The Sun.
London, England, 1832-03-12 00:00:00

THE REGISTRY BILL.

4 LETTER on MR. CAMPBELL'S REGISTRATION BILL
to a MEMBER of the SPECIAL COMMITTEE.
SlR,—The circumstance of your being a Member of the Spe-
al Committee on the M. Registry Bill, and the invitation
:iven me to express an opinion on the plan of local registry,
Induce me to trouble you with some observations on the subject.
I admit my liability to professional prejudice—some tenacity
.f opinion—and entire removal from any means of hearing the
rgurnents of the favourers of the measure. At,the same time,
ay connection with the subject gives facilities for considering
the probable workiags of the new system, and renders it natural
!hat they should be employed. I do not pretend to do more
than moot considerations which appear to me to have weight :
for, of so important a measure, so advocated and introduced,
7annot venture to say more than that I share the common ap-
prehension, and am not yet ripe for it.
You mention that the question of district, instead of central,
registration is being discussed in the Committee.
If the principle of some plan of registration be carried, anti
it be a mere question between local and metropolitan registra.,
tion, the manageable compass of a local registry—the facility of
personally consulting it in exigencies—the means, on s:lecial
emergency, of greater despatch—and the power (not the neces.
sity) of transmitting documents specially by messenger, instead
of by public and irresponsible conveyance—are qualities whirli
the local plan possesses, and the central scheme is necesrarily
devoid of, and which would lead one to give a preference to local
over central registry. I take the latter plan to be a novelty in
the experience of the world, though the former prevails gene-
rally out of England.

Another topic of detail, whichever plan be recommended,
of great importance, is the matter to be comprised in the regis.
Mr. Campbell's plan embraces the entire contents of 511
assurances relating to real estates. The Acts now in operation
in the Ridings and Middlesex expressly excepted leases at rack,
rent and leases for 21 years, and, perhaps, by construction, as.
signments of them; they did not require exe^utory assurances,
such as agreements, to be registered; and they only prescribed
a memorial, describing date, parties, and parcels, and not a dis-
closure of the nature or other contents of the instrument.

The objection to the burthen of the registry would be ditnt.,
niched if leases and agreements were expressly, or by construe.
Lion, not interfered with ; they are innumerable; the Corpora.
lion of Liverpool has extant 6,000 leases of houses in that town.
The other point is, a memorial, or the whole deed ?

A memorial is sufficient for the principal object,—thepreven-
tion of fraud by suppression—as well as for the further purpose
of saving the expense of assigning attendant tertrl as a pretee_,
tion against concealed incumbrances : but then the relistration
of the whole contents would supersede the necessity and expense
of covenants, from the holder of the deeds, to produce, Sic.
This is a most trifling consideration ; in twenty occasions out of
twenty.one, this covenant (which is as eff,ctive and perfect
when comprised in a few lines, as when extending over a skin
of parchment) is inserted in the conveyance of the land, &c., by
a very few words being added at the end of the exec!, and then
occasions no expense whatever. It is proper, in large pur.
chases, to have this covenant in a separate deed ; but such oc-
casions are comparatively few in number, and the parties to
them had better sustain the expense of a voluntary luxury (for
so a separate deed is) than be the source of burthen to the corn,
munity at large.

The foregoing are the two great topics belonging to detail;
but the occasion of this letter is a consideration which affects
the principle of the Bill, or rather its necessity, and which I am
very desirous should be candidly investigated. I have urged the
point a variety of ways, and in a variety of quarters, and I never
met with an answer to it. .

The consideration alluded to is, whether an alteration in the
present rule of the Court of Chancery respecting the title-deeds
to an estate—giving increased value to the custody, and making
the strong-box of the title-deeds the registry of all transactions
legally binding the fee, would not supersede the necessity of a
registry.
Bacon has a maxim that a party enabling another to CommiZ
a fraud is answerable for the consequences ; and the ancfent
lights of the Court of Chancery deduced from it that a second
incumbrancer (mortgagee or purchaser), who has the title-deeds,
of course without any notice of any prior incumbrance, should
have preference over the prior incumbrancer, who had omitted
to take title-deeds, and thereby enabled the mortgager to Com-
mit a fraud. But the authority of Lord Eldon is opposed to
that of his great predecessors, and the moderns are bound by it
as the later decision.
Buller, in 1787, states the old rule in the following words
" It is an established rule in a Court of Equity, that a second
mortgagee, who has the title-deeds, without notice of any prior
incumbrance, shall be preferred ; because, if a mortgagee lends
money upon mortgage without taking the title-deeds, he enables
the mortgager to commit a fraud. If this has become a rule of
property in a Court of Equity, it ought to be adopted in a Court
of Law. Here the defendants took mortgages without inquiring
after the title-deeds; the subsequent mortgagee is a purchaser
without notice ; and, as he has taken the title-deeds, he has the
better title."

But subsequent Equity Judges, especially Lord Eldon, found
" that the doctrine of Mr. J. Buller is founded upon error."
At the same time his Lordship adds (Evans v. Bicknell, 6 yes.
190), " I should have been glad to have found the rule esta-
blished in the Court the other way :" and, again, " Such a rule
would avoid a great deal qffraud in mortgage titles ;" (or other
occasions of purchase) " upon which this observation arises,
that no man can tell when he is perfectly secure. But there is
riot such a rule."

