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Deeds Registration in England: A Complete Failure?

Published online by Cambridge University Press:  01 July 1999

Jean Howell
Jean Howell*
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University of Manchester
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Abstract

A system of registration of title to land was first introduced int England by the Land Transfer Act 1862. Many commentators have since charted its development and have described the struggle between those espousing title registration and those advocating a reformed system of unregistered conveyancing. There has, however, been little discussion of an alternative which was strongly advocated in the nineteenth century; a general register of deeds, rather than title. The article explains the difference between the two systems and describes the various proposals for the establishment of a deeds register. It then analyses the relative strengths and weaknesses of the two systems of registration and suggests that the eventual ascendancy of title registration was due less to any inherent superiority than to external factors.

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The Cambridge Law Journal , Volume 58 , Issue 2 , July 1999 , pp. 366 - 398
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Copyright © The Cambridge Law Journal and Contributors, 1999

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Footnotes

I wish to thank Professor Raymond Cocks of Keele University for his comments on earlier drafts of this article.

References

1 See, in particular, Anderson, S., Lawyers and the Making of English Land Law, 1832–1940 (Oxford 1992)Google Scholar, (hereafter, “Anderson, Lawyers and the Making of English Land Law”); also, Offer, A., Property and Politics, 1870–1914: Land Ownership, Law, Ideology and Urban Development in England (Oxford 1981Google Scholar; reprint 1992), (hereafter, “Offer, Property and Politics”).

2 The Law Commission has in recent years instigated a number of amendments to the land law, none of which change the fundamentals of the law or the structure of the 1925 legislation.

3 Although one commentator did propose the replacement of freehold by a system of leaseholds: Arthur Underhill, a Conveyancing Counsel, in his pamphlet, “The Line of Least Resistance”, published as an appendix to the Fourth Report of the Committee on the Acquisition and Valuation of Land on the Transfer of Land in England and Wales; 1919 Cmd. 424, xxix.

4 This is a legacy of the conclusion of the Real Property Commissioners in their First Report in 1829 that although the law relating to transfer of land was very defective, the substantive law was perfect in every important respect: First Report of the Real Property Commissioners; 1829 (263) x.

5 Anderson, Lawyers and the Making of English Land Law, gives an excellent, although brief, account of the progress and eventual demise of the proposals for deeds registration in the middle of the nineteenth century but does not consider deeds registration more generally. Offer, Property and Politics, gives only a brief re ´ sume´ of the nineteenth century proposals. In a critique of Anderson's book, Offer suggests that work on the deeds registers is needed: A. Offer, “Lawyers and Land Law Revisited” (1994) 14 O.J.L.S. 269, 277.

6 The first register of deeds was established in the West Riding of Yorkshire by an Act of 1703. This was followed by legislation in 1707 and 1708 to establish registers in the East Riding and Kingston upon Hull, and in the county of Middlesex. An Act of 1735 extended registration to the North Riding of Yorkshire.

7 “Closure of East Riding Deeds Registry” (1974) 38 Conv. N.S. 76.

8 In that year, deeds registration was considered as a precursor to title registration but was finally rejected: Second Report of the Royal Commission on the Land Transfer Acts, Summary of Recommendations, p. 56, para. 33; 1911 Cd. 5483, xxx.

9 Although the reports of the various bodies are available for study, there is very little evidence of background to the earlier reports. Until the Lord Chancellor's Office was created in 1885 no official records were kept of matters dealt with by Chancery. Papers were treated as the private property of the individuals who received or sent them. Some documents have been preserved where an individual's papers have been kept as a collection. Remarkably, at least two Lord Chancellors in office from 1829 to 1880 have left no substantial deposit of documents: no surviving collections of Lord Cottenham's or Lord Cranworth's papers have been found. (Lord Cottenham was Lord Chancellor in 1836 and 1841 and from 1846–50: Lord Cranworth was Lord Chancellor from 1853–1859 and from 1865–1866.) Lord Lyndhurst (1827–1830) destroyed most of his papers before his death, considering that they would be of interest to no one. See Guide to the Sources of British History: Papers of Cabinet Ministers 1782–1900, HMSO 1982.

10 Following the four reports of the Real Property Commissioners (Reports of the Real Property Commissioners: 1829 (263) x; 1830 (575) xi; 1831–32 (484) xxiii; 1833 (226) xxii), many useful changes were made to the rules relating to the transfer of land. For a review, see Simpson, A.W.B., A History of the Land Law, 2nd ed., (Oxford 1986), pp. 274ffCrossRefGoogle Scholar.

11 See p. 391 for an explanation for the change.

12 Report of the Commission on Registration of Title, pp. 10ff; 1857 Session 2 (2215) xxi.

13 For a full explanation of the priority rules, Megarry, R. and Wade, H.W.R., The Law of Real Property, 5th ed., (London 1984), p. 144Google Scholar.

14 Many legal interests could subsist in the same piece of land at the same time, for example, legal life estates and entails.

