM OP REGISTRAISON,

As one not exceededin importance by any question
connected with the law of real property, has, for many
psis pest, attracted the earnest attention not merely of
law reformers as such, but of men whoa, buyers or sellers,
as mortgagees or inortfiegors of land, have practically ex-
vrieneed the evils arising from the want of registration.
Those evil may be summed up under the following heads:
1. The insecurity of title. 2. The difficulty, with
variouily interested ander deeds, of obtaining either the
posetesion of them or the means of enforcing their prods's-
tion. 1. The difficulty, expense, and delay which occurs
in selling or mortgaging landed estates, or portion of them.
4. The temptation to forge and substitute deeds. 6. The
temptation to conceal rights. 6. The encouragement of
liti-
gation. 7. The depreciation, from all these causes, of landed
Pro Porty.

INSECURITY OF TITLE.
In all civilised countries, the title to land depends in •
great measure on written documents, and the purchaser
Looks, and is empowered by law to look for proof of the
seller's right, beyond the fact of his ;possession. It is ob-
violas that a documentary title cannot be complete and satis-
factory, unless the party to whom it is produced can be as-
sured that no document which may defeat or alter the effect
of those which are shown him is kept out of eight. These
documentary titles should be simple, distinct, unequivocal, in
their terms, and readily accessible to all persons concerned.
In other words, there must be a general register, such es
that now proposed. Chattels pass from hand to hand upon
parole transfer; the apparent owner is held the real owner,
and there is no difficulty in the latter; but as to land,
mere possession is no proof of the extent of the interest
under which it was acquired. The party in eseisa may
be tenant at will, cur tenant for yea" es kw se tweet
in tail, or in fee elm* • and if Is is tenant in shy*
he may have takes Ile idate iarandsered with paymenle
relations, or may WNW have isoseismal the estate le the
last farthing, and pi fawain ia pressisa. As to title deeds.
their possession is sew ewiaslwr Ed in sway eases can-
not be had. • chose ei the pesoledes e( the title deeds
does not, and erne% alwege knew the creation of an tuts-

rest In land. In ease of a settlement by a tenant in fee,
who retains an estate for life, the deeds aro not
parted with: in this case the presumption from
the possession of title deeds altogether fails. So,
where deeds relate to lend, divided as to owner-
ship, it is obvious that they can attend the posses-
sion of only one part of the land. So, secondary and re-
versionary estates or charges are not accompanied with the
possession of the deeds. Moreover, duplicates are often
executed of important deeds, such as settlements, and
these duplicates might afford to more than one part; at a
time the presumption of ownership. A seller or mort-
gagor, originally the absolute owner of a fee simple,
may hare executed some settlement by which his
interest has been reduced to a tenancy for life; vet he
retains possession of the estate and the deeds, and may
thus, by merely suppressing the settlement, impose on a
purchaser or lender.
Again, the seller or mortgagor may be heir-at-law of the
last proprietor, and may claim as such heir, and may sup-
press a will giving him a limited interest ; or he may be heir
a. law or general devisee of some deceased nroprictor, who
may have made a settlement giving him a limited interest,
and he may claim as such heir or devisee, and may suppress
the settlement.

A proprietor in possession may have mortgaged the estate,
and, having withheld or got bark the deeds on some pretext
from the mortgagee, and thus being in posseesion of the deeds,
or else plausibly &catenating fur their non-production, and
concealing the mortgage, he may offer the property as an
unencumbered security.
Again, a settlement may have been executed, limiting a
life interest to the husband, with power to appoint the estate
to the issue of the marriage, as he may think proper, and
giving it, in default of such appointment, to the eldest son in
fee or in tail. The eldest son, after the death of his father,
may take possession of the property, claiming under the li-
mitation in apparent default of appointment ; he may sell it,
or mortgage it, yet as appointment may have been made
under which the seller or mortgagor may have no estate, or
an estate fur life only, or an estate charged with portions for
younger children. Or appointmentamay be revoked, yet
the revocation be suppressed, and the revoked appoint-
ments be produced as giving a title. Or a person who
thinks himself a first encumbrancer finds out that a prior
mortgage exist', and consequently that the security on
which he has advanced his money is of little value. Or
there may be a subsequent mortgage to his own, which, by
an ingenious operation of the law, may be made to oust
him altogether. In these and many similar eases, fraud,
as matters stand now, may be committed with facility, and
have every chance of eoncealmeent, at all events, unti
after the death of the perpetrator. The same evils
that may, under the system, arise from fraud,
may equally arise from accident, inadvertence, or igno-
rance; yet a proposing purchaser is compellable to complete
the contract, unless he can effectually object to the title
itself. There is no doubt that the mischiefs natu•
rally flowing from such a state of things, exist to an extent
which would alarm the holders and purchasers of land, if
they were aware of the risks to which they are exposed
and that in n great number of instances, estates, and espe-
cially se unities for money, are def.•atcd, in consequence of
latent defects of title, arising from the non-production of
documents.

