Recent Developments in Conveyancing

Law

By G. GLOVER ALEXANDER, M.A., LL.M.

CONVEYANCING may be defined as the art of drafting or preparing written documents by means of which rights of property are transferred from one person to another. But, like all other arts, it rests ultimately on science; otherwise it is mere "rule of thumb." It demands, therefore, for its successful practice a knowledge of several things, viz. (1) the nature of the particular property to be transferred; (2) the law relating to such property, and as a corollary thereto, a clear apprehension of the legal interest to be created therein or transferred; (3) the appropriate technical language to be employed; and (4) some skill in the use of ordinary language so as to be able to adapt forms which have been previously employed in similar circumstances, and have stood the tests of practice, known as "precedents," to present purposes.

The chief division of property in English law is that into real and personal, the former denoting land and all that is attached thereto, the latter all other forms of property. Conveyancing has to do with both kinds. Its subject is that "perennial source of interest to mankind, that universal object of human desire-property." It is the function of the State acting through its legislature to say what rights of property shall be permitted and recognised. It is the function of the practising lawyer to frame documents which will have the effect of transferring such interests from one owner to another with the maximum

of security and the minimum of cost. That at least is the ideal of conveyancing.

In the past we have had two great systems of law relating to property in land, existing and working side by side, viz. the old Common Law and the newer Equity, the latter of which has profoundly modified the former. Perhaps the best explanation of Equity ever given is that of the late Professor Maitland, viz. that it is "supplementary law." The influence of Equity upon the Common Law has been very great, and in no department has its influence been felt more than in the law of Real Property.

An effort was made in the Judicature Acts, 1873 and 1875, to "fuse" or amalgamate these two systems, and it was largely successful, but it is far from complete.

Of the importance of the history of the law of Real Property to a conveyancer in the past it is not necessary to say anything. Hitherto it has been impossible fully to understand an ordinary conveyance of freehold land without knowing the history of the law relating to land at least as far back as the reign of Henry VIII, because of the famous Statute of Uses which now at length seems to be approaching its demise. But in reality it is sometimes necessary to go back much further than this. Every change in our national life, military, agricultural, industrial, economic, social, political and religious, has left its mark upon the law of Real Property. It is sometimes said, that, as the result of all these manifold changes, and notwithstanding its remarkable continuity as a whole, we have not one but three collateral forms of ownership of land in England, viz. freehold, copyhold and leasehold; but the two latter are simply accretions on the former. It follows that freehold tenure is by far the most important; copyhold has long been tending to decline, and probably not onetenth of the land in the kingdom is now of that tenure. A leasehold interest in land is Personal Property.

The Court in which the rules of Equity were formulated and developed was the old Court of Chancery, now represented by the Chancery Division of the High Court; and the beneficial effect of its work, in spite of some periods of decay and much obloquy, can never be forgotten or overlooked. Besides its protection of women, children, and lunatics (which must always be placed to its credit), its chief claim to distinction was its enforcement of the old system of Uses, the predecessor of the modern law of Trusts. There is no need here to consider the technicalities of Uses, in view of the imminent repeal of the Statute of Uses. By the famous Statute of Uses (27 Henry VIII c. 10) an attempt was made to extirpate the whole system of Uses of land and to put an end to them once for all by "marrying the Use to the land." Fortunately or unfortunately, from causes which are not yet quite clear, it failed. "This statute,' says Sir Arthur Underhill, in his Explanation of Lord Birkenhead's Act, 1922 (p. 25), “is at the bottom of the complication of English land titles."

It has been said that the net result or effect of the Statute of Uses was to add a few words ("and to the use of") to a modern Conveyance, but that is not quite true. The omission of these words, or their misuse, might be fatal to a title to land.

About the year 1830 the state of the law as to Real Property can only be described as one of chaos and uncertainty, resembling the state of politics at the time. It was said that there were very few men then living who could say with any degree of certainty what the law was on many points. The consequence was the appointment of a Royal Commission and the passing of several Acts of great importance.

Modern conveyancing, however, really begins in 1845. By the Real Property Act of that year (8 & 9 Vict. c. 106) it was enacted that for the future corporeal hereditaments should "lie in grant” and

"not in livery." The importance of this Act in the history of conveyancing it would be difficult to overestimate. Henceforth all land of freehold tenure could be conveyed by deed, one deed, and that deed usually a simple grant. This Act of 1845 marks definitely the break of our law with the old feudal system, begun with the Statute of Tenures, 1660, since a deed is one of the appropriate mode of conveying chattels or personal property. The Vendor and Purchaser Act, 1874, though a short one, contained some very useful and important provisions designed to make the law and practice of conveyancing clearer and simpler.

The next great advance in conveyancing was made by the Conveyancing Acts, 1881 and 1882. The chief objects of those Acts were to amend the law of property and still further to simplify the title to land. Both before and after the Act of 1845 was passed, deeds constantly tended to become longer and longer and more complex, particularly those parts known as the "covenants for title," which had to be inserted in most conveyances and were very lengthy. Solicitors were then remunerated according to the length of the document. Among the many beneficial and valuable improvements made by these Acts, none was greater than this. It was provided that for the future it should not be necessary to set out these covenants for title at length, but that their presence in the deed should be implied by the use of certain appropriate words showing the character in which the conveying party was expressed to convey. Whoever was the originator or draftsman of that Act, it was an exceedingly bold stroke and a very neat way out of a difficulty. As showing the decreased costs of conveyancing as the result of the Conveyancing Acts, 1881-2, the writer once heard an old and eminent London solicitor say that in the year 1883, the first year after the Acts came into operation, his firm

alone paid to conveyancing counsel in Lincoln's Inn over 600 guineas less than they had done for some years previously; whether the firm's clients reaped a corresponding advantage is not known.

The extreme length and complexity of conveyances prior to 1882 was principally due to two somewhat divergent causes which have operated strongly in the past, viz. (1) the necessity of obtaining good titles. on sales, by stopping up loopholes created by changes in the law or discovered by the ingenuity of able lawyers; hence the development of the old covenants for title; and (2) the desire to keep together large estates and so to preserve the dignity of county families; hence the development of strict settlements. Both these causes still operate to some extent, though not to anything like the same extent as formerly.

Closely following the Conveyancing Acts, and due to the same enlightened policy, came the Settled Land Acts, 1881-2.

There are three forms of settlements known to English Law. Premising that a "settlement" is any document by which successive interests in property are created (deed, will, etc.), these are:

1. A Strict Settlement. This is the form under which most of the landed gentry hold their estates,1 that is to say, they are limited owners only, they have only life estates, or at most estates tail, therein, with certain additional powers. A strict settlement is one under which the land is held for a succession of legal interests known as "estates" which are framed in strict accordance with the rule of primogeniture, and it is a development of the old strict "entails" which formerly prevailed in England for about two hundred years. The modern strict settlement is modelled

1 The dual meaning of the word "estate" will be noticed. It means (1) the land itself: (2) certain definite legal interests in the land, e.g. a fee simple, a life estate, a tenancy in tail, etc.