15 Select Committee on the Burdens on Land, p. xiii; 1846 (411) vi.

16 HC Deb. vol. clii, 3rd Series, col. 298 (11 February 1859).

17 Pottage notes that the ability of interests to be noted and indexed on the title register, leaving the extent of the interest to be verified by examining the interest itself, suggests a confusion of elements of deeds and title registration. The distinction between the two is found in the difference between the schemes of indexation: title registration is “tabular”, deeds registration, “dynastic”: A. Pottage, “The Originality of Registration” (1995) 15 O.J.L.S 370, 391.

18 What is described here is a “composite” picture of deeds registration: there were variations between the Register Acts already in force, and later proposals also differed in detail.

19 The transaction did not have to be “by deed”: this was simply a shorthand expression embracing all those matters within the scope of the register. Only transactions where some document was used could be entered. Thus mortgages by deposit of title deeds, a very common method of securing a loan, could not be registered unless there was some accompanying memorandum: Kettlewell v. Watson (1884) 26 Ch.D. 501. The Yorkshire Registries Act 1884, which made several amendments to the earlier Register Acts, was held in Battison v. Hobson [1896] 2 Ch. 403 to include mortgages by deposit.

20 A hypothetical example may help to show the practical working of the West Riding register. Suppose that, in 1865, A wished to buy a freehold property from B, which B had bought in 1840. A would find B's name in the name index which covered the year when B bought the property. This would show the number of the volume which contained the deed, reference to which would give a description of the property and its precise location, and the names of the parties. Having confirmed that he was dealing with the correct property, A would then need to trace back the title to a good root, at that time normally 60 years, using the name of the vendor to B as a starting point. Then to check that there had been no dealings with the property since B bought the property, A would search forward under B's name up till 1865. The obvious difficulties with this were where the name was a common one or where B in fact owned several pieces of land in the same area (where he was, for example, a builder). These difficulties apart, the alphabetical index allowed a swift search: six volumes cover the nineteenth century, “as easy to use as a telephone directory”, according to a leaflet currently issued by the West Yorkshire Archive Service which has charge of the records of the West Riding register. Although the register did not provide a complete picture (not all dealings with the land could be registered, and in Le Neve v. Le Neve (1748) 3 Atk. 646 it was decided that actual notice of a prior registerable, but unregistered interest affected a later dealing), nevertheless A could usually in fact safely take his title from the 1840 conveyance to B. Although this would be a possessory rather than an absolute title, in practice the limitation period, at that time 20 years, would bar a prior title if B had been in possession.

21 The form of registration in the early register Acts was by a “memorial” of the document, in other words, there was recorded a short note of the existence and general effect of the document. The person searching the register still had to refer to the full document to find the exact effect of the prior transaction. Under the North Riding Act of 1735 and the Real Property Commissioners’ proposals of 1830, provision was made for registration of the full document: Real Property Commissioners, Second Report (1830), p. 31 (n. 10 above).

22 Pottage describes the difference between the approaches as favouring “direct incorporation”, in other words, the existence of competing interests is shown clearly on the deeds register, as against “indirect incorporation” in title registration, where the existence is signalled by the noncommittal caution: (1995) 15 O.J.L.S. 370, 391.

23 Although such may not in fact be the case. The provision for rectification of the register and the availability of an insurance fund to compensate those who suffer loss through inaccuracies on the title play an important part in the registration of title system. The class of “overriding” interests, now enumerated in section 70 of the Land Registration Act 1925, continues to cause considerable difficulty; see, Gray, K., Elements of Land Law, 2nd ed., (London 1993), p. 167Google Scholar for examples.

24 The registers did not extend to copyhold land, to leases under 21 years taking effect in possession or to leases at a rackrent. There was a proposal for a deeds register which would have effectively confined substantive registration to the fee simple: First Report of the Registration and Conveyancing Commission, p. 30; 1850 (1261) xxxii.

25 Leases for over 21 years can also be registered substantively and have their own subsidiary interests registered against them: Land Registration Act 1925, s. 8.

26 The Fines and Recoveries Act 1833 amended the law relating to the use of fines and recoveries but required the enrolment of the “disentailing assurance” in the Court of Chancery: Fines and Recoveries Act 1833, section 41. For a detailed explanation see, e.g., Megarry and Wade, The Law of Real Property, p. 83 or Simpson, A History of the Land Law, pp. 123ff. Often ordinary private conveyances were registered in courts of record, notably in Chancery.

27 Provision for registration of judgments affecting land was first made in 1692: 4 & 5 W. and M., c. 20; and for registration of bankruptcy matters in 1542: 34 Hen. 8, c. 4.

28 In 1617 Francis Bacon proposed the setting up of an Office of General Remembrancer, but this was to be little more than a centralisation of the existing registers for enrolments under the Statute of Enrolments. A valuable historical account of the progress of deeds registration in England can be found as an appendix to the First Report of the Registration and Conveyancing Commission (1850), Appendix 6 (n. 24 above).

