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17

Sale and Transfer of Land. subject to family settlements. But the right to the one has grown up under the feuded system of law, adopted, no doubt, as far as it could be done by judicial decision, to the varying wants of mankind, but without the aid of a controlling power which alone would be sufficient to simplify its tenure or facilitate its disposition. The right to the other has been created and regulated by Parliament itself, which, having to deal with a new subject, determined at once to allow no trusts to affect the transfer of it, and therefore excluded from the register of the right to it all modifications which might qualify the absolute ownership. Had land always been similarly registered and similarly transferred, no one would now think of imposing on its present proprietor the harsh and unnecessary burthen of furnishing, before he could part with a single acre, a detailed history of every transaction relating to the property for a . period of sixty years; nor of forcing him, before he could borrow £100 for purposes of improvement, to prove every birth, marriage, death, settlement, charge, conveyance, or incumbrance that might, by possibility affect the title for more than half a century past; and if this be so, how much more beyond reason would it be to compel an owner, after such a process had been gone through on his purchase, again to undergo it, when he might wish to sell that to which the title had been both recently and abundantly proved. Assuming that we are right in this conclusion, and we think that few will doubt it, the difficulty of giving to the owners of land the same benefits as those enjoyed by the owners of ships, stock in the funds, and railway shares, is the difficulty of applying a new principle which, in a 1 new* state of things, has been found to be practicable and advantageous, so far and in such a manner as to render it applicable to an old state of things, which is justly complained of, and which has become prejudicial to the interests of society in those very particulars in which it disregards that principle. It is the difficulty of unravelling the intricate meshes of form and technicality with which the owners of real property are surrounded and entangled, the difficulty of assimilating the transfer or alienation of that kind of property which has been hitherto subjected to these forms and technicalities to the transfer or alienation of that kind of property which has always been without them; the difficulty, so to speak, of undoing, as far as regards the future, that which has grown up into a kind of necessity, until it has almost come to be supposed that the security of property in land depends on the fetters with which all freedom of action respecting it is tied up and restrained. We will proceed to show how we think this assimilation may be effected, notwithstanding the complications in which the title to land and the transfer of it are at present involved. XLII. The objects in view are, to form a register of title as distinguished from a register of the various deeds and assurances under which the title has been derived; —to form this register in such a manner that the retrospective inquiry into the former dealings and transactions, which on a transfer is now necessary, may be avoided; —to make this register instrumental in simplifying generally the title to land and the forms of conveyance; and at the same time te continue, as far as possible consistently with a simple register of title, the existing system of settlements, and to avoid impairing unduly the security of settlements and trusts. These objects, moreover, we consider ought to be accomplished, if possible, in a manner which will avoid the special objections incident to a system of registration of assurances, but at the same time will secure the particular benefits and advantages which, as we have stated, belong to that system. XLIII. In endeavouring to accomplish the objects in question, we have come to the conclusion that the register ought to be composed of a succession of simple transfers merely, and should manifest only the actual and existing ownership of the land for the time being, without laying open the history or past deduction of it. It ought, in fact, to be a record of the ownership existing at the time of any supposed search of the register. If the register were to' disclose, as part of the existing title, the former dealings, it would be found not to afford the requisite relief from the obligation of retrospectively investigating the title. XLIV. We further think that, consistently with the objects in view, no form of ownership or ' property, besides the fee or entire ownership, with the exceptions next mentioned, can be allowed to be ' put upon the register. The registered ownership should, with those exceptions, always be the fee or ' whole interest in the land forming the subject of the registry. Charges on the fee, however, and leases, being (apart from the fee) subjects of marketable dealing, and interests commonly bought and transferred, should also be admitted to the register, separate places being provided for them. XLV. Some of us think, indeed, that beneficial interests in land not amounting to the fee, and - dealings with such interests, might usefully and advantageously be registered. We conceive, however, ' that registration, as to such interests and as to dealings with them, would, in all material points, resemble a registry of assurances, and that such a registry should not be mixed up with or form part of a registration of title. Any such register should (a) be entirely distinct, and should not in any way affect purchasers of the fee, but should only bind the parties who created minor interests and incumbrances, the owners of such interests, and their heirs and personal representatives and assigns, and the trustees. This distinct register might be useful in regulating the distribution of the money arising from a sale of the fee, and in determining questions of priority, but it should not in any way complicate or impede the sale of the fee. We

Objects aimed at.

What a register ought to be and do.

What ought to be put on the register.

What ought not to be mixed up with it.

(a) Professor Hancock's evidence.