REMARKS Co it ON THE 1 l A I.T.S LAND TRANSFER. QUESTION: WITH % SRcirjr uf a plan FOR A GENERAL REGISTER. BY F. HO ARE. COLT, OF THE INNER TEMPLE, BARRISTER-AT-LAW. DEDICATED, BY PERMISSION, TO THE LORD CHANCELLOR. [ Reprinted (with Additions and Alterations') from Articles in the Law Journal.] LONDON : H. SWEET, 3, CHANCERY LANE, FLEET STREET, ITafo §oohdkx mtb piulilts^r. 1873. mid LONDON : PRINTED BY C. ROWORTII AND SONS, NEWTON STREET, W.C. .XT CG5X :>rf £ LAND TRANSFER. The demand which the public make, and the attainment of which would be a great increase of the national wealth, may be very shortly stated. It is, that when the owner of land brings it into the market for sale or mortgage, he should find as little difficulty, and, within certain necessary limits, as little expense, in effecting his object, as the owner of stock or any chattel. Apart from the necessary expenses attending identification of the subject-matter of the sale, there does not seem any valid reason whv a close of land or a house should not be as «/ easily sold and transferred as a sum of consols, and it will be the object of the present writer to show that this can be done by proper legislation combined with the lapse of time. The reason why legislation has hitherto failed in producing a thorough and national measure, by which is meant a measure that will necessarily be active on the occasion of every future sale, mortgage, settlement, or death, appears to be, simply, that too much is attempted. a 2 QiY ( 4 ) The advantage is offered at a price so great, and a risk so perilous, that scarcely one in a thousand landowners will accept it. Take, for instance, the existing machinery for registration of land with an indefeasible title. Is it probable that the owner of land, with a fairly marketable title, will go through the process ? He knows that if he wants to sell, he can do so under a special contract or conditions of sale, which do not, he thinks, appreciably reduce the price. No doubt the expense is considerable, and a very serious evil, but it is far less than if he endeavours to register under the statute. Why ? Because the statute cannot bar any outstanding claim without a full and exhaustive investigation. Be the claim good, or, as in the vast majority of cases, wholly unsubstantial, still it must be con- sidered and disposed of, and the process inflicts a serious loss on the landowner, which it is idle to suppose he will incur for the public good. The result of course is, that he sells, puts the money in his pocket, and leaves the purchaser to do the same on a future occasion. But the difficulty of passing any Act of Parliament to abolish or curtail vested rights is, and ought to remain, insurmountable. It is impossible to pro- vide for compensation, and without compensation such an Act would never pass. The registration of statutory titles is so limited in its operation by this difficulty, that it will never produce national results, and these are precisely what the public demand. The imperative necessity is, ( 5 ) that any measure to produce an adequate result must be compulsory, and must be so framed as ultimately to produce a national effect. What, then, is the deduction from the facts ? You have an inherent difficulty beyond legisla- tive remedy, unless you so legislate as to prevent future complications and to leave these outstand- ing claims or defects of title to expire by lapse of time. This they will certainly do in ninety-nine cases out of a hundred, — perhaps a truer propor- tion would be 999 in 1,000. Conveyancers are familiar with the class of objections, which, if not precluded by conditions, occasion a vendor vast expense, and they also well know how sel- dom a title is really bad. Five, ten, fifteen, or twenty years will commonly completely cure the defect, which, left to itself, will expire, frequently because no claimant will venture to incur the risk of costs, or still more commonly because it is not of such a nature as to be capable of pro- ducing a disturbance of the beneficial enjoyment of the property. And when you are passing a national measure to produce results so immense in their importance, surely the delay of even twenty or thirty years in the full realization of the benefit is not a high price to pay ? As it is, the attempts at reform have extended far over this period, with results very inadequate, simply because reformers have tried to do at once what is beyond their power. And it seems only too probable that if the course of attempted reform ( 6 ) remains the same, the results will continue to be no greater. We repeat then that the efforts to simplify title and transfer have hitherto failed, because the true distinction between what is just and feasible and what is unjust and impracticable has not been borne in mind. A compulsory measure for sifting and registering all titles is imprac- ticable, because unjust. A compulsory limited registration of the devolution by transfer, death, or bankruptcy, would be alike just and practic- able. There are two main questions — land transfer, and indefeasible title. They are, no doubt, closely united, but in order to produce practical results they must be kept distinct. If you could start with indefeasible titles, land transfer would be very simple, and might continue so if the register were properly guarded so as to prevent accruing defects. But, as it appears impossible to start with indefeasible titles, it seems our only course to endeavour to simplify transfer, so as ultimately to produce indefeasible titles. The matter is not very difficult, and the writer be- lieves that patience and a proper Registration Act will