Law of the Land : The Advent of the Torrens System in Canada [1 ed.] 9781442688469, 9780802099136

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THE LAW OF THE LAND The Advent of the Torrens System in Canada

PATRONS OF THE SOCIETY

David Asper Blake, Cassels & Graydon LLP Gowlings McCarthy Tétrault LLP Osler, Hoskin & Harcourt LLP Paliare Roland Rosenberg Rothstein LLP Torkin Manes Cohen Arbus LLP Torys LLP WeirFoulds LLP

The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

The Society also thanks The Law Society of Upper Canada for its continuing support.

THE LAW OF THE LAND The Advent of the Torrens System in Canada

GREG TAYLOR

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto Buffalo London

© Osgoode Society for Canadian Legal History 2008 Printed in Canada www.utppublishing.com isbn 978-0-8020-9913-6

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication Taylor, Greg The law of the land : the advent of the Torrens system in Canada / Greg Taylor. Includes index. isbn 978-0-8020-9913-6 1. Torrens system – Canada – History. 2. Land titles – Registration and transfer – Canada – History. I. Osgoode Society for Canadian Legal History. II. Title. ke739.t39 2008

346.7104c3809 kf679.t39 2008

c2008-902279-3

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Contents

Foreword vii Preface ix 1 The Torrens System: An Outline 3 The Spread of the Torrens System 3 The Need for Reform 5 The Torrens System 9 2 The Invention of the Torrens System 18 Man and Idea 18 A Thousand Fathers 27 3 Vancouver Island: The Second Torrens Jurisdiction in the World 31 Background 31 Establishing the Australian Link 35 Was It Really the Torrens System? 42 Public Response to the Torrens System 49 4 British Columbia 57 The Mainland Colony 57 The Ordinance of 1870 60 5 The Canada Land Law Amendment Association 68 Pre-History of the Association: Torrens Becomes Known in Central Canada 68

vi

Contents

Personalities 70 Beginnings 73 The Association Puts Torrens on the Public Agenda 78 The Association: A Front for Loan Sharks? 86 Later History of the Association 93 6 Ontario 95 English or Australian Model? 95 Introduction of the Torrens Principle 97 Slow Beginnings 101 Gradual Extension and Conquest of Ontario 106 Some Concluding Thoughts 111 7 Saskatchewan, Alberta, and the North-West Territories 115 Historical Background 115 Introduction of the Torrens System 116 Trouble in Paradise I: Early Problems with the Torrens System 122 Trouble in Paradise II: The Registrar at Calgary 126 The Torrens System in Saskatchewan and Alberta after 1905 129 8 Manitoba 131 The Mission of June 1883 131 The Manitoba Land Law Amendment Association 136 Success 140 Failure? 144 Success! 149 9 Quebec, the Maritimes, and Newfoundland and Labrador 155 10 Concluding Remarks 162 Appendix 169 Notes 171 Index 215

Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY

The Torrens system was a mid-nineteenth-century reform of land titles registration originating in South Australia. Almost as soon as it was invented, the system was introduced to the then colony of Vancouver Island, and a little later it became the land titles system for British Columbia. In the later nineteenth and early twentieth centuries it was introduced to what is now Western Canada and to Ontario. This book tells the story of these various receptions of the system. While in British Columbia and the Western territories/provinces the system was established more or less at the time of initial European settlement, Ontario’s reception of Torrens came well after the province was settled and was the work of a powerful lobby group comprised of moneylenders and lawyers. This book tells us why the Torrens system was considered such an improvement on the previous method of land registration and why it took so long for the reform to win public acceptance in some provinces. This is a fascinating account of interest groups and the reform of Canadian private law, one that demonstrates how the different histories of the various parts of Canada have shaped, and continue to shape, their law. The purpose of the Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, former attorney general for Ontario and former chief justice of the prov-

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Foreword

ince, and officials of the Law Society of Upper Canada. The Society seeks to stimulate the study of legal history in Canada by supporting researchers, collecting oral histories, and publishing volumes that contribute to legal-historical scholarship in Canada. It has published seventy books on the courts, the judiciary, and the legal profession, as well as on the history of crime and punishment, women and law, law and economy, the legal treatment of ethnic minorities, and famous cases and significant trials in all areas of the law. Current directors of the Osgoode Society for Canadian Legal History are Robert Armstrong, Attorney General Chris Bentley, Kenneth Binks, Patrick Brode, Brian Bucknall, David Chernos, Kirby Chown, J. Douglas Ewart, Martin Friedland, John Honsberger, Horace Krever, Ian Kyer, Gavin MacKenzie, Virginia MacLean, Roy McMurtry, Jim Phillips, Paul Reinhardt, Joel Richler, William Ross, Paul Schabas, Robert Sharpe, James Spence, Mary Stokes, Richard Tinsley, and Michael Tulloch. The annual report and information about membership may be obtained by writing to the Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. Telephone: 416-947-3321. Email: [email protected]. Website: www.osgoodesociety.ca. R. Roy McMurtry President Jim Phillips Editor-in-Chief

Preface

This book commemorates the 150th anniversary of the introduction of the Torrens system in its South Australian home. It is also, to a large extent, the product of an extraordinarily fruitful and interesting stay in Canada from April to June 2006. During (as well as after) that period, so many people provided assistance to me that I hardly know where to start in acknowledging the help I received. I should first of all, however, thank Foreign Affairs and International Trade Canada, which provided the Canadian Studies grant that enabled the trip to occur in the first place. To their generosity I owe not only this book, but also a closer acquaintance with a country I had always found fascinating from afar, and which I found even more so on nearer acquaintance. Not being able to provide adequate thanks to all who assisted me, I seek the indulgence of those to whom a further injustice will be done by my selection of a neutral principle of arranging the names of those I wish to thank for their contributions, large and small: Dr J.M. Bennett, A.M., Eric Black, Prof. Russell Brown, Mark Coffin, Dale Cogswell, Jonathan Davidson, Barry Effler, Sarah Fontaine, Chantale Foré, Prof. Hamar Foster, Robert Fraser, Christianne Gareau, Pierre Gebert, Prof. Philip Girard, Prof. DeLloyd Guth, Chris Hanna, Katy Hughes, Paul Huntley, William Hurlburt, QC, Tim Kennedy, Dr Ian Kyer, Dr Dick Lazenby, Prof. H.P. Lee, Dr Susan Lewthwaite, Prof. Horst Lücke, Dorothy Mindenhall, the Hon. Mr Justice Morissette, Prof. Brad Morse,

x Preface Carey Pallister, Prof. Jim Phillips, Edgar Quinton, Paula Rein, Andrea Robbins, the Hon. Justice Ralph Simmonds, Paula Warsaba, Prof. John Weaver, Rick Wilson, David Yarrow, and Prof. Bruce Ziff.

Two anonymous referees also provided a number of useful suggestions for which I am most grateful. Warmest thanks are also due to a number of institutions: Library and Archives Canada; the provincial archives of Ontario, New Brunswick, Manitoba, British Columbia, Saskatchewan, and Alberta; the Courthouse Library, Victoria, British Columbia; the Greater Victoria Public Library; the legislative libraries of Manitoba, British Columbia, and Alberta; the Parliamentary Library, Ottawa; the National Library of Australia; the library of the National University of Singapore; and the Faculties of Law and law libraries at the Universities of Ottawa and Alberta. Last but not least, I thank the Osgoode Society for Canadian Legal History for agreeing to publish this work under its aegis, and its readers and editors for their valuable suggestions. Needless to say, none of these persons or institutions I have named is responsible for any mistakes I make here or for the conclusions I draw. I warmly thank Wakefield Press for permission to reuse material from an earlier publication of mine in an updated and adapted form. In so doing I have benefited greatly from their earlier editing of my prose. Melbourne, 8 June 2007

THE LAW OF THE LAND The Advent of the Torrens System in Canada

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1 The Torrens System: An Outline1

The Spread of the Torrens System The Torrens system of registering land titles was conceived in South Australia in the mid-1850s under the leadership of (Sir) Robert Richard Torrens, a government official and member of the provincial Parliament. It was introduced by South Australia’s Real Property Act of 27 January 1858 and is now the predominant system of land titles registration in the Commonwealth of Nations. Once its success in South Australia was established, it was adopted quickly by all other Australian states (as they now are). Within four years Torrens statutes existed in all other Australian jurisdictions except Western Australia, where it was adopted in 1875. New Zealand, too, adopted the Torrens system in 1870 after the failure of an earlier reform of 1860 based on an English model.2 But before the Torrens system had spread to any of the other Australian colonies or to New Zealand, it was introduced in what would later be Canada, gaining a first foothold in early 1861 in far-off Vancouver Island, then one of the newest, smallest, and remotest outposts of the British Empire. The Torrens system has since grown slowly but surely in most provinces of Canada; it is now dominant in four provinces and is growing rapidly in a further three. Lawyers refer to the transfer of a legal institution such as the Torrens system from one legal order to another as a ‘reception.’ Canada received the Torrens system in a number of stages – there were multiple receptions of the Torrens system

4 The Law of the Land

across Canada because the provinces have responsibility for this area of the law, and the various provinces that now have the Torrens system introduced it at different times and for slightly different reasons. This book is the story of how the Torrens system was established in Canada by the late nineteenth century and was gradually received in many other parts of Canada. It is also the biography of a reform in Canadian private law. Canada was a crucial conquest for the Torrens system, not only in its own right but also because the system’s foothold there gave it international status, confirmed its suitability for use outside Australia, and provided it with a platform for further growth. After Canada it spread to some states of the United States and, in one form or another, to Commonwealth countries such as Papua New Guinea, Malaysia, Kenya, and Uganda.3 The Torrens system is reported to exist in countries as diverse as Tunisia, Ethiopia, Madagascar, and Iran.4 In 1996, Russia and the newly independent Ukraine were considering the adoption of a Torrens-based system for private land holdings.5 Although Torrens has never been wholly adopted in England, it has inspired notable modern reforms of English law, to the extent that some commentators consider it proper to refer to the current English system of land registration as a Torrens system.6 No doubt the Torrens system’s presence in Papua New Guinea, which is a former Australian colony, owes little or nothing to its existence in parts of Canada, but the same is not true of all the other countries mentioned. A Tunisian judge, when seeking information about the Torrens system in the mid-1880s, turned to the Canadian Department of Justice, because while filling in the time during a voyage by ship he had read about the system in a newspaper from Winnipeg and could furthermore write to Ottawa in French.7 Americans frequently and naturally turned to Canada for information about the Torrens system, as did legal officials in the Philippines, in which the Torrens system prevails today.8 In the United States, it must be said, the system has not been as successful as in most other places. Nine American states still have Torrens system statutes (although that does not necessarily mean that the Torrens system is the dominant system of land titles in those states).9 The relative failure of the Torrens system in most parts of the United States is not due to any intrinsic flaws in the system itself. Rather, it is due in the first place to a combination of vested interests – sometimes lawyers, but much more tenaciously the title insurance industry – that have a lot to lose from the Torrens system. These interests oppose its extension

The Torrens System: An Outline

5

and have been accused of ‘systematic sabotage of the American Torrens system.’10 Other reasons include inadequate drafting of the legislation and poor maps; public ignorance of what the system means and how it works; constitutional problems related to the separation of powers that are unique to American law and require expensive, tedious judicial proceedings for essential steps in setting up the system; and finally, a lack of political will to overcome these hurdles.11 In the Australian states, in several provinces of Canada, and in many other places around the world, however, records of ownership of land are managed by means of the Torrens system. In many places it would be hard to conceive of any other system. We shall see that unlike in Australia, where the large degree of uniformity among the colonies led to a rapid adoption of the Torrens system for essentially the same reasons everywhere, the great variety among the Canadian provinces has produced a far more complicated story, or rather series of stories. Thus the simplified version of the Torrens system introduced in Vancouver Island in 1861, and which carried British Columbia into Confederation in 1871, has only a minimal historical connection with the second wave of adoption of the Torrens system to its east and north in Ontario, the prairie provinces, and the Territories. And although those three sets of jurisdictions adopted the Torrens system at about the same time, and as a result of the lobbying efforts of the same group of lawyers and moneylenders, Ontario went its own way, both drafting its statute on a different model and refusing to make the Torrens system compulsory except in its northwestern extremities. Finally, the most recent wave of adoption of the Torrens system in Canada, in Nova Scotia and New Brunswick, was an outcome of very different pressures again: the computer age. The adoption of the Torrens system remains only partial across Canada, with three provinces – Quebec, Prince Edward Island, and Newfoundland and Labrador – still untouched by it. The project of mass conversion of old system titles is still underway in three others – Ontario, Nova Scotia, and New Brunswick. The Need for Reform To appreciate why the Torrens system has been widely copied, one must describe the system it replaced in both Canada and Australia – and indeed in most countries that inherited the English common law. Under that law, land was sold by deed, a solemn form of contract that

6 The Law of the Land

was entered into between the seller and the buyer. The deed was not valid unless the seller had the right to sell the land, and the seller could have this right only if the person who sold the land to him had the right to sell it. That right was proved by showing the same thing in relation to that earlier transaction; namely, that the previous seller had had the right to sell the land to the buyer at that time, who had now become the seller to the latest buyer – and so on, back into the mists of time. At common law the process of backward investigation could not cease until either one reached the first sale of the land by the Crown to its first owner or until the longest possible period under the statute of limitations was exhausted and any undiscovered claims were extinguished by the lapse of time. In most jurisdictions nowadays, a statute specifies the precise period of backward search required: in Ontario since 1929, for example, it has usually been forty years.12 Proving the existence of each seller’s right to sell for the requisite period of time was known as establishing the ‘chain of title.’ This system was accurately described by Torrens as a system of dependent titles; that is, a system in which everyone’s title to land depended on the validity of the title of all the people who had sold it beforehand.13 The documents that proved the earlier sales and thus established each seller’s right to sell were the deeds of sale, which were agreements made between the buyer and the seller as parties to the sale. The deeds were, as a rule, in private hands, normally with the current owner or the owner’s bank. The process of establishing the chain of title could be quite expensive, as the seller and buyer each had to employ a lawyer to examine the earlier deeds and to make sure that each prior seller of the land had had a complete right to sell it.14 It was an extraordinarily rudimentary system – not much different in practice and not at all different in general principle from that prevailing in ancient Athens over two millennia beforehand.15 It caused a number of grave difficulties. If documents were lost, problems arose in proving an owner’s title. Flaws in earlier titles were carried on down the line even if later purchasers knew nothing of them. And because the documents were in private hands, the potential for fraud and forgery was great. In the nineteenth century, reform of the law in this field was one of the burning issues in all countries that had inherited the English common law. The difficulty was to find a workable replacement. In addition to these problems, the courts of equity developed a further hurdle, the doctrine of notice. This doctrine meant that many

