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ART. XII. RECENT ALTERATIONS IN CONVEYANCING FORMS.

1. An Act to Simplify the Transfer of Property. 7 & 8 Vict. c. 76. Royal Assent, August 6. 1844.

2. Outlines of a Plan for adapting the Machinery of the Public

Funds to the Transfer of Real Property, respectfully inscribed to the President and Council of the Society for promoting the Amendment of the Law. By ROBERT WILSON. London. Blenkarn, 1844.

THE Real Property Commissioners1, in their first Report, state that they are "inquiring whether the length of deeds, which causes much expense and perplexity, may not be materially abridged, by making certain powers and obligations legal incidents to certain estates and interests to which they are now almost uniformly annexed (though we feel this to be a matter of much delicacy), or by recommending prescribed forms of conveyance to which in certain cases a given effect shall be imputed." It is much to be regretted, however, that this Commission was brought to a close before these inquiries were completed, the more so, as in the same Report it is said that "the forms of conveyances now in use are cumbrous and circuitous" (p. 7.), and that it appeared to the commissioners that the modes by which estates and interests in real property "are created, transferred, and secured, are exceedingly defective, and require many important alterations.” (ib.) No further allusion, however, is made by the commissioners to this important subject in any of their subsequent reports. But we have been able to ascertain the sentiments on this subject of two of the learned commissioners from other sources, and to them we shall advert in the course of this article. We are desirous, in the first instance, of placing before our readers the opinions which were collected and printed on this subject by the commissioners, which formed the basis of their report, and which, it will be found

1 1 R. P. Rep. 57.

fully justified them in giving the matter their full consideration. On no one point, indeed, with the exception of the abolition of fines and recoveries, were the recommendations in favour of alteration so general as on the subject of the common assurances of the land: from all quarters of the profession, by barristers, by conveyancers, by solicitors (to say nothing of the groans extorted from Members of Parliament and country gentlemen), a very general opinion was expressed that the present length of deeds is the root, if not of all, of very great evil, that much might be done to remedy it, and that, at all events, the matter deserved the most serious investigation. It is to be observed, that the Real Property Commissioners' Reports, with their voluminous Appendices, form the depositaries of the grievances relating to the present law of property; and that most of the complaints which were then generally made have been already redressed. The opinions then, which are here expressed, which the Commissioners thought proper to print, deserve the utmost attention. We have not space to cite all the statements made on this occasion, but we wish to call attention to some of them (of course selecting the best and most apposite), although we can assure our readers the others will repay the perusal.

The late Mr. Justice Taunton, certainly not a very active law reformer, but a very sound real property lawyer, says,

"It would be very useful for the legislature to enact a formulary, containing prescribed models or set forms of all sorts of conveyances, drawn up with most concise and technical words, not to be used compulsorily, but to be good and sufficient when used." Appendix to First Report, p. 102.

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Mr. Charles Butler, the father of modern conveyancing, confined his views in this respect chiefly to settlements: he suggested,

"That powers of leasing for twenty-one years at rack-rent, powers of leasing for thirty-one years, &c. &c., and clauses for the appointment of new trustees, and for the indemnity of trustees, should be prepared under the direction of the Commissioners, and settled and approved by them, and when so settled and approved, should be inserted in an act of parliament." — Appendix, p. 117. ; and he adds a plan of settlement referring to these powers.

Mr. John Pemberton says, that,

"With regard to the form of instruments, much improvement is wanting. They have become far too long. It seems very desirable to revert to the simple muniments of former times.". Appendix, p. 456.

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Mr. Henry Bacon is for giving,

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Every tenant for life a power of leasing under the restriction usually imposed for the benefit of the remainderman, and consequently to render the insertion in deeds and wills of a power of this kind unnecessary, and for other similar alterations."— Appendix, p. 601.

Mr. Richard Perry thinks that,

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"Forms of the instruments in common use, and settled by competent persons, should be published by the authority of Government, containing, on the one hand, all proper provisions, fully expressed in the settled language of conveyancing, and, on the other, rejecting all redundant and tautologous expressions."Appendix, p. 609.

Neither must it be supposed that solicitors are backward in making similar observations.