infallibly solve the problem. If you can succeed in making and keeping the register simple, and if you make it conclusive for purposes of transfer, it is merely a question of so many years elapsing, before the title of the registered owner becomes indefeasible. Now the ( 7 ) gist of the whole matter is, that the register must be kept simple, and must be confined to what it ought to be, namely, the incontrovertible evi- dence of transfer, whether by sale, mortgage, settlement, death, or bankruptcy. A general register of all limitations must above all things be avoided, because, if this be permitted, no title will ever be simplified, and the best possible title, if attained, will again rapidly become un- wieldy and complicated. No system of general registration can meet this evil. It merely pro- vides some additional security, but at a vast expense of additional trouble. Expense, how- ever, is not the fatal objection. This resides in the fact that if you were to start with a title clear as daylight, and permit a general registration of all dealings, in twenty or thirty years the title would be as bad as ever. Many unprofessional writers seem to imagine that legal expenses and difficulties are the pe- culiar prerogative of land alone. Of course, all lawyers know better. There is just as much complication and intricacy attending settlements and wills of stock and personal securities as of land, and probably far the greater amount of money is spent in administering the former. But the public do not complain so long as they can go into the market and buy stock at a small percentage. Logically therefore they cannot complain, if a measure can be devised by which they can buy or mortgage their land on like terms, leaving settlements, wills, and trusts ( 8 ) generally, to remain outside the machinery for effecting sales or mortgages. It is the object of the present remarks to show, that the true solution of the problem is to be found in the establishment of a compulsory general register, with the exclusion from the register of the complicated class of limitations which may be designated by the general term of settlements. A general register without such exclusion has already been tried in Middlesex, and found wanting, the reason being that you do not simplify title, but on the contrary only add to the difficulty, by putting every compli- cated interest on record. If a general register is to be effective, it is absolutely necessary so to regulate the action of the register, that it shall not itself become a means of additional compli- cation and confusion. If the present freedom of dealing with land is to continue, and if settle- ments, wills, and other limitations of the beneficial ownership are to remain open to all owners, it is necessary for the public good, at least to enact that no such dealings are to be put on the register. Unless this be done, all titles must, at no distant period, again become involved ; and the lapse of time which frees them from existing defects will again load them with other similar burdens. It seems to the present writer that there is only one way to avoid this difficulty — namely, by drawing a hard and fast line as to what assurances and devolutions shall be admitted to ( 9 ) registration, and what excluded. The register should be made the absolute and sole medium of transfer on the occasions of sale, mortgage, settlement, lease, bankruptcy, or death ; whilst all other dealings should be left to take place outside the register. Such a distinction is an absolute necessity if the proposed end of making the register a simple record for the purpose of sale, like the bank books, is to be ever realized. And here, again, the owner of land can have no right to complain if, like the owner of stock, he is by statute compelled to make all limitations wholly subordinate to the right to transfer. Indeed, this is only what every owner at present, and every conveyancer, tries to effect in a clumsy and roundabout manner. By the power of sale in a settlement, mortgage, or will, there is a per- petual struggle to render all other limitations of the ownership subordinate to the right to transfer. The second mortgagee is at the mercy of the first, the cestui que trust is at the mercy of the trustee, and no one cries out about the hardship. Why should people complain if the same thing is done, and done simply and effectively, by statute, making the register the only absolute evidence of the right to transfer ? The transfer of the legal estate on the court rolls of a manor where trusts are kept off the record of title, affords a pregnant illustration. Let any one regard the brevity, even under existing disadvantages, of an abstract of copy- hold title to the bare legal estate, and say ( 10 ) whether our ancestors did not possess a clearer insight than ourselves into these matters. If owners desire the luxury and convenience of retaining their powers to create complicated limitations of land, they ought to be compelled to make them subject to the right of transfer freed from all these hindrances. Let a trust of land be made neither more nor less than a trust of stock. In framing any measure for a general register simplified by the exclusion of settlements, it is to be borne in mind that we have to deal with a system of land tenure which has already produced an immense number of existing complicated es- tates and interests. Two things have to be dealt with — first, the conveyance and devolution of exist- ing estates — secondly, the creation and transfer of all estates in future. The first object, therefore, must be to get all existing estates put upon the register, in order that