The Sun.
London, England, 1830-08-30 00:00:00

LONDON, MONDAY EVENING, AUGUST 30, IWO

PARLIAMENTARY PAPER.

LAW OF REAL PROPERTY.—No. 111.

SECOND REPORT OF THE COMMISSIONERS.
(Continued from our Paper of yesterday.)

A General Register would prevent insecurity of
title from the non-production of deeds, and thereby
render unnecessary the cumbrous machinery of out-
standings terms.
It may be objected, that assignments of terms
would still be resorted to as protections against
dower and acts of bankruptcy, and concealed estates
and charges prior to the establishment of the
Register. The alterations in the law of dower
which we have proposed in our first Report, will
prevent this objection as to dower. Assuming that
a legal estate does now afford protection against a
secret act of bankruptcy, which is a doubtful ques-
tion, we are of opinion, that the law on this subject
requires alteration : we think that the title of a pur-
chaser or mortgagee ought not in any ease to be de-
leafed by an act of bankruptcy, of which he had not
notice; but if, contrary to our opinion, it be thought
proper to continue, for the protection of creditors,
the present provision of the bankrupt laws in this
respect, the contrivance of an assignment of a keno
should not be permitted to elude it. With ikeet
to estates and charges prior to the Register, the ne-
cessity of keeping on foot an outstanding term will
be only temporary, and a single assignment after the
establishment of the Register will afford all the pro-
tection required. The term must indeed be kept on
foot, until the danger of concealed estates and
charges created prior to the commencement of the
Register shall have been removed by lapse of time;
but the inconvenience which might arise from the
notice afforded by the Register of the existence of
outstanding terms, would be remedied by the pro-
vision recommended by the Commissioners ap-
pointed to inquire into the Proceedings of the
Courts of Common Law, for preventing terms of
years outstanding in trustees from being set tip to
defeat any ejectment or action, except for the pur-
pose of protecting the inheritance. Pet hays here-
after means may be suggested of extending this pro-
vision to trust estates of other descriptions.
In addition to the insecurity of title arising from
the non-production of deeds, equitable and secondary
interests (the title to which may be complete at
the time of their creation or transfer) are liable to
be defeated by subsequent transactions. This dan-
ger has already been partially adverted to.
A person who advances money on mortgage of an
estate which is already subject to a mortgage, is
liable to be deprived of his security either by the
fist mortgagee, who without notice may advance
further sums, and add them to his prior charge, or
by a subsequent purchaser or mortgagee without
notice, who may afterwards pay off the first charge,
and thereby obtain the legal estate.
It not unfrequently happens, that an estate which
has been once mortgaged is afterwards mortgaged
to different persons, and each of such persons con-
siders himself secure, believing that be is the second

incumbrancer, anti that the 'Value of the estate is
sufficient to discharge both of the debts. In all
these cases, the one who is fortunate enough to ac-
quire the legal estate by paying off the first mort-
gage, obtains a preference over ad the other mort-
gagees ; so that when the charges on an estate
amount to more than its value, the last incumbrancer,
by paying off the first and obtaining a transfer of his
security, is allowed to tack (as it is called) his own
charge to the first mortgage, and thereby prevail
against the second and all other intermediate in-
cumbrancere.

The only expedient by which the purchaser of an
equitable estate, or a second mortgagee, can obtain
any protection against these dangers, is by giving
notice to the trustee or first mortgagee. We have
shown the little reliance that can be placed upon
notice, and the difficulties with which it is attended,
and even when it is binding on the person in whom
the legal estate or first mortgage is vested, although
it prevents him from purchasing or acquiring a fur-
ther interest inconsistent with that to which the
notice relates, it has no effect as against a subse-
pent purchaser or mortgagee without notice.
Notice, when given to a trustee, affords greater
protection than when it is given to a mortgagee, or
person beneficially entitled to a prior estate. A
trustee who has received such notice, is guilty of a
breach of trust, and therefore personally responsible,
if he transfers the estate otherwise than according
to the direction of the person entitled to the equi-
table estate ; but it is considered that a mortgagee
is entitled to obtain his money whenever he may be
able, and therefore is justified in transferring his se-
curity to a third or subsequent incumbrancer, after
having received notice of the second mortgage. The
owner of a prior estate is entitled to sell and convey
it, and is not answerable if he neglect to transmit to
the purchaser any notice he may have received; and
therefore such estate may be obtained by a subse.
quent incumbrancer, or the owner, of a subsequent
equity.
A General Register would completely remove this
class of evils.

