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Whatever doubt may exist as to the propriety of giving an incumbrancer the power of selling an estate, so long as the owner duly fulfils his engagements, there can be no question that when a failure
ledge of the above mentioned gentleman early drew his attention to the injurious effects of the present condition of property. The following extracts from his evidence before the Select Committee on Tithes in Ireland, in 1832, shows the clear view he took on this subject, at a time when it attracted but little attention from the public in general: “The very large estates so held in the south and west of Ireland “are comparatively uncultivated, and are heavily encumbered by judg“ments, &c. Those judgments affect the whole and each part of the “estate; as the system is not so much to borrow on mortgage, but even “when money has been borrowed on mortgage, it is not borrowed, as in “England, upon separate and distinct portions of the estate, so as to “enable the proprietor, if he think fit, to sell that separate and distinct “ portion of it, and discharge that particular class of debt; the Irish mort“gages cover the whole, and thus it becomes scarcely possible for the “owner to sell in small divisions. This in a great degree accounts for “the immense accumulation of debt that has taken place; because when “you come to sell, you are forced into the Court of Chancery, and when “there, endure the effects (upon the creditor as well as the debtor) of a “most expensive and tedious process; all the different incumbrancers, “trustees, &c. are (usually) necessary parties to the suit, and it is a “matter of extreme difficulty to make out a satisfactory title; while “during its progress the suit is constantly impeded by the deaths of “parties, and the revivals consequently necessary. Hence the owner “avoids selling as long he can ; but if the legislature were to interpose “so as to render the proceedings to a decree for sale unnecessary, “by enabling the parties to deal as they do with commissioners “for public purposes, and to bring the money into court to be “there distributed, all that the parties need do would be to put “forward their respective rights to the fund, and on those being ad“justed the money could be distributed. I beg to state to the Commit“tee, as an instance, that a noble lord, whose estate was encumbered “by judgments, being extremely anxious to pay his debts (this case “is known to an honourable member of the Committee now present) “vested his estates in trustees for that express purpose, and instituted a
takes place in this respect, it is infinitely better for all parties that the estate should be sold, rather than let it be administered by the Court of Chancery. The evils incident to this mode of manage
“suit to carry that deed into effect; but with all the desire thus shown “to pay his creditors, he has been baffled upon questions of title, for “although those estates were set up and sold in a Master's office, the “purchasers have been released, and he is now undergoing the process “of a supplementary suit, to get a perfect decree in order to effect his “original object. Had public commissioners come to him to purchase “his estate, he would have been relieved, comparatively speaking, of all “expense, and his creditors would have been long since paid. That “nobleman resides in the county of Galway.” “If the facilities I have suggested were given to landlords willing to “dispose of their estates, I think that the required supply could be had “from those whose estates are now so largely encumbered, and who, “though most willing to pay their debts, are unable to do sofrom want of “the necessary facilities. In the county of Wexford a very large estate “has been sold; the owner of it is most anxious to get rid of his debt “and his estate; yet the difficulties in making out title have been so great, “that he has not been able to fulfil his contract; he can neither pay, “ though he is willing to pay, nor part with his estate; such is his unfor“tunate condition. That estate sold for over £180,000.” “For such a case as is suggested, [that of a proprietor whose estate “is mortgaged to nearly the full value.] I can have no sympathy on pub“lic grounds, but I should propose to give him every facility to sell; for “I think he ought not to be the landowner, and that such landlords “cannot manage the estates nominally theirs, though in reality their “creditors', with advantage to themselves or their country. It would “be alike beneficial to such landlords and their tenants, that they were “forced to part with a nominal enjoyment of large possessions; after “the landlords' debts were paid, the surplus (if any) would be more “beneficial to them and their families, than the casual income they now “receive, after deducting expenses of management, &c. from their “nominal estates. Let me submit one case out of many which may be “mentioned: A. has a rental of, say £5,000 per annum; the interest “on his encumbrances, &c. amount to £4,000 per annum; while the “charge for management, casual losses by tenants, law expenses, &c.
ment are so well known, that it is unnecessary to repeat them here. To use the true and forcible words of a pamphlet recently published, it may be said, that “in very many cases, where encum“bered estates have fallen under the management “of law courts, the district has usually rather “resembled one which has been plundered by an “enemy, than one under an enlightened govern“ment, in a country long exempt from the calami“ties of War.”* The mode of tenure by lease for lives, with a covenant for perpetual renewal, on payment of a fine, sometimes merely nominal, on the fall
“may be estimated at 10 per cent. on the gross rental; so that the no“minal owner of a rental of £5,000 per annum really has but £500 a “year (supposing his whole rental duly recovered) to live upon. I have “no doubt but that such an estate should be sold, and that selling it is “the only prudent course which A. could take. In the one case, (a “sale) he may preserve £1,000 per annum clear rental; in the other, he “has but £500 encumbered, with the name and station of a gentleman “with £5,000 a year estate. Such is the condition of many of the “landlords of my country.” The following is extracted from the evidence of the same gentleman before the Select Committee on Public Works in 1835:— “The chief part of the estates in Ireland are in large masses, “strictly, and almost continuously from generation to generation, en“tailed. Upon the arrival at age of the eldest son, it almost invariably “follows that the estates are opened, a new set of incumbrances let in “upon them, and then a re-settlement takes place; and so on, until “they are dispersed by sales under the Court of Chancery, to discharge “the incumbrances so created.” * “Observations upon Certain Evils arising out of the Present State of the Laws of Real Property in Ireland, and Suggestions for remedying the same.”—Dublin: Thom : 1847, p. 5.
of each life, is universally felt as a severe grievance, causing uncertainty, trouble, and expense to all concerned, except the solicitor who prepares the deed of renewal. This tenure, though evidently intended to be perpetual, has yet given rise to much litigation,” and property which was looked upon as certain, has in many cases been lost by some trifling lapse on the part of the tenant. It is stated that one seventh of the land in Ireland is held under this description of lease. The remedy is clear—to convert them into perpetuities, making an addition to the rent, to compensate the landlord for the renewal fines. This course was recommended by the commissioners on the occupation of land, and has been promised by the government. It is to be hoped that the next session will not be allowed to pass, without carrying it into effect. Another evil which greatly needs a remedy has resulted, during a long course of years, from the present laws and the present feeling respecting landed property; namely, that in some parts of Ireland, there are several parties intervening between the head landlord and the tenant in possession, each deriving a profit rent, and holding the land, in many cases, for a term equivalent in value to a perpetuity. The head landlord, having long since let the lands on long leases, at a rent far below its present value, has really no interest in it, except to receive his annual rents, as he might receive his dividends, if the same value of property were invested in the funds. He cannot hope ever to come into possession, or to derive the least advantage from any improvement that may take place. In many cases there are middlemen under similar circumstances, who have again sublet the property on terms which preclude the expectation that it can ever revert to them ; whilst the lowest holder by a long lease, the party really interested in the improvement of the property, is debarred from many of the powers essential for its improvement. He may sell his whole interest, but he cannot dispose of a part, except by again subletting it. For many purposes, he is obliged to obtain the consent of those above him before he can act. Advantageous opportunities may present themselves, of which the terms of his lease forbid him to avail himself. If a mine be found on the property, he has the mortification of seeing its profits engrossed by another, whilst the attempt to work it is perhaps a serious injury to the agricultural value of the land. It very often happens that the first lessee, holding a large tract of country, has sublet in several por
* See Appendix U.