29 Veal, D., The Popular movement for land reform: 1640–1666 (Oxford 1970)Google Scholar. Veal suggests that had there been thorough-going reform of land law during the Commonwealth, the new propertyowning classes would not have supported the Restoration. One of the earliest advocates, John Cook, introduced bills in 1650–52 which would have established a limited register of deeds. The Hale Commission, set up in 1652, produced 16 bills, including a proposal for a register: G. Hurst, “Sir Matthew Hale” (1954) 70 L.Q.R. 342.

30 The most significant survivor, re-enacted in 1660, abolished feudal dues: Statute of Tenures, 12 Car. 11, c. 24.

31 Estates in fee in possession, for example, were not included, since there was sufficient evidence of ownership through deeds and, where appropriate, by enrolment under the Statute of Enrolments 1535.

32 2 & 3 Anne, c. 4 (1703).

33 Although the possibility of the existence of prior concealed interests was a danger on any dealing with the land, it was a particular problem when the land was mortgaged. Although the mortgagee would typically take the title deeds as security, which should have effectively prevented later secret dealings with the property, the title deeds might not be available or have been lost or destroyed. Also deeds could be duplicated or fraudulently retained by the landowner.

34 Neither the City of York nor the City of London was within the ambit of the registers. There was in addition a register which had been established in the Fens in 1663, the purpose of which was different from that of the later deeds registers: see generally Wells, S., The History of the Drainage of the Great Level of the Fens called the Bedford Level, 2 vols., (London 1830Google Scholar).

35 J. Bentham, Of Laws in general, ed. by H.A. Hart (1970), Appendix B and pp. 176–182; cited by Offer, Property and Politics, p. 27.

36 J. Humphreys, Observations on the actual state of the English laws of real property with the outline of a code (1826).

37 A.R. Buck, “Property, Aristocracy and the Reform of the Land Law in Early Nineteenth Century England” (1995) 16 J.L.H. pp. 62, 65 and 70 argues cogently that the reform of land law was not a “Benthamite” project; reform of the law was initiated by “the very un-Benthamite Tories of 1827”. There were already proposals for reform even before Brougham's celebrated speech in the House of Commons in 1828 calling for a general law reform. Although Brougham and the Real Property Commissioners acknowledged their debt to Humphreys, his Benthamite utilitarian approach to law was in stark opposition to the ideas of the reformers whose interests were those of the landowners.

38 Second Report of the Real Property Commissioners (1830) (n. 10 above).

39 Bills to establish a general register in 1830 and again in 1831 and 1832 all failed, as did the three bills put forward in 1834.

40 Another was the complexity of the proposed register itself. For other possible reasons, p. 379 below.

41 Opposition to the Real Property Commissioners’ proposals in 1830 was immediate and came mainly from solicitors. As Anderson shows, their arguments were manifold and kept pace with each changing proposal: Anderson, Lawyers and the Making of English Land Law, p. 44.

42 Pottage describes the task of the purchaser's solicitor as being in practice to secure a title for his client which could be sold on by special contract: “The Measure of Land” (1994) 57 M.L.R. 361, 383.

43 The Real Property Commissioners acknowledged their debt to the Conveyancing counsel, saying that they had proved themselves free of prejudice and self interest. The Commissioners derived “considerable confidence from the reflection that we have the sanction of a large majority of that body for all the propositions which we have now to bring forward”: First Report of the Real Property Commissioners (1829), p. 5 (n. 10 above).

44 Buck notes the importance of the availability of mortgage funds for landowners whose land was in strict settlement: one and half million pounds was lent by the Bank of England in the 1820s but the difficulty of ensuring against fraud “vitiated the attractiveness of mortgages in the early nineteenth century”: “Property, Aristocracy and Land Law Reform”, p. 72. Settlements required no registration and the resultant secrecy allowed easy fraud by the suppression of deeds.

45 It is interesting to note that as late as 1879 when title registration had been established and the idea of deeds registration had been effectively dead for 20 years, there was a new proposal for a deeds register in the wake of the Dimsdale fraud scandal. A Committee on Land Titles and Transfer, headed by George Osborne Morgan, recommended a deeds register as a better safeguard against fraud than title registration: Report of the Select Committee on Land Titles and Transfer, p. xiv; 1878–79 (244) xi.

46 Report of the Select Committee on the Burdens on Land (1846) (n. 15 above).

47 First Report of the Registration and Conveyancing Commission (1850) (n. 24 above).

48 Report of the Select Committee on the Registration of Assurances Bill (1852–53), (889) xxxvi. “Assurances” and “deeds” are for this purpose synonymous.

49 Report of the Select Committee on the Registration of Assurances Bill (1852–53), p. iv., (ibid.). Attached to the six-page Report are 180 pages of minutes of evidence.

50 Report of the Commission on Registration of Title (1857) (n. 12 above).

51 Very few titles were registered, partly because the legislation required all boundaries to be exactly determined. See, generally, Offer, Property and Politics, and Anderson, Lawyers and the Making of English Land Law.

