The Sun.
London, England, 1862-02-18 00:00:00

TRANSFER OF LAND.

The LORD CHANCELLOR said—l rise to claim your
lordships' indulgent hearing for a few observations I am
desirous to submit, that your lordships may be enabled to
follow with greater facility the provisions of a Bill on the
transfer of land that I propose'to lay before you. A mea-
sure more important to the landed interest has never been
presented to Parliament, and therefore it is that I have
been desirous it should originate in your lordships' house,
not only because it is largely interested in the question, but
because it includes so many competent to discuss it, to con-
sider and weigh it. I wish the question to be accurately
stated, and that the measure should be most deliberately
considered ; and then, should it be thought worthy to receive
your lordships' approbation, it will go down to the other
house with greater authority and a greater claim to conside-
ration. The measure is one to give a certainty of title to land.
The word title here is not intended to signify the possession
or enjoyment of an estate ; it is intended to indicate that
evidence which it is incumbent on the owner of an estate to
produce, according to law, when he makes that estate the
subject of a sale, mortgage, or distribution. According to
any system of natural law the possession and enjoyment
would be a sufficient title, or evidence of the right of pos-
session; but the mere possession and enjoyment of a real
estate are no evidence of a right to dispose of it. With any
ordinary subject of property the actual possession, either by
yourself, or by another from whom you have derived it, is
accepted by the law ; but in the case of a real estate, to
which you have been entitled for 10 or 12 years, or which
was bought 10 or 12 years ago from a former owner, if you
seek to sell it the question is, how did that former owner
acquire it P The answer is, perhaps by will, 10 or 12 years
previously ; but the exigency of the law is not even then
satisfied. It requires to know how that owner came into
possession of the estate, and the inquir3 goes back by requi-
sition on requisition until it has exhausted the whole period
of 60 years, during which yourself, or those from whom yet
claim, must not only have had a beneficial enjoyment and
possession, but must account for every transaction, and ex-
plain every disposition and act of ownership, and show that
during this period nothing has occurred that can, by any
possibility, interfere with the present title. Now, this
is a great evil. I know not that anything similar exists
under any other system of jurisprudence. It is a great
hardship, and how has it been created ? It has been created
by the infirmity and imperfection of the law; it has been
created because the law has provided no mode of giving cer-
tainty to a title ; it is the result of having no system or
institution by which the title to an estate can be recorded
with certainty. Therefore, these obligations have been
thrown on proprietors simply for the want of something
that would more easily, more perfectly, and more economi-
cally demonstrate the right and title of the individual in pos-
session. When the particular limit of 60 years was first pro-
posed the rule was probably adopted, because that period is
so long that, ordinarily speaking, all the transactions that
may occur in two generations might be supposed to be in-
eluded. But nothing in the world can be more fallacious
than this rule ; your lordships will perceive it by an ex-
ample. Suppose a title is produced in 1862, commencing
by a purchase made in the year 1802. It may happen, and
it may most easily happen, that the individual of whom
the estate was purchased was a young man of 23 years of
age, and who may live more than 60 years after the sale.
On his death it may be discovered that in 1802 he was only
a tenant for life of the estate under the will of his father;
and on his death the purchaser may be surprised by finding
that acme other person is entitled to the estate. Then, not-
withstanding these difficulties of satisfying all the requisi-
tions of the inquiry into the title, the purchaser would be
turned out of his possession; on the death of the seller an.•
other person is actually the legal possessor. Fifty other
cases might be adduced for the purpose of conveying this
conclusion,—that injurious and oppressive as the rule is it
fails to accomplish its object and is capable of being easily
eluded. But the great oppression thrown upon owners of
real property in being obliged to make a title for 60 years
might be more easily performed if the state of the law were
easy and simple in itself. Bat lam sorry to say the origi-
nal simplicity of the common law has become very compli-
cated and intricate, entirely from the vast variety of interests
called into existence, and which have now fastened them
selves on the land. Thus in proportion to the extent of the
interests which have been created in the land is the diffi-
cult 3 of deducing them down, and of explaining the manner
in which they have ceased or have become vested in the per-
son under whom the vender claims. Now, in the original
state of our law nothing could be more simple than the title
to real estate. The transfer of real property took place in
the most open manner—generally before the Earl's or the
Sheriff's Court, when a feoffment—that is, a conveyance— .
was made, accompanied by a symbolical delivery of the pro-
perty in the presence of the assembled freeholders, who were
witnesses of the transaction. Then, in truth, property and
possession were seldom divided from one another, because the
commonlaw, generally speaking, admitted only of suchmodi-
fications of ownership as were indicated by tenancy for life
with remainder to another. The tenant for life was the indivi-
dual in possession, and the remainderman was in possession
in the eye of the law. Thus all transactions were carried on
with great simplicity. But then a device was found out
which introduced great complexity and difficulty. This device
was torrowed from the civil law, and by it, in the language
of lawyers, the use was severed from the possession—that
is, one man might be the visible and common-law owner,
another being the beneficiary ; one man was regarded as
holding "to the use" of another, and thus the use, or the
beneficial estate, became separated from the common-law
ownership. Great difficulties resulted from this introduc-
tion of a secret system of uses, and accordingly Parlia-
ment came to the aid of the landed interest by a Statute
passed in the reign of Henry VIII., and called the Statute
of Uses. By this statute it was enacted that the possession
and the use should always go together—in other words, that
there should be no difference between the visible and the
actual ownership, and that the one should always accompany
the other. This was the step taken, after great considers-
tion, in order to redress the evil which had grown up, and it
was supposed that the statute would annihilate this evil. I
am sorry to say that the object which Parliament had in
view was defeated here, as in many other cases, by what I
may be permitted to call the pedantry and narrow-minded
interpretation of the judges of the land. You will find that in
the English law nothing has been more fertile of results to be
regretted than the attachment of our lawyers to the mediaeval
doctrines—the pedantries and puerile metaphysical disqui-
sitions—which distinguished what was called the learning
of the time. Accordingly, the judges held that, although
the statute transferred the possession to the use, yet if the
form of the deed created two successive uses—that is, if
land was given to A, to the use of B, to the use of C—the
statute executed only the first use and left the other un-
affected. This, of course, left the evil in all its integrity
and opened the door to the entire evasion of the statute by
the simple introduction of three words grafting a use upon
a use. It is hardly possible to conceive a more puerile .
de-
vice for the purpose of preventing the beneficial operation
of the statute. The result was that we had the legal Belem,
then the use, and then a second use is grafted upon the first,
which was held equivalent to a trust. Thus there arose
Worse state of things than before, for, instead of annau"