all the land in the country may become subject to the future statutory pro- hibitions. The first object may be effected (1) by a com- pulsory registration of every assurance of existing estates in land (subject to the exception of the tenancies after mentioned); and (2) by registra- tion of real representatives on death, and of the trustee on bankruptcy. So soon as any estate in land is brought on the register it should thenceforth be transferred only by a simple entry on the register. The writer does not propose to register any dealing with an existing charge where ( 11 ) the charge is not supported by an estate in the land, but of course if such existing charge issues in a sale, the land will be brought on the register by the conveyance to the purchaser. So soon as any estate in land is put on the register, the restrictive provisions as to the crea- tion of subordinate estates or interests will attach on such estate, and will prevent future complica- tions, as to the title conferred by sale, mortgage, bankruptcy, or death. With regard to the necessity of providing for the case of transfer on death, there seems little doubt that provision should be made for consti- tuting a real representative, with functions as to the real estate corresponding to those of the personal representative as to personal estate. It should be enacted, that every person shall by will name a devisee or devisees of his whole estate for this purpose, and in default, that the heir-at-law shall be registered as the statutory owner. In cases where such heir happens to be an infant, provision should be made for the exercise of the power of sale, if necessary, by the guardians of the infant acting under the direction of a court of competent jurisdiction. With regard to the creation of future estates the writer proposes to permit the registration of the following subordinate estates in land created after the commencement of the system, viz., (1.) Leases for years; (2.) Leases for lives or a life ; and (3.) Rentcharges in fee. When any estate has once been put upon the register it is ( 12 ) proposed to prohibit the registration of any instrument creating any other subordinate estate, and to leave all such other subordinate estates to take effect as trusts of land, and to depend for protection upon stop orders. The policy of permitting the creation of deri- vative estates being a matter entirely collateral to the question of facilitating transfer, the estates permitted may be increased or diminished in number without altering the scope of the act. The more, however, their number is diminished, the greater will be the simplicity attained. As to all estates when once brought upon the register it is necessary, first, to provide that the register shall be the only evidence of title to such estates and to such derivative estates as are per- mitted to be registered ; and, secondly, to provide that the transferee or grantee of a registered estate shall not be affected by express or con- structive notice of any unregistered dealing sub- sequent to the period when such estate has been put on the register. It is not proposed to interfere with or restrict the right of all owners of land to create interests by unregistered assurances, except by providing that all such interests, save certain excepted tenancies, shall take effect as trusts and be subordinate to the registered owner’s right to transfer. The existence of trusts appears to the writer to be not only a convenience but even a necessity. Their abolition would not be tolerated by the public, either as to personal or real estate, ( 13 ) and the cry against them is not, as the writer believes, raised by any persons possessed of a moderate acquaintance with our system of law, and with the practical objects which are attained by means of trusts. But with regard to the creation of all such interests by way of settlement, it is proposed to make the registration of trustees as absolute owners imperative, subject only to the rights of the persons beneficially interested to protect their interests by means of stop orders. This, of course, is the exact relative position of trustees and beneficial owners of stock. As to mortgages, it is proposed to put the first mortgagee in the position of absolute owner, subject only to redemption, which in effect is the practice of conveyancers at present. Subsequent mortgages should take effect only as equitable interests in order of priority of date. They ought to be required to protect themselves by stop orders. It is proposed to abolish the possi- bility of a third or subsequent mortgagee obtain- ing any advantage over a second or any prior mortgagee, by getting in the first mortgage. The neglect by a subsequent mortgagee to protect his interest by stop order ought, the writer thinks, to postpone him to subsequent mortgagees who do so protect themselves. A stop order by a mortgagee should be expressed to be such, and should give the date of the charge. The security of subsequent incumbrancers would be much superior to that now enjoyed. ( 14 ) As to the legal estate, the effect of the proposed plan would be to make the register in course of time the only evidence of title to such estate, with the exceptions of the tenancies before mentioned. Other exceptions must for a time prevail in those cases where conveyances and devolutions of exist- ing equitable estates are registered. There does not appear to be any mode of avoiding this, ex- cept by providing for compulsory examination of title on the original registration of every estate, which, as already observed, does not appear feasible. The objection appears to the present writer, to