The Lyttelton Times.

Lyttelton Times, Volume XIII, Issue 763, 29 February 1860, Page 4

The Lyttelton Times.

Wednesday,'' February 29,.1860... We very recently called the attention of the members of the General Assembly and the public, generally to; the important question of simplifying the Title to Real Estate in this country.. As the session is rapidly approaching,, and it is not unlikely that the subject may be brought forward by the government, it is very desirable that as much general knowledge of facts as is possible should be brought to bear upon it, to elucidate if possible the complexities in which it is involved, -arid to do avvay with the.technicalities which beset it. / With this view, we may first endeavour to place before, our readers an abstract of the able and lucid speech made by Sir Hugh Cairns, the Solicitor-General of the late Derby administration, on introducing about a year ago a bill to simplify the title to landed estates in.England. The address was received with the most; marked attention, and the speaker was complimented on the great ability he ;had shown in mastering' the details of so difficult a subject, and especially in placing them before the House so as to be understood by all pre-sent—-a tiask no doubt of the greatest difficulty.

On introducingv the subject, the SolicitorGeneral, after, commenting1 upon the long standing of the evils to be remedied, entered at some length upon the injury done to the value of landed • property by the complexity and/uncertainty pi: thetenure on which it is held,qtiot-ing* authorities toprpve that the loss was .■■ya i ria.bly;;;'estim;^ted;at-fr6 ] m:.one. to three, years' purchase,; He then proceeded -to define the evils of which complaint is made in general terms. / First, the length of time: which must elapse; "between the making of a bargain and.thei opitnpletion :of thepurchase, jlfter commenting:ipjoh the;facility of transfer whicli obtains m^ttis,case of stock, railway shares^ and more; especially, ships, he says— 'f but compare that with what is .done.in the case ot landed property. You buy an estate at an auction, you enter into a contract for the purchase of the estate, you are very anxious to get possession of;the property you have bought, and the vendor is very anxious to get his money. \Biit you cannot get the estate, nor can the vendor, get his money, until a considerable portion of your lives has been spent in the preparation'of abstracts, in the comparison of deeds, -iti searches' for encumbrances, in objections made to the~title, in answer to those objections, in; disputes, which arise upon the. answei'Sj in endeavours to cure the defects. Not only months but years frequently pass in a history -of that kind, and I should say thatit is an uncommon thing in this country for a purchase of any magnitude to be completed—completed by possession and.payment of the price—-in a period under, at all events, twelve months. The consequences of this were stated in the-report of the Commission to which I have already referred, (the Royal Oommissiori;of 1856, appointed to consider this question) in words so apposite that if the House will permit -me,l should desire to read them. , That Commission stated in their repoit:-—-" When,;a ; contract is duly entered into, the'investigation;.-of the title often causes not only expense: but delay and disappointment, sickening both to the buyer* and seller. The seller does not receive his money, nor the buyer his land until the advantage or pleasure of the, bargain is lost or hag passed away." Unquestionably this is one of the great evils under which we now labour. But this is not the greatest evil. ,; I can well imagine that the purchaser of an estate would be content to submit to delay and considerableexpense if he were assured that when the: delay and expense were over upon that occasion; at all events,'he would have a tatle as to the dealings iwith which- for the future there would be no. difficulty. Unfortunately this is not the case. Suppose I buy ! an estate to day, I spend a year or two, or three years, in ascertaining whether the title is a good one. lam at lastsatisfied. I pay the expense—-the considerable expense—which1 is;iricurred in addition to the price which I have paid for my estate. About a year afterwards I desire to raise money upon mortgage ; of, this estate. I find some one willing- to /lend me money, provided I have a good title to the-land.;O'.-The man says "it is very; true that you bought this • estate and that you investigated the title, but I cannot be bound by your investigation of the title, nor can I be satisfied by it." ;: Perhaps he'is;a trustee who is lending money, which,he holds upon trust.•.'-■■•■ He says,—"my Solicitor must examine the title and my counsel must advise upon it." . And then, as between me, the owner of the estate, and the lender of tlie money, there is a repetition of the same process which took place on n^y purchase of the -estate, and consequently the same expense is incurred as when I bought it; and for ; the whole of that I-, the owner of the estate and -tlie':1 borrower of the money, must pay. Well, that is not all. \Honths^^ is completed, frpin circutnstances I find I must sell my.estate altogether. I find a.person willing to beCjpme a purchase^ The