The Torrens System: An Outline

7

claims on land falling short of full ownership, such as mortgages, trusts, or leases, could be created without noting them on the deeds and then affect a new owner’s title, even if he knew nothing of them. Notice of such an interest was said to be enough to bind the new owner to respect it, and ‘notice’ was said to exist not only when the owner knew of an interest in land, but should have known of it. With the benefit of hindsight it is always easy to declare that a purchaser has been lax in not checking just a bit more and that if that had been done, an interest would have been revealed which thus now affects the new owner’s title because of ‘notice.’16 These problems were felt particularly acutely in South Australia, which is one major reason why the Torrens system was developed there. The Wakefield system of colonization on which South Australia had been founded proposed as its basic idea that advance sales of land would be used to create a fund to pay the costs of setting up the colony.17 People buying land in this way received ‘land orders,’ which could be sold and resold on the private market. The intention of the founding theorists was that the purchasers of land would use it themselves. Soon, however, speculation in land was rife, with properties being carved up and constantly bought and resold. This meant that the system of dependent titles quickly became as difficult to administer as in England, since it was necessary to trace each transaction and prove that it was not affected by some defect that would invalidate all later transactions. In fact, establishing the chain of title became more difficult over time, because people left South Australia as well as emigrating to it; and when they left they might take documents with them, or their absence might make it impossible to sue them if they had not transmitted a good title, or even find them to prove that they had. Additional difficulties in determining ownership of land were created by South Australia’s unreliable survey maps and other slack practices. One amateur vendor [of subdivided land] sold his township from a map that showed north pointing due south ... The township of Walkerville, purchased by Governor Hindmarsh and his wife, was sold to a surveyor who subdivided it into acre allotments, one of which had three owners before passing to two illiterate labourers as part payment for the sinking of a well. Before leaving Adelaide they sold the acre for £20 to a clerk fresh from England, giving him a verbal account of the earlier transactions and a receipt adorned with crosses and the undecipherable signature of a

8 The Law of the Land witness. On the strength of this title the clerk contrived to raise a loan ... One agreement was for land ‘about seventy paces from the N.W. corner of the Sheoak Log Hotel’ (since burnt down); another, ‘adjoining the lot late in the possession of William Smith’ (since departed for the Californian diggings).18

The same problems existed, as we shall see, in Canada, particularly in the prairie provinces, in which land booms could suddenly occur in new areas in which legal and surveying services were difficult to obtain, so that many amateur transactions in land occurred. Such inexact practices would be unsatisfactory anywhere, but they could affect the principal asset of many people in places like South Australia and much of Canada, where land ownership was within the reach of many members of society rather than being confined to the well-off, who could take the occasional loss and afford the occasional lawsuit.19 Furthermore, expense and difficulty in acquiring and transferring land made people more reluctant to engage in such transactions, which hindered settlement of newly opened-up areas and also – a crucial point in the spread of the Torrens system within Canada – made moneylenders reluctant to lend cheaply against land to finance improvements of land.20 It was therefore in the interests of many ordinary people to have a better, more certain, and more efficient system. Various remedies designed to fix the problems were tried before the Torrens system. The registration-of-deeds system was the commonest. It required all deeds and some other documents affecting title to land to be registered by a government official. If they were not, the statute made them ineffective against anyone who bought the land later on. Such statutes were introduced throughout Canada, as well as in Australia.21 They came in a variety of forms. Some required registration in order for any interest in land to trump a later registered interest (the ‘race’ system), while others merely provided a register as one means of giving adequate notice of an earlier interest to would-be buyers or mortgagors (the ‘notice’ system) and thus ensuring, through the rules of the general law, that it bound anyone with a later interest. The commonest was the ‘race-notice’ system, which required both the absence of prior notice of a competing interest and registration before any such interest. Land in Ontario, for example, that is not yet under the Torrens system is subject to the race-notice system of deeds registration.22 However, all registration-of-deeds systems, of whatever subspecies, were different from the Torrens system in a crucial respect: registration

The Torrens System: An Outline

9

of deeds made it easier to find the deeds, but it did not confer any additional validity on them. Registration did not make the title valid or cure the defect if a deed was invalid because it was forged, for example, or signed by someone without a right to sell. Even if no such sharp practice had occurred, there was the possibility of an overriding interest such as a mortgage over the land, or adverse possession (the ability of people to acquire the ownership of land by simply using it for a long period without any legal right but as if they had one).23 Registration of the deed of sale did not necessarily prevent such an interest from affecting the new owner’s title or even from rendering it completely worthless. The registration-of-deeds system, in short, ‘was no “hospital”: it could not be used to elevate “bad” titles to “good” ones; rather it was directed at saving good titles.’24 Registration merely prevented deeds that were already valid before registration from being set aside by later valid transactions. It stopped things from getting any worse, but did not make anything more valid or certain than it would have been without the system. So buyers who accepted invalid deeds still found that they did not have any title, or not a complete one, to the land that they thought they had bought. Registration of the deed was of no use to them if the deed was wholly or partially invalid from the start. Nor was registration under this system enough to permit lenders to grant loans at the cheapest rate, the rate applicable when they were sure that the person to whom they were lending was actually the owner of the land and that there was no risk that they would lose their security. So the whole chain-of-title process had to continue under the registration-ofdeeds system. The Torrens System The fundamental reform introduced by the Torrens system was that the legal ownership of land could no longer be changed by private agreements between buyers and sellers, but only by the act of registration on a public register. The title of a registered owner thus became independent of the previous owners’ titles: under the Torrens system, registration itself confers a good title. Simply being registered as the owner cures any defects that would otherwise exist in the title. All that one has to do as a buyer of Torrens system land, therefore, is to check that the person selling the land is the person named in the public register as the owner of it, and get on the register after the sale. There is no need to check whether that seller bought it from someone else who was the

10

The Law of the Land

‘true’ owner of the land, for as long as a buyer does those things the buyer can be quite sure of obtaining a good title upon registration. This basic principle was expressed in section 31 of the world’s first Torrens statute, South Australia’s Real Property Act [1858]. It stated that interests in land would henceforth be transferred ‘so soon as the Registrar-General shall have entered the particulars thereof in the book of registry.’ To emphasize the fundamental change wrought by the system, section 37 of the Act repeated that ‘upon such entry [of a transfer in the register] being made by the Registrar-General, the land ... shall pass to and vest in the purchaser.’ Section 33 of the Act supplemented this principle by specifying that what appeared on the register was to be conclusive evidence of all the interests that existed in the land concerned. Here, then, is the important change expressed in statutory language: once a change of ownership has been registered in the public register book, the fact of being registered as the owner – not the previous agreements between buyer and seller – is itself the source of the new owner’s good title to the land. So the Torrens register is a ‘hospital.’ It does make things better, cure invalidities, and make people’s titles certain. It does this, once registration has occurred, by taking away the need to show from then on that the registered owner’s title originated in the seller’s right to sell the land. The Torrens system therefore means the end of the need to look backwards for possible flaws. Under the Torrens system any agreements and deeds entered into by the parties themselves remain private arrangements, enforceable only between the parties themselves, until the ownership is legally transferred by an entry in the register book. That entry, independently of the validity of the private agreements, is from then on the sole and independent source of the owner’s title. The responsibility for keeping a record of the ownership of land and for ensuring that the ownership of land is changed effectively is transferred from private to public hands. As is always the case in the law, a fundamentally sound principle, as the Torrens principle is, cannot be applied without any reservation. There have to be exceptions for what section 33 of the Act of 1858 called ‘the case of fraud and error,’ or more accurately, fraud (including outright forgery) or error. If anyone were able to forge a transfer of land and have it registered, and could then claim a good title based on the fact that his name appeared in the register book, anyone could easily profit by forging a transfer. The person who really needs protection in such a situation is not the fraudster but anyone who may buy the land

The Torrens System: An Outline

11

from the fraudster in good faith – believing that the fraudster, who is registered as the owner of the land, is a legitimate seller. Accordingly, section 94 of the original South Australian Act allowed the title registered by the fraudster to be cancelled up until the time that he sold the land to someone acting in good faith, but also said that a buyer, if acting in good faith, obtained the ownership of the land despite earlier fraud. The danger of fraud still exists under the Torrens system, of course; its principle of the centrality of the register eliminates many of the uncertainties associated with the old system, but it does not eliminate the potential for deliberate sabotage. In such cases, as often in the law, there is the potential for conflicts to arise between innocent victims of fraud and the equally innocent person who receives an interest in the property concerned after the fraud is perpetrated and who is relying in good faith on a transaction that is shown on the register and is not known to be fraudulent. In Australia, opportunistic cases of forgery and fraud have certainly occurred, but they have mostly been few and far between and have not posed any serious threat to the integrity of the Torrens register. In Ontario, however, a recent rash of cases of real estate fraud has caused some public concern. In the well-publicized case of Lawrence v. Maple Trust,25 for example, a fraudster registered a transfer of Susan Lawrence’s Toronto property to himself and then took out a mortgage with the Maple Trust. Clearly the fraudulent transfer can be eliminated from the register and Susan Lawrence restored as the rightful owner according to the register, but if the Maple Trust cannot recover its money from the fraudster (the usual case), can it rely on the fact that it has registered its mortgage and recover its money from the registered owner of the property? Both the Ontario Legislative Assembly and the Court of Appeal in the Lawrence case have decided to prefer the interests of victims of the fraud, like Susan Lawrence, over those of the recipient of an interest from the fraudster, such as the Maple Trust.26 This decision is based on the grounds that the recipient of an interest from the fraudster has the better opportunity to avoid incurring a loss, because that person or institution as a rule deals with the fraudster and can investigate the proposed transaction, whereas the victim of the fraud almost always cannot. The principle of reliability of the register is restored to full force, however, if the person who dealt with the fraudster passes on the interest to yet another person who did not deal with the fraudster. That

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The Law of the Land

person is entitled to rely on the validity of the register, which now includes his or her own interest. In Australia the opposite solution to that recently adopted in Ontario is currently the law, so that an interest in land need only be registered innocently in order to be valid, even if the registrant is actually dealing with a fraudster. This solution, however, is to be attributed rather more to the views of the courts than to the wording of the statutes, which sometimes distinctly suggest that the solution just adopted in Ontario is the correct one.27 I suspect, too, that if there were ever an outbreak of real estate fraud, as happened recently in Ontario, public pressure would lead to the same outcome in Australia. However the details are organized, under the Torrens system the principle is that the register book is, subject to limited exceptions, the independent source of an owner’s title to land. This has been memorably subdivided by an English commentator into two sub-principles, the ‘mirror principle’ and the ‘curtain principle.’28 The mirror principle means that the register book kept under the Torrens system should be an accurate reflection of the state of title to the land. It should show not only who the owner is, but whether he has mortgaged the land, leased it, or in any other way done something that restricts his rights as the owner. This principle means the abolition of the general law’s doctrine of notice, because if something is not on the register then people are entitled to ignore it. The mirror principle is the principle to which section 33 of the original Real Property Act, with its emphasis on the conclusive nature of the register book, gave effect. But again, it is not practicable for this principle to be applied without any exceptions at all. For example, it is usual for Torrens statutes to contain an exception to the mirror principle stating that people who have short-term leases over land and are actually in occupation of it do not have to register their leases for them to be valid. This is because first, registering a short-term lease would be unnecessarily complicated and expensive; and second, people intending to buy land should detect someone other than the owner who is actually occupying it and make further enquiries. Standard-form contracts for the sale of land also regularly require the seller to declare whether any third party is in occupation of it.29 Equally, mortgages may be created off the register in many versions of the Torrens system by leaving a copy of the owner’s copy of the certificate of title with the lender.30 The idea is that people who wish to buy land should notice if the owner’s copy of the certificate of title can-

The Torrens System: An Outline

13

not be produced by the owner, and that should lead them to enquire whether someone else has it, perhaps because that other person has an interest in the land such as a mortgage. Another common and rather obvious exception is that government taxes against land do not have to be listed on the register in order to be enforceable against Torrens land. This makes sense, because everyone knows that such taxes exist, and it is a small burden to require people to check with the government before buying land to ensure that there are no unexpected unpaid taxes on it. Less common and more controversial exceptions are those for easements (rights to use land for a specified, limited purpose vested in someone other than the owner of the land concerned) and adverse possession. A crucial decision in the design of any version of the Torrens system is how many and what sort of exceptions to have, and the different models applying in various provinces, states, and countries differ on this point, as is only to be expected. A further difficult distinction is that between proceeding with registration, knowing that it will destroy an earlier interest of which one has notice but which is not on the register, and fraud, which is an exception to the principles safeguarding registrants in the manner earlier explained. A number of cases in both Australia and Canada have attempted to trace this difficult line.31 But once the exceptions are out of the way, the basic principles must be that the register book should mirror the state of title to the land and that people are entitled to rely on it as a result. The curtain principle marks a further, even more important departure from the old system: it states that a person wanting to buy land should not be concerned about transactions preceding those on the register nor (subject to the sorts of exceptions just mentioned) need to enquire whether there is anything not on the register. A person wanting to buy land (or otherwise deal with land, for example, by lending money to the registered owner on the security of a mortgage granted by the registered owner) is entitled to draw a metaphorical curtain in front of everything that is not on the register book and to regard the register as the sole source of information about the land in question. Under the old system, that would have been fatal if there lay hidden, in deeds ten or fifteen years old, some defect in the seller’s title which would, so to speak, infect any potential buyer. Under the Torrens system the onus is on people with interests in land to get onto the register – and so any interests not on the register and not the subject of an exception, such as

