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The Register.
ADELAIDE: WEDNESDAY. JUNE 23. 1858.
THE REAL PROPERTY ACT.
The new Real Property Act comes into
operation here on the 2nd of next month.
Mr. Torrens, its author, has, it is understood,
accepted the appointment of Registrar-General
under the measure, for the purpose of setting
its machinery in motion. We may, therefore,
expect that it will be inaugurated under the
most favourable circumstances. The Act
introduces some very sweeping changes into
the mode of dealing with landed property ; but
it may tend to increase the confidence
of the public in its efficiency to know
that those changes are precisely such
as are sought to be realized by
some of the leading law reformers of the
mother-country. There seems to be quite a
rivalry amongst learned Lords in the House of
Peers as to who shall first have the honour of
passing a measure which shall strike at the
root of the absurd and costly system of con-
veyancing at present in use. On the 23rd of
March last the second reading of a Bill, intro-
duced by Lord Cranworth, for the transfer of
land, passed the House of Lords. His Lord-
ship, in explaining the principles of the mea-
sure, referred to the efforts which had been
made since 1846 to reform and simplify
the property laws, and noticed promi-
nently the huge objection which lies
at the very threshold of the present
system, namely, the necessity of tracing
a title back to its root whenever a property
changes hands. To overcome this difficulty,
and to render titles simple and safe, Lord
Cranworth's Bill proposes to do just what Mr.
Torrens's proposes to do. It proposes that all
titles shall be Parliamentary titles, or titles
from the Crown. And it provides that the
mode of granting such titles shall be very
similar in principle to that adopted by our own
Real Property Act. The machinery of the
Court of Chancery is that through which Lord
Cranworth proposes to grant indefeasible titles.
The conveyancing counsel of the Court
would investigate the title; and the pur-
chaser, paying his money into Court would
receive his transfer. It is, in fact, the appli-
cation of the present powers of the Court of
Chancery to the transfer of property generally.
Lord Cranworth does not propose to adopt
the system of registration recommended by
the Real Property Commissioners, but that is
clearly a defect in his scheme. Lord Wensley-
dale is reported to have said during the dis-
cussion of the Bill, "It is a substitute for a
register, but to a register we must come at last."
The Lord Chancellor, Lord Campbell, and
Lord Brougham also took part in the dis-
cussion. The principle of the measure was
very fully concurred in by all. The two leading
objections raised were, the injury that might pos-
sibly be inflicted upon third parties by a guaran-
teed title; and the difficulty in which the Court
of Chancery would be involved by the extra
amount of business that would be thrown upon
it. The latter objection, it will be seen, is of
little weight, even as it relates to Lord Cran-
worth's Bill and it certainly could not be
used as an argument against the arrangements
for investigating titles under Mr. Torrens's
Bill. The former objection was met very satis-
factorily by Lord Cranworth, who stated, that
not oftener than once in twenty years did any
error occur on the part of those who had been
directed by the Court to investigate the titles to
estates sold under its sanction. And Lord Camp-
bell stated, with reference to the Irish Encum-
bered Estates Bill, that, although estates amount-
ing to many millions sterling had been disposed
of under its operation, there was not a single
instance of a mistake being made, or any person
being wronged. This, we should think, fully
disposes of the objection to guaranteed titles,
founded upon the apprehension of injury to |
third parties. Many of the Irish estates were
so encumbered with mortgages, and the com-
plications arising out of them, that they were
quite unmarketable. An enactment was passed
authorizing investigation and the issuing of
a new title, and the result has been that under
circumstances which offered the severest test to
the principle, and where immense sums of
money were at stake, not one case of injury to
third parties can be pointed out. This is very
much what might be anticipated, where
arrangements are carefully made to prevent
errors, and more particularly in a colony where
complicated titles constitute so small a portion
of the bulk of titles existing. It is, however,
satisfactory and assuring to know, from actual
experiment and upon the highest and most un-
doubted testimony, that there is no cause of
uneasiness. The idea of injury being done to
third parties by bringing lands under the Real
Property Act is a mere bugbear to frighten
children. The general advantages of a measure
of the kind are so great, and the risks so infini-
tesimally small, that the latter ought to be left
altogether out of the account when the general
interests of the public are considered.
The Real Property Act, it will be remem-
bered, is only compulsory with reference to
grants issued from the Crown after the 1st of
July next. The bringing under it of land
acquired before that time is left entirely to the
option of the proprietor. There will, of course,
be no difficulty in dealing with land entirely
unencumbered, as a title equal to a land grant
will be given every time it changes hands. And
it will easily be perceived that three-fourths of
the titles in the colony involve no more compli-
cations than if they had just issued from the
Crown. There will, therefore, be no impedi-
ment whatever to their being brought under
the Act whenever a sale shall take place.
With regard to titles presumed to be less clear
and marketable, there will be at least an equal
amount of care exercised in their investigation
as is exercised under the present system of
conveyancing. The best legal talent that can
be secured will be available to the Lands
Titles Commissioners for the settlement of any
intricate point that may come before them.
And any matter that cannot be decided by
them may ultimately be brought before the
Supreme Court. We wish to impress these
facts upon the public mind, because an im-
pression has gone abroad that those non-pro-
fessional persons have to decide upon all
the titles that are offered for registration.
Such is not the case, although there can be
little doubt that they would be quite compe-
tent to deal with nine-tenths of those that are
likely to come before them.
Lord Brougham, in referring to the principle
of Lord Cranworth's Bill, said that when the
Irish Encumbered Estates Act was proposed
he had great doubts about its working, and
that in several stages of its progress he was
adverse to it. He was nevertheless bound to
admit that the experience of the Act had so
far answered the objections he had urged that
he now entirely rejoiced in the success of the
measure, and admitted that the fears which
he entertained had to a great extent proved to
be unfounded. And so we believe it will be
with Mr. Torrens's Bill and those who have
opposed it. Their fears will turn out to have
been as baseless as those of the noble and
learned Lord with reference to the Irish En-
cumbered Estates Bill. Experientia docet.
We are glad that an opportunity will be
afforded the public of judging for themselves
whether the present system or the new one is
most in accordance with the requirements of
the community.
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