JOURNAL

OF THE

Dublin

STATISTICAL SOCIETY.

JULY, 1856.

I.-The Expediency of a Cheap Land Tribunal.-By James A. Lawson, LL.D.

[Read April 21st, 1856.]

THE subject which I wish to bring under the notice of the Society this evening is, the expediency of establishing a cheap Land Tribunal. In my opinion such a tribunal is very much required, and I do not limit this observation to Ireland; I think the very same necessity exists in England and Scotland. By a Land Tribunal, I mean a tribunal having the power to decide upon the ownership of land, authoritatively, conclusively, and finally, unless appealed from; and, as incident to this jurisdiction, having power to determine all questions relating to the charges affecting it, and the mode in which its proceeds, when sold, are distributable: I think the public should be entitled to have the aid of this tribunal whenever a sale of land is desired. When I speak of a cheap tribunal, I mean a tribunal having its judges and officers paid by the state, and consequently exacting no fees from those who resort to it, and requiring from the suitor no payment except that which he must make to his own professional advisers-just as the transfer of government stock at present costs the seller and buyer nothing except brokerage.

I shall first state my reasons for thinking that such a tribunal ought to exist. I shall, secondly, endeavour to answer some objections which have been urged against it; and thirdly, I shall make some suggestions as to the mode in which such a jurisdiction ought to be called into operation.

I think, then, that we ought to have such a tribunal, because without it a safe and ready transfer of land is not possible, as our laws are at present framed. That a ready transfer of land is desirable, as well for the land-owner himself as for the community at large,

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very few will now be found to dispute. The value of an article depends, amongst other things, upon the cost of bringing it into market, and if the sale of ordinary commodities were to be impeded until, in each case, an inquiry was made as to how the person offering them for sale acquired their possession, trade and commerce would almost cease; sellers and buyers, and the community as consumers, would alike suffer. Lands and houses, certainly, are not likely to change hands quite as often as chattels, but the injury is the same in kind, though not in degree, and we may reasonably conclude that if the present obstructions to its transfer were diminished, its changes of ownership would be affected in proportion as these difficulties were removed. I can quite understand the political argument put forward by those who oppose the giving of any increased facilities for transfer of land, when they tell us that the great value of property in land is that it can be perpetuated in the same family for generations, and that the successive owners, however anxious to dispose of it, can be prevented from so doing. I do not sympathise with those views, and I think such reasons can weigh nothing when compared with the general benefit of the public, who are interested that land should not remain in the hands of reluctant and embarrassed owners; besides, I think, experience shews us that a family is never really benefited by being thus forced to continue nominal owners of an estate. Perhaps, if a portion of it could have been readily and advantageously disposed of, the rest might have been preserved; but our law, in its desire to prevent sales, facilitated the creation of incumbrances-in other words, encouraged pledging instead of selling, and this fatal facility of obtaining money without loss of nominal ownership or position has led landowners to improvidence and ruin. In asking that a tribunal should be established to decide upon and determine the ownership in land, it appears to me that we are not asking anything anomalous or extraordinary. The phrase, PARLIAMENTARY TITLE, which is generally applied, leads persons rather to think that some very unusual intervention is sought for, and that government is asked to interfere to alter the ordinary course of things.* If we look a little deeper, I think we shall see that we are only asking the law to correct an evil which the law has introduced. Our law of conveyancing has put the ownership of land upon an entirely different footing from that of other property, and has created the difficulty of solving the problem,-Who is, at any given time, the owner of land. With respect to other property, possession implies property-to this extent, at all events, that any one buying from the person in possession, without fraud or collusion, is safe. The possession of chattels, of stock or shares, carries with it, primá facie, the right of disposition to a purchaser untainted with any fraud. With respect to land, it is not so; the possessor may be a trespasser, or a caretaker, or a tenant; and a purchaser from him may get nothing but the possession-liable, at any time, to be made wrongful by a demand on the

For instance, Lord St. Leonards lately, in the House of Lords, compared the Incumbered Estates Act to the suspension of the Habeas Corpus Act; he described it as a measure contrary to law, and that as soon as the necessity for it ceased, the law should revert to its former channel.

