D—l

13

Sale and Transfer of Land. statutory enactment giving that effect to mortgages, and conferring all the powers which a mortgage now usually possesses under distinct provisions against the mortgagor, or the mortgagor's property, coupled with a registration of the charge as well as of the land, might probably be framed so as to give to charges on land the same advantages and the same facilities of transfer as those which attach to railway debentures. Although we do not recommend the adoption of a judicial system of land debentures, we think it right to observe that there may be facilities for trying it in a proper manner in Ireland, where strong opinions have been expressed in its favour, (a) XXX. The suggestion of a guarantee or warranty of title, supported as it has been from many quarters, is not peculiar to the plan now under consideration, and is in our opinion very valuable. It is well know that when a title has once been investigated and approved of by experienced counsel and solicitors, it is as little likely to be questioned as the right to any chattel which a man buys in open market. Still on a re-sale it is again investigated and again approved by another counsel and another solicitor, because the new purchaser was no party to the former transaction, and he cannot be sure that everything has been done which he may think necessary to make himself safe. But should the second purchaser be a member of the family instead of a stranger, employing and taking the same legal advice it is probable that he would be satisfied, with the previous investigation, instead of requiring a new one to be instituted, which he would deem to be only going over the same ground again. Supposing, therefore, that a public officer, such as a registrar, should have the power, on application made for that purpose by proper parties, to direct that the title, before registration, should be examined and tested under the authority of a counsel and solicitor, he might safely guarantee it, on their recommendation, against all claims which could be brought against it. In such a case it would not be unreasonable that the registered owner who had thus obtained a warranted title should pay a small premium on that account; and the aggregate amount of the premiums paid would constitute a fund to indemnify the State as the public insurer in case any latent claim should be subsequently established. XXXI. The second plan (fi) which has been submitted to us is founded on a principle which was brought to the notice of the Registration and Conveyancing Commissioners. It has been described, in a word, as Registration of the Freehold. This plan proceeds on the hypothesis that possession is the root of title; bearing in mind that by possession the possession of the freehold is meant, and by freehold a presumptive fee simple. Credit, therefore, is given to possession until it is shown to be wrongful. The fact, that the property is held by the person who is seen to hold it, is presumed to be coincident with the right of property, until the contrary appears. Acting on this hypothesis, the freeholder as thus defined is always to be entitled to have his property registered. But since there may be other rights besides the freeholder's these rights are to be dealt with as qualifications of" the freeholder's presumptive title; for the possession is not necessarily the whole of the evidence upon which the title rests ; it should rather be considered as the basis of the evidence, or, as it were, the starting point of the inquiry. When, therefore, other rights exist, protection is to be given to them, and they are to be capable of registration under the heads of " Charges and Notices." Registration of charges and notices is to consist, in effect, of the registration of written instruments or assurances; but each instrument or assurance is to stand upon the register in the name of a person responsible for its introduction into or retention in the registered title, and empowered to remove it at pleasure ; and provision is to be made for its compulsory removal from the title, as soon as its operation has ceased. The registration of the freehold is to be provisional in the first instance, that time may be allowed—say six years ordinarily, but a longer period, perhaps twenty years, for those who are under disabilities—to interpose the registration of existing incumbrances or adverse titles. It is further proposed that a map of all the land in the kingdom, divided into parishes or districts, should be made by authority, on which each field or other materially defined portion ef the surface of the country should be distinguished by a numerical symbol. This map is to be made the basis of a book of reference containing the same numbers as those on the map, with the description and and contents of each division, and the names and addresses of the different freeholders. The register at the outset would be formed on the spot by an assistant registrar or commissioner sent down to the different parishes for the purpose of receiving claims; and the assistant registrar would in substance follow the practice prescribed by the General Inclosure Act, 8 & 9 Vic. c. 118., a limited time being allowed for appeals, with an extension of time in favour of persons under disabilities. XXXII. This second plan is explained in detail in the Appendix. It contains suggestions of which we shall avail ourselves hereafter; but in the view of the majority of this Commission there are . graye objections to it; and unless those objections could be overcome or materially lessened we should not feel ourselves justified in recommending it. XXXIII. One serious objection is the necessity of sending a commission into every district to ascertain who are to be put on the register of the lands in that district—an objection not merely or mainly on the score of expense, but to the principle of such an inquiry; it would, in fact, involve a compulsory

Warranty of title.

Second plan

Objections to the second plan con„ sidered.

(a) See Evidence of Commissioners Longfield and Ilargreave, Master Brooke, Sir M. Barrington, Lord Dunalley, Colonel Larcom, Mr. Griffith, LL.D., Sir E. Kane, Mr. Tollard Urquhart, M.P., Mr. Sausse, Q.C., Mr. K. Longfield, Q.C., Mr J. B Murphy, and Mr. X, W. White; also a Petition from Irish Landowners in May, 1850. (A) See Mr. Wilson's plan in Appendix A.