It appears to me that if the rule, as laid down by Buller,
which formerly prevailed in this country, could replace the
modern and faulty one, the case in support of the necessity of a
registry would be ♦ery much weakened.
I am quite aware that instances may be found in which, from

the circumstances of the ownership, the party claiming the
?state may honestly be without the custody of the deeds : the
Real Property Commissioners, in their report, have elaborately,
,Jut not very successfully, sought far instances of this sort
the occurrence of such exceptions is admitted, and in framing
a rule there must be some provisoes to meet such instances.

The Real Property Commissioners say that the heir-at-law,
if he get the custody, may suppress a will, giving him only- a
limited interest : but where a title is by descent, proof must be
;iven of intestacy, and the proof required by conveyancers is
eroduction of letters of administration. If a person will corn-
.nit perjury—will wade through crime, he may take away life;
out, against such contingencies, human provision is all that
can be made, and is generally found sufficient. In such a
ease, increase the " onus " of proof—although the present is
in practice sufficient—and you do all that is practicable :
" non constat " that, if the fraudulent heir can suppress the
will, he may not also, having but a limited interest, enjoy as
heir, and keep the will, "curtailing him of his fair propor-
tions," from the registry.
Tkese cases of exception might further be guarded agniest
by making this description of fraud as penal as swinaliing of a
more vulgar and less hurtful description.
Legislature might require incumbrancers to endorse notices
of their mortgages,&c., on the deeds, and rut the holders un-
der an obligation to allow them to do so; which notice would
ie binding on all subsequent buyers er lenjets, and put an end
:o the iniquity (where it is a question of who is to have a plank
n a wreck) of" tacking "—and of a first and third mettgageo
" squeezing out" the second; which are the passes, smacking
amazingly of Newgate or the Hulks, forming part of the techni-
eal vocabulary of the Court of Chancery, in describing certain
transactions not particularly redolent of natural justice or equity.
I should be prepared largely to conceste, if it were shown that
•so rule could be devised adequate to the end in view : but my
?resent opinions lead me to submit that the old tole of the
i2ourt of Chancery, as stated by Buller, with iOMO special pre.
vision to meet the few anomalies that exist of partiee being ho.
aestly out of possession of the deeds, would remove the neces.
city for so cumbrous a thing as a general registry.
Before concluding, I must not omit observing that a registry
can have nothing to do with simplifying or shortening the
forms of conveyancing, nor with diminishing the occasion for
my but assignments of attendant terms and covenants for pro.
duction. An improvement in this department of the law bee
lately received a mighty impulse. Hurnpliry, Hayes, Cornish,
and Coventry, have each published most concise forms of great
excellence and ability, and have done all that is practicable to
reform this department without legislative assistance ; and, on
all the great points required, aid is being rendered there on the
recommendation of the Real Property Cemmissioaers. The
:imitation of Real Action's Bill is a great stroke, as simplifying
and shortening titles: the Fines and Recoveries Bill remedies
t notorious abuse : further, the ChancePor of the Exchequer
should give up the lease for a year, which taxes the public not
only the stamp used, but also the composition and writing of
❑seless nonsense—preserved purely from finance considerations.
Conveyancing reforms are pregressing in a tide of great
volume, and, I believe, with the full approbation of the bar ann
he profession generally; but the M. Registry Bill is a birth of
the too teeming waters, which is not so favouratly regarded.
Members will doubtless be sufficiently pestered by profcs.

donal zeal : if, in making one cf the chorus, and " expending
.ny tediousness on you," (as Dogbcrry has it,) I am contending
against a valuable improvement, I find an excuse in the fact
hat it does not at present appear to me in that light. I have
further doubts whether the example of other countries is an
authority for even local registration : lam not aware that the
extraordinary distinction between uses and trusts—between
legal and equitable interests—and the jurisdictions of Courts of
Common Law and Courts of Equity which these differences
anet_have any expiple out of Great Britain. lam more in-
-lined to oust the Nurt of Equity out of its jurisdiction ovc-

land than to foster its extension ; as a registry, by enhancing
the value of the equitable title, is calculated to do. Good law
reform, in my view, would be that which would oblige the
equity jurisdiction to give up its usurpations, to disgorge its
robberies, and to recede to its old limits; which would occasion
the cheaper and snore practical common law institutions, where
facts are inquired into in an open Court, to converge. The
Chancellor has always been a political ss well as judicial
officer; and, sometimes by open violence, and generally by
stealth, and an authoritative construction in favour of the en.
largement of his own jurisdiction, the Court of Cha;lcery
grown into the mighty incubus which even a Brougham feared
would master his restless energies. But this is too large a sub.
~ct to be more than alluded to.
Begging you will make the largest allowa.'oco you can for
croubling with so much at length.
I am, Sir, very reipectfullY,
Your faithful and obedient servant,
T. 15,

Etle!ford, March 3, la)?