There is another evil of great importance, which
arises from the present state of the law as to the
custody of deeds. In numerous eases, persons in-
terested under deeds have neither the 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 obtain
partial interests in an estate, the same deeds consti-
tute the title, or part of the title, of many poisons.
These divisions must always be going on to a great
extent.

In most cases where the division of an estate
arises from contract, the party ►eho 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 are many cases, however, in which
such a covenant cannot be obtained.

'When the covenant is obtained, it is only in very
few cases that it is permanently effectual. The 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 sub-
sequent purchaser of the other lands is seldom able
to enforce the covenant. These cases depend upon
the general law of covenants, which is ill adapted to
purposes of this nature, and often gives rise to pies-
!tons of the greatest nicety and difficulty. When
the covenant is imperfect, the party interested in
the deeds is often unable to enforce the production
of them from the holder, and still oftener he is unable
to secure to a purchaser their future production.
The consequence in either case that the title is
unmarketable.

Supposing the party to be In possession of a per-
fect 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 he incapable of being used;
and there is always the risk of the loss of the deeds.
The loss of deeds, under which a party not in pot-
session of them is interested, may happen under
various circumstances. Deeds often pass into the
hands of persons who have but little interest in them;
they are frequently left with solicitors, occasionally
employed
.by some of the parties; sometimes the
person entitled to the custody of them has only an
estate for life or partial interest, and upon the deter-
mination of his interest, the person who then be-
comes entitled to the deeds neglects to call for therm
In all these cases there is a great probability of the
deeds being lost ; and, in fact, such accidents are of
very frequent occurrence. In the cases where. no

covenant for the production of deeds can be obtained,
or where n covenant is ineffectual, it was formerly
supposed that persons interested might obtain the
production of them by the assistance of a Court of
Equity; but since a late decision, the 'existence of
such a right is questionable; if it exists, the title is
still unmarketable without a covenant which Call be
enforced at law by the purchaser.
In the most favourable case, that of the posses-
sion of the deeds by the owner of the estate, they
are liable to be destroyed or lost.
The., loss of deeds, or the want of an effectual co-
venant for the production of them, prevents a large
proportion of the titles in this country from being
strictly marketable; and a great part of the delay,
expense, and litigation which attend the transfer of
real property, and which are grievances strongly felt
by all proprietors and purchasers of land, arise from
the same source.
These evils are often unforeseen by a person
when he enters into a contract for sale, and he is
then placed at the mercy of the purchaser. We
have been furnished with an instance, in which a
purchaser of a small property, finding himself en-
titled to insik upon attested copies, and a covenant
for production, which would have cost more than
the amount of the purchase-money, consented to
waive his right only on the terms of having the
estate for nothing; and, in another recent case,
where an estate had Leen sold in several small lots,.
the expellees of the attested copies, which were in-
sisted upon by the purchasers, exceeded the whole
amount of the purchase-money.
To avoid these evils, it has become not unusual
to insert stipulations in conditions of sale to preclude
the purchaser from objecting to the title on account
of the loss or non-production of deeds, or the wa►►t
of a valid covenant for production, or from requiring
attested copies, except at his own expense. It is
obvious that such stipulations may seriously affect
the price to be obtained for the estate. They like-
wise afford the means of entrapping ignorant or un-
wary purchasers, and being often prepared by per-
sons who have not sufficient legal knowledg►e, diffi-
cult questions arise respecting their meaning; this
leads to expense and harassing litigation.
The sense of these evils is so strong that it has
become not unusual with persons desiring to sell or
purchase, to decline entering into contracts until
the title has been approved ; then, if the parties
continue in the same Mill(/' the purchase is made.
Sometimes, indeed, it happens, that the acts of one
of the parties amount, without his intending it, to a
contract, of which the other may avail himself.
The existence of such a mode of dealing (which
it is obv ous must often be attended with great dis-
advantages) evidences a defective state of the law.
It may also be observed, that the want of a par-
ticular deed sometimes occasions the actual loss of
the property to which it relates. This, perhaps,
happens most frequently in the ease of incorporeal
hereditaments, and especially tithes, as to which
mere enjoyment, in many cases, does not give a
title; but 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 tinder an appointment. Utile appointment be
not forthcoming, and secondary evidence of its con-
tents cannot be produced, his heirs or devisees will
lose the estate.
A General Register may be so constituted as to
remove all these evils.

