HL Deb 20 July 1858 vol 151 cc1773-82

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into a Committee.


said, that before the House went into Committee, he wished to address a few words to their Lordships. As they were all aware, this Court was originally established at a time when Ireland was in great distress, and that that country had experienced the greatest benefit from a tribunal which had enabled the owners of incumbered estates to give such a title as rendered them marketable. It was now by this Bill proposed to extend the powers of the Court to estates that were not incumbered. He protested against the establishment of any such principle. But whether it were right that the State should enable a vendor to give an unimpeachable title to a purchaser or not, certainly a court of this kind ought to maintain itself, for it was not a court for the administration of justice, but whose object was to furnish good titles to land. He wished to ask, whether under the present Bill it was proposed that the Judges should themselves investigate the titles, whereby, as regarded the professional investigation of titles, the whole bar of Ireland would be thrown over, or that they should merely superintend the matter, and that a conveyancer should be resorted to, to say whether there was a good title or not? By the present Bill, a person was empowered to go into Court and demand that his title should be investigated. Such a system was very different from the principle of the laws of England and of Ireland—a great object of both laws being to take care that a man's estate should not be taken away from him behind his back. When he, for the purpose of facilitating the transfer of land, asked their Lordships this Session to shorten the period of limitation with regard to titles generally to thirty years, they were perfectly shocked at the proposal to bar all adverse claims to an estate on the expiration of so short a period. But what would become of the existing salutary limitation when this Bill passed? The statute that gave that limitation would become mere waste paper, and might be thrown into the fire. Under this Bill a man would go to the Court and ask for a title. He would pay the duty, and obtain a certificate which gave him a good title; but having got it, instead of selling, he kept the estate. Some time afterwards a claimant turned up whose title was clear and unquestionable beyond all doubt. If this Bill became law, however, his claim would be barred in five minutes, for the other person would produce his certificate, which would be a good title as against all comers. He must say, that such a provision would revolutionize the whole law of property, and, although he had no doubt that the Bill would pass, he solemnly protested against the interference with private rights which it would sanction, without the slightest necessity being shown for the measure. He much regretted that Ireland was always made the subject of exceptional legislation. The same laws which obtained in this country with respect to property ought, in his opinion, to prevail in Ireland also; for so long as the practice of exempting Ireland from general legislation was persisted in, so long would she continue to stand in an isolated position with regard to the laws of property, which if they were good for England were, as a general rule, good for Ireland also. Objecting, as he did, most conscientiously to this measure, and regarding it as a mischievous attempt to subvert all the rights of property, he should take no part in any endeavour to improve it in Committee, but should content himself with this simple protest against the further progress of the Bill.