The evil of fraud actually committed is, however, far
less than that of expense incurred, and necessarily incurred,
in every case, fur the purpose of obtaining something like a
reasonable assurance against the consequences of possible
fraud or mistake. The enormous expenses which are daily
incurred in sales and mortgages for the purpose of enabling
the purchaser or mortgagee to make, and a vendor or mort-
gagor to satisfy, these requisitions which would never be
necessary under a general registry of title, have been often
dwelt upon, and need now only be alluded to. In the
words of the Real Property Commissioners—" A very ina-
dequate estimate will be formed of the evils of the present
system from merely considering the eases in which a loam ac-
tually does arise to purchasers or mortgagees from titles
proving defective inconsequence of the suppression of deeds.
It is a consideration of the greatest importance, and one
which presents the existing evil in the strongest light, that
in all transactions respecting sales and mortgages of real
property suppression of title is treated as a risk to be
apprehended, and against which it is tho duty of the
professional agent to guard by every means in his
power. In the process of investigation which is insti-
tuted as to the title, not only every document, the
existence of which in any manner appears, and which by
any possibility may affect the title, is called for, but various
collateral sources of information, existing generally, or in
particular cases, are resorted to. Inquiries am made from
the occupiers of the lands, and from persons who have long
dwelt in the neighbourhood, county and local histories are
examined, searches are instituted for land-tax assessments,
awards under inelosure bill+, grants from the crown, grants
of annuities, records of fines and recoveries, enrolments of
deeds, judgments entered up in the several courts of record,
securities given to the crown, probates of wills, and admi-
nistrations, and various other species of documents. In
'veil- case except where the property is too small to make
risk important as compared with present expense, investi-
gations of this nature are prosecuted to a great extent, and
they occasion a considerable partion of the delay and
expense which are felt to be the great evils now attending
the transfer of real property.' "I.

