LORD CAIRNS' CONVEYANCING * ACT.
WITH the new year comes into operation by far the most important Act for the simplification of land transfer which has been passed since the abolition of the antique
machinery for barring entails known as Fines and Recoveries. The present Act originated in the address given by Mr. N. T. Lawrence at the Provincial Meeting of the Incorporated Law Society, in the autumn of 1879; and to the Solicitors' branch of the profession belongs, therefore, the credit of initiating what will undoubtedly be a very considerable re- form. Mr. Lawrence's address was noticed at the time in these columns, and while dissenting from the views ex- pressed on the subject of registration of title, we pointed out that many of the suggestions were of a highly useful char- acter. Lord Cairns lost no time in taking steps to give effect to Mr. Lawrence's views ; the drafting of the neces- sary Bill was entrusted to one of the ablest convey- ancers and the most accomplished Parliamentary drafts- men of the day, and the opinions and advice of the Conveyancing Bar generally were freely sought and carefully weighed. Two other Bills were simultaneously prepared and submitted to Parliament,—a Bill to alter the principle upon which solicitors' remuneration is calculated in non-contentious business, and a Bill to give greater power of dealing with settled estates. The first has passed as a pendant to the Conveyancing Act, the second received no assistance from the Government (who, it is understood, intend to deal with the subject in a more comprehensive way), and has not, therefore, become law. Of the two Acts which are now on the Statute Book, it may be safely said that they constitute a very honest endeavour to simplify and cheapen the law relating to the trans- fer and management of property, and a few moments spent in considering the principles upon which they proceed and the general nature of the changes they will effect may not be wasted.
The main principle of the Conveyancing Act is that every- thing which is usual in good conveyancing practice shall hence- forth be understood to be done, unless some contrary inten- tion appears on the face of the transaction. Effect is given to this principle either by enacting the law definitely on the point in question, or by importing certain consequences into the use of special words in deeds and other instruments. Thus, in future, a number of conditions protecting vendors, which are usually inserted in contracts for and conditions of sale, will apply to every sale, unless a contrary intention is expressed. Again, various powers, usually conferred by deed upon trustees and mortgagees,—for instance, in the latter case, powers of selling and insuring the mortgaged property, and in the former case the power of compounding for debts, will hence- forth be conferred by law, unless some contrary intention is ex- pressed in the instrument creating the trust or mortgage. And provision is in like manner made for the management of in- fants' estates, and the application of the income to their main- tenance, education, or benefit. These are examples of the first method adopted by the Act. As instances of the second—the implication of consequences from the use of special words— may be mentioned the importing into deeds, by the use of certain words indicating the character in which the person dealing with the property acts, all those covenants which have hitherto been inserted as matters of course in the respective cases. Thus the statement in a conveyance for value, not a mortgage, that a person conveys as beneficial owner of the property conveyed, will henceforth imply that the vendor has given the usual qualified convenants, that he has a right to convey the property, that the purchaser shall quietly enjoy it, that it is free from encumbrances, and that the vendor will do anything further which may be found necessary to perfect the purchaser's title. A similar statement in a mortgage implies that the mortgagor enters into the more stringent covenants usual on his part, and so in other cases. Again, a simple acknow- ledgment given by one person to another of the possession of title-deeds, and an undertaking for safe custody, will in future imply everything formerly contained in the lengthy covenants on the subject constantly recurring on the transfer of property ; and the statement that a deed is supplemental or an annex to another is to have the effect of incorporating the first deed, as if it had been fully recited, in the second. There seems to be a fair prospect also of getting rid in future of those con- stantly recurring "heirs, executors, and administrators," which are a weariness to the legal flesh, and probably do more than anything else to deter a layman from even endeavouring to understand the wording of a deed. By various enactments, some of them declaring and altering the law applicable to covenants, and some directing that the words "in fee simple," "in tail," "in tail male," and "in tail female," shall be sufficient to create those respective estates, the use of the old enemies we have alluded to seems to be rendered quite unnecessary, and in the specimens of deeds given in the schedule to the Act they are conspicuous by their absence. These specimens, indeed, are delightful in their brevity, and —always bearing in mind that property, and especially land, must be described, and that the description often, as things are now, occupies half a deed—that haven of bliss which has often been sighed for, the transfer of a house or a field by means of a sheet of note-paper, seems to be within a calculable distance. There can be no doubt that deeds and other legal instruments will be much shortened under the new Act ; and it remains to consider how far this result will diminish the cost and complexity at present attending the transfer and devolution of property, and how nearly we shall be brought to a really simple form of land transfer.
That the shortening of deeds will have an important effect, there can be little doubt. The eminent conveyancer who drew the Act prophesies in his published book on the subject that the effect will be to abolish the special craft which he practises, to enable solicitors to draw their own deeds without consulting Counsel, and thus to pave the way for the practical amalgamation of the two branches of the profession. Such a, forecast may be too sanguine, but probably the tendency is in the direction indicated by Mr. Wolstenholme ; and the public do not require to be told that if one set of practitioners do their work instead of two, the result must be a great saving to the -pocket. In the meantime, a good deal of that mystery which in the lay mind not unnaturally envelopes huge skins of parchment will be dissipated. Deeds will become of manageable length, the process of dealing with property will seem more nearly to harmonise with common-sense, and the solicitor may expect his client to take a more intelligent in- terest in his own business,—a result equally satisfactory to both parties. Moreover, the length of documents being no- longer any measure of the solicitor's remuneration, all excuse for the simulation of distrust in the methods pursued by him will be removed, and a more cordial appreciation of skilled labour, which is undoubtedly, in the vast majority of cases, given with an absolutely single mind, may be anticipated. All these are great benefits, tending, it cannot be doubted, to the expediting of business. The authors of the Act would pro- bably not suggest that it will do more. But the question will remain whether more may not be done. Conveyancing will still remain an art, and the layman who endeavours to practise it will probably inflict more injury on himself and others, under a system in which so much is implied by the use of certain expressions, than under one in which everything is "writ large." We shall still be far from that ideal state of things in which a vendor and purchaser of average intelligence- may effect the sale of a piece of land without professional as- sistance, by simply attending at a public office and authorising an entry on a register. If ever this state of things is to be brought about, those complicated arrangements with respect to land which arise from the existence of entails and life es- tates must first be put an end to, and land left free to pass from hand to hand at the disposal of each successive owner. Valuable in every way as is Lord Cairns' Act, it does not touch those large questions with relation to land which the- Government are pledged to take up, and the solution of which is called for by the present condition of the agricultural in- dustries of the country.
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