intending;, purchaser says,-—" No doubt you thought this title was a good one when you bought this estate, and no doubt this lender of money thought he had _ a very good security when he lent his money;! but ; you are now asking1 me to pay my money. _■ I must be satisfied that the title is: a good one. My solicitor must look into it, and my counsel must advise upon it." Then again: commence abstracts, examinations, objections, difficulties, correspondence and delay. lam the owner of-the estate and I must pay substantially for the whole of that, because, although the expense there is paid in the first instance by the purchaser, of course a proportion of theexpense must be borne by me, and the same proportion will fal 1 upon the price which he will give for the estate." r The Solicitor General, after enquiring whether it were not possible to; remedy the evils, suggested to the House the consideration of the Encumbered Estates Court in Ireland ; pointing out how entirely successful it had proved, and how its powers had been gradually enlarged, till it not only, as in the -first instance, remained a power constituted to enforce sales of encumbered estates, but now possessed authority to deal with unencumbered estates in the same manner, and lastly, to give an indefeasible title to those applying to it, for that purpose, whether for sale or otherwise.■ By a commission appointed' in 1856 to enquire into its working, it was proved that property to the amount of £20,000,000, represented by 3,500,000 acres of land, had been disposed of, without, injury ■. being done to any one; scarcely a single mistake of importance occurring in the investigation of title. This was to be attributed, partly to the investigation of the titles by the; commissioners being made oh. their own responsibility, and partly to the powers possessed by: the Court to call evidence before- it, and to advertise and serve notices of intended sales: in-the districts, interested in the sale. The Solicitor General then proceeded to ask-whe-, ther £hat which had worked so well in Ireland— the bestowal of an indefeasible title—should not be equally beneficial and practicable in England. Stating the arguments brought against its so acting—viz.y Ist. That in Ireland there is a Registry of Deeds which gives greater '■ security for knowing the state of the title;: 2nd., 'that Ireland possesses an ordnance survey of six inches to the mile ;:'arid.further; that] there is a uniform valuation for the! whole country—he brought forward objections to each, pro nng that the Registry of Deeds, not being compulsory^ was necessarilyimpel'feet, arid more likely to mislead those who relied on it than otherwise. With regard to the ordnance survey, he shewed .that.it was not the practice in Ireland to sell by the map, and therefore that survey could not affect the title; and lastly, that a uniform valuation of land, however useful a guide as to the value of the property, could be none at all as to the validity of the title. : ■.; : •'■ As these were'the only objections he had heard urged against the scheme, the Solicitor General declared that he saw ; no reason why a court should not be established authorised to grant an indefeasible, or, as it is called,; a Parliamentary Title, to any owner. in fee simple of land, or to any one who has power to dispose in fee simple of land, and who lias been in possession: or in receipt ofrent by himself or predecessors for a period of five years. An abstract of his title and a description of the land claimed would have to be. supplied to the court ; ; and it would have to be the duty of the court to see that a primel fade title was submitted to them, and security given to meet the necessary costs of; investigation. The court would then proceed to advertise the application for "title; it would be competent for.the applicant to say that he did not claim a clear; fee simple, and the court would then announce' that the application to them was for a title subject to certain encumbrances. The court may make, a. provisional declaration of title, at the end of twelve months, and an absolute declaration of title at the end of three months after.: During this time publicity would continue and opportunities be given to persons objecting to a title being given, to come forward. The court would not interfere with tithes, rentcharges, and burdens of any description, or easements which can only be discovered by, an inspection of the property, or with leases not exceeding 21 years in duration, the tenant : being in possession. When the declaration of title is made, it will be considered efficacious in substance, for the purpose of change of ownership,—that is to, say, it will be a declaration which will enable a valid title to be conferred on sale, or mortgage, or lease of landed property,—in short, on any settlement -for title, or any other kind of dealing described in law as taking place for valuable consideration • but it will not be called'into action when such is not the case. The Court will furnish office copies> under which the provisions of the Bill will be administered, which, documents will constitute certificates of title of the owner of the land. The same process will- be pursued upon the occasion of a sale, if the vendor or purchaser should deem; it desirable to receive from the 'Court dn instrument of that kind. A. safeguard is proposed with reference to declarations of title; that if. any person should consider that he had an interest— however remote—in an. estate, which he may think would be likely ;to be overlooked in a declaration of title of this kind, he should have power to lodgei a caveat settirig:forth his1 claim ; the .result of which would be^ that the person! lodging such caveat would be entitled, to receive notice; of any: application for a title to the estate in question; - The Solicitor-General then proceeds to give the outline of a scheme for the construction of a landed Estates Court, to be poristi tv ted with a chief and secondary judge; and goes on to prove the adaptability of his plan for the .removal of technical objections to titles-—cases of which are exceedingly common in England. He then gives at some length an explanation of the manner in which it is proposed to treat the transfer of titles after the}' are placed .on the Register, and to meet thecase oi' dealingwith: the land thus fixed therein. ; regard to| leases ov<?r §1; years in duration, it .\is. ■"'■■' '• ■' :.': '' '■'. ■ '"• '•• "■•'•" ■..'*«' -'