CUSTODY OP DEEDS.
The evil arising from the present state of the law as to
the custody of deeds is one of very great importance. In
numerous cases, persons interested under deeds have nei-
therthe possession nor means of enforcing the production
of them. When an estate is divided and becomes the
property of different persons, or when different persons ob-
tain partial interests in an estate, the same deeds constitute
the title, or part of the title, of many persons. In most
cases, where the division of sn estate arises from
contract, th^ party who retains the custody of the deeds
gives to each of the other parties attested copies of them,
and a covenant to produce the originals, and furnish other
copies when required. There arc many cases, however, in
which such a covenant cannot be obtained, and, when ob-
tained, it is only in very few cases that it is permanently
effectuil. Tie deeds often pass with the lands, in respect
of which they are retained, into the hands of a person not
bound by the covenant ; and, on the other hand, the subse-
quent perch:is--r of the other lands is seldom able to enforce
the covenant.
The cxpenu of furnishing the attested copies is enormous.
Lord Campbell mentioned a case which had been brought
under his cognisance, of a person who, having sold a small
property to an attorney, and covenanted to furnish attested
copies of the deeds, actually found that the expense would
amount to MOTt than the purchase money, and was only too
glad to accept the proposal of the liberal purchaser to waive
the purchase-money and give up the property for nothing,
upon the-purchaser waiving his right to the attested copies.
Again, even supposing the party to bo in possession of a
perfect covenant, it may fail of effect because the party
bound by the covenant may not be known, or may be out
of reach, or may be incapable of being sued ; and there is
always the risk of the loss of deeds, and of their accidental or
wilful destruction. The loss of deeds, or the mere apprehension
of it, or the want of an effectual covenant for their production,
prevents a large proportion of the titles in this country from
being strictly marketable; and a great part of the delay, ex-
pense, and litigation which attend the transfer of real
property, and which are grievances strongly felt by all pro-
prietors and purchasers of land, arises from the same source.
These evils are either unforeseen by a person when he enters
into a contract for sale, and he is then placed at the merry
of the purchaser; or, if foreseen, special conditions are not
unusually inserted to preclude the purchaser from objecting
to the title on account of the loss or non-production of
deeds, or the want of a valid covenant for production, or
from requiring attested copies, except at his own expense.
All such stipulations are calculated to produce
grave inconveniences ; they may very seriously af-
fect the price to be obtained for the estate ;
they may be the means of entrapping ignorant or unwary
purchasers, and they may, if not most accurately pre-
pared, lead to infinite expense and harassing litigation.
The want of a particular deed, it may be observed, some-
times occasions the actual loss of the property to which it
relates, and though this happens more frequently in the
case of incorporeal hereditaments, it is also liable to happen
with respect to lands, and even lands in possession. A
person may have been tenant for life, in default of the
exercise of a power of appointment, and may have acquired
the fee under an appointment. If the appointment be not
forthcoming, and secondary evidence of its contents cannot
bo produced, his heirs or devisees would lose the estate.
Nor does the infinite complication of title law, with its
infinite delay, and its infinite expense, render titles secure.
"No title,' said the late Mr. Tyrrell, a most competent
judge of the subject, " can be considered at present to
be perfectly safe. After the evidence which can be obtained
has been investigated with the greatest care and every
possible means of finding objections to it has been resorted
to, there will still remain some possible cause of insecurity,
which no vigilance or ingenuity MI discover."
All these evils a general registry may be so constituted as
to remove.

IXPEDISIZSTE TO TEE TRANSFER OF LANDS.
From the greater or less insecurity of all titles to land,
and the certainty that every purchaser, by signing his con-
tract,
undertakes either to waive his right of having any
security at all, or to incur a great but indeterminate ex.
pence in seeking such an approximation to security es the
present system allows, it results, that the market values of
estates are deteriorated in an inverse ratio to their magni-
tude, and small estates are unsaleable from the mere dispro-
portion between their value and the expenses of the tran-
saction. It is not fair, therefore, to represent the plan of a
register as necessarily involving an additien to the present
expenses attending the transfer of estates. On the contrary,
it is probable that the saving effected in the expense of
making out and invcsti3ating titles will many times exceed
the total coat of the registry establishmest.
We believe, say the Real Property Commissioners, it may
be confidently asserted that of the real property of England,
a very considerable proportion is in one of these two predi-
mments, either the want of security against the existence
I of latent deeds renders actually unsafe a title which is yet
marketable, or the want of means of procuring the formal
requisites of title renders unmarketable a title which is sub-
stantially safe. by a general registry of deeds, every trans-
fer of land, and everencumbrance upon it, would be placed
within the means of knowledge of ererfperson loving occa-
sion to deal with it; all rights might be suffered to prevail
(as natural justice requires) according to their priority; the
use of outstanding legal estates, and the expense of keeping
demi on foot and transferring thm, would sass ; the in-
on of titles would be materially abridged and aim-
and freed in all transactions respecting real pro-
perty would be 'flannelly pprevented.
" It has been long ego " writes Professor
Hancock, "and is admitted by every economist of repute-
• first isport of Lw Amendment feisty, pp. 1. 16

nto.,..the freedom of purchase and
creating insecurity for the
lotfkinsa'lteha, tancdteerYveirymPecirediummsenta!
employment of capital, to the extent of their operation, im-
pedo the prosperity and impt.ovemcnt of the manufacture
and trade to which they apply. The same causes may be
expected to produce the same efli.et:
in agriculture' which
we know they produce in every other trade and manu-
facture.

