APPENDIX. TRANSFER OF LAND.
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APPENDIX.
TRANSFER OF LAND.
IN a newly-settled country, the transactions relating to land are, proportionably, much more numerous than in an old one. Every day somebody is buying, selling, leasing, or otherwise dealing with that species of property. It is the savings' bank of the labouring man, in which he invests not only his earnings, but his whole heart and energies, as has been so well described by Mr. Mill and M. Michelet. Consequently many of the transactions relate to very small allotments, often not exceeding five acres, to which another five will be added when more wages have been saved. And hence (though in fact it is not less important to the class which owns large estates,) there results in a more evident manner the importance of a cheap and expeditious method of transferring that species of property which, by a feudal form of expression, is still called 'real estate.'
In New Zealand, the law relating to the ownership and transfer of land, is substantially the same as in England, though modified in some particulars (not very artistically) by ordinances of the local legislature, passed in 1842. In the simple state of facts which titles exhibit in their earlier stages of existence, the inconveniences of the 'prolix and intricate system' of English conveyancing, are comparatively little felt; but when titles become more complex, and are derived from a more remote origin, there is no reason to expect that the evils which attend it in England will not be equally felt in New Zealand. It would be a most desirable
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thing if a system could be introduced at once which should obviate the possibility of such an event.
A method of transfer by registration has been proposed by some law reformers in England, which, whether it be applicable or not in the old country, could, I think, be introduced without difficulty into the colony; which would ultimately save to the community nearly the whole of the immense cost incurred under the present English system; and would place titles to land on a secure and transparent basis. I allude to the proposal to assimilate the transfer of landed property to that of Bank Stock.
In any country in which this system is to be introduced, there must be prepared a set of maps or plans of such districts as it may be found convenient to divide the country into. On each of these must be delineated with accuracy, the general boundaries of every estate held as a separate tenement. Such plans would in an old country be costly, but in New Zealand they either exist already, or are in process of preparation wherever the country is being settled.
The plans being prepared, the local registrar must open a set of books headed in accordance with them, in which a separate page must be appropriated to every estate numbered on the plan. Thus, to take Canterbury for an instance, there would be a volume for the Sumner district, another for the Wilberforce, a third for the Whately, or a more minute subdivision if necessary; and under each of these heads a separate page would be allotted to section 1, another to section 2, and so on. When the registration commenced, every landowner would produce to the local registrar his land order, or other evidence of title, on inspection of which an entry would be made in the page appropriated to his estate, in the register, and at the same time a certificate corresponding exactly with such
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entry be issued to him. It would be simply to this effect:--
'CANTERBURY, District of Sumner.
'I hereby certify that A. B. is the registered owner of Section 1, Sumner District, containing fifty acres, or thereabouts.
'Lyttelton, Jan. 1, 1852.'
This registration being effected and the certificate issued, the owner of the estate in question would have as valid a title, and a far more easily transferable one, than if it rested on the united labours and ingenuity of all Lincoln's Inn.
Suppose that he should wish to mortgage the land so registered, he would have nothing to do but to hand over his certificate to the party lending him the money, accompanied by a memorandum to this effect:--
'Memorandum.--That I have borrowed of E. F., this day, 200l., at 10 per cent., upon deposit of the annexed certificate. If not paid in full this day six months, E. F. may sell at discretion.
1st May, 1852. (Signed) A. B.
'Witness, G. H.'
E. F. would take these documents to the registrar, who would make an entry of the transaction, under the proper head, and issue a certificate in conformity with it, destroying or filing the original certificate of ownership granted to A. B. When the mortgage is paid off, a discharge would be endorsed on the mortgage certificate by the mortgagee; the mortgagor would present it to the registrar, who would cancel the mortgage entry in his books, and issue a new certificate of simple ownership, or re-issue the original one, if filed.
Similar entries and certificates would attend every
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lease, judgment, or other simple transaction, and subordinate entries (in a separate book with references) might be made in case of sub-leases, or assignments of judgments and mortgages. As far as all the simple and ordinary transfers of property are concerned, this system could scarcely fail to work. No expense, except the registrar's fees, need be incurred; no lawyer consulted; no delay arising out of the preparation of abstracts and investigation of title need occur. The vendor or mortgagor would walk to the registrar's office, accompanied by the vendee or mortgagee, pay a few shillings to the registrar, and the largest estate in the colony might change hands in ten minutes, without trouble or risk.
In the case of subdivisions of estates, they would have to be marked on the plan, and a subordinate account opened under such heads as 'Sumner, section 1, A,' 'Sumner, section 1, B,' and so forth.
With transactions of a more complicated nature, as marriage settlements, deeds of trust for creditors, &c, it has been questioned how far their nature should be noticed in the registry. The Bank of England in its transfer books declines to enter into such matters. It recognises the registered owner (the trustee) and him only. To him it pays the dividends, to his order transfers the stock. And no inconvenience seems to result. The responsibility of the trustee is secured by the Court of Chancery. There seems no reason, however, why the registrar should not, if required, record fiduciary transactions so far as to give notice to parties dealing with trustees of their being such; but of course for purposes of transfer, treating them as absolute owners.
Objections are made to this system on a superficial examination of it, on the ground of the inherent difference between land and money as subjects of transfer.
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Land, we are told, 'has no ear mark.' But, in fact, neither the land nor the money (in case of Bank Stock) are the subject of transfer, but only the title or evidence of ownership in each. Different as acres and sovereigns undoubtedly are, the title to them may be identical,--the same will, settlement, or deed of gift. What operates as a valid transfer of that title, when stock is the subject matter, may equally operate when it is land. Give land its 'ear-mark' by means of a plan, and the title to it may be as easily transferred as that to Bank Stock.
Other objections are, the risk of fire and forgery. They exist equally in respect of Bank Stock, and may be provided against to great extent by a metropolitan duplicate registry, and by several symbols, such as the issuers of scrip, &c, are familiar with. Insurance could be effected against either risk.
The only remaining objections I have ever heard raised, are either such as exist equally to the present system of conveyancing, or such as are removable by legislation and administrative ingenuity.
The system must not be confounded with any of the existing systems of registration. They only record transfers previously effected by deeds involving all the cost and uncertainty of which so many complaints are made. The method now proposed is to effect the transfer by means of the registry itself, not merely to make the registry a record of a previous transfer. It gets rid of all investigation of title; the title being always 'written up' to the present time on the face of the register, and it also obviates the necessity for the seventy or eighty skins or any other number of skins of parchment which, under the existing system, are necessary to pass the title from one person to another.
The plan was proposed by me to the New Zealand
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Company in 1849, and by it laid before the Colonial Office, which printed it in the Blue Book for 1850, and sent it out to Governor Grey, declining to prescribe the enactment of measures of 'a strictly local character;' though it does not appear more so than the Government bank and some others which have been prescribed from home. Nothing has been done about it in the colony.
The reader who wishes to examine the subject more closely than I can do in these pages, is referred to a 'Letter to the Earl of Yarborough, by Henry Sewell, Esq.,' published by Butterworth, Fleet-street; in which it is very fully and ably discussed; and to an article in the Westminster Review for March, 1846. The principle is evidently approved by the writer of the leading articles in the Times of 28th June and 19th July last, though, in the present state of the public mind, he is contented to take as an instalment the imperfect measure now before Parliament.
It is surprising to me that some attempt should not have been made to secure the introduction of such system by the founders of the Canterbury Settlement. It is not too late now to commence it there. At present every acre of land in that settlement must be dealt with in conformity with Coke upon Lyttleton, only if at all modified by ordinances passed at Auckland, where an entirely different system of colonization exists.
THE END.