14

The Law of the Land

that for short-term leases, can be ignored because they are behind the curtain. That is why mere notice is not sufficient to bind someone who does register. A further innovation – the ‘insurance principle’ – was contained in the original South Australian Act and copied by most Canadian Torrens systems in order to protect those who lost their land through the registration of incorrect details on the register, whether by fraudsters or by accident. A small tax – in South Australia it was originally one farthing in the pound, about 0.104 per cent – on the value of land is levied when it is brought under the system established by the Act and paid into an assurance fund. Under sections 35 and 96 of the Real Property Act, this fund was to be used to compensate people who had lost their land through fraud or error. Nowadays this would include people such as victims of frauds like that perpetrated in Susan Lawrence’s case, but there is generally a requirement that the person claiming such an indemnity (the Maple Trust as mortgagee in cases such as the Lawrence one) must have exercised due diligence.32 Otherwise the assurance fund would be used as a substitute for proper care by people or lenders entering into transactions. Obviously that does not apply to people such as Susan Lawrence, who have no idea that their houses had been the subject of a fraudulent transaction. As it turned out, Susan Lawrence herself did not need the assurance fund, because her home was restored to her and the fraudulent mortgage cancelled. But if some further transaction had been registered to an innocent person who did not even deal with the fraudster, and that transaction had to be upheld as valid, swift access to the assurance fund would have been needed. Thus, the Act of 1858 established not only a state-run register of titles, but also a state guarantee that landowners would not be deprived of their land without compensation because of the operation of the system. From the point of view of the landowner joining the Torrens system as it began its operations in 1858, the fund provided some assurance that nothing could be lost by joining the system. From the point of view of the state, having to pay compensation in the case of fraud or error created an incentive to run the system with care so that frauds were detected and errors avoided. The possibility of claiming on the assurance fund still exists in South Australia, but under the current statute no further taxes to supplement it have been levied since 1988. That demonstrates how infrequently this form of insurance has been needed.33 This too has been a common

The Torrens System: An Outline

15

experience in Torrens jurisdictions, including the Canadian provinces: their assurance funds have frequently amassed far more money than is ever needed, and indeed some Canadian provinces that have adopted the Torrens system more recently, such as Nova Scotia and New Brunswick, have decided to dispense with the idea completely. The assurance fund was nevertheless quite important in early South Australia because under the original Torrens model, joining the Torrens system was a voluntary process for all land first sold by the Crown before July 1858; that is, for all land that the Crown had sold in the first twenty-one years of settlement in South Australia. Most Canadian Torrens systems copied this feature, too; some went even further, so that in most of Ontario and on Vancouver Island bringing land under the Torrens system was not compulsory even for land granted by the Crown after the Torrens statute came into existence.34 In Manitoba, as we shall see, one of the chief disputes about the shape of the system was whether it was to be compulsory or not for newly granted land. Under either arrangement there was a substantial number of landowners under the old system who had to take the initiative and apply to receive a Torrens title instead of an old system title. Some guarantee had to be held out to such people to persuade them to join the new system. This was particularly so in the early years, before the Torrens system had proved itself reliable by experience. In all versions of the Torrens system, joining the system voluntarily involves proving one’s title to the land to be valid under the old system for one final time, so that all existing claims are unearthed and an opportunity is given to all claimants to put forward their case. If the land has recently been granted by the Crown to the applicant this is unlikely to be difficult, but if the land has been in private hands for some time it can be harder because one has to establish one’s chain of title. Torrens put great effort into designing this part of his system, because one of the main complaints about the old system was the expense and delay required to demonstrate one’s title. Under the old system this had to be done repeatedly, because it was necessary to prove the chain of title every time an interest in land was to change hands. Joining the Torrens system would require this process to be gone through one last time, but it was still essential to find a proper balance between thoroughly safeguarding the interests of existing owners on the one hand, and offering speed, economy, and attractiveness to would-be holders of Torrens titles on the other. If the system were

16

The Law of the Land

insufficiently thorough, loss might be caused unfairly. If the system were too slow or expensive, people would have little incentive to apply for a Torrens title at all, and the system would not grow as rapidly as it was hoped it would. Torrens’s solution was to establish two Lands Titles Commissioners, positions modelled loosely on the highly successful Commissioners for Sale of Incumbered Estates in Ireland created by a U.K. statute of 1849.35 Torrens’s commissioners were to sit with the registrar general as a three-man tribunal for deciding upon applications under the Act. Section 10 of the Act of 1858 expressly prohibited them from being legal practitioners, although they were to be assisted by two solicitors. The reason for this prohibition was clearly revealed in Australian debates on the spread of the Torrens system: the public believed that lawyers were either unduly cautious, not allowing ancient and probably hypothetical doubts about titles to rest in peace, or positively malicious, seeking to destroy the Torrens system for their own narrow self-interested purposes.36 The commissioners and the registrar general were therefore to judge the state of the title not by the petty and pedantic standards of lawyers, but by common-sense standards, ignoring the sorts of theoretical possibilities and unrealistic doubts that lawyers would take into account when giving unnecessarily equivocal opinions. In order to ensure as far as possible that claims to land were unearthed before a Torrens title was granted, a system of advertising applications was set out in the 1858 Act, and if anyone objected to a proposal to grant an interest the claim was to be referred to the Supreme Court for a decision. This was certainly an inventive and unorthodox solution, and in each society that adopted the Torrens system there remained the issue of how to deal with land already in private ownership when the system was introduced. An objection frequently urged to the South Australian solution was that it involved a breach of the principle of separation of powers: non-lawyers were adjudicating upon legal rights.37 Mr Justice Benjamin Boothby of the Supreme Court of South Australia in particular had harsh words to say about this solution and for a time effectively read it out of the Act by reading in a right in the Supreme Court to review the commissioners’ decisions, even years after they were made.38 However, there was far less substance to objections on the grounds of the separation of powers than there appears to be at first sight. Non-lawyers often adjudicate on legal rights for administrative purposes, and Torrens provided for disputes to be

The Torrens System: An Outline

17

referred to a court, merely requiring that the disputes should be referred when the clear Torrens title was sought and not saved up for later. Torrens’s solution certainly worked well in South Australia and under his leadership as registrar general, but as we shall see it was not the solution adopted in all of Canada.

2 The Invention of the Torrens System

Man and Idea1 The Torrens family came from what is now Northern Ireland, although Robert Richard Torrens, the inventor of the Torrens system, was born further south in Cork, in 1814. Colonel Robert Torrens, Robert Richard’s father, was a political economist of some repute in his day and not entirely forgotten even today. Eight volumes of the Collected Works of Robert Torrens were published as recently as 2000.2 Torrens senior comes into the story of South Australia because of his unremitting labours as Chairman of the Colonisation Commissioners in promoting the settlement and growth of the colony in its early years. He never visited South Australia, but his name appears on its map in several places, most notably in the River Torrens that flows through the centre of Adelaide. His son arrived in Adelaide in 1840, aged twenty-six. Very quickly Robert Torrens started on his career in the public service, as Collector of Customs. Almost as quickly he acquired a reputation as a somewhat headstrong and difficult man and was regularly complained about by his subordinates, reprimanded by his superiors, and ridiculed in the newspapers, some of which thought him lazy and grasping. He was even sued successfully for assault. One thing stands out in the life of this most successful of South Australian legal reformers: Torrens had no legal training whatsoever.

The Invention of the Torrens System 19

Torrens became interested in the reform of land titles law when a friend of his suffered ‘a grievous injury and injustice’3 when a flaw was discovered in his title to land that he had not only purchased but also improved. As a result, Torrens resolved to do something about the state of land titles law. The issue of land titles reform had been broached very early on by a number of South Australians. The commissioner of Public Lands, John Fisher, had drafted a bill for the registration of titles in 1836, even before the first settlers had sailed. Another legal luminary, Charles Mann, called as early as 1838 for the introduction of land titles registration. Several other similar suggestions were made in the very early days of the colony. In 1853 Richard Davies Hanson, who was certainly still on the scene when the Torrens system was being discussed and implemented four years later, also wrote very briefly of the need for reform based on a system of titles by registration.4 It is likely that Torrens knew of some of these suggestions, especially given that land titles reform was such a crying need in the mid-nineteenth century and that general ideas for reform were commonly floated in a vague, undeveloped way. However, it would be absurd to look for the first inventor of the idea of a register of titles as an abstract idea, unconnected with any detail, and to award to that person the prize for inventing the South Australian system. The general idea of a register of titles goes back centuries, and indeed the pre-Torrens system involved a register of deeds. Torrens’s great contribution was that he converted the vague idea of title by registration into a practical proposition that was a real step forward in the law, made a version of it which appeared to justify the trouble and cost attendant upon its introduction, and persuaded the public of its usefulness. Land titles reform became one of the major issues in the election campaign for the first Parliament of South Australia, which opened in April 1857. This fact is not surprising in a society in which all but the very poor were, or could hope to be, landowners, and given that all adult men in South Australia had the vote.5 Land ownership was one of the things that the ordinary person could aspire to in a colony like South Australia, as distinct from England; this opportunity was a source of pride and a reason to go there in the first place. Land titles reform was therefore not just a question of helping big landowners or land speculators; it was an issue that affected many people. Furthermore, as Australia’s only non-convict colony, South Australia had been founded and built up by a group that included many people

20

The Law of the Land

dissatisfied with the English religious establishment and, more broadly, with inherited irrationalities and solutions dictated from above. It was therefore a place in which dissent and suggestions for reform had a ready hearing. It was a place in which the mid-nineteenth century’s spirit of law reform was able to flourish, and in the course of the 1850s South Australia produced no fewer than three further significant reform statutes making the law more rational in areas such as the citizen’s capacity to sue the government.6 Even in England, and elsewhere throughout the common-law world, new phenomena such as the Industrial Revolution and the broadening of the franchise were producing pressures for reform that had not been equalled in intensity for some centuries. Leading thinkers of the nineteenth century such as Jeremy Bentham – one of whose protégés, his ward John Bentham Neales, emigrated to South Australia and was a well-known figure there in the colony’s early years – had subjected the law to a test of rationality and demanded the vigorous sweeping away of useless traditions and entrenched privilege. Lord Brougham advocated law reform from the Lord Chancellor’s office, and by the middle of the century he and similar advocates for change had had considerable success in clearing away many ancient forms and fictions of real property law.7 Thanks to the great waves of legal reform throughout the nineteenth century, it is scarcely an exaggeration to say that England went into the nineteenth century with a legal system that still looked largely medieval, and to a considerable extent still was, whereas it emerged into the twentieth century with a recognizably modern legal system. Many reforms had an even greater chance of success in colonies because their smaller size and greater freedom from entrenched privilege made it easier to take action than it often was in England, especially in areas affecting land, in which English privilege could be very entrenched indeed. South Australia was one of the best placed of all such colonies because of its tradition of dissent and reform and because it was a property-owning democracy. South Australians responded enthusiastically to Torrens’s calls for conveyancing reform. By advocating this cause and the registration of land titles, and by clever campaigning, Torrens was elected as the first candidate for the seat of Adelaide.8 (Also elected for the same multi-member seat was John Bentham Neales, the ward of Jeremy Bentham.) This indicates the importance of the issue of land titles reform in that election, and general public dissatisfaction with the defects of the old system. An outline of Torrens’s bill for land titles reform had been published

The Invention of the Torrens System 21

in October 1856, well before the election, in the Register, the principal local newspaper. The editor, Anthony Forster, hailed it as the start of ‘a great and glorious reformation.’9 An extended summary of the provisions of a revised version of the bill was published in April 1857.10 Although we have these early sources for the bill that became the Real Property Act, we do not know very much about the behind-thescenes process of drafting the bill. No written records of the early drafting process were kept, and most of the initial development of the idea probably took place in people’s heads and in face-to-face discussions. Virtually all we know about the development of the system until the introduction of the bill into Parliament is what can be gleaned from public sources such as parliamentary debates and newspaper reports. Even that is not very much. We are told, for example, in mid-October 1856 that Torrens ‘has, it seems, been devoting the Parliamentary recess to a consideration of the subject [of land titles reform], and the result is now brought to light in the shape of a draft Bill, embodying a large number of salutary reforms.’11 The legislative recess had extended for almost exactly four months at this point, since just after the middle of June. So there had been plenty of time to devote to the topic, but there is no record of precisely how the design of the system was conducted, or who exactly, other than Torrens, was involved in it. Two things can, however, be said about the process of developing the system. The first is that Torrens certainly had help from many other people. This fact was clearly known to everyone at the time, but we know it even today, partly because Torrens himself pointed it out. John Baker, second premier of South Australia, even accused him of being the head of a ‘clique.’12 Shortly before mid-October 1856 there had occurred a meeting at Torrens’s house of ‘a party of influential gentlemen’ to consider Torrens’s proposals, which they approved.13 Perhaps this was the same gathering as the dinner of nineteen people at which those present are said to have pledged themselves to the Torrens system, or perhaps it was a different one.14 From the first, the Torrens system involved the efforts of a number of people under the leadership of Torrens. As early as January 1857 Torrens mentions as helpers three prominent colonists of the day – John Fisher (mentioned above), John Hector, and Marshall MacDermott.15 On one occasion, Torrens recorded in 1861, he was convinced by his advisers to alter an important point of detail in the bill.16 Some authors accordingly see the Real Property Act in its final form as the result of the work of a committee under Torrens’s leadership.17 We have no record of