Messrs. Hadfield and Graves, of Manchester, say,

"The usual powers to appoint new trustees; also to give them and executors power to compound, &c.; also that they shall not be answerable for each other's receipts; and, that they shall have a right to reimburse themselves their expenses might be provided for by act of parliament, and render the insertion of them in deeds and wills unnecessary. * * Covenants for title, peaceable enjoyment, and further assurance and production of title-deeds, certainly might be rendered unnecessary by creating such covenants, by inference or implication in all cases (unless expressly stipulated against) between vendors and purchasers, distinguishing between absolute and special covenants, and making trustees merely covenant against their own acts." - Appendix, 629.

Mr. Charles Margetts, of Huntingdon, makes a similar suggestion, having previously observed that,

"The great length of deeds, particularly of marriage settlements, causes a sad expense to purchasers. The world, too, is apt to attribute this apparently unnecessary waste of words to the avarice of lawyers."- Appendix, p. 632.

If lawyers express these opinions, we must not be surprised if country gentlemen sometimes vent their complaints pretty

strongly: "Perhaps," says George Tollet, Esq., of Bettley Hall (who it appears received a legal education), in a letter to E. J. Littleton, Esq. (now Lord Hatherton), and communicated by him to the commissioners,

“Perhaps a better reply could not be given to the circular of the Commissioners, than for you to state how many times you have been shorn and how many fleecings you expect. You may say, I have been fleeced when I succeeded to my property; I have been fleeced when I married. I have had some intermediate fleecings. I expect to be fleeced again when my son comes of age, again when he marries; and when I die my family will again have a severe fleecing.” — Appendix, p. 445.

This, we fear, is too much the general public feeling with respect to the lawyer's bill on any dealing with land; and it is surely to be considered whether it is for the interest of the lawyer to allow it to remain or to endeavour to remove it. Taking the mere pecuniary gains of the profession as those which are to be exclusively watched over, it seems to demand inquiry whether these are best promoted by leaving the system as it is, under which no one employs a lawyer in such matters unless he is obliged, or whether it would not be wiser, by facilitating the transfer of real property, to invite the public to deal in land, and to deprive the lawyer's bill of its terrors.

We have reserved to the last the opinion on the subject of the Real Property Commissioners themselves, but as to this, as we have already observed, in their joint capacity they have only alluded; but individually, two at least, of the Commissioners have expressed very decided opinions. Mr. Tyrrell repeatedly and unequivocally advocates great alterations in the forms of deeds; and he thinks" that if forms of the usual deeds were prepared by the Commissioners, and sanctioned by government, they would be followed by the whole profession, and might correct many redundancies and defects." 1

Lord Campbell, also, the Head of the Commission, as our readers will remember, brought forward the subject in the House of Lords in the Session before the last, avowed the

VOL. I.

1 Suggestion on the Laws of Real Property, 137.

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same sentiments, and introduced a bill to shorten and simplify the forms of conveyances.

It cannot therefore be denied that there is a very great body of professional testimony in favour of the consideration of this important subject, calling for a change, and shewing how it may be effected. These suggestions appear to divide themselves into the two modes alluded to by the Commssioners as the subjects of their future inquiries. 1. The giving certain forms, phrases or words, peculiar statutory effects; and, 2. The settling certain forms for ordinary transactions, which should supersede the forms now employed.

This being so, let us next inquire what acts have been recently passed with a view to further this wished-for amendment of the law, and what success has attended them.

The first recent attempt to dispense with or alter a common form of conveyancing, was by the Dower Act 3 & 4 W. 4. c. 105. This Act by s. 9. does not apply to widows married on or before the 1st of January 1834, as to whom the former law remains in full force. One of the consequences of the act was to dispense with the necessity for inserting the well-known form of the limitations to bar dower; but the saving clause which continues to a large class of wives the old provision, and to conveyancers their old devices for evading it, will have the effect of prolonging the practice of inserting limitations to prevent dower in purchase deeds and in wills devising estates in fee; for when the purchaser or the devisee has a wife living to whom he was married on or before the given day, limitations to prevent dower are still requisite. The doubt, indeed, is whether, in addition to the usual limitations there should not also be inserted a declaration that no future wife should be dowable.' Hence has arisen the practice to insert the usual limitations in all cases, in order to dispense with the necessity of proving the date of the marriage in any future dealing with the property; although this practice is certainly not universal. The immediate effect, however, of the attempt to dispense with the usual dower limitations has, in the opinion of some, rendered another form advisable. So far it was unfortunate.

1 See 1 Hayes Conv. 303. 1 Sug. Pow. 249.

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