A Source Book of Australian History

by Unknown

LAND QUESTION IN SOUTH AUSTRALIA

Source.—Speeches on the Reform of the Law of Real Property (Torrens, 1858), pp. 5-6, 8-11

Extract from an address to the Electors of the City of Adelaide delivered in the Theatre on 31st January, 1857. (From the South Australian Register of February 2nd, 1857).

The next topic which I have put down to address you upon, is one with respect to which I should have wished to have had time to arrange my thoughts—it is the cheapening of the law of Conveyancing of real property. (Applause.) Next to affording fair facilities for obtaining possession of the waste lands of the Crown, and converting them into cornfields and homesteads of independent yeomanry, it is the duty of the State to afford a cheap and at the same time a secure mode of conveying that property from man to man. (Hear, hear.) I have for years felt that the law of England in that respect, which we brought with us, required amendment. In looking also to the laws of other countries with respect to the transfer, mortgage, or encumbrance of real property, I have come to the conclusion that the law of England is inferior to most of them with regard to cost and security of title. The old Conservative feeling of England adheres with a sort of veneration to laws and usages respecting title which originated under the feudal system, and is loath to abandon them for a system adapted to the requirements of modern civilization. I would illustrate my views by observing that, in ancient times, before the Wars of the Roses, a baron, or even a yeoman, would surround his residence with a moat to be crossed only by a drawbridge, and instead of the convenient door of modern times, he would have a portcullis, which he would raise or let fall to admit a friend, or exclude a foe. A visitor, too, would have instead of gaining immediate access, to sound a horn at an outer gate, and hold parley with a warder upon a lofty tower, before he could gain admission. There could be no doubt that all these ceremonies and parleyings were necessary in those days, but it does not follow that we should carry them out in our times. Were any person now, to surround his residence with a deep and broad ditch, and observe those ceremonies when a visitor called upon him, we would call him insane; yet, that is precisely what we do with regard to the transfer of real estate, observing still the tortuous roundabout methods of conveying, resorted to in those days for the purpose of evading the oppressions of feudalism. Nay, the analogy is so strong, that in our Law Courts, and Deeds we still use the same barbarous Norman French jargon in which the parley was in those ancient days held at the gate of the baronial residence. (Hear, and applause.) It is perhaps presumptuous of a person who has not received a legal education, to address his mind to this question; seeing, however, that the persons who, by ability, and education, are best fit to cope with the subject, are not willing, or, at least have not done so, I have taken the task upon myself. (Hear, hear). With your permission, I will give you an outline of the plan. The purchaser of land from the Crown shall receive a title deed, a land grant, as at present to be executed in duplicate, and one copy filed in the Registrar-General's office. When an original purchaser sells the land to another, he shall transfer it by a simple memorandum, which being brought to the office of the Registrar-General the original land grant must be surrendered, and then the Registrar will issue a new title to the second purchaser direct from the Crown. (Hear, hear.) This will get over the difficulty of tracing title through all manner of intricate transactions between purchasers, and instead of a man having to carry about an immense bale of papers, he would have one simple document, which would, nevertheless, be a title valid and indisputable, because it would be an original land grant. (Great applause.)

Speech delivered on 4th June, 1857, in the Legislative Assembly by the Hon. the Treasurer, Mr. Torrens, on the introduction of his Bill for amending the law relating to the Transfer of Real Property.

Mr. Speaker, I do not attempt to remedy the evils complained of, by amendment of the existing law; that I believe to be impossible: I propose to abolish a system irremediably wrong in principle, and to substitute a method which I believe will, when explained, commend itself to the House as consistent with common sense, perfectly feasible, and effectual for all purposes required.

The first and leading principle of the measure which I introduce, is designed to cut off the very source of all costliness, insecurity, litigation, by abolishing altogether the system of retrospective titles and ordaining that as often as the fee simple is transferred, the existing title must be surrendered to the Crown, and a fresh grant from the Crown issued to the new proprietor.

The principle next in importance prescribes that registration per se and alone shall give validity to transactions affecting land. Deposit of duplicate of the instrument, together with the record of the transaction by memorandum entered in the book of registration and endorsed on the grant by the Registrar-General, to constitute registration. This method is designed to give confidence and security to purchasers and mortgagees, through the certainty that nothing affecting the title can have existence beyond the transactions of which they have notice in the memoranda endorsed on the grant.

My third principle aims at simplicity and economy by prescribing certain stereotyped forms of instruments available to each occasion to be supplied at the Registry Office, so that any man of ordinary sense and education may transact his own business, without the necessity of applying to a solicitor, except in complicated cases of settlements or entails, which are unusual in this colony.

Many will admit that the system which I recommend might have been introduced at the first founding of this colony, with facility and very great advantage, but doubt its practicability now that titles have become complicated. Admitting a difficulty, I deny that it is insurmountable, or such as should cause us to hesitate in securing the advantage of transfer by registration. I do not propose a scheme involving violent or arbitrary interference with existing titles, but would leave it optional with proprietors to avail themselves of it or not. It will thus be gradual in its operation, yet will put titles in such a train that the desired result will eventually be obtained.