52 Report of the Commission on the Operation of the Land Transfer Act 1862 and the Registry of Deeds for the County of Middlesex; 1870 (C.20) xvii.

53 Report of the Select Committee on the Land Transfer Bill; 1895 (364) xi. There had been an important report in 1879 (Report of the Select Committee on Land Titles and Transfer (1878–79)) and several abortive bills were introduced before the 1897 Act was passed.

54 Second and Final Report of the Royal Commission on the Land Transfer Acts (1911) (n. 8 above).

55 Fourth Report of the Acquisition and Valuation of Land Committee on the Transfer of Land in England and Wales (1919) (n. 3 above).

56 Williams, Joshua, “On the true remedies for the evils which affect the transfer of land”, Papers read before the Juridical Society, 1858–63, vol. II, p. 589Google Scholar. Williams had apparently changed his mind; Anderson cites Williams’ Principles of Law of Real Property in its third edition of 1852 in which he questions the efficacy of deeds registration, apparently resiling from the opinion expressed in the second edition in 1849. He supported deeds registration in 1877: Anderson, Lawyers and the Making of English Land Law, pp. 81 and 141.

57 Report of the Select Committee on Land Titles and Transfer (1878–1879) (n. 45 above).

58 Second and Final Report of the Royal Commission on the Land Transfer Acts (1911) (n. 8 above).

59 In 1870 it was agreed that the Middlesex register should be discontinued, although it in fact continued in operation for some purposes until 1940: Report of the Commission on the Operation of the Land Transfer Act 1862 (1870) (n. 52 above). In 1891, the Land Registry (Middlesex Deeds) Act transferred control of the Middlesex deeds register to the Land Registry. The introduction in 1899 of compulsory registration of title on some dealings in the north part of the new County of London (all of which was within the Middlesex deeds registry) reduced the number of registrations at the deeds registry significantly. Compulsory registration of title was introduced in the remaining part of Middlesex in 1937 and the deeds registry was finally closed in 1940. In 1941 there was a proposal that the registry records should be made available to solicitors to help replace title deeds lost in the bombing of London but this was not taken up: PRO LCO2/1491, letter from Reynolds & Co. (Solicitors) to the Lord Chancellor, 28 May 1941.

60 Compulsory registration of title was introduced in Huddersfield in 1962 and the Law of Property Act 1969 provided for the closure of the three Yorkshire registers for registration of deeds as soon as an Order was made extending compulsory registration in any part of the register areas. Orders were made for the North and West Riding in 1970 and for the East Riding in 1974. Two years after these dates, the registries were closed for all purposes. The Bedford Level register was closed in 1920, when the Bedford Level Corporation was abolished.

61 Appendices III and V of the Report of the Registration and Conveyancing Commission of 1850 give details of registers in European countries, all of which can be classified as registers of deeds rather than title.

62 Second Report of the Real Property Commissioner, (1830) p. 19 (n. 10).

63 For a discussion of the Irish deeds register, see P. Roebuck, “The Irish Registry of Deeds: a comparative study” (1972–73) 18 Irish Historical Studies 61.

64 Corresponding to the English “seisin”, the medieval concept which can be loosely interpreted as denoting possession. For an excellent introduction to registration in Scotland, see The Laws of Scotland, Stair Memorial Encyclopaedia, 26 vols., vol. 6, (Edinburgh 1988), pp. 122ffGoogle Scholar.

65 In particular, extra-statutory indexes were established by the deputy registrars who controlled the registers. These indexes remained their private property: Appendix IV to the First Report of the Registration and Conveyancing Commission (1850), p. 167 (n. 24 above).

66 Appendix IV to the First Report of the Registration and Conveyancing Commission (1850), p. 203 (n. 24 above).

67 For a description of the beginnings of the system in Massachusetts, see Haskins, G.L., “The Beginnings of the Recording System in Massachusetts” (1942) 21 Boston University Law Review 281–304Google Scholar, reproduced in The Land Law and Real Property in American History, Major Historical Interpretations, ed. by Hall, Kermit L. (New York 1987), p. 143Google Scholar.

68 For the American system generally, see Cunningham, , Stoebuck, and Whitman, , The Law of Property (Minnesota 1993)Google Scholar.

69 Many commentators were unconvinced of the merits of register of title or indeed of any register at all, preferring instead a reformed system of traditional conveyancing. See, generally, Offer, Property and Politics, and Anderson, Lawyers and the Making of English Land Law.

70 Report of the Commission on Registration of Title (1857), p. 11 (n. 12 above).

71 The first title registration scheme was introduced by Robert Torrens (a native of Cork) in Australia in 1858. The system there seems to have worked well from the start, largely because the land law had had no time to acquire complexity. Most roots of title started from a recent Crown grant, with clearly defined boundaries. Ireland was considering adopting the Torrens system but against a very different background to that in England. England in the nineteenth century may have had a “Land Question” but it was a radically different one from that in Ireland.