The great difficulties which occur in selling estates
and obtaining money on real security, the time
which usually elapses before the completion of such
transactions, and the harassing expenses and disap-
pointments which attend them, era evils universally
acknowledged. They are by many persons consi-
dered the greatest evils belonging to our law of real
property.

We believe it may be confidently asserted, that of
the real property of England, a very considerable
portion is in one of these two predicaments: either
the want of security against the existence of latent
deeds renders actually unsafe a title which is yet
marketable, or the want of means of procuring the
formal requsites of title renders unmarketable a title
which is substantially safe.

In addition to the evils we have detailed, we may
mention some others which would be removed or
diminished by a General Register.

It is obvious, that deeds cannot with absolute
safety be left in the possession of those who may be
gainers by destroying or altering them, and that such
possession affords a dangerous facility of fabricating
other instruments, or of giving undue effect to in-
struments, by false dates : as a man who had exe-
cuted a settlement might make a conveyance or
mortgage, and date it before the settlement.
Frauds of these descriptions, when of a nature not
to disturb present possession, may often be kept
secret, or may be concealed from the injured party
during the life of the criminal party, or until the
real or supposed witnesses, and all persons who could
prove the fraud, are dead.
It is evident that a Regi:ter would afford security
against the alteration or antedating► of instruments,
and it would, for various reasons, afford considerable
security against fabrication.

Persons having interests not accompanied with
possession of the documents of their title, have often
no means of ascertaining their rights, or none but a
suit in Equity at their own expense : this creates a
dangerous temptation to the holders of the land and
of the title deeds to keep concealed and to subvert
•
rigots thus unprotected.
On account of the ignorance of their rights in
which parties out of possession are kept under the
present law, the statutes of limitation of actions re-
specting real property, beneficial as their real ten-
dency is, operate sometimes unfairly to individuals.
A Register accessible to claimants would remove
these evils, and make a short period of limitation
more consonant to justice.
Besides the causes of litigation we have described,
there are other harassing actions and suits, such as
those relating to the custody of deeds, which would
be prevented or diminished by a Register; and in
many cases the information and evidence afforded by
a Register would lessen the expenses of litigation.
We may again allude to the depreciation of real
property occasioned by the general feeling of 'the
presentinsecurity of title, and by the apprehension
of the delay arid expense attending transactions relat-
ing to real property : it is obvious that by removing
them, a Register would have a tendency to increase
the value of estates, and diminish the rate of interest.
upon mortgages.

(JALLANTRY.__QUIN being asked by a lady
why it was reported that there were more women than
men, he replied, " It is in conformity with the arrange•
ments of nature, ,'Madams ; always see more of heaven
than earth."—liernord's Retrospection,' if the Stave.
EXECUTION. soli 111 Ult DER.—On Monday
hat Was. notion, a native of Llatillwehalarn, capitally
convicted at the Great Section held last week at Welsh
Pool, of the murder of his own father, JOHN Tinton,
was executed at Montgomery. It appeared that the de-
ceased was proprietor of the house occupied jointly by the
prisoner and himself; that in consequence of the son not
paying the rent due to the father, the latter caused a dis-
traint to be made, and afterwards served an ejectment on
the prisoner, who, in consequence, avowed an intention of
murdering his father, which threat he put in execution by
causing poison to be administered to hin. The etretelled
man, prior to his execution, confessed the crime of which
he had been found guilty, as also that be imirdead hla Oat
wife in a al all Car manuer.—Sulopion Journal.