part of the rightful owner. Of the ownership itself there are very different degrees and modifications, as well as different kinds, legal and beneficial. Again, when you find out the actual owner, there is the necessity of ascertaining the charges and incumbrances which affect that ownership, very numerous in kind, and sometimes created, I may say, without the knowledge of the owner; for instance, a recent judgment, in itself not a charge upon land, is liable to be made so at the option of the owner of the judgment, by registering it as a mortgage without any notice to the debtor. The law, therefore, has permitted, has encouraged, has created this state of things, which renders the ownership difficult of ascertainment; and if the law does no more, but leaves things in this state, it is obvious that property in land must be much less easy of transfer than any other kind of property. Thus, the law of conveyancing has thrown impediments in the way of transfer, and the law which facilitates the creation of incumbrances, as a substitute for sale, diminishes the facility of transfer; while, on the other hand, if there were facility of transfer, it would be unnecessary to afford facilities for incumbering. I am assuming, for the present, that the law of conveyancing remains unaltered; and in asking that a legal tribunal should be constituted, competent to decide the question who is the owner of land, do we ask any more than that the law should solve the difficulty which it has created, and tell us, authoritatively, what is the result of its own rules? I observe that Lord St. Leonards, in his evidence before the Receiver Committee, when speaking of the state of property in Ireland, says: "The great thing is, as quickly as possible to ascertain who is the owner, and give him the care of his property." Now is it not a strange thing that, looking at land, for the present, not as a transferable article at all, but as the great source of wealth, in the productiveness of which the community at large are interested, it should be left at all in uncertainty who is the owner? For while there is doubt about the ownership, we cannot reasonably expect that capital will be expended or improvements made. I entirely concur with Lord St. Leonards, that the great thing is to ascertain quickly who is the owner; this phrase is pregnant with two things, quickness and certainty; the process should be prompt, the result should be certain. Under our present land laws, without a land tribunal, it is slow and uncertain. We must consult the lawyer to tell us who the owner is. He has great difficulty in arriving at a conclusion, and the conclusion, when arrived at, binds no one; it is destitute of authority; and the purchaser who has purchased under that opinion, if he wants to sell the next year, cannot bind the new purchaser by the result of the former inquiry; but the whole process must be gone over again from the beginning; just as if a student in Euclid were obliged to prove over again each former theorem when he required to apply it, instead of assuming it as having been already proved. Inasmuch, then, as a safe and ready transfer of land is essential; and inasmuch as the present state of our law renders that impossible, without the establishment of a land tribunal; I think sound principle leads us to conclude, either that the law should be altered so as to allow this safe and ready transfer, or that the law should step in to remedy this defect caused by its own rules, and on every occasion of sale pro

nounce authoritatively, if required, who is the owner or person capable of selling. With respect to the first alternative, such a change in the law as to render land as easily and as safely transferable as stock, I shall be very glad whenever the time comes that this shall be accomplished. Many doubt its practicability, that is, the possibility of putting every estate in land in these kingdoms upon a register, and keeping it there by registering every devolution of title.* Every one will admit that such a result is not to be soon hoped for; and pending its introduction, I think we should not be deprived of the very obvious and practical good which would result from the establishment of a tribunal, which, when required so to do, should have power to decide upon the ownership of land.