the cost of transfer, I will notice some inst.
"In illustration of the legal impedints'ota from
tines that have
been furnished to me by an experienced enli,,itor:-Ist. A
case of sale of land for 1,2001.; the costs to vendor and
purchaser together amounted to 200 L, or one-sixtil of flu;
purchase-money. 2nd. A sale for 5001., where the costa
to one party alone were 1211., or one-fourth of the pur-
chase-money. 3rd. A sale for 2501., where the costs to one
party alone were 401., or about one-sixth of the purchase-
money.
" But the amount of money actually paid by the vendor
and purchaser represents only a part of the cost of tranfer
That cost of transfer may be divided into four distinct
elements : the expense, delay, and risk attending the inves-
tigation of title ; the expense of searches for encumbrances ;
the stamps on searches and conveyances; and the length of
conveyances. The first of these elements, which is the only
one I shall have time to notice at present, arises entirely
from the rule of law, that the vendor of land must produce
sixty years title to every acre that he sells. How (could
other trades be carried on if a similar rule were enforced ?
What would be thought of a law that compelled you to
examine the title to the leather, every time you bought a
Pair of shoes ? How could the cotton trade be carried on,
tf the spinner could not buy a bale in Liverpool, without
truing the title from the time the plant was grown in
Louisiana, and sending to New Orleans to search for en-
cumbrances ?" Mr. James Stewart, in one of his able
lectures on the subject, observes most pertinently Since
we have free trade in the produce of the land, let us also
have free trade in the land itself. You all know that
the buying and selling of land is ut present anything but
tree ; you all know the expense and delay which now ern-
buns. all dealings in land ; everything that gives greater
facility to the transfer of land wilt enhance its value. If
you can buy land more easily, or sell land more easily, or
borrow money more easily on your land, there is a direct
benefit to you. At present the laws relating to land, instead
of being as they ought to be, few and simple, are the most
Idifficult branch of our jurisprudence. What spell, then,
binds the land of this country ? We ernes over to Belgium,
to Prussia, to France, and we find that the transfer of land
in those countries is nearly as easy and simple as that of
stock in the funds, and the expense and delay to the parties
are very inconsiderable. As the result of this facility of
transfer, we find that land is more valuable in France, in
Belgium, and in Prussia, than in England; it fetches more
money in the market, and money eon be borrowed on it at
a much easier rate there than here."
" When there is fetae sale of land, and security for the ex-
penditure of capital," adds Professor Hancock, " the greatest
advantages accrue to the community in general. For when
the sale of land is free, it has a constant tendency to get
into the hands of those who can improve it most, since such
parties can affonl to give the highest price for it. Thus the
seller gets a high price, the buyer gets an opportunity of
exercising his sk;11, and the community gets the cheapness
and abundance consequent on the improvement."
D.INGER OF FORUERY, SUBSTITUTION OF BENDS, CON-

CEALMENT Of, RIGHTS, AND LITIGATION.
'With reference to the forgery and substitution of deeds, it
is obvious that these documents cannot with absolute safety
be left in the possession of those who may be gainers by de-
stroying or altering them, and that such possession affords
dangerous facility of fabricating other instruments, or of
giving undue effect to instruments by false dates ; as a man
who had executed a settlement might make a conveyance
or mortgage, and date it before the settlement.
Frauds of these descriptions, when of a nature not to dis-
turb present possession, may often be kept secret, or may be
concealed from the injured party during the life of the cri-
minal party, or until the real or supposed witnesses, and all
persons who could prove the fraud, are dead.
It is evident that a register would afford security against
the alteration or ante-dating of instruments ; and it would,
for various reasons, afford considerable security against
fabrications.

Persons having interests not accompanied with possession
of the documents of their title, have often no means of ascer-
taining their rights, or none but a suit in equity at their
own expense ; this creates a dangerous temptation to the
holders of land, and of the title deeds, to keep concealed,
and to subvert rights thus unprotected.
On account of the ignorance of their rights in which
parties ont of possession are kept under the present law—
the statutes of limitation of actions respecting real pro-
perty—beneficial as their general tendency is, operate
sometimes unfairly to individuals. A register accessible to
claimants would remove these evils, and make a short
period of limitation more consonant with justice.
Besides the causes of litigation to which reference has
been made, there arc other harassing actions and suits,
such as those relating to the custody of deeds, which
would be prevented or greatly diminished by information
and evidence afforded by a register.