proposed that the holder of such a l ea \ should have a right to put on the R^f? teiy when his title is once placed, a fej. holder's notice,— riot a registry of his leas 6' nor a description of it—but a notice !f his name and address. Where this W holder's notice is entered, then, before J' dealings with the estate can take place to r prejudice, it will be-necessary that he shouli be 'informed of those dealings. With re J l to mortgages which do not involve the trL ifer of the estate,-it is proposed to meettl S> case of those who dp not desire publicity 1 allowing the mortgagor to enter a shW caveat, which will entitle him to notice of a dealings with the; estate j m cases \ V } I( J secrecy is not desired, mortgages will T registered much in the same way a3 at n> sent. With regard to sales and' settlements' under this bill the intending purchaser will say : to the vendor, " I will give you so m l for your estate, as soon as you show me {} v l •your name is on the register, and that ther are no caveats. If there are caveats vo must settle with them, transfer the estate t me, and here is your money." , When it is wished to settle an estate thp course will simply be to transfer it to' the names of the trusteesV of the settlement • and a very safe plan is to be adopted viz' that those trustees shonld be tenants in'com! mon, and hot joint tenants; that there should be no survivorship as between. them which would enable the survivor to deal with the land or to part with it," but that when one dies there should be an incapacity to deal with the land till another is appointed. We have here given the principal points of : Sir Hugh Cairns' speech, but would recommend the whole to the careful study of the members of the General Assembly, as sooner or later (we trust this session) they will be called upon to apply these reforms, so far as they should be applied, to the law'of I this: country.