Such is the conclusion to which it appears to me that reason would lead us, looking at the state of our law and the exigencies of society; but it is a singular circumstance that the public mind has arrived at the conclusion by what I may call an accident. The Incumbered Estates' Act in this country, which for the first time established a land tribunal, owed its existence not to any such train of reasoning as I have been using, but to the necessities of the times. Any man would have been laughed at who proposed its establishment, on the ground that such a tribunal was at all times necessary. It was introduced as an exceptional measure, and to relieve this country from the crisis in which its affairs were-all its property heavily incumbered by reason of the state of the law to which I have adverted; the incumbered owners rendered, by a visitation of Providence, utterly insolvent and incapable of managing the estates; and the impossibility of finding any purchasers under sales as then made by the Court of Chancery, although it was manifest that it was essential to the restoration of a sound state of things that all such properties should be transferred from nominal to real owners. This Act was therefore regarded as a temporary expedient, justified and rendered necessary by the exigency of the moment, and was, of course, confined to incumbered estates, and was intended to be limited in its duration. The landed proprietors and the public have experienced the advantage which arises from a ready sale and an indefeasible title; and they naturally asked, was this jurisdiction to cease with the occasion that gave it birth, or was it to be perpetuated? After several extensions of the Incumbered Estates' Act, a Commission was issued, with which I had the honour to be associated, to very eminent persons in both countries, to inquire into the expediency of continuing this jurisdiction. They arrived at the conclusion,† that such a tribunal should continue to exist, and should be permanently established; and, moreover, that its operations should not be limited to incumbered estates, but should extend to all estates to be sold. Indeed, unless the Commissioners were prepared to

* I am glad to observe that that eminent judge, the Master of the Rolls, in his Evidence to the Incumbered Estates Inquiry Commission, states his opinion that "the law relating to the transfer of land may be so altered that land may be sold with nearly as little delay or difficulty as government stock; and that as indefeasible a title may be given on the transfer of the former, as is now given on the transfer of the latter." When the law has been so altered, no necessity will exist for a Land Tribunal except at the instance of a creditor.

† See Report of the Commissioners for Inquiry into the Incumbered Estates' Court.

make this latter recommendation, they could scarcely have recommended the permanent continuance of the tribunal; for it was obvious that for the mere purpose of selling incumbered estates, it was not necessary to perpetuate it. They state in their Report, I think with good reason, that incumbered proprietors are not entitled to more favour than unincumbered proprietors, or to greater advantages in bringing their properties to sale.

It appears to me that three questions now arise which are to be determined by the legislature-1st, Is this jurisdiction to pass away; having enjoyed the advantages of sale with indefeasible title, are we to lose it? 2ndly, If the jurisdiction continue, must it not be extended to all estates? And, 3rdly, Should it be confined to Ireland, or should not such a tribunal be established in England and Scotland also?

On both the first points, we have the deliberate opinion of the Commissioners, that the jurisdiction should be continued, and that it should be extended to all estates offered for sale. As to the third point, I see no reason why a similar measure should not be introduced into the other parts of the United Kingdom.* I have not been able to procure any statistics of the comparative amount of incumbrances affecting property in England or Scotland; but in both countries there is no doubt that it is very considerable: the advantages of such a tribunal would be fully appreciated there; and I hope that as soon as such a tribunal is permanently established here, a similar measure for England and Scotland will follow without delay. The reasoning I have adduced appears to me to establish that there should be a Land Tribunal; experience has shown that it has worked well, and therefore it ought to be perpetuated and extended.

I have said that this should be a cheap tribunal; by this I do not mean one where cheap and bad justice would be administered, but one in which no tax is imposed upon the suitor. One of the great merits of the Incumbered Estates' Court has been, its freedom from burdens of this kind; and, on the other hand, the great obstruction to the working of the Court of Chancery has been the existence of stamps upon its proceedings; and to expect that Chancery will be cheap, expeditious, or satisfactory, while these imposts are allowed to continue, is as absurd as it would be to expect a man to run nimbly who was laden with a heavy chain. I have no hesitation therefore in saying, that I look upon the proposal which has been made of imposing a tax by way of per centage on the amount of purchase money, in order to defray the expenses of the court, as one which, if carried out, will be fatal to the success of the experiment. It has been so often urged, and is now so generally admitted, that to tax the suitor for the support of the court is unjust and injurious, that I pause not now to argue the question. The Common Law Commissioners of 1851 recommended the abolition of these charges; and the

* Lord St. Leonards, on a recent occasion in the House of Lords, when speaking against a measure introduced to carry out some of the recommendations of this Commission, said he was perfectly convinced that if the measure passed for Ireland, it must be adopted in England; otherwise the great boon of a parliamentary title would give Irish property a great value, and place English property at a disadvantage.