72 (1748) 3 Atk. 646. The court based its decision on a case on the Irish deeds register, Forbes v. Deniston (1722) 4 Bro. P.C. 189.

73 They debated at considerable length whether all notice, actual and constructive, should be excluded and came to the conclusion that it should: see Second Report of Real Property Commissioners (1830), p. 36ff (n. 10 above).

74 Report of the Registration and Conveyancing Commission (1850), p. 31 (n. 24 above).

75 The Land Transfer Act 1862 in fact said nothing about notice but since it required the registration of all interests, there would seem to have been no room for the doctrine. The Land Registration Act 1875 excluded notice of beneficial interests and the 1897 Act excluded notice of all kinds, as does the present legislation, the Land Registration Act 1925.

76 For an examination of the history of the doctrine of notice under a registration system, see J. Howell, “The Doctrine of Notice: An Historical Perspective” [1997] Conv. 431. For the present difficulties with notice, see G. Battersby, “Informal Transactions in Land, Estoppel and Registration” (1995) 58 M.L.R. 637 and J. Howell, “Notice: a Broad view and a Narrow view” [1996] Conv. 34.

77 Dibb, who was Deputy Registrar in Yorkshire in 1859, said that although the lack of compulsion to register made the register “irregular”, it was proper to add that “the practice is with few exceptions, to register a memorial within a brief period of the date of a deed”: J.E. Dibb, “The Yorkshire Registries of Deeds” (1859) Transactions of the National Association for the Promotion of Social Science 202. For the working of the deeds registers generally, see Sheppard, F. and Belcher, V., “The Deeds Registries of Yorkshire and Middlesex” (1978–81) 6 Journal of the Society of Archivists 274CrossRefGoogle Scholar.

78 In the West Riding of Yorkshire, for example, there was an index of personal names which covered the whole period of the register, although until 1794 the list was not strictly alphabetical. There was also an incomplete places index; although begun in 1704 in accordance with the legislation, it lapsed between 1787 and 1885, was then resumed but was discontinued from 1923. The indexes in the Middlesex register were considerably defective: although the legislation provided for an index of names and places, the places index was not maintained after 1718. Sheppard and Belcher, op. cit.

79 Second Report of the Real Property Commissioners, (1830) p. 25 (n. 10 above). Certainly a register without a complete index would be difficult to search. The writer has herself conducted a search in the West Riding register, where the indexes are well kept. Although time consuming, repetition would, however, bring expertise.

80 There was a map of the Bedford Level made expressly for the purpose of the register, where each estate was identified and referred to by numbers marked on a map.

81 Report of the Registration and Conveyancing Commission (1850), p. 15 (n. 24 above).

82 Report on the Burdens on Land (1846), p. 446 (n. 15 above).

83 These First Class maps, of 26´7 inches to the mile, were guaranteed accurate by the Tithe Commissioners. Second Class maps were sufficient for tithe purposes to show the land subject to apportionment, but were less accurate than First Class maps and were not guaranteed. It had been intended by the Tithe Commissioners that all the maps would be First Class but the cost of producing them and the acknowledgement by the Commissioners that maps were not strictly necessary at all for commutation (a quarter of tithes having been commuted in England without a map before 1836), led to the repeal of the clauses in the 1836 Act which required accurate mapping. There were also maps drawn up under the various Enclosure Acts but for many enclosures there were no maps at all. Maps only became necessary after the 1801 General Enclosure Act, although they were widely used in practice before then. For the history of the mapping of enclosures and under the Tithe Commutation legislation, see Kain, and Baigent, , The Cadastral Map in the Service of the State (London 1984), p. 236ffGoogle Scholar.

84 For the history of the mapping of the country, see Arden-Close, , The Early Years of the Ordnance Survey (New York 1969)Google Scholar. The Ordnance Survey was much further advanced in Ireland, which may be one of the reasons why deeds registration worked better there.

85 Although England and Wales are now well mapped, the full cadastral map is still a considerable way from completion. The first and only comprehensive mapped cadastral survey was that done for the purpose of the Finance Act 1910, which introduced increment value land duty. The legislation was repealed in 1920. Cadastral maps had existed in many parts of Europe for many years. They were compiled, not for registering ownership of land, but for the cadaster land taxes, although they were and are used to a limited extent to show title to land: Kain and Baignet, op. cit. (n. 83 above).

86 Two members of the Committee, Humphry and Broderip, issued a dissenting paper disagreeing with the proposal for a map index: Report of the Registration and Conveyancing Commission (1850), p. 39 (n. 24 above).

87 Pottage, “The Measure of Land”, p. 375.

88 Report of the Commission on Registration of Title (1857), p. 21 (n. 12 above).

89 Pottage, “The Measure of Land”, p. 378. Pottage concludes that the consolidation of registration of title was dependent in part on the physical reduction of land to a map. He argues that the rise of registration—which he sees as a codification of land transfer practices—depended on a prior codification of property in terms of topography: Pottage, p. 384.