22

The Law of the Land

the formation of a committee, let alone regular meetings.18 But clearly the Torrens system involved the cooperative efforts of, and discussion among, a number of leading lights in early Adelaide. The smallness of Adelaide at the time and the readiness of its leading citizens to consider useful law reform, coupled with the well-known need for reform in land titles law, facilitated this cross-fertilization process. One of those whom Torrens consulted was the editor of the Register, Anthony Forster. Forster himself had strong views in favour of a reform along the lines of the Torrens system, and advocated reform in his newspaper. Forster appears to have studied the subject of land titles reform using reports of British Royal Commissions published in 1829 and 1830, and this study is reflected in his newspaper advocacy.19 It is no coincidence that Forster’s advocacy occurred just before the Torrens system was presented to the South Australian public. Forster’s newspaper articles were a means of preparing the public to consider favourably a reform which, because of his own involvement in or knowledge of behind-the-scenes preparatory work, he knew was about to be offered for their consideration. In 1859 Forster said that he had advocated reform before Torrens ‘was known to have entertained any idea of taking legislative action on the subject’ and that he had ‘helped prepare the popular mind for the reception of Mr Torrens’s measure.’20 The second thing that must be pointed out about the process of developing the Torrens system is that Torrens used other systems of registration to assist his planning. Part II of the British Merchant Shipping Act 1854 (Imp.) was his principal source. That Act was mentioned by the Register as early as July 1856 as a possible model for a reform of land titles law, and Torrens certainly knew of it from his time as Collector of Customs.21 However, there are considerable differences between ships and land, and between the Torrens system and the system of shipping registration. In particular, the Merchant Shipping Act 1854 did not establish a system of title solely by registration.22 But it did include a register book that was evidence (although not conclusive evidence) of the owner’s title. All but a very few of the clauses of the first draft of the Real Property Act owed their origin to the Merchant Shipping Act 1854, although as the draft developed the clauses taken from the Act of 1854 were gradually supplemented by others taken from a wide range of sources.23 We cannot know whether Torrens saw the Merchant Shipping Act and then conceived his system as a derivative from it, or whether he hit on the idea first and then turned to the statute as providing a precedent for

The Invention of the Torrens System 23

his desired outcome and a useful source of legal wording. The latter, however, seems more likely on the evidence available. One of the first ways in which the aims of the Torrens system were explained to the public was as a means of making a registered title just as valid as a title newly granted by the Crown. This idea was used to express the indefeasibility of the titles shown on the register – they were to be just as good as the first titles granted by the Crown – and this feature made the Torrens system worth the trouble and cost of introducing it. This could not have been borrowed from a system for the registration of ships, because the original title to ships does not stem from the Crown. Moreover, Torrens’s ruminations on the subject of conveyancing reform preceded the Act of 1854. He said in Parliament in November 1857 that ‘it was nearly ten years since the ideas thrown together in [his] Bill had been first entertained by him,’ and that he had tested the ideas on various of his contemporaries over the years.24 Certainly he was thinking of radical reforms from a very early stage of his tenure of the office of registrar general, to which he was appointed in 1852. In February 1853 Torrens’s deputy made suggestions for administrative improvements to the system of registration of deeds that was then in force. Commenting on them, Torrens made his own suggestions to the governor for reform of the system. There is no sign of anything like the Torrens system in his minute, but there is also no reason why Torrens would have exposed every more adventurous but less fully developed line of thought to his ultimate superior at this point. Nevertheless, right at the start of his minute he announces apodeictically that ‘the object of registration is to ensure disclosure of title thereby facilitating the transfer of property and rendering fraud by concealment difficult if not impossible’; he declares that ‘a radical change in the entire system is required’; and he proceeds to advocate indexing by property location.25 All these points foreshadow the Torrens system. On 28 July 1856, Torrens wrote to the Governor of South Australia, promising a further suggestion for a major reform soon.26 This was during the period of sustained development of the Torrens system, which occurred during the legislative recess beginning in June 1856. The immediate occasion for his letter, however, was the passing of an Act that provided for compulsory registration of all land grants from the Crown by the deposit of a duplicate in the Registry Office. The duplicate was to have the same value, as legal proof in land transactions, as the original grant from the Crown itself.27 There are obvious foreshadowings of the Torrens system in these ideas, too. It is therefore proba-

24

The Law of the Land

ble, although not certain, that Torrens first conceived the outline of his system and then turned to the shipping legislation to find some of the words he needed to make it a reality on the statute books and as a source of ideas to fill in some essential details. Once Torrens had been elected to the Parliament of South Australia on his platform of conveyancing reform in April 1857, matters stood still for a few months. Torrens became the third premier of South Australia in September 1857; his government lasted almost the entire month, and most of his attention was doubtless absorbed in trying to keep his Cabinet together. (Before the development of the modern party system, such short terms as premier were by no means uncommon. Even at this early stage this was not the record for brevity in office: Torrens’s predecessor as premier, John Baker, had remained in office for only eleven days.) Torrens’s bill was, however, eventually introduced into Parliament in November 1857. It had already been severely criticized in some quarters as a half-baked madcap idea of Torrens, a non-lawyer dabbling in legal affairs with insufficient knowledge and experience, but with a vested interest in making his own property holdings more secure. Torrens certainly was a landowner, and in that capacity he had something to gain from the bill. We should not make too much of this, however. It is not at all uncommon for people to advocate reforms from which they would personally benefit – in fact, it is the usual case. In our own day, for example, many gays and lesbians have advocated samesex marriage, and consumers have advocated increasing the rights of consumers. People will usually advocate law reform that affects them personally, arguing that they have a grievance that should be remedied. Most people do not promote law reform in areas that are no concern of theirs. We should not hold it against Torrens that he too was an advocate in a cause that affected him personally, and should recall that it was a cause to which many, many others rallied because this reform was in the public interest. The Adelaide Times – an early newspaper that ceased publication before the Torrens system even came into operation – dismissed Torrens’s bill as ‘the production of a non-legal mind’ and ‘“a thing of shreds and patches”, picked up wherever he [Torrens] could lay his hands upon them.’28 The newspaper expanded on its opposition in another editorial: Our objections … to this measure, then, are:— 1st, the large addition it will make for years to come to the legal expenses incurred in the transfer of real

The Invention of the Torrens System 25 estate; 2nd, the deprivation of the holders of real estate of one of their inalienable rights, that of being the sole depositaries of their own secret as to the extent of their possessions, and the title on which they hold them, by a compulsory registration; and 3rdly, the setting up, at an enormous expense, of a great Government Establishment, as the workshop at which all conveyances of real estate are to be manufactured, and all transfers and encumbrances compulsorily registered.29

The editorial writer’s objections were essentially two-sided: first, the system would not achieve what it was supposed to achieve; and second, it would take away the advantages of the old system such as privacy. Resistance on the grounds of privacy was not necessarily based on the need to keep ownership as such secret, as most people are neither able to hide the extent of their real property, nor averse to publicity on this score. Rather, a complete register of all interests in land might well reveal too much about people’s debts in the form of mortgages held over their properties. The Adelaide Times was also suspicious of the motives of the bill’s promoters and accused its rival in the newspaper business, Anthony Forster of the Register, of promoting the bill in Parliament – Forster was a member of the Upper House, the Legislative Council – in the hope that he would receive income from the newspaper advertisements that would be required as part of the procedure envisaged by the bill.30 Some lawyers, too, opposed the bill. The unkind view was that some of them feared a loss of fees if the new system took hold, since they were the only people who could operate the old chain-of-title system. But there were less unworthy motivations for their opposition as well, such as an emotional attachment to the intricacies of the old system, or genuine scepticism about whether a system designed by a non-lawyer could really work. Historians are divided on the extent to which lawyers opposed the Torrens system, and there are few records of what they said or did. No doubt lawyers had a variety of views. Even the small colonial South Australian profession was not a monolith speaking with one voice. The contemporary perception was that the Torrens system was ‘opposed by most of the lawyers in this Province’ – most, but not all.31 The Real Property Act received royal assent on 27 January 1858 and came into force at the start of July 1858. Torrens resigned his seat in Parliament to be the first registrar general under the Act. The Real Property Act could be a success only if accepted by the community as an improvement on the old system and a secure means of holding land. This was

26

The Law of the Land

achieved very quickly. The South Australian Company, a major if not the major landowner in early South Australia, astutely recognized that its holdings would be more easily marketable if it obtained Torrens titles than if they remained under the old chain-of-title system. By mid1859 the Company was already making plans to acquire Torrens titles, bringing vast tracts of land under the system.32 As registrar general, Torrens helped the new system to find its feet, and thus may also claim some credit for the successful operation of the system in its first years. Opposition to the Torrens system continued, however. Courts and lawyers discovered technicalities and loopholes in the original Act, and the Supreme Court of South Australia began to pronounce crucial bits of it invalid or ineffective. These defects, some real and some more or less invented by contrary judges led by Mr Justice Benjamin Boothby, meant that several amending Acts had to be passed from 1858 to 1861.33 Torrens was the principal defender of the system against those who argued that the need for amendments indicated that the whole system was bad. In the course of time, judges’ and lawyers’ questions about the Real Property Act became subsumed in the larger issue of the extent to which the South Australian Parliament was permitted by the law of the British Empire to introduce innovations that were at variance with the law of England.34 This controversy was eventually resolved by two events: the passing of the Colonial Laws Validity Act 1865 by the Imperial Parliament, and the dismissal of Mr Justice Benjamin Boothby in 1867. Mr Justice Boothby had been the major proponent of the view that the South Australian legislature’s powers to deviate from the law of England were very limited indeed. His dismissal and the Colonial Laws Validity Act 1865 confirmed the wide powers of the South Australian legislature to introduce virtually any legislation it liked, including the Torrens system, as embodied in the Real Property Act [1858] and later amending legislation. Meanwhile, amendments had improved the system and eliminated early difficulties and imperfections. The legislation reached a more or less mature form with the Real Property Act 1861. Torrens went on ‘missionary’ expeditions in the late 1850s and early 1860s to most other Australian colonies and New Zealand, persuading them to introduce a system similar to the South Australian one. This mission was completely successful by 1875, when Western Australia adopted the Torrens system. This was almost ten years before Torrens’s death. Unlike many law reformers, Torrens had the satisfaction of living to see his own success.

The Invention of the Torrens System 27

Torrens resigned as registrar general in 1865 after moving back to England. He entered the Imperial Parliament in 1868 as member of Parliament for Cambridge, but found that land titles reform did not excite as many people in England as it had in South Australia.35 The class of property owners in England was proportionately smaller than it was in South Australia, and Torrens found it impossible to stir up much popular interest in the subject. Furthermore, a major problem with the acceptance of land titles registration in England was the age and complexity of many titles, making it far more difficult to find out the true state of affairs as a precursor to registration and far riskier for the state to give a guarantee of the accuracy of what was registered.36 Torrens was nevertheless knighted for his services to law reform in 1872, but not re-elected to Parliament at the election of 1874. By then sixty years old, he decided to retire from public affairs. He died in August 1884, aged seventy, in Falmouth, Cornwall. Just before he died he had been visited by one John Herbert Mason, a businessman from Toronto who was beginning a crusade to have the Torrens system introduced into Ontario.37 A Thousand Fathers In recent years, debate among legal historians in this field has concentrated on the question of who really thought up the Torrens system. In Germany, Dr Tony Esposito has claimed that the Torrens system was in all its essentials just a copy of the Hamburg system of land titles registration.38 We have already seen how Torrens’s plans emerged from his experience in the Registrar General’s Office and obtained a more definite shape through the merchant shipping legislation, but Dr Esposito suggests that Torrens’s original plans were wholly abandoned when he met a lawyer from Hamburg then resident in Adelaide, Dr Ulrich Hübbe. Hübbe is supposed to have converted Torrens’s proposal into a close and faithful adaptation of the Hamburg system of land titles registration, with some minimal updating. Hübbe himself also claimed at one point to have re-drafted the bill essentially from scratch.39 There is no doubt that the contribution of people other than Torrens to the introduction of the Torrens system has been minimized in the past.40 But now it seems that the pendulum is swinging too far the other way, with some people keen to strip Torrens of any credit for originating the system at all. The similarity between the Torrens and Hamburg systems has been

28

The Law of the Land

convincingly shown by Dr Esposito and Professor Murray Raff. They have demonstrated how the Hamburg system evolved over time, and well before the invention of the Torrens system, into a system in which title was required to be registered and the register was conclusive evidence of what the title contained.41 Some degree of similarity at the broad level of principle does not of itself establish copying. It could also just be coincidence. This is also not an unlikely explanation. For example, a system of title by registration, like the Torrens system, is obviously going to have some means of recording who is registered, and the limited technology available in the mid-nineteenth century makes it very likely indeed that this would be some sort of book. So the mere existence of a register book in each system does not prove very much at all beyond the fact that the systems happen to be similar, which we knew already. It does not prove that one is based on another, which is what those pointing out such similarities wish to prove. It is also quite possible for two people to invent similar systems independently of each other – as happened, for instance, with the invention of calculus, which has been the subject of much dispute for centuries between the supporters of Sir Isaac Newton and Gottfried Wilhelm Leibniz (another competition between English-and German-speaking inventors). Although Dr Hübbe’s claims have only been seriously asserted recently, there have long been competing claims to the invention of the Torrens system. This fact is not at all surprising given that ‘success has a thousand fathers.’ It is quite understandable that some of those who had a role in the creation of the Torrens system came with time and with the growing and then the astounding world-wide success of the system to view their part in its creation as greater than an unbiased observer might have done. For example, Anthony Forster claimed in 1892, once the success of the system was an established fact and Torrens himself was dead, that the system ‘originated in a series of leading articles that I wrote.’42 No doubt his agitation had helped put the issue on the agenda in the 1850s, but would he have made such a claim had the predictions of the Torrens system’s detractors been fulfilled and it had turned out to be a disaster and a flop?43 I suggested above that his newspaper articles were really a means of softening up the public to receive a reform that was being worked upon behind the scenes. At any rate, in 1859, when memories were much fresher and more contemporaries were alive, Forster claimed only to have rendered ‘subordinate service’ – subordinate to Torrens, that is – and pointedly