Without desiring to indulge a disposition which might be called captious towards the Intercolonial Royal Mail Company of KenZealand, we have frequently taken occasion to point out the deficiencies of their management and the prominent-faults of the service generally.; We have also from time to time taken some fit opportunity to.compliment the couajiany on. its progress, and to praise its servants in the colony for the endeavours they have made to meet the public demands. As representing' the public we take this course, because, while the utility of the service which the company undertakes to perform is undeniable, when the service is not properly performed that usefulness is altogether wanting. The colony . has purchased the company's services and is more or less content with the bargain, but that bargain is expected to be faithfully carried out. :We cannot pass over in silence the late break-down of the Prince Alfred; for it was not a simple accident owing to tempestuous weather, but one aggravated,.if not cuised, by evident mismanagement. We speak from the evidence of eye-witnesses. Cargo of all sorts ■—^live-stock and loose packages—had been heaped into her and piled Upon'her deck, to such an extent that the vessel was not only incommodious for passengers but positively .unfit for sea. This was proved by the event. The gale which the Prince Alfred fell in with the day after her departure from Sydney was severe, though one from which no ordinary sailing vessel need have suffered.1". The Lord Ashley going to Auckland seems to have made her way through it successfully. But the crack vessel of the Inter-colonial Company, subsidised, by the colony and carrying its mails, charged also with the important duty of passenger traffic between Australia and New Zealand, fs in such a cranky state as to be compelled-to hurry back to shelter, for fear of foundering! She rolls so as to fetch away the piles of merchandise on deck; so as to strangle, or batter to death the unfortunate horses on her main deck j so as to bring green seas dyer her which drown others'of her living" cargo and damage the rest of the "freight confidingly trusted to the Company j so as to roll the mainmast and foretopmast out of her, though not a rag of sail was set on them; so as to put those on board in momentary fear that the fires would be extinguished and the engines stopped, and the vessel left helpless at.the mercy of the ocean, probably to founder with all on board.

We cannot tell to what person or department in. the. service of the Company the blame for this occurrence is to be imputed: it is probably to the Sydney management on shove. Captain Bowden would no doubt seethe state of his ship before leaving port, but from the promptituderequiredbythe postalservicewould not have time to make the necessary alterations. What we wish to point out is that the Company, being' subsidised principally for the carriage of the mails, has no right to send its vessels to sea in a condition to imperil or even delay the service. It is nothing but unjustifiable recklessness to loan a boat crossing.from Sydney to Nelson to such a point that under veiy favourable circumstances she-way make her passage; storms must be anticipated, in order that, should they arise, the service may not be interrupted. This is a point of view from which the colony has a right to look at the matter, apart from the broader consideration of the duties of ship owners to the passengers and cargo committed to their charge.

The little Avon steamer, having received the W touches from the carpenters, got up steam on Saturday to try her engines and power of progression. ; She went backwards and forwards about the harbour for a couple of hours, and then finding her working gear, nil in order took a run to the heads and went in over the bar and up the river to D«J' * at Stunner. The passage was performed in an »lOUV and twenty minutes from Lyttelton.. On liei* c" turn, when a;shoi;t distance up the harbour, tin wind being light, the. Avon .overtook the school' Canterbury, returning from Oamaru, and took lie* in tow for the rest of ,the trip.: This bit of worhwas: performed with the greatest facility; and tn° Tetnrn' trip, inclusive of tbe" delay thus occasion^' {|ms;aceomp)islved in an hour and 25 minutes, sl»o«* -ing a fairrivte of speed.- -'The' consumption oi i«e during steaming was only 5 cwt. -j"; way in .whioh^he little boat has been put Wm