be rather imaginary than substantial, and it is plain that lapse of time will entirely remove it, inasmuch as every registered existing equitable estate will either expire, be superseded by, or become clothed with, the legal estate ; and this must necessarily take place at no very distant period. As to the position of the beneficial owner of settled estates, it is conceived that there will be no diminution of prestige or personal status, owing to the registration of the trustees as owners. It is proposed to enable the tenant for life to create legal tenancies to the extent of the tenan- cies excepted from registration, and that he shall be deemed to have a legal reversion for such purpose. It does not indeed appear, that the social position under the present system of an equitable tenant for life, is at all inferior to that of a legal tenant for life. It has been objected by many writers that you ( 15 ) cannot expect to work successfully a general system of registration in the absence of an autho- ritative map of all the land in the country. It is said that confusion will arise from the entry of the same parcels more than once, and under different titles. If, however, it is necessary to wait until such a map has been prepared, all reform must be indefinitely postponed ; the ob- jection must, therefore, be surmounted. Now the first observation is that the difficulties arising from such a source may be materially reduced by subdividing the register into numerous local registers, which the writer proposes as part of his plan, and by the restrictions put on the registra- tion of subordinate estates. But a more material answer is this, that if you refrain from creating statutory titles, the evil will at all events be no greater than it is at present. The writer proposes to compel the furnishing of plans as part of the description of parcels contained in every assurance. Such plans are to be drawn to uniform scales, varying in dimension according as the estate is in a town or in the country. Such plans should be mounted and preserved in the local registers, and will ultimately furnish a complete map of all land brought into the market. The maps, if deemed proper, may be from time to time revised and corrected under the direction of the Govern- ment. The effect will be that, instead of a land transfer measure being deferred until the map is made, the compulsory registration will ultimately produce a complete map. The objection on the ( 16 ) score of expense is much exaggerated, and will be far more than counterbalanced by the saving effected by simplifying the question of identity of parcels, on future sales or mortgages. It is submitted that it is quite out of the pro- vince of a land transfer measure to confer title where it does not exist. The question of identity must always remain for examination. It will be much simplified, however, by the aid of plans and descriptions put on record. Encroachments, changes of boundary, titles acquired by posses- sion, and similar disturbing causes must appa- rently, and, as the writer thinks, may safely, be left to the operation of the existing law. For a certain time it will still be necessary to examine the title anterior to registration, but this necessity will gradually become less and less onerous, and will ultimately disappear, which result will be much hastened by the entry, as proposed, of a note on the register to the effect that the title has been examined and accepted on any sale or mortgage. It ma} T be convenient here to pause, and briefly recapitulate the outlines of the proposed legisla- tion, and of the effects which may be reasonably expected to follow. The heads of legislative enactment are— 1. A compulsory registration of the instrument of transfer, on the occasion of every future sale, settlement, or mortgage. 2. Enactments providing that every registered con- veyance and transfer shall confer on the grantee and transferee an absolute title as against all the ( 17 ) grantors and transferors. 3. That on every devo- lution by death, a real representative shall be registered. 4. That partial interests, trusts, and like limitations, except such as are permitted by the legislature, shall be kept off the register, and be left to take effect in a manner analogous to trusts of stock. 5. That on all future limitations by will or settlement it shall be compulsory for the settlor to appoint certain persons who shall be registered as the absolute owners for all purposes of transfer, an adequate protection being given in these cases by the machinery of a stop order. Let us suppose, then, that an Act of Parlia- ment is passed providing for the compulsory registration of the purchaser as owner on every sale, of the mortgagee as owner on every mort- gage, of the real representatives or the heir at law as owner on every devolution by death, and of the trustee as owner on every settlement or bankruptcy, what are the results to be looked for? An attentive consideration will show that these results are immense. The whole landed property of the nation must at no very distant period, as to the facility of transfer, undergo a complete revolution. The outstanding claims and defects of title inherent on many first regis- trations must inevitably disappear by lapse of ' time. Gradually the register alone will become the indisputable record of an indefeasible title ; and the transfer of the registered titles will be effected by a simple entry on this record. Pur- 13 chasers frequently, even now, accept short titles — twenty years or thirty years, clogged as they are by the necessary accumulation of legal diffi- culties during the period for which such