The Invention of the Torrens System 29

disclaimed ‘the shadow of a desire to appropriate his well-earned laurels.’44 In 1866 Forster referred to ‘the wonderful Act which he [Torrens] framed’ and mentioned that Torrens ‘drafted a Bill … which, after embodying suggested amendments, was introduced into the Legislature and passed.’45 In a letter to the Register in February 1857, Dr Hübbe also suggested that the credit lay elsewhere. He referred to Torrens and ‘the principle of his Bill, [which] he has plainly enough indicated … both from the platform and in the papers.’46 This hardly reads like the statement of someone who had done all the work himself and is finding that his idea has been taken over by an impostor. The same conclusion must be drawn from references by Hübbe in mid-1857 to ‘Mr Torrens’s plan,’ ‘Mr Torrens’s Bill,’ and ‘Mr Torrens’s proposals.’47 As late as 1874, we find Hübbe applying for a professorship at the newly-established University of Adelaide and stating that he had ‘assisted’ with the ‘preparation, promotion and defen[c]e’ of the Torrens system.48 If these statements by Hübbe are to be reconciled with the thesis that Hübbe was the real initiator of the system, one must accept that he possessed a degree of diffidence comparable to that shown by only one other person in human history.49 We also know that Torrens and Hübbe did not meet until – at the very earliest – February 1857, and very possibly not until late May 1857, but that Torrens’s plans were well advanced before they met: the bill Torrens had published before their acquaintance clearly reflected the final shape of the system.50 Whatever Hübbe’s input was, it was relatively modest. Contemporaries of the two men reflected this by not mentioning Hübbe at all, while ceaselessly lauding Torrens for his great invention and the persistence he showed in having it accepted. Deciding who gets the credit for the Torrens system might finally depend on the point of view of the observer. A lawyer will be more likely to concentrate on the details of the system as enacted and attribute the greatest credit to the person responsible for these details, or to the person responsible for the crucial change in legal principle, whereas a political scientist might be more concerned with the question of who persuaded the public and the legislature to undertake any reform at all and be less interested in the precise details of the reform. As Hernando de Soto writes, ‘Many [reforming lawyers] understand that the primary determinants of change rest outside the law.’51 But commentators on the history of the Torrens system sometimes forget that. Even if Hübbe or Forster or one of Torrens’s other helpers did con-

30

The Law of the Land

tribute this or that detail to the plan as it evolved during 1857, the system would never have become law at all without the agreement of the Parliament of South Australia. The main ingredient in the success and adoption throughout Australia of the Torrens system was Torrens’s untiring promotion of it. He was helped considerably by a number of South Australians, including Dr Hübbe, Anthony Forster, and the other people he named. But the Torrens system remained throughout a project under Torrens’s undisputed leadership, using Torrens’s concept as its bedrock, and with Torrens as almost its sole public face.

3 Vancouver Island: The Second Torrens Jurisdiction in the World

Background Despite the very rapid spread of the Torrens system within Australia and New Zealand, the second jurisdiction in the world to adopt the Torrens system was not in Australasia. It was Vancouver Island,1 where a British colony had been founded in 1849. Its registrar general, Edward Graham Alston, was the second Torrens registrar general in the world, after Torrens himself in Adelaide. The British colony on Vancouver Island was set up in 1849 because otherwise the Island might have been settled first by Americans or squatters.2 Seen from London in the days before the trans-Canada railway, the western coast of Canada was nevertheless very remote. In order to reach it from what is now Ontario, it was necessary to travel via San Francisco and then take a ship north. There was, furthermore, little enthusiasm in the Colonial Office in 1849 for spending public money on another expensive colony.3 However, the Hudson’s Bay Company already had a strong presence in the area. Vancouver Island was, therefore, set up as what would now be called a public–private partnership between the Colonial Office and the Company. Private colonies were not without precedent in the British Empire, but in Vancouver Island the rights and duties of the colonizing company were regulated in detail by a contract that is reminiscent of today’s contracts between government and private enterprise for the

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The Law of the Land

provision of a service on behalf of the government. The land on Vancouver Island was granted to the Hudson’s Bay Company in return for promises to set up, run, and cover the expenses of a colony, with the British Crown lending its sovereign authority and imprimatur to that endeavour. A governor was sent from London to represent the Crown – a young English barrister called Richard Blanshard. He quickly resigned when he found himself in a ‘comic opera’ situation:4 the colony he was nominally governing was in reality merely a Company fiefdom in which he was little more than an intruder. The Hudson’s Bay Company itself had little incentive to make the colony grow – settlement and fur trading are largely contradictory activities – and did as little as it could in the direction of setting up a colony without actually breaking its promises to the Colonial Office. It was compelled to make a service (the colony) available and duly did so, but had no reason to encourage the use of that service at the expense of its profits.5 It was, in other words, a typical example of the problems that plague public–private partnerships in our own time also. In its calculated indolence, the Hudson’s Bay Company was aided by Vancouver Island’s nominal adherence to the same Wakefield system of ‘systematic colonization’ as was initially used in South Australia. The general idea behind the Wakefield scheme was that land would be sold at a price high enough to provide a fund to pay the emigration expenses of labourers. The high prices meant labourers would be unable to buy their own land, at least at first, which would ensure a sufficient supply of landless labourers as a workforce in colonies and restrict land ownership to their betters. The British certainly did not want to reproduce the lawlessness if not near-anarchy they associated with early California, and some believed that the Wakefield system was the way to ensure this.6 On Vancouver Island, land was to be sold by the Hudson’s Bay Company, whose title to the land on Vancouver Island was subject to its establishing a colony within five years.7 In addition, no sale of land was to be of less than twenty acres, and it was not to be sold at less than £1 per acre. Further conditions were attached to land sales, such as requirements that purchasers bring with them a group of labourers in order to ensure an appropriate and well-planned mix of upper, middle, and labouring classes on the Island. All this sounded fine in theory, but the theory took no account of the remoteness of Vancouver Island, the lack of enthusiasm of those who

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33

could afford the high prices of land for the move to Vancouver Island, and the lack of any incentive for the Company to overcome these obstacles. There was also a lot of ignorance, understandable in the days of a rapidly expanding empire and changing world map, of the existence and location of the colony: as late as 1862, when the attention of the English public was drawn to the vicinity by a renewed gold rush on the mainland, a correspondent of The Times of London reported that he had been inundated with letters asking where Vancouver Island was and how to get there.8 Above all, however, the Wakefield scheme on Vancouver Island was doomed from the start by a further factor: land of equal if not better quality for agricultural purposes could be had just across the Strait of Juan de Fuca for less than a quarter the price.9 There was, in short, little incentive for anyone to go to Vancouver Island, and when they did get there, an excellent incentive to leave for the United States if they wanted land of their own. As experience in South Australia had also demonstrated, the Wakefield system was additionally flawed because it was unrealistic to divide power over land sales and emigration from governmental power more generally. This unrealistic feature of the scheme was the root cause of Governor Blanshard’s rapid departure. As John Weaver has pointed out, ‘the British Empire was the first global realm in which large-scale taking and reallocation of land became the leading activities, activities engaging administrative attention and invention.’10 Control over the allocation of land was so central to the business of setting up a thriving colony that it could not be divided from the general business of government without fatally weakening the government itself. Real power on Vancouver Island thus remained with the Hudson’s Bay Company and its chief factor on the Island, James Douglas, a strongwilled and autocratic man, but nevertheless decisive, intelligent, and fair.11 He was appointed second governor after Blanshard’s departure so that governmental authority and the distribution of land would be coordinated.12 Vancouver Island therefore grew very slowly throughout the 1850s until it abandoned the Wakefield system, thus dramatically lowering the price of land, in a series of stages in the late 1850s and early 1860s.13 This development was reported in The Times and was followed shortly afterwards by the avalanche of letters to that newspaper’s correspondent from potential emigrants asking where Vancouver Island was.14 The Wakefield system’s existence both in South Australia and on

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The Law of the Land

Vancouver Island was merely a product of the fact that the two colonies were founded at about the same time, but that coincidence led to the two colonies’ sharing something else – the Torrens system. This was not because of any necessary connection between the Wakefield system of colonization and the Torrens system, however. The delay in the growth of Vancouver Island because of the defects of the Wakefield system meant that by the time the colony was ready to throw off the Wakefield system and expand, South Australia had invented the Torrens system, which was ripe for export. The need for a good system of land titles registration and for secure titles to land, which the Torrens system provides, was appreciated at the very top of the administration of Vancouver Island even while it was still labouring under the Wakefield system of colonization. James Douglas had linked settlement and land titles as early as 1850, expressing the hope that the secure land title would attract settlers away from the United States and its territories. He wrote that some acquaintances of his wish to become settlers; but are scared at the high price charged for land say £1 sterling per acre. … For my own part I am resolved to hesitate no longer, but to make a purchase as soon as possible. I would rather pay a pound an acre for land with a secure title and numerous other advantages than a farm for nothing with ten years’ torturing expense.15

The need for secure land titles became even clearer when settlers began arriving in numbers and a land boom was sparked off by the gold rushes on the mainland beginning in 1858.16 As early as December 1858 and again in November 1859, the colony’s first newspaper, the Victoria Gazette, referred in an editorial to the urgent need for a system of land titles registration in order to combat fraudulent multiple sales and mortgages and (by the latter date) to the ‘culpably negligent’ failure of the local legislature to produce such a system.17 In 1860 the authorities on Vancouver Island, rightly anticipating a boom in land sales after the end of the Wakefield system there and the consequent sharp reduction in the price of land, not to mention the gold rush on the mainland, introduced a version of the Torrens system of title registration. This was embodied in a statute entitled the Land Registry Act 1860, which despite the year in its title did not receive royal assent until 18 January 1861 and was implemented later in that year.

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35

Establishing the Australian Link The origins and status of the Vancouver Island system as an outgrowth of the Torrens system of South Australia have recently been called into question by Jeremy Finn, who found nothing in the archival records to demonstrate any such link.18 It is certainly true that the influence of Torrens’ principles in the Land Registry Act 1860 of Vancouver Island is only dimly visible to the naked eye and in the archival records. The statute requires some analysis in order to make Torrens’ influence apparent. But the historical link between them has now been established by my research. The South Australian statute had received assent in early 1858. There was thus ample time for the transmission of information about the Torrens system from South Australia to Vancouver Island by 1860, when Vancouver Island’s system was being formulated. The means of its transmission was, as one would expect, British – that was the common link between the two colonies – and went through the Colonial Office. In those days each colony had to transmit to its headquarters in London copies of all colonial statutes so that the imperial authorities could consider them and (in rare cases) recommend disallowance if that appeared necessary. Given the centrality of land to the British Empire’s undertaking, it is not particularly surprising that ideas for improving land management circulated rapidly throughout the colonies and were promoted by the Colonial Office.19 The conduit for the reform embodied in Vancouver Island’s version of the Torrens system was the Solicitor General for England, Sir Hugh Cairns – later as Lord Cairns, Lord High Chancellor of Great Britain. Cairns was solicitor general in Lord Derby’s second ministry, which held office from February 1858 to June 1859. In the nineteenth century, Cairns’s name was strongly associated with the advocacy of land registration systems. He was, furthermore, convinced of the futility of registration-of-deeds systems such as that which Torrens had superseded in South Australia.20 And while solicitor general, Cairns procured in March 1859 the appointment by the Colonial Secretary of a protégé, George Hunter Cary, as attorney general for British Columbia. At or before this time, information about the Torrens system in South Australia reached Cairns. In April 1859 Lord Carnarvon – then undersecretary of state at the Colonial Office and later to play a major role in the negotiations leading up to Canadian Confederation in 1867 – arranged for a copy of South Australia’s legislation to be sent to Cairns.