said, he was sorry he had not been fortunate enough to hear all that had fallen from his noble and learned Friend, inasmuch as on a subject of this kind his noble and learned Friend's advice would be invaluable. He would, however, take this opportunity of explaining to their Lordships the nature of the Bill. It might be described generally as a Bill to facilitate the transfer of land, and to simplify the title to land in Ireland. For many years past there had existed the greatest desire to discover some plan by which land might be transferred without the necessity of going through the long and tedious process of reinvestigating the title from a very early period—some mode by which "a Parliamentary title," as it was termed, might be conferred upon the purchaser, which might serve as a kind of terminus from which only it would be necessary to proceed in any future investigation of the title. Various schemes had been devised for this purpose; but ultimately a state of things arose which made it imperative that some proposal should be brought into practical operation. In the year 1849 a large amount of land in Ireland bad become so deeply incumbered that it was quite impossible for the owners to deal with it at all, or to perform those duties which ought to be discharged by the owners of property. In this state of things the Legislature took a bold and decided step, and they passed a Bill establishing a Court for the sale of Incumbered estates. It was apprehended that by forcing on the market a great quantity of land the value of land would be depreciated, and in order to counteract that and to hold out a bounty to purchasers, a Parliamentary title was conferred upon the purchaser, beyond which it would be unnecessary to go in dealing with the property at any future time. The wisdom of the measure was proved by experience, for it was found that, in consequence of the Parliamentary title that was obtained, four years' additional value on the average was obtained for the land sold under the Act. Property to the amount of millions had passed through the Court, and he believed that only one complaint had been made of any improper dealings with the title, or of any acts prejudicial to the rightful owner. In many instances the owners of unincumbered estates created incumbrances in order to obtain a sale through the medium of the Court. The working of the Court had been subjected to the ordeal of a Royal Commission and of a Select Committee of the other House, both of whom recommended that its powers should be extended, and that instead of dealing with incumbered estates only, it should have the like power of dealing with unincumbered property, and giving a Parliamentary title. His noble and learned Friend (Lord Cranworth) acting upon the recommendation of the Committee of the House of Commons, introduced a measure during the present Session, which received the sanction of their Lordship' House, and was sent down to the House of Commons. The object of that Bill was the same as the present — there was a difference only in the machinery — his noble and learned Friend proposing to give the business to the Court of Chancery while the present Bill proposed to establish a new court on the model of the Incumbered Estates Court to deal with the subject. Their Lordship might be said to have given their sanction to the principle of the measure — the giving a Parliamentary title to the sale of unincumbered estates, and therefore he anticipated the support of his noble and learned Friend to this Bill. There was a portion of the Bill, however, which went further than the Bill of his noble and learned Friend, as to which it would be necessary for him to say a few words. An inquiry was instituted in the year 1857 into the question of registration of title. The Commissioners who reported on this question recommended that there should be established a judicial investigation of title, giving to the owners of unincumbered estates the same advantages as were possessed by the owners of incumbered estates. This would complete the measure and put both the two classes of owners on the same footing; for, as he had already stated, the advantages of a Parliamentary title were equivalent to four years' purchase; unless a similar provision were made the owners of unincumbered estates would be under this disadvantage, that if they wished to sell their land they went into the market with their estate depreciated in value as compared with the owners of incumbered property. Ireland possessed very great advantages and facilities for the investigation of titles, which were not possessed to the same extent by this country. There were Registration Acts in Ireland, under which every deed must be registered, whether it were of a sale, a transfer, or an incumbrance. These registers enabled any one to see what was the course of the title. But it might be said, perhaps, that a fraudulent owner might obtain an unjust judicial decision in his own favour, by concealing a deed which would be evidence against the party entering into such investigation, but against no one else. Fraud would continue, if possible, to evade or overcome every contrivance that the wit of man could devise; but there would certainly be this security, that however easily perpetrated in the case of a private sale, there was less danger of it in the case of the publicity which attended the proceedings of this Court, where there must be notices, advertisements, and every precaution which human ingenuity could devise against its perpetration. He asked why should this advantage be given to a purchaser and not to proprietors of land? It might be said what would prevent an owner of land from making a sale to a trustee in order to obtain the value of a Parliamentary title. But why should the owner of land be put to this circuitous mode of obtaining this advantage? What danger could there be in allowing a judicial investigation of unincumbered estates of the same description as that which had taken place with regard to incumbered estates? He understood his noble and learned Friend (Lord St. Leonards), the whole of whose argument he (the Lord Chancellor) was unfortunately unable to hear where he sat, to object altogether to that part of the Bill which related to unincumbered estates, and, as he presumed, to that which related to a judicial title. He understood his noble and learned Friend also to object to the arrangement which had been proposed for defraying the expenses of the Court; but it must be remembered that the calculations upon which it was hoped the Court would be self-supporting were founded upon this part of the business of the Court; and if this class of business were removed from the proceedings that source of emolument must fail. The only objections, as far as he understood, were on the 51st clause of the Bill—a clause which had been inserted on the recommendation of the Commission, and which appeared to him to be a necessary completion and complement to the measure he was then proposing to their Lordships. He had considered the measure very carefully since he had learned the nature of his noble and learned Friend's objections, and he felt perfectly satisfied that it was a measure which it was very desirable for their Lordships to adopt, and therefore he should take his stand upon the clause which he supposed would be the battle-field between his noble and learned Friend and himself.