titles are shown. How much more readily will they do so when the intervening accumulation of doubt is put an end to. The writer, in further- ance of this object, proposes to enter on the register a note that the title has been examined on sale or mortgage, where this has been in fact done. The real advantages attending such legislation are patent. You do not imperil any man’s safe holding ; you do not force him to litigate doubt- ful claims, or, which is equally bad, to put a record of them on the register by entering his title as subject to them. You leave the land- owner free to deal with his land, just as the fundholder deals with his stock. You do not commit any injustice, because you only compel him to do by statute what his solicitor and counsel endeavour to do without legislative aid. In every well-drawn settlement and will, by which it is attempted to create successive and complicated interests, an attempt is made to remedy the difficulty of transfer, by providing machinery for sale or mortgage, free from all obligations on the part of transferees to attend to the subordinate interests. Can any reasonable being complain if the Legislature steps in and renders this not only possible but simple ? Is it not alike justifiable and politic to enact that, if ( 19 ) landowners create such settlements, the resulting expense shall fall, not on the purchaser — which really means on the subject-matter of the settle- ment, by a diminution in marketable value — but on the persons who are to take under the settle- ment ? There can scarcely be but one answer to this question. One of the great advantages of such a measure would be that, with slight legislative modifica- tions, it would work harmoniously with the existing statutes, providing for registration of indefeasible titles, and would supplement the advantages thereby obtained by rendering them permanent. Many titles have been already regis- tered, although not a national proportion; and it is a pity that the expense should be thrown away. The existing statutes require such a measure, in order to prevent the registered titles from being removed from the register, or clogged by the accretions of time. Two further suggestions may be added here, which ought to be embodied in any measure. They are, first, that the registers should be numerous, not embracing too wide areas, by which means the greatest simplicity would be attained, and the great safeguard provided of the title being investigated in the neighbourhood where it is notorious ; and secondly, that any measure should avoid the creation of numerous officials to be appointed by government, which is in effect to create monopolies, and to deprive existing practitioners of legitimate business. The neglect 13 2 ( 20 ) of this last point will render any measure unpo- pular and hard to work. Business is best done by leaving it in the ordinary channels. Acting upon this conviction the writer proposes that the office of registrar in the local districts should, where not conferred upon existing officials, be annexed to the office of town- clerk, or at all events should be left under local control and not made a government appointment. With the above preliminary remarks the writer begs to submit a sketch of such legislative enact- ments as would in his judgment be necessary for carrying out such a plan. He submits them merely as a contribution to the literature of the subject, and with the full consciousness that every clause of such a measure would require to be amply discussed and canvassed, and in all proba- bility modified, before adoption. Unfortunately, it is far easier to criticise details, and to discover defects and obstacles, than to produce a consis- tent whole. ( 21 ) SKETCH OE THE PKOPOSED ENACTMENTS. General Provisions . 1. From and after the passing of the Act, every instrument conveying any existing estate in unregistered land (except leases at a rack-rent and leases for terms not exceeding twenty-one years, where the possession and occupation go along with the deed) shall be registered, and in default of registration shall be inoperative as against any subsequent duly registered instru- ment dealing with any such estate, and which subsequent instrument shall be prior in date of registration. 2. Upon the death of any person entitled to land, the real representatives of such person shall be registered as owners of such land in manner hereinafter provided. 3. Upon the bankruptcy of any person entitled to land, the trustee shall be registered as owner of such land in manner hereinafter provided. 4. Upon the execution of any settlement of land, the trustees or trustee shall be registered as owners in manner hereinafter provided. 5. From and after the passing of the Act, every instrument creating any lease for years (except as aforesaid), or any lease for lives or a life, or a ( 22 ) rent-charge in fee, shall be registered ; and in default of registration shall be inoperative as against any subsequent duly registered transfer or instrument dealing with the estate of the grantor, and which subsequent transfer or instru- ment shall be prior in date of entry on the register. 6. From and after the original registration of any estate in land, every transfer of such estate shall be made by an entry on the register only. 7. From and after the registration of any per- sons as grantees of any estate in land, or as real representatives, or as trustees of a settlement, or as trustees of a bankrupt, the following derivative estates only shall be admitted to registration, viz., leases for years (except as aforesaid), leases for lives, or a life, and rent-charges in fee. The Register. 