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The Law of the Land

Further minutes suggest that Cairns did not send it back.21 This is the latest time at which Cairns could have come to know of the Torrens Act. It is quite possible that he knew of it even earlier given that his interest in land titles registration was clearly well known and that other persons in England doubtless knew what South Australia was doing. Torrens’s father, for example, was still alive. Another possible route for earlier discovery is through Cairns’ role as solicitor general, which included advising on the validity of colonial legislation: there was in fact a doubt about the validity of section 35 of the original South Australian Real Property Act, which clashed with a procedural provision in the South Australian Constitution. Cairns approved of the principles of the Torrens system, referring on one occasion to ‘the great debt of gratitude which the Australian colonies owe to Mr Torrens’ for his ‘safe simple and expeditious mode of transferring real property.’22 Therefore Cairns informed his protégé, George Hunter Cary, of the existence of the Torrens scheme and pressed upon him the desirability of considering it for adoption in the Pacific coast colonies. Shortly after Cary’s arrival on the West Coast on 26 May 1859 he also became acting attorney general for Vancouver Island.23 That, in short, is how the Torrens system became known there. When Cary arrived on Vancouver Island, the legislature had made considerable progress with a deeds registration bill of the old style. On the day of Cary’s arrival, the House of Assembly agreed to set aside time for extensive debate on the bill on 7 June.24 But no further work of any significance occurred on it on that day or thereafter, and it did not pass although the House of Assembly remained in session until 7 December 1859. Given that the need for some system of land registration was clear and urgent, it is likely that this sudden halt occurred because Cary had indicated to the powers that be that he had better ideas, which would shortly be available for the legislature’s consideration. Perhaps, too, Cary had been responsible for the sudden appearance in the British Colonist on 10 June of the Torrens-like ideas that a land titles bill should be so drawn ‘that any one may be his own conveyancer’ and that ‘the useless verbiage of the common law forms ought to be discarded by statute … Schedules should be added to the Bill, showing the form of acknowledgement.’ Although Cary himself left no record of his acquaintance with the Torrens system, two of his contemporaries did. First, there is Cary’s colleague (Sir) Henry Crease. He succeeded Cary as attorney general for British Columbia and went on to become a long-serving judge of the united Colony of British Columbia and then of the Canadian province

Vancouver Island

37

of British Columbia. Towards the end of his life, after his retirement from the bench in 1896, Sir Henry clearly felt the need to record what he knew of the history of the legal system of British Columbia. In a manuscript forming part of what looks like the draft of a book that never saw the light of day, he says that the Torrens system was brought out by Cary from the Colonial Office to his new posting.25 Second, the Speaker of the House of Assembly of Vancouver Island, Dr J.S. Helmcken, also makes a reference in his reminiscences to a borrowing from Australia in this period. He states that the House passed a ‘great measure, drawn up by Cary, I believe, and based on the Australian Act.’26 There are also some remarkable coincidences in wording between the South Australian statute and the Vancouver Island version which are explicable only by deliberate copying and which corroborate the statements of Cary’s contemporaries.27 One of these is shown in table 3.1. Other such similarities between the two pieces of legislation may admittedly be the result of reference to an independent common source. Thus for example, it cannot be ruled out that the close resemblance in wording between section 6 of the Real Property Law Amendment Act [1858] (S.A.) and the last paragraph of section 7 of the Land Registry Act 1860 (V.I.) dealing with the registrar’s power to correct errors might be explained by the fact that each was independently copied from clause 64 of the English Registration of Assurances Bill 1853.28 There are other instances of similarities that cannot be definitely included in the list of sections copied from South Australia for the same or similar reasons. However, the fact that all English legislation and bills for the period from 1801 onwards can now be searched online enables it to be said that there is no English precedent that could possibly explain the close resemblances in wording between the two sections compared in table 3.1. It is therefore clear beyond doubt that the Vancouver Island drafters had before them the South Australian statute. But which one? Several amending and consolidating statutes appeared shortly after the original model of 27 January 1858. It may well be that the South Australian source was in fact the Real Property Act 1860, a statute consolidating the statute of 1858 and its amendments. It is noticeable in particular that the 1860 statute, like its equivalent in Vancouver Island, omits the directive found in the South Australian version of 1858 that maps were to be of a particular minimum scale. Since the Real Property Act 1860 received royal assent on 17 October 1860, any such version available on Vancouver Island in time for an Act that received its assent in January 1861

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The Law of the Land

Table 3.1 Real Property Act [1858] (S.A.)

Land Registry Act 1860 (V.I.)

114. It shall be lawful for any proprietor,

54. It shall be lawful for any registered proprietor of an absolute fee,

subdividing any land under the operation of this Act,

who may subdivide any land

for the purpose of selling the same in allotments as a township,

for the purpose of selling the same in allotments,

to deposit with the Registrar-General a map of such township,

to deposit with the Registrar a map of such allotments, and the title deeds to the land subdivided;

provided that such map shall be on a scale of not less than one inch to the chain, and

provided, that such map

shall exhibit, distinctly delineated, all roads, streets, passages, thoroughfares, squares, or reserves, appropriated or set apart for public use, and also all allotments into which the said land may be divided, marked with distinct numbers or symbols, and the person depositing such map shall sign the same, and shall certify the accuracy thereof by declaration before the Registrar-General, or a Justice of the Peace.

shall exhibit, distinctly delineated, all roads, streets, passages, thoroughfares, squares or reserves appropriated or set apart for public use, and also all allotments into which the said land may be divided, marked with distinct numbers or symbols.

would have had to be a draft version, which is indeed what Crease says he had in his reminiscences. It is certain that the Colonial Office came into possession of a draft of the South Australian original because one was sent from South Australia, arriving in London on 10 August 1860.29 That would have been enough time to send it on to Vancouver Island before 18 January 1861, but only just, and there is no actual evidence that that was done. There is, however, a more likely route. There were enough inhabitants of Vancouver Island with Australian contacts at the time to permit a copy of some South Australian or other Australian draft to be procured privately. One such person, J.F. McCreight, later the first premier

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39

of British Columbia, had practised at the Victorian bar in Australia in the 1850s. A cousin of William Stawell, chief justice of Victoria (Australia) at the time, McCreight arrived in Vancouver Island in 1860 directly from Australia. The Torrens system was already very well known in Victoria (Australia) at the time, and agitation for its introduction was well underway by the end of 1859; a Torrens bill was introduced into the colonial Parliament there in December of that year.30 McCreight’s presence on Vancouver Island was first recorded on 11 August 1860, so he had ample time to absorb this before he left, and he was soon practising alongside Crease himself.31 Possibly thirty years later Crease conflated the bringing of the original gospel by Cary, coming via the Colonial Office, with later evangelism via some such apostle as McCreight. But this is to leave the firm ground of what can be definitely proved. Henry Crease tells us a little more about the process of drafting the statute in his recollections. He says that the Act was framed from the draft of the original New South Wales Act sent to the home government for approval, bearing the same title and since well known as the ‘Torrens Act’ … Mr Cary with the assistance of Mr E. Graham Alston (an experienced English conveyancing counsel, afterwards Registrar of Titles) and Mr Crease, an independent English barrister then practising in the colony, having carefully compared it, recommended the adoption of the principle and general tenor of the Act, with certain modifications calculated to simplify and facilitate its operation, under the circumstances of an infant colony. They substituted the Registrar of Titles, with the aid (if required) of a speedy and inexpensive reference to a Judge of the Supreme Court in Chambers, for the highly paid Board of Professional Examiners of Titles of the original draft more suited to an old and richer colony like Australia than an entirely new dependency, as to the admissibility of the title of each and every settler applying to be placed on the Register ... It is remarkable that this ‘first introduction’ of what is termed ‘the Torrens principle’ into British North America preceded its practical application by statute into its native habitat, Australia, by the short period of about three months.32

We should not be misled by Crease’s confusion between New South Wales and Australia as a whole. This was common in the nineteenth

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The Law of the Land

century because the whole of eastern Australia had originally borne the former name and all Australian colonies except one had been carved out of the original territory of New South Wales.33 It is less easy to explain Crease’s statement that the Torrens system was adopted in Vancouver Island three months before its adoption in Australia, or the statement about the coincidence of the statutory titles: New South Wales and Victoria, for example, adopted the Torrens system by statutes passed in 1862, and neither bore exactly the same title as the Vancouver Island statute adopted in January 1861. Possibly a longlost early draft of the statute was consulted, or a copy with a transcription error was made; possibly Sir Henry’s memory was at fault on this matter of detail after over a third of a century had passed. Henry Crease had communicated with Edmund Barton (later Australia’s first prime minister) in 1893 about the system of land registration, and it is also possible that he had been misinformed by Barton.34 There are also a few contemporary references from the period when the Vancouver Island Act was adopted, indicating that its Australian parentage was known to the general public at the time. We should not expect many of these references, as there was no official report of debates in the legislature (the House of Assembly) at the time. The only reports we have are from the columns of the Daily British Colonist, and these can be very sketchy. The only reference by Acting Attorney General Cary to the parentage of the bill in newspaper reports on the House of Assembly debates indicates that when challenged about the workability of his proposed system, he stated that it ‘has worked for ages, although it has been modified and improved. We are indebted to the Dutch for this system.’35 (The fact that various Continental legal systems had various forms of land registration provoked various attributions of the idea – not just to the Germans, but also as here to the Dutch.) Just as Torrens responded to criticism of his proposal by indicating that it was similar to existing systems elsewhere, so too did Cary. In the context in which he was talking, it was beneficial to claim the greatest possible antiquity for the system proposed (as Torrens himself had also done).36 We therefore should not wonder at his omitting to mention a very recent Australian precedent. Later, however, in the same debate a speaker refers to discussions on the version of the bill before the ‘Parliament of New South Wales,’ again confusing that colony with South Australia but indicating that the Australian origins of the reform were known.37

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41

Even more importantly, the Vancouver Island correspondent of the Daily Alta California, a newspaper published in San Francisco, wrote the following from Victoria on 7 October 1861: Registration of Deeds An Act for the registration of deeds, etc., for British Columbia [i.e., the mainland colony only], has just been published, and will come into force very shortly. This Act resembles, in many respects, the California one – in fact, that has been made the basis of its construction. In Victoria the registration Act is based upon the principle of the Australian law – at least it is said to be – and instead of being a mere ‘registration,’ aims at keeping ‘titles’ perfect; without a good title none can register. There is no such thing as copying the deed. Thus far it has succeeded very well, and is becoming more and more popular every day. Of course when the original deeds have been registered, there is but little difficulty, excepting that many conveyances made about the time of the excitement of ’58 have been informally drawn up; but attention being drawn to that fact, the remedy in most cases is very easy.38

This report shows that the system’s Australian provenance was a matter of common knowledge at the time in Victoria. The words ‘at least it is said to be’ indicate that the author of this report – it is signed ‘Anglo-Saxon,’ but the identity of the correspondent using that pseudonym is not known39 – was not able to state from his own personal knowledge that it was indeed the Australian system. Such a frank confession of the limits of his own personal knowledge, almost certainly due to a lack of personal acquaintance with the Australian system, can only increase our faith in his reliability as a contemporary witness. Our correspondent has moreover clearly grasped the difference between the ‘hospital’ principle of the Torrens system and the principle of deeds registration which it supersedes; the latter principle had indeed, as he says, been adopted on the mainland of British Columbia, for reasons that will be explored in the next chapter. This too is an impressive degree of understanding of legal matters for a newspaper correspondent, even for times in which the reform of land titles law was a major public issue. Parenthetically, it is also worth recalling that there was no shortage of news in the United States of America in late 1861. The fact that space was found at all for the report just quoted is another indication of the

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The Law of the Land

importance of land law reform to people in common-law jurisdictions in the nineteenth century. Was It Really the Torrens System? Although the Vancouver Island authorities knew of the Torrens system and copied some details like plans of subdivisions from the South Australian statute, this still does not establish that they adopted the whole South Australian system. In order to demonstrate that this was indeed the case, it is necessary to show that the Vancouver Island statute included at least the basic principles of the South Australian statute. A closer look at the statute of Vancouver Island shows that it did. Commentators from various periods of Canadian history have doubted whether the Land Registry Act 1860 that was implemented on Vancouver Island in 1861 was really the Torrens system at all. In many cases such views were not part of a disinterested academic debate but rather a contribution to a discussion about whether the Torrens system should be introduced somewhere else. Thus, during an 1885 debate on whether the system should be introduced into the North-West Territories, Senator the Hon. Sir Alexander Campbell, QC listed the deviations from the ‘true’ Torrens system in what was by then the British Columbia legislation, and opined that owing to such deviations, Torrens himself along with various other authors were wrong to describe the Vancouver Island statute as a version of the Torrens system.40 Sir Alexander’s opinion was not entirely off the mark: for reasons that will be explained later, the original system adopted in the early 1860s had been altered by this time to obscure rather than highlight one of the Torrens system’s cardinal principles, the rule that title passes only with registration. However, the enunciation of this opinion had more to do with Sir Alexander’s initially lukewarm enthusiasm for the Torrens system than with the actual Vancouver Island statute as it operated in practice and was meant to operate. From the previous discussion of the essentials of the Torrens system, we might expect a Torrens statute to include the principles that the register of land titles is conclusive evidence of the state of the title; that it is not necessary to look behind the register in order to ascertain who the owner is; and that it is the registration of the transfer or creation of interests in land that produces an effect in law rather than a private agreement between the parties, ensuring that no defects in the latter process can affect the validity of the former.

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43

Effect was indeed given to these principles in the Vancouver Island statute, subject to the sorts of exceptions we might expect in a Torrens system modelled on that of South Australia. Thus for example, section 24 of the Vancouver Island statute stated the following: 24. No purchaser for valuable consideration of any registered real estate, or registered interest in real estate, shall be affected by any notice express, implied or constructive of any unregistered title, interest or disposition affecting such real estate, other than a leasehold interest in possession for a term not exceeding one year, any rule of law or equity notwithstanding.