90 Second Report of the Royal Commission on the Land Transfer Acts (1911), p. 49 (n. 8 above). The Yorkshire Registries Act of 1884 repealed the three Yorkshire Registries Acts and instituted a more efficient method of indexing and registering. The system continued in force till the closure of the East Riding Registry in 1976 and was much admired by those who used it.

91 It was argued also that the essentially pure recording function of a register of deeds would inevitably mean that there was an increasing number of deeds to be stored, since all must remain available to be consulted on a later dealing with the land. One distinct advantage of a register which purports to deduce title is that once the effect of a dealing has been assessed and its import noted on the register, the documents can be returned or discarded. The West Riding deeds registry, which was established in 1704 and closed for registration in 1970, had an average of 13,000 documents registered each year by the late 1860s. The original buildings at Wakefield were enlarged several times until the registry business was moved in 1932 to premises where the records are still kept. The Real Property Commissioners, having looked at the space occupied by the existing registries, calculated as a conservative estimate that a building the size of Lincoln's Inn Hall, 71 feet by 32 feet and three storeys high, would be sufficient to serve the whole of England and Wales for 120 years: Second Report of the Real Property Commissioners (1830), p. 75 (n. 10 above).

92 Report of the Registration and Conveyancing Commission (1850), p. 7 (n. 24 above). The Commissioners noted the great increase in the efficiency of technology since 1830.

93 See the Appendix to the Report of the Select Committee on the Registration of Assurances Bill (1852–53) (n. 48 above). See, for example, Appendix No. 2, p. 112: petition by the Mayor and Aldermen of Sheffield.

94 Dibb, The Yorkshire Registries of Deeds, p. 205.

95 Report of the Commission on the Operation of the Land Transfer Act 1862 (1870) (n. 52 above).

96 W.E. Tate, “The Five English Statutory Registries of Deeds” (1943–1945) vol. xx, Bulletin of the Institute of Historical Research, 97.

97 Second Report of the Real Property Commissioners (1830) p. 76 (n. 10 above). By 1867 the number was reduced to three. Of these, two were absentees yet all received £2,400 in that year. The one “active” Registrar, appointed in 1851, was the second Baron Truro (the son of the first Baron Truro who was Lord Chancellor from 1850–52); he held the office for 40 years: Sheppard and Belcher, “The Deeds Registers of Yorkshire and Middlesex”, p. 274.

98 Following the Report of the Select Committee of 1879, there were proposals to reform the Middlesex registry but they were defeated by the question of compensation for the existing registrars: Sheppard and Belcher, ibid., p. 281.

99 Although the Real Property Commissioners expressed concern over the method used in the existing registries, they did not articulate the basis upon which the officials who would run their register were to be appointed.

100 Abraham, R.J., A Popular Explanation of the system of Land Registration under Lord Westbury's Act (London 1864)Google Scholar and the Report of the Commission on the Land Transfer Act 1862 (1870) p. xviii (n. 52 above).

101 Report of the Commission on Registration of Title (1857) p. 13 (n. 12 above).

102 The Declaration of Title Act 1862 permitted a landowner to obtain a declaration of indefeasible title from the Court of Chancery, but there was no incentive for a landowner to apply to the Court for such a declaration. Where a title was considered safe by the landowner, a declaration was unnecessary; where he thought it unsafe he would not wish to put it to the test. The Act was a complete failure, no titles being declared under it.

103 It was possible under the 1862 Act to apply for registration without indefeasible title but even in this case, the registrar had to make the same enquiries as to boundaries, etc. as for indefeasible title. According to the Report of the 1870 Land Transfer Commission, the enquiry this entailed was as burdensome as for registration of indefeasible title and in fact no applications had been made under the provision: Report of the Commission on the Operation of the Land Transfer Act 1862 (1870) p. xiv (n. 51 above).

104 It had not originally been the intention that only absolute title should be registered. The 1857 Report which recommended a register of title had suggested two options; registration with “warranted” or “unwarranted” title. Registration with immediate warranted or statutory title would give secure title as to the future and prevent past title being disturbed. Where an owner was seeking warranted title, title had to be fully investigated by the registrar and would be rejected if poor. As an alternative, the owner could register an unwarranted title which would be subject to the rights existing before registration and which would need to be investigated on subsequent transfer. A Bill based on the recommendations had passed the Lords but had failed on a change of Government. The Land Transfer Act 1862 allowed only the first option.

105 The Report of the Commission of 1870 on the Land Transfer Act 1862 recommended the registration of possessory title. Lapse of time, it was said, would confer title increasing in validity. “It is as if a filter were placed athwart a muddy stream; the water above remains muddy, but below it is clear, and when you get so far down the stream as never to have occasion to ascend above the filter, it is the same thing as though the stream was clear from its source.”: Report of the Commission on the Operation of the Land Transfer Act 1862 (1870) p. xxviii (n. 52 above).

106 Report of the Select Committee on Land Titles and Transfer (1878–79) p. iv (n. 45 above).

107 Wolstenholme, Edward, “Simplification better than novel modes of assurance”, Papers given before the Juridical Society, (1858–62) vol. II, 533Google Scholar.