rfiflects the greatest" credit upon•; Mr. Grange, the engineer, who was entrusted with . the management, considering that the fittings were defective in many parts, and a great deal If extra work had- to be done on the, snot Acting also for a. body of gentlemen who, in their oorp°Hrte capacity as the Avon Company, must be called backward in transacting business, oid highly indifferent to their own interests, Mr. Grange has been obliged to take upon himself an infeir amount of responsibility, of which, however, v has creditably acquitted lumselK We understand tint the Avon will start to-day: to make her first trial trip up tho Avon river to Christclmreh, when it is expected that the directors and some of the! shareholders of the company will for the first time make a porsonal acquaintance with their property. We can only say, that, to judge from what she has; already done, the boat deserves a better fate than to be a neglected orphan—the posthumous offspring of a shorf-lived organization. " ■ . We are requested to make public an intimation from Messrs. 'Miles and Co., that for the convenience; of residents in Lyttelton, they will repeat from their flagstaff the signals of approaching shipping made from thfr Government flagstaff at Stoddart's noint A steamer will be signalized by a white Ha<r and a full-rigged ship by a red flag, for which No sof Marryat's code will be used. A barque will be represented by a white and red flag perpendicularly (No. 3). -For a brig, for which a square blue flag is in use at the Government look-out station, a blue pennant with a white ball will be shown'by Messrs. Miles and Co. And a brigantine or topsail schooner (blue and white) will be represented by the rendezvous flag, blue and white chequered. / Match. —On Friday last a match took place between Mr. E. J. Wakefield's br.g. Polka and Mr. Holland's b.g. Types; over a three mile course, which resulted in the defeat of the former. Types took the lead at starting and maintained it the whole way round, coming in winner by several lensths. *■■■'■ : Harvest. —With a week of fine weather harvest is rapidly drawing to a close, and thrashing is becinnins to be pretty general. Wheat comes out in wood condition, but is not yery full in the ear, owing to the hot and dry weather we have had for a month before harvest commenced. Still on the whole the weight is satisfactory." ■';.

By the mail we halve had a few papers from most of the New Zealand provinces, and from the Australian colonies. The cliief items of interest from Nelson are given in our correspondent's letter elsewhere ; the rest may be briery summarised.—The Wellington papers complain of want of news. Things have come to such a pass that the ' Independent' quarrels even with the * Advertiser' on agaoler's appointment, and discusses the division of the Radicals into two parties. Bush fires appear.to have prevailed in some parts of the country.—At Hawkes Bajr, a steam dredge for the harbour is expected, purchased by the Government in .Sydney for £3100. The Resident Magistrate (Oapt. Curling) has been brought before the bench for a savage assault upon Mr. Wilson the : Crown prose-* cutor;and convicted ; the magistrates inflicted a fine of Is. with costs, on the ground of provocation.— From Taranaki there is nothing direct, but the latest paper published in Wellington before the Worsley left—the ■■' Advertiser' of February 25th—contains the following. paragraph :-—, "Ijipoetaht fbom Taban'aki.—We have received by the Overland Mail, from a private source, somewhat exciting intelligence from, this province. The dispute between the Europeans and Natives appears.now to have reached its crisis, and it will soon be seen which of the two races is to' occupy the district. The surveyors were going last Monday to Waitara to survey the disputed land, and fully expected that Wiremu Eingi. would send them back again, in •which case the. soldiers and volunteers will go put and. occupy the ground. The steamer Niger was hourly; expected,; the outsettlers were coming into town, and. block-houses were being erected. It is well it should come to this. Wiremu Kingi must be made to feel the power of the British arms before he can be made to understand his position. Firmness is all that is: demanded, and it is to be hoped that this will be,', exhibited by Governor Browne. The time is gone by for a temporising policy, if indeed it ever existed." —From Otago (not by steamer) we have two papers dated the 10th and 11th instant, res^ pectively. The setting to work of the new and enlarged Land Board appears to be the most! inter-, esting subject of consideration. A case of - determined suicide, the result of delirium tremens, had occurred.—From Sydney our dates are to the 17th inst. The Chamber of Commerce at a lull meeting decided unanimously against; the proposal of the Peninsular and Oriental" Company to alter their present contract* for the mail service; on the ground; chiefly that the new arrangement is not certain to be any more lasting' than the former, and that by its adoption the chances of a Panama route are annihilated. The latter route is again talked about; and a contribution of £15,000 per annum, from New Zealand, in aidof it, is reckoned upon. During the second week in February, New South Wales was visited by heavy gales of rain and severe storm, from which floods of a very destructive character had ensued in various districts.—From Melbourne, we hear of the conclusion of the great Champion Cricket Match, which, as on the previous occasion when the combatants met at Melbourne, was decided in favor of the_ residents and against the strangers. In the two innings, the players of Victoria made 155 ; those of New South Wales, 86. The Sydney eleven were most hospitably received and entertained sumptuously during their stay. „