In this way the notice rules were abolished and interests not on the register were invalidated (except that of the short-term lease, which is a typical exception in a Torrens system).41 With respect to land being brought under the system for the first time, Crease’s reminiscences quoted earlier show that he deliberately decided to dispense with Torrens’s land titles commissioners, but otherwise his solution was quite similar to Torrens’s. The initial decision was to be made by an administrative officer (even if his registrar general was legally qualified) and disputes referred to the court. Section 20 of the Land Registry Act 1860 stated that if a person remained registered as owner for five years without challenge and applied for an indefeasible title, that title would confer ‘an absolute and indefeasible estate of fee simple against all the world, other than a tenant in possession under a term not exceeding one year’ and subject, of course, to any registered mortgages or other charges.42 Section 21 provided for cases in which two persons were registered as the sole owners of one piece of land by stating that the winner in such contests was to be ‘the person who, either as the person originally registering, or by a regular train of duly registered transfers, first completes the aforesaid term of five years without any issue remaining unsatisfied against the land.’ These are register-centred provisions, reflecting the basic principle of the Torrens system. Vancouver Island’s statute provided no other exceptions to this principle of the register’s authority, such as might be found in a modernday Torrens statute in cases of fraud or forgery. The idea was clearly to have completely clear titles after the waiting period had expired, titles that could not be challenged in any form. On the other hand, before the five years expired and the indefeasible title was granted, most common-law grounds of challenge, including fraud and forgery but not

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The Law of the Land

notice, continued to be available, and the statute provided a mechanism for challenging a registered but not indefeasible title in sections 26 and 42. This trade-off made it possible to have a rather less elaborate mechanism for bringing land under the new system, and while the cost was some diminution in the ease of transferring land (because the fiveyear period would have to begin again with a new owner), this price appears to have been considered worth paying in a colony like Vancouver Island, which had a smaller population and much less land trading than South Australia. As far as transfers were concerned, section 47 conceded that they might still take place by deed, no doubt because that was what people were used to.43 This provision lasted only until 1865, when transfer by ordinary Torrens-style instrument (‘Form T’) was substituted by an amending Act. E.G. Alston, the registrar general, commented that the amending Act would end ‘the present cumbrous and expensive system of conveying land’ by using a simple transfer form instead of ‘the multiplicity of deeds which answer no useful purpose’; he went on to compare again the principle of the existing Act with that current in ‘South Australia.’44 By 1880, however, the registrar general reported that the statutory forms, ‘being permissive, and not compulsory, have been wholly ignored by the legal profession, and remain to this day a perfectly dead letter.’45 Yet in the end this detail, while it certainly makes the Vancouver Island system look different to its users from the South Australian one, is only superficial. Far more important than the design of the form used to record a transfer is the legal effect of registering it. The federal minister of justice, (Sir) John Thompson, perceived this point clearly when he pointed out to the Senate in 1886 that what had by then become the system applicable throughout British Columbia was a Torrens system as regards ‘the registration of titles,’ while differences extended only to ‘the old system of conveyancing.’46 Thus it was not merely an amending statute but section 47 of the original statute of 1860/61 that laid down the more basic principle, essential to the existence of a Torrens system – namely, that the ownership passed only upon registration of the deed or whatever other form was used. Sections 49 and 57 gave effect to the same principle in the case of charges over land such as mortgages, which could be transferred only by registration. This is the crucial point at which the registration-of-deeds system fails and the Torrens system succeeds. The drafters in Vancouver Island chose the successful system, no doubt partly because Hugh Cairns impressed upon G.H. Cary the need to do so.

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45

In combination with similarities of wording that rule out mere coincidence, these features establish that the Vancouver Island system was indeed a simplified and adapted version of the Torrens system. At the same time, Vancouver Island’s debt to the English attempts at reform cannot be overlooked. It could hardly be otherwise, given that the South Australian reform was received via a critical audience (in the best sense of that phrase) in England, whose leading member was Hugh Cairns. Reference to contemporary English sources indicates that a number of ideas in the Vancouver Island statute were borrowed from there, too. It would be tedious to enumerate all possible derivations from English sources given the large number of possibilities, the fact that we do not know how many of the numerous draft English bills were available in Vancouver Island at the time, and the possibility that many ideas might, if not independently conceived, have been additionally inspired in whole or in part by the Torrens statute as well. However, one feature that does stand out is the idea of having two classes of certificate. In Vancouver Island there were two classes of registration, one indefeasible and one essentially recording the putative ownership until the period of five years should have passed and indefeasibility arose. The idea of a two-class system cannot be found in South Australia’s Act, but is rather seen in contemporary English sources such as the Land Registry Act 1862 (U.K.), section 25, and even more clearly in the Report of the Royal Commission of 1857, in which the commissioners proposed such a system.47 The Royal Commissioners pointed out that their second-class titles would also ultimately ripen into first-class ones once the limitations period (then twenty years in England) had expired.48 However, they made no provision for a particularly short limitations period in order to speed this process up. The idea of reducing the period to five years to aid in the creation of a secure title appears to be an original Vancouver Island invention. This solution makes a good deal of sense in a small, remote community as Vancouver Island was, in which everyone knew everyone else and which departing residents might well leave for ever. The period of five years was also a well-chosen compromise reflecting two competing requirements. On the one hand, it was necessary to make the period fairly short, or else the system would not attract would-be registrants and they would not take advantage of it; on the other hand, the period had to be long enough to give all would-be claimants sufficient time to urge their claims. But the British Royal Commissioners’ report of 1857 states only that

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The Law of the Land

registration was to make a transfer by deed ‘complete.’49 The adoption of the Copernican revolution in conveyancing law on Vancouver Island, which made the register, not the dealings between the parties, the centre of proceedings, is therefore to be attributed only to the Torrens system and not to any English source. The drafters of the Vancouver Island statute almost certainly referred, however, to the Registry of Landed Estates Bill 1859. This bill was introduced into the U.K. House of Commons by none other than Hugh Cairns and amended in the House on 28 February 1859 – just as G.H. Cary was proceeding to Vancouver Island – to add two words stating clearly that transfer shall ‘when registered’ confer ownership upon the transferee.50 So it may be that this principle was hit upon by Cairns as the South Australian Act was on its way to him, via the Colonial Office, from Adelaide; if, on the other hand, he had already received a copy by some other means, he might have recognized the key principle and merely copied it from South Australia. Certainly the Daily Alta California’s report, with its crystal-clear reference to the ‘hospital’ principle derived from the Australian Act, indicates that this crucial element was considered to be of Australian origin in Vancouver Island in October 1861. Possibly the Vancouver Island authorities did not hear of the English amendment of 28 February 1859, or it was not the English amendment but South Australia’s statute that was the original source for the Vancouver Island statute. As we saw above, Crease’s recollection of the events surrounding the drafting of the statute of 1860/61 was that the drafters, of whom he was of course one, adopted the ‘principle and general tenor’ of the South Australian legislation (nowhere does he say the exact wording of the South Australian statute) ‘with certain modifications calculated to simplify and facilitate its operation, under the circumstances of an infant colony.’ Nevertheless, he continued to consider it a form of the Torrens system, as was shown by his judgment in a case in 1888, when he referred to the Torrens system’s introduction on Vancouver Island in 1861.51 It was quite natural for the legislature and drafters on Vancouver Island to make a free adaptation of the Torrens system in their jurisdiction. For one thing, their knowledge of Torrens was mediated through Cairns, who had his own bills and experience to draw upon and no doubt had formed his own opinions of the strengths and weaknesses of the Torrens model. Moreover, Crease had himself been a conveyancing barrister and doubtless considered himself expert enough to make con-

Vancouver Island

47

tributions of his own based on his own experience and knowledge.52 On Vancouver Island, unlike in the Australian colonies, Torrens himself was not present to lead a popular clamour for the adoption of his panacea, so that deviations from it were more easily made. Henry Crease was also aware of the manifold differences between South Australia, by then a bustling colony with a population of over 100 000, and the tiny community of Vancouver Island, which had a population of only a few thousands, mostly living in Victoria.53 Such differences affected every facet of the life of the community, including land titles. It explains why, for example, there was no need on Vancouver Island for an elaborate three-man board to vet applications to bring land under the Act, as there was under the South Australian model; the registrar general could do it alone. As late as 1870, the small size of the colony was still a factor commanding the attention of Crease in this field. He indicated that he had ‘largely borrowed’ from the Torrens Act, but also justified remaining differences of detail by stating that not all of the Torrens system’s machinery was ‘adaptable to a sparsely populated land like British Columbia.’54 At this point British Columbia (which had come to include Vancouver Island) was still less populous than Prince Edward Island and was to remain so until 1892.55 Crease says that it was again the factor of population that persuaded the drafters not to make registration legally compulsory, as it was in South Australia; but at the same time they hoped, and it turned out to be so, that registration would become practically compulsory because of the advantages of the system.56 Another factor at the forefront of Crease’s mind was the ‘chaotic state’ of land titles in Vancouver Island, which was also a reason for not making registration compulsory and for introducing the staged indefeasibility approach in the Act of 1860/ 61.57 Moreover, Crease was opposed in principle to the thoughtless copying of one statute from one jurisdiction to another. He stated in 1869 that ‘the experience of recent legislation is against suddenly taking a local statute of another colony, framed under a set of circumstances special to that colony, and inserting it into the statute book of another colony where different circumstances and different laws exist, with which it cannot possibly harmonise.’58 It is not likely that we should find a mere copy of a statute from a very different colony drafted by a person holding such views, and the fact that we do not does not imply that no attention was paid to the South Australian statute. Crease’s view also explains the different treatment in the Vancouver Island Act

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of certain property-law institutions, from trusts to more exotic interests such as remainders. Whether the result of this process of simplification and adaptation is a ‘true’ Torrens system or not depends on what definition one adopts. As well as the other differences already outlined, the Land Registry Act 1860 (V.I.) made no provision for an assurance fund, for example. It is worth recalling, however, that even today Malaysia considers that it has the Torrens system, although it also deliberately chose not to have an assurance fund. Nova Scotia has taken the same view even more recently on the grounds that such a fund is not really required because the few claims to be expected can be met from ordinary governmental resources.59 In fact there is no one true version of the Torrens system, handed down from on high; even in South Australia during Torrens’s lifetime improvements were continually being made, and of course they continue to be made today. Furthermore, circumstances in one place might decree the adoption of different solutions to questions of detail from those adopted in other places. On the other hand, there must be some way of recognizing a Torrens system as distinct from any other type of system, and thus some irreducible minimum content. In particular, the provision that transactions obtain their legal effectiveness by being publicly registered is a cardinal point and was a feature of Vancouver Island’s system. But does the removal of an assurance fund make the Vancouver Island system something other than a ‘real’ Torrens system? Examples of jurisdictions in which the Torrens system exists without an assurance fund even today suggest that this is not the case, and that the system remains a Torrens system as long as the other main principles of the system are recognizable, such as the centrality of the register. The contemporary evidence we have, such as the report of the Daily Alta California, suggest that the same view was taken in the 1860s as well. In Vancouver Island, the assurance fund was removed for a number of very cogent reasons: it was (rightly, as experience has since shown) thought to be unnecessary; it would cause expense and deter would-be registrants; taxation was difficult given the smallness of the Vancouver Island community and because of its legislative organization.60 E.G. Alston, the registrar general, stated that an assurance fund on the Australian model was considered again in 1870 but rejected as unnecessary in British Columbia.61 In Vancouver Island, the functions of an assurance fund were taken on instead by the system under which five years had to pass before certificates of title would produce an indefeasible title. People are not com-

Vancouver Island

49

pensated by the state in any field of law if they allow their rights to lapse through non-compliance with statutes of limitation, and this was simply a version of that principle with a rather shorter period of limitation than is usual. It is therefore easy to see why an assurance fund was seen to be an optional extra in the circumstances of Vancouver Island, and why its omission, coupled with the insistence upon a delay before the register became an unchallengeable record of ownership, was an example of an intelligent adaptation of the Torrens system to local circumstances – an improvement on it rather than a rejection of it. In a general history of British Columbia law written in 1890, a young lawyer and future judge named John Forin called the Vancouver Island statute of 1860/61 ‘a quasi-Torrens system.’ But lest we should think this description dismissive, he added that as now in force in British Columbia, it was ‘an admirable system of land registration. The knowledge and integrity of the registrar are the guarantee of safety to the public … Great care is exercised in the registry offices, and so far no dereliction of duty has occurred.’62 The people of the time, therefore, after thirty years’ experience of the system, did not consider it inferior because of its lack of an assurance fund. This was because it was so well administered. It is also worth mentioning that – while there was no right to sue a statutory fund in cases of loss of land – from the beginning, the Second Schedule of the Torrens Act in Vancouver Island, like section 34 of the South Australian Act, provided for a payment of a percentage of the value of a property that was brought under the Act. In South Australia’s case the owner had to pay a farthing in the pound, or just over 0.1 per cent; in Vancouver Island it was 0.2 per cent, reduced to 0.1 per cent in 1865 for land valued at over $5000. Perhaps one of the ideas behind this in Vancouver Island was to provide a fund in case the government was successfully sued for badly administering the system under the general law, or felt called upon to make an ex gratia payment.63 As we saw, however, no registration was ever called into question, so the question of whether the government could be made liable for its officers’ errors under the ordinary law, without a special enactment to that effect, was never tested. Nor was an assurance fund ever actually needed. Public Response to the Torrens System As acting attorney general, George Hunter Cary was the public face of the Torrens system on Vancouver Island. Like Torrens himself, he was a man who was capable of arousing strong opposition and a measure of

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The Law of the Land

personal dislike. His contemporary Robert Burnaby called Cary ‘a conceited prig of a chap.’64 Cary also occasionally behaved in a fashion that was surprising in a person in his position, even on the frontier. One does not expect, for example, an attorney general to be sent to jail, even for a day, as Cary was, for refusing to be bound over to keep the peace (that is, to undertake, under threat of penalty, not to break the law again) after challenging an opponent to a duel.65 Nevertheless, there is a remarkable similarity between this incident and Torrens’s own conviction for assaulting a newspaper editor. Unlike Torrens, however, Cary died young (at thirty-four), and his death was preceded by a period of insanity. In 1865 he was found sowing peas among potatoes in his garden with a candle, and was persuaded to return to his family in England by a fictitious telegram offering him the post of Lord Chancellor!66 Quite possibly some of Cary’s irascibility in the early 1860s, when he was introducing the Torrens system into Vancouver Island, was a precursor of this affliction. Furthermore, in a small frontier community there are bound to be sharp personal animosities, and some of Cary’s less pleasing personal characteristics might have been accentuated by such conflicts. Nevertheless, Cary could not have achieved as much as he did had he really been, as one modern source says, ‘widely detested.’67 That is an exaggeration. Cary also seems to have had some reason to be conceited: Dr J.S. Helmcken, who served with him in the legislature of Vancouver Island, praises him as ‘a very clever lawyer, as sharp as a needle’ and ‘a very brilliant lawyer,’ while pointing out that he ‘had plenty of tongue quite as sharp too and no end of go and work in him.’68 Another contemporary assessment, in a remarkably frank obituary in the Daily British Colonist and Victoria Chronicle, states that he was ‘of an eccentric, and sometimes irritating disposition towards his opponents, [but] his arguments were nevertheless invariably treated with respect, and although somewhat rash and impetuous in dealing with questions that came before him his views and opinions were always regarded as sound.’69 Cary (although not of specially notable birth) even merited an obituary in the English Law Times, which, although less forthcoming about his personal character, also praised his ‘great talent and ability.’70 Even a rather snobbish but still astute British naval officer who was stationed off Vancouver Island in the 1860s and who thought Cary ‘vulgar, unpopular and insincere’ praised his intellectual capacity.71 A picture emerges of a conspicuously intelligent man whose main character flaw sprang from his awareness of his intellectual superiority over most