8. The register shall be divided into as many local registers as shall be fixed by statute or by general orders. 9. The head office shall be the office of land registry established by 25 & 26 Viet. c. 53. All other local registers shall be subordinate to such head office, and questions arising in local registers as to the practice on registration shall be referred to the head office, and be decided by the head registrar. Every office shall have a distinctive seal. 10. The town clerk of the town in which any local register is established, shall (except as other- ( 23 ) wise enacted or provided by general orders in any particular case), be the registrar for the district for which such register is established. 11. All office expenses of registration shall be collected by means of fees to be fixed by general orders. 12. The existing local registration Acts shall be repealed. The existing offices and officers shall be continued -for the purposes of local registers under the proposed statute. All such existing offices and officers shall be subordinate to the office of land registry. The county of Middlesex and the area subject to any existing local register may be divided into districts. 13. The register shall consist of two parts : 1st, the Transfer register, being a register of grants, devolutions and transfers of estates ; and 2nd, the Estate register. 14. The particulars for registration in the Transfer register shall consist of, 1st, the names of the grantors, transferors, bankrupts and de- ceased persons, of which an alphabetical index shall be kept; 2nd, the description of parcels and a plan ; and 3rd, the estate in such parcels. 15. Every registered instrument shall be ear- marked with a number and stamp, so as to show its registration. The estate comprised in every registered instrument shall be denoted by the same distinctive number. 16. It shall be in the discretion of the registrar to earmark all or any of the documents of title with the like number, but in the case of a deriva- ( 24 ) live estate the documents relating to the estate out of which such derivative estate is created shall not be so earmarked. 17. A separate register of such numbers, to be called the Estate register, shall be kept, in which under each such number shall be entered the pages in the Transfer register which relate to such num ber. (The Estate register will thus furnish an index to the Transfer register.) 18. No assurance shall be registered except upon production of the documents of title or satisfactory evidence accounting for the absence thereof. 19. Every entry on the Transfer register shall refer to the next preceding entry of the same estate, and when a subsequent entry is made a reference thereto shall be added to the next pre- ceding entry, so that the chain of assurances and devolutions may be traced either way. A refer- ence to every such entry shall also be entered under the number of the estate in the Estate register. Parcels . 20. The parcels shall be described by apt words of description, and by a plan drawn to scale, and of such scale as may for different localities be pre- scribed by general orders. Whenever a portion of a registered parcel is transferred, or a deriva- tive estate therein granted, the plan and descrip- tion of the land so transferred or granted shall be ( 25 ) framed so as to show clearly the portion so trans- ferred or granted, and a reference thereto shall be entered on the Transfer register opposite the ori- ginal description of the whole parcel. All rights of way to which the land is subject, and all excep- tions of minerals and specially granted or reserved easements shall be noticed in the description of parcels. A copy of the description of parcels, and a duplicate of the map or plan, shall be deposited in the register office, and remain there. 21. The plans from , time to time deposited in the register office shall be mounted, and indexed according to parishes and places in such manner as shall be most convenient, so as to show all parcels which shall be brought on the register. Subdivision of Parcels. 22. Where a registered parcel is subdivided, Or a derivative estate therein or in part thereof granted, the estate transferred or granted shall be denoted by a new number, and the entry on the Transfer register alone shall refer to the page of the Transfer register showing the title of the trans- feror or grantor. Such new number shall be entered in the Estate register as a new title or head of reference to all subsequent registered dealings with such parcel or estate. 23. When any assurance or transfer of land is registered on sale or mortgage it shall be lawful to enter a note on the register to the effect that the title has been examined by counsel and solici- ( 26 ) tor, or by a solicitor only, and for what period title was shewn upon proper proof being given by affidavit or statutory declaration of such facts. General Provisions. 24. Whenever registered land is recovered by legal proceedings an entry of the judgment or decree shall be made in the transfer register and a reference thereto entered in the estate register; and the entry on the transfer register shall show the parcel recovered, if only a portion, and the name of the recoveror and the estate of the re- coveror, which shall thenceforth be entered and remain on the register, and be subject to the pro- visions of the statute. Provided always that no judgment or decree obtained by a plaintiff who recovers by virtue of a lease at a rack-rent, or a lease not exceeding twenty-one years, where pos- session and occupation go along with the deed, shall be admitted to registration. 