THE Wellington Independent. Friday, January 13, 1860, TRANSFER OF REAL PROPERTY.

Wellington Independent, Volume XV, Issue 1396, 13 January 1860, Page 3

THE Wellington Independent. Friday, January 13, 1860, TRANSFER OF REAL PROPERTY.

SECOND ARTICLE. Before going into the details of the mode of dealing with land in South Australia, it will be useful to note the present state of matters in New Zealand, afflicted as it is with two or three laws on the subject, which nave not even the m«rit of being consistent with eaGh other.^ ,The transfer of landed property |s ef>» fectei under the Conveyancing, Ordinance which possibly was intended to simplify the English laws on the subject^ .but which intention is but very imperfectly carried out. Then comes the "Registration Ordinance," which declares things to be essential that are almost if not absolutely in direct contravention of some of the provisions of the first named Ordinance, adding expense to an already expensive process* and not having the effect of making titles secure, but sometimes operating the other way, at least in so far as what may be called the temporary title of a mortgagee is concerned. Besides these there is the "Building Societies Ordinance," which enacts that a receipt shall operate as are conveyance, bdujS no such receipt can be registered/ a mortgage, can only be released by as formal a a conveyance as if no such provision had been devised for the benefit of the members of the Building Societies. It was to this latter point that Mr, Brandon's Bill 1 was particularly directed. It would

have permitted the Registration of a " memorial " of the deed of mortgage, insteed of the deed itself, and would also have allowed of a receipt for the sum advanced, being registered as a re-convey-ance to the mortgagor. So far, therefore, it would have been a relief, but we do not altogether regret that it did not I become law, as the system is now left with all its inherent defects, and those defects being so many and grievous, may cause it to become more of a people's question, and thus force it upon the attention of the General Legislature, and iflost especially may this be likely from the fact, that the operations of the various Socities, that in this and other parts of New Zealand, are making advances to their members and others on landed property (mostly in small sums,) will necessarily cause a large number of the community to feel a direct interest in the subject.

Proceeding now to make some rather copious extracts from a little book on the, subject, published by Mr. Torrens in Adelaide, during the past year, and containing the " South Australian Real Property Act," in which the scheme of Mr. Torrens is developed, it may be taseful to observe that there seem to Jbe three points in which the whole gist of the matter is contained. These are, that the property passes immediately the act of registration is performed, and not until then, that new titles are issued whenever any changes in the boundaries of properties are made, and that as the title when once issued is absolutely indefeasible, and thereby in some few and rare instances injustice might be done to legal heirs, an assurance fund is created by a small payment on each transaction, (one half-penny in the pound sterling on the value of the land,) out of which all persons who prove themselves to have been deprived of lands that they ought' to have possessed, are to be compensated according to the loss they may have .sustained, irrespective of the- actual value of the land at the time' at which the claim is made. The first of these

three, Mr. Torrent no doubt derived from the mode with which he had become familiar from his connection with the Customs, in which transfers of ownership in vessels is so effected, and the. third has in all probability been forced upon him, to obviate objections to the scheme. It is the second, however, the issue of new titles to purchasers and sellers for the portions of land that pass or are retained, that we think constitutes the chief merit of the system. No doubt Mrs. Grundy, who is quite sure that Homer did not write the Iliad, will discover that this is not original, nor would Mr. Torrens, we imagine, claim* it as an invention of his own, when already the idea had been suggested in more than one influential quarter in England, but to him belongs the merit of having reduced a theory to practice, and causeing that which was but a happy suggestion to become a reality. It may also be remarked that while the new and indefeasible title cuts off at once the cost and labour of searching previous titles, a process now required to an indefinite extent, the transfer by registration proVides a remedy for a class of cases much commoner than might be supposed, in which the possessor of land finds himself without a title at all. Oases are quite conceivable in which a person buys a piece of land through a Building or Land Society, and the titles therefore do not come into his possession, nor has he any occasion to see them possibly for several and then he may find that his Jitle deed has been mislaid, and all trace of it lost through the time that has elapsed. If it had been an essential part of the transfer that it should have been registered at the moment when such transfer was made, a simple reference to the books of the Registrar would remedy a difficulty that otherwise might be serious.

The " South Australian Real Property Act," declares that from and after July 1, 1858, all lands alienated by the Crown are placed under the operation of the Act, and all other lands in that colony may be upon application of the parties interested, and to prevent fraud im thisinitiatory step, Land Titles ComInissioners have been appointed to investigate each case, but no title is issued until after public advertisement of the application in the Government Gazette and one or more of the local newspapers, opportunity being given foi parties claiming the land or any portion of it to enter caveat. Every title issued is made out in duplicate, one part of which is retained by the Registrar-General and bound up in a book, on which duplicate as well as upon the certificate given to the applicant, all subsequent transactions in respect of the land are endorsed, so long as the land remains undivided, but whenever any division takes place, the original certificate is cancelled, and new ones issued according to the altered circumstances. Leases and mortgages are in like manner endorsed on the certificates of title, and are also the subject of registration, while it is also enactes that mortgages shall take precedence according to the times of presentation to the Registrar, and not according to their

dates. The Act also prescribes forms for every transaction, abbreviates most materially the language required to be employed in filling up the same, and establishes a scale of fees that arc to be paid to the Registrar, and which do or may constitute the whole expense, as any person of ordinary education can fill up the forms for himself. TheEffect of this is, that in South Australia " the cost of mortgage is 10s, the time occupied in the transaction 15 minutes, the cost of transfer or release ss, the time occupied 5 minutes," or as the whole is summed up by Mr. Torrens, " The benefits actually realized in South Australia are Ist. Titles being indefeasible, proprietors may invest capital on land secure against deprivation; mortgagees also may confine their attention to the adequacy of the security. 2nd. A saving, amounting on the average to 90 per cent, or 18s in the pound sterling, has been effected in the cost of transfers and other dealings. 3rd k Tho procedure i is so simple that men of ordinary educa • ! tion may transact their own business. 4th.* Dealings in land aro transacted as expeditiously as dealing in merchandize or cattle, fifteen minutes being the average time occupied in filling up the forms and completing a transaction." Yet it is added that "the establishment required for conducting the entire conveyancing business of South Australia, (about 10,000 transactions annually), upon the system above described, is estimated afc £4500 a-year, while the income from tho scale of fees established, would be about £7000." No wonder, therefore, that in spite of the determined opposition of the legal profession, the success ef the measure should already be such, that, although not compulsory, (excepting to the extent already stated in reference to Crown Lands,) Mr. Torrens can state that " month after month exhibits a steady increase in the business tran^sdeted, insomuch that the new system, if it should continue to make 'progress at the present rate, will have absorbed the entire conveyancing business of the colony ere five years have expired." All honour to that community which in the language of one of its own citzens has " cleaned tho Augean stable by turning the ' Torrens ' through it," — and may Now Zealand and its legislators have the wisdom to follow. and imitate so . laudable an example !