108 Until the Vendor and Purchaser Act 1874, the period for a good “root” of title was 60 years, unless, as was often the case, a shorter period was adopted by agreement of the parties.

109 Pottage, “The Originality of Registration”, p. 387.

110 For a recent example, see Wibberley v. Insley [1998] 2 All E.R. 82.

111 These are matters which affect the title to registered land but are not mentioned on the register and which a purchaser must find out for himself, often by investigation of the land. They are detailed in section 70 of the Land Registration Act 1925.

112 A General Registry Bill introduced in 1832 by Sir John Campbell, the Solicitor-General, was supported by the Select Committee but was “defeated by a combination of country attorneys who thought erroneously that the measure would diminish their business and profit. They are the most influential class in the country … they frighten more Members by their threats than they persuade by their arguments”: Hon. Hardcastle, M., Life of Lord Campbell (London 1881), vol. I, p. 12Google Scholar.

113 Lord Westbury blamed solicitors for the failure of the Land Transfer 1862, calling them the old men of the sea “sitting on shoulders of every landed property”. Offer and Anderson disagree over the extent to which solicitors’ resistance was economic. Anderson would absolve them from, or find excuses for charges of self interest: Anderson, Lawyers and the Making of English Land Law, pp. 184 and 306–307. Offer finds the evidence that professional policy (that is, opposition to title registration) was motivated by economic self interest overwhelming: Offer, “Lawyers and Land Law Revisited”, p. 274.

114 See Appendix VI to the Report of the Registration and Conveyancing Commission (1850) p. 239 (n. 24 above).

115 Anderson notes that Lord Brougham in particular attributed solicitors’ opposition to self interest: Lawyers and the Making of English Land Law, p. 51. Strickland Cookson, a solicitor who gave evidence to the 1852 Select Committee on the Registration of Assurances Bill, was particularly incensed by the accusations of pursuit of self interest. He thought that “no body of men have been more zealous or disinterested in advocating and pressing reforms”: W.S. Cookson, “Transfer of land: registration of title deeds and registration of title” Transactions of the National Association for the Promotion of Social Science (1859) p. 192.

116 Offer, “Lawyers and Land Law Revisited”, p. 277. Pottage, in both “The Originality of Registration” and “The Measure of Land”, notes the “expropriation” of the land transfer process by the state under title registration.

117 See p. 383 above at n. 93.

118 Many of the complications of English land law stem from an almost pathological desire for secrecy. Fines and recoveries, the conveyance by lease and release, and the complications of the Statute of Uses of 1535 are all evidence of this urge for secrecy.

119 Second Report of the Real Property Commissioners (1830) p. 21 (n. 10 above).

120 Abrahams, A Popular Explanation of the System of Land Registration, p. 22.

121 Report on the Operation of the Land Transfer Act 1862 (1870) pp. xxvi ff (n. 52 above).

122 Anderson, Lawyers and the Making of English Land Law, p. 81.

123 The public was expected to believe what it was told. In the early 1840s, the Law Amendment Society publicly urged deeds registration but privately supported title registration. By 1846 the Society was publicly supporting title registration; Anderson, Lawyers and the Making of English Land Law, pp. 60 and 90.

124 See Buck, “Property, Aristocracy and Reform”, generally and in particular pp. 67, 87 and 88.

125 Lord Campbell, who had headed the Real Property Commission, said in a letter to his brother that “I stick up for the aristocracy of England to whom this country at every period is indebted for its liberties.”: Hardcastle, Life of Lord Campbell, Vol. I, p. 493.

126 Although it was not until the latter half of the century that any legislation was passed which could have significantly affected the distribution of land, the agitation for reform had started much earlier: the first bill to abolish primogeniture, a prime target of the reformers, was introduced in 1836. There seems to be little evidence that these stratagems had much influence on the spread of land ownership: none of the legislation compelled sale, and the changes in land ownership were due to other factors: Thompson, F.M.L., English Landed Society in the Nineteenth Century (London 1963)Google Scholar.

127 For example, the Settled Estates Acts 1856 and 1877, and especially the Settled Land Act 1882 made it easier for the owner of settled land to deal with his estate. Some would have liked to go further and compel sale or allow forfeiture. A.R. Wallace, better known for his theory of evolution, proposed a land nationalisation scheme: Douglas, R., Land, People and Politics: a history of the land question in the United Kingdom, 1878–1952 (London 1976)Google Scholar. For the various aspects of the move for “Free Trade in land”, see, for example, Kay, Joseph, Free Trade in Land (London 1877)Google Scholar; Morgan, George, Land Law Reform in England (London 1880)Google Scholar. For an excellent account of the land reform movement from 1880 to 1919, see Peacock, A., A Study of the Activities of the English Land Restoration Leagues and the Land Nationalisation Society, Unpublished M.A.Thesis, University of Southampton, 1961Google Scholar.