25. The original registration of any grant or transfer, shall not in any manner prejudice any estate or interest existing at the time of such registration, and which is vested in any person other than the person whose estate is so granted or transferred, except so far as the existing law as to purchase for value without notice may affect such estate or interest. 26. The registered assurance transfer or devo- lution shall create an absolute title to the estate and interest of the transferor, the grantor, the deceased, or the bankrupt ; which shall thence- ( 27 ) forth remain on the register, and be dealt with by registered transfer or grant only. 27. Notice, whether actual or constructive, of any unregistered dealing with a registered estate subsequent to the original registration thereof, shall not in any manner affect a person claiming by registered transfer or grant or devolution. Provided always that the leases and tenancies hereby excepted from compulsory registration shall not be prejudiced by any such grant, trans- fer or devolution. 28. From and after the original registration, every transfer of the registered estate shall be made only by an entry on the register. Such entry shall be signed by the transferor, or his at- torney, in the presence of the registrar, and shall be attested by him. Powers of attorney for exe- cution of a transfer shall be attested by two wit- nesses, of whom one shall be a solicitor. Certified copies of such entries may be given under the seal of the office at the request of the registered owner. 29. Every person may by will, deed, or other instrument create the same estates and interests in, and enter into the same contracts and engage- ments with respect to, any registered estate as he might do if the estate were not registered (25 & 26 Viet. c. 53, s. 74). Provided always, that all such estates and interests, except such as are hereby rendered liable to registration or expressly exempted therefrom, shall take effect as trusts of land only, and shall in no wise interfere with the ( 28 ) right of the registered owner to transfer, unless restrained by an order in the nature of an in- junction. Leaseholds. 30. Where a leasehold estate is put on the register, every person dealing therewith shall have full notice of all covenants, clauses, and provisoes contained in the instrument creating such leasehold estate, and it shall not be neces- sary to enter the contents of such instrument on the register. Mortgages. 31. The first mortgage alone of a registered estate shall be registered. The first' mortgage subsequent to the Act, of an estate not on the re- gister shall alone be registered, and shall refer to prior mortgages, if any, by date and parties. For the purposes of this section the words “first mort- gage ” shall denote the first duly registered mort- gage. 32. Every transfer of a mortgage existing at the date of the act shall be registered, and such mortgage shall thenceforth be transferred by entry on the register only. If subject to prior mortgages such prior mortgages shall be noticed on the register by reference to the dates of and parties to such mortgages. 33. Every registered mortgage shall confer an absolute title on the mortgagee to sell, or transfer, or lease, as against the mortgagor and his subse- quent assigns to the extent of the estate put into ( 29 ) mortgage, and subject only to the right to redeem and to any special stipulations between morgagor and mortgagee, but the rights of the mortgagor and his assigns shall be enforced by means of stop order and injunction only. 34. A mortgage of the registered estate shall be effected by entry on the register only. 35. A transfer of a registered mortgage shall be effected by entry on the register only, and shall notice existing stop orders. 36. All subsequent incumbrances in registered land shall take effect as equitable charges only, and in order of priority of date. 37. No equitable incumbrancer shall be al- lowed to prejudice a prior equitable incumbrancer by getting in a registered estate. (The doctrine of the “ tabula in naufragio” to be abolished.) 38. The owner of any equitable incumbrance, or of an equity of redemption in registered land, shall be entitled to lodge a stop order, and such stop order, if lodged by a subsequent incumbran- cer, shall state the date of his incumbrance. Settlements. 39. Whenever any owner of land to which the Act applies, whether being on the register or not, creates a settlement by deed, he shall nominate one or more person or persons as trustees or trus- tee who shall be registered as the owner or owners of such land, and such persons shall have the like powers of disposition as registered purchasers. ( 30 ) Otherwise, such settlement shall be void as against any subsequent registered assurance or transfer. 40. All estates and interests under any such settlement, except the estate of such trustees or trustee, shall take effect as trusts of land only. 41. Provided always, that it shall be lawful for the tenant for life or other person nominated by the settlement, if the settlement so provides, by way of appointment to create legal terms at a rack-rent or for twenty-one years, where the pos- session and occupation go with the deed, and such tenant for life or other person shall be deemed to have a legal reversion for the purpose of enforc- ing his rights as landlord against such lessees. (An enactment of this nature will put the tenant for life in the same position as at present in respect of such tenancies. If building or mining leases are desired, it seems advisable to render the con- currence of the registered owners necessary.) 