1902 Encyclopedia > Conveyancing

Conveyancing




CONVEYANCING, the art of preparing writings to effect the transference or conveyance from one person to another of any piece of property or valuable right. It is sometimes applied in a restricted sense to the cumbrous forms which the feudal system has rendered necessary for the transference and tenure of landed property. When left to shape itself by individual practice, without legislative intervention, there were several causes rendering such conveyancing cumbrous and complex. The theory of the feudal tenures and hierarchy remaining unchanged through-out the social revolution which had virtually abolished superiority and vassalage, and brought land out of feudality into ordinary commerce, it became necessary to retain the feudal ceremonies of the Middle Ages, and to adapt them by fictions and explanations to modern exigencies. Hence, many years have not yet passed since, in Scotland, when a field was bought and sold, a party of men assembled on it, and went through the old form of symbolic investiture by the delivery of so much earth and stone from the superior bailiff to the vassal's attorney, who took instru-ments and had the whole recorded at length by a notary of the empire. In England, from the want of the general system of registration known in Scotland, the complexities of conveyancing had become so inextricable, that one of the most approved forms of transference was a fictitious suit and judgment of possession called a fine and recovery. To these innate sources of complexity must be added the timidity of conveyancers, who, afraid to commit themselves by attempting to abbreviate or reconstruct the forms which they find in existence, repeat them with additions from time to time as new circumstances must be provided for. Hence, to keep conveyancing within rational bounds, the legislature must interfere from time to time to sweep away excrescences, and provide brief and simple forms. This, however, is a task which cannot be easily accomplished, since it requires the very highest legal skill to adjust simple forms to all exigencies, and anticipate the various shapies in which property may fall to be dealt with. This service has been on various occasions performed by distinguished lawyers ; and, while it is productive of the greatest benefits to society, it is one of the public services least susceptible of popular appreciation. In 1834 the Act abolishing fines and recoveries created a reform of this kind in the con-veyancing of England, and a series of statutes passed in 1S47 purified and simplified the conveyancing of Scotland.

An attempt was made in 1862 to simplify the practice of conveyancing by two Acts—one entitled an Act to Facilitate the Proof of Title to and Conveyance of Real Estate, and the other the Declaration of Title Act, 1862. The former (called also the Land Registry Act) provided for the registration of real estates and of the title thereto. The latter was intended to enable persons having interests in land to obtain a declaration of their title by which they could give an indefeasible title to any person purchasing from them. Both statutes have failed; of the latter a standard book of practice says, " it is deemed unnecessary to detail its provisions." A commission, reporting in 1868, attributed the failure of the Begistry Act to the principle of registering indefeasible titles only. The " Act aimed at a standard of certainty and perfection of title beyond what is ordinarily required in conveyancing transactions, and hence as a natural consequence instead of facilitating it was found in practice to impede the transfer of land." Another attempt has been made by the Land Transfer Act of 1875, which allows the registration of a possessory, as well as of an absolute, title. It is the opinion of an eminent conveyancer that the statute will probably achieve a success greater than that achieved by its predecessors, but less than that which would be commensurate with the ability and labour with which it has been framed.

Conveyancing, which in Scotland forms part of the ordinary business of a solicitor, is in England almost a profession by itself. It is to a large extent undertaken by barristers who devote themselves specially to the work. There is also a class of conveyancers, qualified to be called to the bar, but not called, who practise under annual certificates.

An Act was passed in 1868 to consolidate the statutes relating to the constitution and completion of titles to heritable property in Scotland, and to make certain changes on the law of Scotland relating to heritable rights, and an Amendment Act was passed in the following year. In 1874 the Conveyancing (Scotland) Act was passed, having for its object to amend the law relating to land rights and conveyancing, and to simplify the law.







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