128 Offer and Anderson disagree about the importance of title registration in the land reform question, Offer seeing it as having a more important role than does Anderson: Anderson, Lawyers and the Making of English Land Law, p. 166; Offer, Property and Politics, ch. 2 generally.

129 Anderson, Lawyers and the Making of English Land Law, p. 77, 80. Lord Truro was Lord Chancellor when the 1851 Deeds Registration Bill was introduced by Lord Campbell. According to Anderson, Campbell apparently treated Truro “as something of a joke”, and Truro made wrecking amendments in retaliation. Certainly Campbell saw Truro as “almost as great an antireformer as Lord Eldon”: Eldon as Lord Chancellor had opposed all the Real Property Commissioners’ Bills. Campbell described Truro's opposition to the 1851 Bill as “the most amusing topic about town”: Hardcastle, Life, Vol. I, p. 291. Lord Cranworth, Chancellor in 1852, supported Campbell's bill, but Bethel (the new Solicitor-General, later Lord Westbury) was opposed to Cranworth and voted against the bill. Campbell and the other “veterans” of the 1830s were overtaken by young men who were intent on by-passing them by espousing title registration.

130 Nash, Thomas, The Life of Lord Westbury (London 1888), Vol. II, p. 17Google Scholar.

131 Nash, The Life of Lord Westbury, p. 18.

132 One commentator giving evidence to a Committee on Title Registration in 1895, when asked about the credentials of the earlier advocates of registration of title, said that it was common knowledge that Lord Westbury's experience of conveyancing was limited to 12 months as a pupil: Report of the Select Committee on the Land Transfer Bill (1895), Minutes of Evidence, p. 62 (n. 53 above). But equally, John Campbell who was appointed head of the Real Property Commission, was a common lawyer, who “rejoiced in the opportunity to be trained in Real property in which I have been rather deficient”: Hardcastle, Life of Lord Campbell, Vol. I, p. 457. Campbell's particular brief was prescription and the Statutes of Limitation and he wrote the section on prescription in the Real Property Commissioners’ First Report. Perhaps it is partly for that reason that the Prescription Act 1832 has been described as the worst drafted on the Statute Book.

133 The Real Property Commissioners included Brodie, Tyrrell, Hodgson, Duckworth, Duval and Sanders, all well known Chancery lawyers. Duval devised the scheme for the general register and Brodie drafted the much praised Fines and Recoveries Act 1833.

134 Note 112 above.

135 Hardcastle, Life of Lord Campbell, Vol. II, p. 6Google Scholar.

136 In 1833 bills abolishing fines and recoveries passed quietly through both Houses without any amendments being made. Campbell commented that “this was the only way of legislating on such a subject.”: Hardcastle, Life, Vol. I, p. 29Google Scholar.

137 Hardcastle, Life, Vol. I, p. 31Google Scholar.

138 See Offer, Property and Politics, p. 71 and Anderson, Lawyers and the Making of English Land Law, p. 200.

139 Even now the title registration system only works as well as it does through the expertise of the registry officials.

140 In 1925 the provision for compulsory registration was extended and although it was agreed that compulsory registration should not be enforced for 10 years, at the end of that period, in 1935, it was decided, with a nice irony, that the first compulsory registration should be in Middlesex: Report of the Land Transfer Committee; 1934–35 Cmd. 4776, x. The Report is only a few pages long.

141 Registration of title was introduced into Ireland in 1865 by the Record of Title Act but fared no better than in England; it was not until the Registration of Title Act 1891 that title registration started to be a success. A significant reason for this was that where land was bought under the Land Purchase Acts 1891, registration of title was compulsory. For the history of registration of title in Ireland, see A. Dowling, “Of Ships and Sealing Wax: The Introduction of Land Registration in Ireland” (1993) 44 N.I.L.Q. 360. Registration of title was introduced into Scotland in 1979 by the Land Registration (Scotland) Act. It will render the deeds register largely obsolete, although it will still be retained for gratuitous transactions.

142 Sheppard and Belcher, “The Deeds Registries of Yorkshire and Middlesex”, p. 283.

143 Report of the Select Committee on Land Titles and Transfer (1878–1879) (n. 45 above).

144 It is true that there is widespread title insurance in America, which to an extent replaces the state guarantee here. There was a proposal for a similar scheme here which came to nothing. Anderson, Lawyers and the Making of English Land Law, p. 136.

145 There was an idea for a title register of sorts put to the Real Property Commissioners in 1830. Second Report of the Real Property Commissioners (1830) p. 52 (n. 10 above).

146 Second Report of the Real Property Commissioners (1830) p. 35 (n. 10 above). The Commissioners considered recommending that registration be made a requirement for the validity of the deed (as sealing was) but came to the conclusion that this should not be done.

147 Report of the Committee on Land Charges; 1956 Cmnd. 982. See comment by H.W.R. Wade [1956] C.L.J. 215.

148 F.M.L. Thompson, “Land and Politics in England in the Nineteenth Century” (1965) 15 Trans. R.H.S. 15th series, p. 23.