42. In case the settlement shall so provide, the registered owners shall be bound to concur with the tenant for life, or other person nominated for such purpose by the settlement, in the crea- tion of terms of years, liable to registration; and such tenant for life or other person shall have an equitable right to enforce any such provision contained in the settlement; but no such pro- vision or right shall affect the registered owner’s rights except so far as enforced by the order of a Court of Equity. By a Court of Equity shall be meant any Court having equitable jurisdic- tion. ( 31 ) Death. 43. Every person shall be at liberty to name, by his will, one or more person or persons as his real representative or representatives, who shall be entered as such upon the register, and shall thereupon as from the testator’s death have the absolute right to transfer the testator’s real estate. 44. In case no such representative is named — or, if named, such representatives upon notice of the will decline to be registered — the heir-at-law of the deceased shall be registered as real repre- sentative with the like absolute right. All other interests in real estate created by the will shall take effect as trusts of land only. 45. Any devisee of a registered estate other than a term of years may be registered as owner on the assent of the real representatives, and for the purpose of this section registered estate shall mean any estate of the deceased, and the de- scription of parcels shall be then registered accordingly. 46. Where the devise is upon trusts, the de- visee in trust alone shall be registered, and all trusts shall take effect in the same manner as is provided as to settlements. 47. The personal representative shall be regis- tered as owner of all terms for years or lives, except where the heir is special occupant. All interests created by will in such terms shall take effect only as trusts of land. Nevertheless, a specific legatee of any such term may be regis- ( 32 ) tered as owner, on the assent of the personal representative. 48. When the real or personal representatives in the respective cases above mentioned shall be registered, such real or personal representative shall have the absolute and only right of transfer. 49. The real represen tatives, and in the case of leaseholds the personal representatives, shall be registered in every district where the deceased had land, but it shall not be necessary to describe the parcels on such registration. Stop Orders or Caveats. 50. Any person having an equitable estate or interest in any registered estate, and any owner of an equity of redemption, may lodge a caveat or stop order (Land Transfer Act, 25 & 26 Viet, c. 53, ss. 96 and 99) with the registrar to the effect that no registered disposition of such land be made until notice shall have been served on the cautioner. The method of proceeding on such caveat shall be that prescribed in sections 97, 98, 99, 100, 101, 102, 103 and 104 of the Land Transfer Act (which provide that caveats will be discharged unless an injunction be obtained within twenty-one days after notice to the cautioner). 51. All applications for an injunction may be commenced by summons in the chambers of any judge having equitable jurisdiction, and it shall be imperative on the judge to hear such sum- mons personally (if the same shall not be con- ( 33 ) sen ted to), but the same may be heard in court or chambers at his discretion. 52. All stop orders shall state the date of entry thereof. Bankruptcy . 53. After bankruptcy no dealing with the real estate of the bankrupt shall be valid until the registration of the trustee, subject to the excep- tion that a transfer made by the bankrupt before the date of the order of adjudication in good faith and for valuable consideration to any person not having notice of an act of bankruptcy com- mitted by the bankrupt and available against him for adjudication shall be valid (Bankruptcy Act, 1869, s. 95). The existing register of bank- ruptcies shall be actual notice to all persons deal- ing with a bankrupt. Fraud. 54. Actual fraud brought home to a transferee or grantee shall render transactions in which he is concerned liable to impeachment, notwithstand- ing any provision herein contained. Disabilities. 55. Where a woman is the registered owner of a registered estate other than a term of years, and she is a married woman, she shall be described as such. If, not being under cover- ture at the time of registration, she shall after- wards marry, an entry of her marriage shall be c ( 34 ) made on the register. So long as a married woman remains under coverture, she shall be separately examined pursuant to the existing statute, on any transfer or on creation of any derivative estate. No transfer or grant by a woman shall be registered except upon evidence by statutory declaration as to her being married or sole. 56. Infants, idiots, and lunatics, shall act by their guardians or committees. To the above clauses it would be necessary to add penal clauses for offences against certain of the sections, and clauses providing for the repeal of statutes inconsistent with the proposed plan, and also clauses as to the constitution in detail of the local registries, and also clauses enacting that the succession duty shall no longer be a charge on the land except by affecting the beneficial interest of the person taking the succession in the land, or the proceeds of sale of the land. The statutory charge created by the existing Succession Duty Act probably produces annoy- ance and expense on sale, which are more burdensome than the actual amount of the tax. London : Printed by C. Roworth & Sons, Newton Street, High Holborn.