said, he believed it to be unnecessary to assure their Lordships that the Bill with some Amendments would have his most cordial support, since it was substantially the same in principle as the measure which he had the honour to lay before their Lordships early in the present Session, and which passed their House by a majority of one. No doubt there were objections in theory to the original constitution of the Incumbered Estates Court. It might be said that in selling an estate under the supervision of a tribunal they were running the risk of overlooking the right of some one not in possession, who, when the estate was sold and the money paid away, might be deprived of the rights which the law ought to have protected. This was the objection in theory to an Incumbered Estates Act, but it was entitled to very little weight. The fact was that a great deal of land in Ireland was held under such enormous and complicated incumbrances that the owners never had the means of performing the duties of proprietors. After the Incumbered Estates Act had been in operation with the most beneficial results, it was found that estates with a Parliamentary title sold for so much more than others, that the more prudent portion of the landed proprietors of Ireland, who had managed their estates well, had to sell them at a disadvantage, because they could not give a Parliamentary title. This state of things was pressed upon him in the first year of his acceptance of the Great Seal, and with the consent of his colleagues he issued a Royal Commission. The late Lord Chancellor of Ireland was at its head, and amongst its members were Lord Justice Blackburne, Chief Justice Monaghan, the Master of the Rolls for England, Sir Richard Bethell, the present Solicitor General, and Mr. Commissioner Longfield. They found that in principle there was no season why unincumbered estates should not be as safely sold with a Parliamentary title as incumbered estates. They therefore recommended that the distinction between them should cease, and that the tribunal should have the same power of giving an unimpeachable title to incumbered and unincumbered estates. The only question was as to the machinery by which the recommendations of the Commissioners should be carried out. For his own part, he preferred the machinery of the Court of Chancery, and thought that if they constituted a new Vice Chancellor's Court for this class of cases it would act with all the weight of the Court of Chancery, and do away with the necessity for the reference to that Court which now existed; and this proposal of his was strictly in accordance with the views of the Commissioners. When, however, he looked to the provisions of the 51st clause, he must say he considered the measure was so far one of unmixed mischief. He could scarcely hope to change the opinion of his noble and learned Friend (the Lord Chancellor), but he felt bound to express his opinion. The proposed power of giving an owner a right to apply for a declaration that his title was indefeasible, could have no other effect than to defeat the rights of third parties; for what honest purpose could a man who intended to retain possession of his estate ask any tribunal to say that he had a title which nobody could touch? Whenever he wanted to sell, the Court, would have power to give a Parliamentary title to purchasers, and that was all that was required to make his land fetch its highest value in the market. If he intended to retain the possession, his only object in asking for a declaration of title must be to defeat dormant rights. In the Bill which he (Lord Cranworth) had introduced, he proposed that the money should be distributed by the Court; and if any portion of it was paid over in fraud of a third person, the party receiving it should be held to be a trustee for the person rightfully entitled. He believed the new power given by the 51st clause wag calculated to produce evil without any corresponding advantage, and so that it was calculated to damage the Bill and affect its popularity. That was, however, the only portion of the measure to the principle of which he objected, although he disapproved of some minor details. He should, of course, not object to going into Committee, but he feared there would be little use in his dividing against the 51st clause.


said, it appeared to him that this Bill differed very materially from the Incumbered Estates Act, inasmuch as that Act only gave power to sell one particular kind of estate; but this Bill enabled proprietors to dispose of unincumbered estates, and also enabled them to do so without having any intention of selling, but for the purpose of obtaining a Parliamentary title. The Bill went beyond the Incumbered Estates Act, and, so far, he disapproved of it. There was to be a charge of £1 per cent payable to the Court on the value of an estate before a Parliamentary title could be obtained, and he asked how was that value to be ascertained, as the value of land varied in Ireland from five to ten years' additional purchase according to the county in which it was situate. He confessed he thought it would be far better to leave the 51st clause out altogether.


said, he did not think a landed proprietor, animated by the natural desire to hold that which he was justly and legally entitled to, could be fairly chargeable with the design of injuring the right of any other person by going to the Court for a Parliamentary title under the provisions of this Bill. In another view of the case, it was important that facilities should be given to persons in possession for raising money for the improvement of their estates; but, as the law now stood, parties declined to come forward and lend money for that purpose in cases where the title was in the least disputable. He had formerly been opposed to the facilities being increased for the transfer of land from hand to hand; but he had of late years witnessed so much of the good effects arising from estates in the west of Ireland changing hands that his opinions in that respect had been considerably modified. Where such changes had taken place they had generally been from hands which were utterly incapable of improving the land to those under which it had become fertile, and now afforded an example of the progress of agriculture in Ireland. He was happy to hear that the general tenor of the Bill had been approved by the noble and learned Lord opposite (Lord Cranworth), and he looked forward to the great advantages which would result from its passing into a law.

Motion agreed to.

House in Committee accordingly.

Clauses 1 to 50 agreed to.

Clause 51.

On Question, whether the said clause shall stand part of the Bill?

The Committee divided:—Contents 29; Not-Contents 10: Majority 19.

Resolved in the Affirmative.

Clauses 52 to 67 agreed to.

Clause 68.

THE EARL OF DONOUGHMORE moved an Amendment, relative to the appointment of rent over the land, or charging the whole or any part thereof; and making such appointment binding on the Crown and every corporation or person.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 69 to 88 agreed to.

Clause 89, which empowered the Lords of the Treasury to invest from time to time unproductive cash, being the proceeds of sales lodged in the Bank of Ireland under the provisions of the Act.


inquired why this power should be voted in the Lords of the Treasury, instead of being exercised by the heads of the Court in the same way as similar funds were dealt with in other cases?


said, that in the first instance all the expenses of the Act were charged upon the Consolidated Fund; but, on the other hand, all the receipts arising out of the Act were to be repaid to the Consolidated Fund in diminution of the original outlay. The unproductive balances lying in the Bank of Ireland were sometimes very large, amounting occasionally to as much as £1,000,000, and it was the duty of the Treasury, as the guardians of the Consolidated Fund, to see that those balances should be properly invested.

Clause agreed to.

Remaining clauses agreed to.

Report of Amendments to be received on Thursday next.

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