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51

people around him, something that the smallness of the early community on Vancouver Island no doubt also accentuated. This flaw led to some remarkable exchanges: for example, Cary was unable to restrain himself even before chief justices, talking back when one of them reprimanded him in court, even going so far as to deny the suggestion that he had apologized for conduct found offensive.72 Cary was persuaded to stand for the House of Assembly at the elections of January 1860. Since Vancouver Island did not possess responsible government, his position of acting attorney general of the colony in no way entailed his membership in the legislature. He sought election in order to ensure that the government’s business could be managed and its point of view advocated in the legislature.73 In his election manifesto he wrote, ‘If returned, I will introduce measures of law reform, whereby land may be as easily transferred and rendered as safe a security as in any other community.’74 Like Torrens less than three years beforehand, he made land law reform one of the central planks of his platform. Like Torrens, too, he saw that land law reform was a popular cause; like Torrens, he emphasized facility of transfer and the safety of mortgagees. In the election Cary faced a formidable foe, Amor de Cosmos, who was the editor of the local newspaper, the Daily British Colonist. De Cosmos lived a good deal longer than Cary and rose further, becoming British Columbia’s second premier (1872–74). He is a figure of some note and one of the great characters in the early history of British Columbia. Born William Alexander Smith in Nova Scotia, he changed his name on the Californian gold fields to Amor de Cosmos in order to avoid confusion with other similarly named persons.75 He believed that ‘Amor de Cosmos’ was an adequate rendering of Latin, Spanish, and Greek words meaning ‘lover of the universe.’ The name suggests that its bearer possessed a remarkable degree of self-confidence, an impression confirmed by the historical record.76 De Cosmos lost the House of Assembly election to Cary. The sources differ about whether this was because he appeared drunk at an election meeting, but they seem to agree that the decisive votes were cast by escaped black slaves from the United States and on whom the local government conferred the franchise – on the understanding that they would vote for its candidate, Cary. (Since Cary, together with Crease, was shortly to appear with enthusiasm in a case which established that a slave reaching Victoria could not be returned to the United States by any legal means and awarded to one such slave the great and ancient

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writ of habeas corpus, we should not assume that reliance on such assistance was pure hypocrisy, even though it was no doubt very convenient.)77 If it is true that de Cosmos had (as some suspect) been a real estate speculator in Victoria, he had some reason to be acquainted with the defects of the land titles system, and indeed he had around the time of Cary’s arrival been urging improvements in the proposed registrationof-deeds bill, such as omitting the literal copying out of deeds onto the register in favour of a mere summary (‘memorial’) of their contents.78 But a man with de Cosmos’s strength of character and degree of selfbelief was not likely to forgive readily a person who had inflicted a loss on him. After his defeat by Cary, the newspaper de Cosmos edited became a declared foe of the Torrens system for no better reason than the identity of its chief advocate.79 The enmity between Cary and de Cosmos makes it more difficult than it might usually be in this era of early colonial history to reconstruct the public debate surrounding the introduction of the Torrens system: the principal source, the local newspaper, was run by a partisan. No doubt the debate in a small community extended well beyond what is recorded in writing, but only that which was written has survived. Victoria had just one newspaper, run by de Cosmos, and only rarely is there an alternative voice such as the extract from the Daily Alta California quoted earlier. If Cary was difficult to get along with, Amor de Cosmos was even less agreeable, and not constrained by a public office to moderate his opinions and manner in order to win support for proposals. Their inevitable chance meetings on the street and at various functions in Victoria must have been either very hot or very cold affairs. De Cosmos’s Daily British Colonist kept up a constant stream of invective against Cary’s proposed real property measure. The first notice of the legislation, on 7 September 1860, was confined to a summary without commentary, but on the following day the editor opined that ‘like its predecessor introduced into the last Assembly, it is very imperfect, and even compares very unfavourably to it.’ The bill was more likely to impede than to facilitate transfers, and merely creates ‘a snug office for some legal hanger-on of the government’; as the office of registrar-general was restricted to barristers under the bill, they would probably end up with ‘some briefless barrister, too lazy to work; with too little sense to succeed in his profession; and with scarcely more brains than is [sic] sufficient to guide him from England, Canada or Australia here.’

Vancouver Island

53

The real requirements, de Cosmos thought, were ‘integrity, intelligence and being a good scribe,’ for in a stunning reversal of his stand in the previous year on the same topic, and betraying furthermore a lack of appreciation of the Torrens principle, de Cosmos now thought that the object of registration was ‘to preserve a verbatim et literatim copy of all deeds, etc.,’ so that ‘making abstracts will never answer our purpose.’ On 19 October, he identified the ‘briefless barrister’ as ‘E.G.A.’ – Edward Graham Alston – and added that this was a ‘prostitution of legislation for the basest purposes. Such things are enough to make any honest man’s blood boil at the thought of them.’ Reports of the debates in the colonial legislature were only those de Cosmos thought fit to print, and in addition questions of space and available resources for reporting restricted what could appear. The longest and most useful excerpt from debate was printed in the edition of 2 November. It indicates that there was substantial opposition to the proposed new system for reasons similar to those which had just been urged in South Australia. Mr Foster did not understand the Bill, nor did he think anyone else would that understood English. He thought it must be some old Bill resurrected especially to suit us. This Bill would open up a chance for forgers. These caveats or issues will injure the credit of the business men against whom thay [sic] may be filed. He did not believe it would ever work, and he would be very sorry to hold property in this country or any other, where such a system prevailed. Mr Cary said he did not wonder at this Bill being unintelligible to the honourable gentleman. He is not a lawyer, and I am not surprised at his not understanding the terms used here. This system has been found to work admirably. It is a system that has worked for ages, although it has been modified and improved. We are indebted to the Dutch for this system. It has stood the test of ages, and has been found the best plan ever invented. The Chairman [said] … It was an experiment and nothing more, and one he did not like to see tried.

With the exception of this example, recorded debates in the legislature tended to focus on matters such as the salary of the registrar general and whether the registrar general needed to be a barrister, but never on the broad principle of the proposed registry system.80 Apart from the exchange in the extract just cited, the nearest ap-

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proach to controversial debate in the legislature that has been recorded occurred on 23 November, when the third reading of the bill was put off for five days because one member protested that it had been debated in his absence.81 The bill accordingly passed the House of Assembly on 28 November 1860. Under the constitution then enjoyed by Vancouver Island, legislation required the additional approval of the Governor’s Council.82 The amendments made by the Council were reasonably numerous but affected mostly matters of detail, such as the salary of the registrar and the eligibility of solicitors as well as barristers for that office. (At this point the legal profession on Vancouver Island was split on the English model.) A provision for the registrar to summon witnesses was deleted; caveats were renamed charges and provisions added requiring indices to be kept – these can be clearly identified as sections 69–71 of the Land Registry Act 1860; and a provision for ‘the annual publication of the lists’ was also deleted. The proviso in section 72 requiring regulations made by the registrar to be submitted to the chief justice and to receive his approval was also added at this stage. These amendments were agreed to by the House of Assembly, and the bill passed; it received the assent of Governor Douglas on 18 January 1861, and became on that day, as we have already seen, the second Torrens system in the world.83 Preparations began for the implementation of the new system. They included the appointment of E.G. Alston as registrar general. Alston was an English barrister who had arrived on Vancouver Island in 1859. His appointment drew another diatribe from the Daily British Colonist against a ‘many-countried,’ ‘valueless’ Act which did not provide for making a literal transcript of deeds.84 ‘A Lawyer’ wrote on 21 March in advance of the Act’s commencement on 5 April explaining the new system, and the newspaper was fair enough to print his explanation without comment, derogatory or otherwise: no lawyer, he wrote, was needed by parties wishing to use the system; and it was necessary to look only at the register, not to conduct searches behind it as in England, or to check deeds and memorials as in Canada and the United States. But the newspaper marked the opening of the registry on 5 April 1861 by printing an editorial on the following day which began, ‘The Land Registry Office was opened yesterday. For all the good it will do the country, it may just as well be shut up.’ It was operating under ‘botched legislation,’ which the newspaper referred to sarcastically as ‘Cary’s wonderful production’ and for good measure added: ‘We sim-

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ply do our duty by warning the public not to register.’ A proper registry system, it continued, would involve a registrar who would be a mere copying machine and not entitled to judge the validity of titles. A further editorial on 14 September attacked the level of the fees – always an easy and popular target. On 20 April, the newspaper printed a letter from a correspondent who had not taken the newspaper’s earlier advice and had attempted to register. He complained that registration was refused to property owners who could not produce their original titles or certified copies of them, and asked by what right a mere government office that was not a court could demand such information. Presumably ‘Title Deed’ (as the editor’s correspondent called himself) expected to be registered without providing evidence that he was the owner of the land in question. Towards the end of October 1861, an alternative voice is at last heard – that of ‘Anglo-Saxon,’ the correspondent of the Daily Alta California, whose remarks, it will be recalled, included laudatory statements such as ‘Thus far [the Act] has succeeded very well, and is becoming more and more popular every day.’ From this we can conclude how much attention the public was really paying to de Cosmos’s diatribes. He was so annoyed, or felt so challenged in his monopoly of published opinion in his community, by this alternative view that he reprinted it in his own journal with a sneering commentary, stating that the view expressed by ‘Anglo-Saxon’ ‘is too rich to be lost. The Registration Act is growing popular? Of course it is over the left.’85 (‘Over the left’ was a common phrase in the middle of the nineteenth century, expressing incredulity and accompanied by a gesture with the right thumb over the left shoulder.)86 After this shot, however, de Cosmos published no further commentaries on the Land Registry Act 1860. It took quite a lot to shut de Cosmos up. That this occurred is an eloquent commentary on the success of the Act and the correctness of ‘Anglo-Saxon’s’ assessment. And the historical record confirms that the Act was indeed ‘growing popular.’ In the first full year of its operation, 1862, there were no fewer than 555 applications for registration, or about two per business day, followed by 729 in 1863 and 647 in 1864.87 By 1868, $537 880 worth of land was registered under the Act, and it had been so well administered that no registration had ever been questioned (a situation which continued at least until late October 1870).88 Equally important for the government and community of Vancouver Island was the fact that in the years 1862 to 1867, the Land Registry Office made a modest profit in all years except

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1865, when there was a trifling loss of under $200.89 By December 1880, the registrar general reported that registration had ‘grown so popular,’ to adapt a phrase, that on Vancouver Island ‘nearly every transaction or dealing with real estate, however trivial, is almost immediately placed upon the register.’90

4 British Columbia

The Mainland Colony British Columbia and Vancouver Island were not united until 1866. Before then, although legally separate, they often shared staff, from Governor James Douglas down; and as we have seen, George Cary was at a crucial time in the story both acting attorney general for Vancouver Island and attorney general for British Columbia. But the colonies were separate constitutionally and had separate legal systems. Mainland British Columbia was a Crown colony without a representative legislature and with a rather different economic and demographic structure from that of Vancouver Island, for British Columbia was overwhelmed with gold miners once the gold rushes started in 1858.1 Mainland British Columbia also lacked Vancouver Island’s variant of the Torrens system. The mainland system was contained in the British Columbia Land Registry Act 1861, a proclamation issued on 26 August 1861 pursuant to the powers vested in the governor of the mainland colony to legislate by decree.2 The Act was a variant on the deeds-registration model of the old type; unlike the Torrens system, it was not a ‘hospital.’ Even allowing for the differences in the colonies’ economic structures and population bases, the difference between their land titles systems is quite a remarkable thing, given the close personal links between the two colonies. The problem of fraudulent sales existed in British Colum-

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bia just as much as on Vancouver Island, and indeed James Douglas found it necessary to warn against them on the mainland a few months before the mainland colony was even officially established in 1858.3 And the mainland colony was also the younger of the two, created just as Cary was arriving in Victoria. As a general rule, the younger a colony is the easier it is to introduce the Torrens system, because bringing the land under the system becomes more difficult as land titles become complicated and uncertain, as they do over a period of time. How then did it come about that mainland British Columbia failed to receive the Torrens system from the beginning? This phenomenon cannot be explained by opposition by British Columbia’s other leading officials. The chief justice for British Columbia, (Sir) Matthew Baillie Begbie, wrote to Governor Douglas on 30 April 1860 supporting the introduction of a land registry. While he made explicit reference only to the English Registration of Assurances Bill 1853, he supplemented this by advocating a principle that could not have been extracted from that bill; namely, that there should be ‘not a registry I conceive of deeds, so much as of titles [, which] invests the Registrar with a quasi-judicial power.’4 This is referred to by Begbie’s biographer, quite rightly, as a plea for ‘the Torrens system of land titles’ even though Begbie did not use the word ‘Torrens.’5 Nor was the nonadoption of the Torrens system the result of any lack of a need to do so: the price of land was reduced in mainland British Columbia at about the same time as it was on Vancouver Island with exactly the same intention of attracting a permanent settler population.6 Finally, the inhabitants of mainland British Columbia produced a petition in favour of a land registry on 20 February 1861, a month and two days after the passing of the Land Registry Act 1860 (V.I.). The petition complained that there was no ‘Registry Office for the record of transfers and mortgages, thus opening a fruitful field for fraud and future litigation’ – and so it was not popular opposition, either, that was to blame.7 Rather, the reason that the mainland colony failed to adopt the same land registry system as Vancouver Island had was the dispersed nature of the settlement in British Columbia. This, it was thought, differentiated British Columbia from Vancouver Island, on which the population was much more concentrated, and made British Columbia unsuitable for the Torrens system. Douglas wrote to the Colonial Office: I have not deemed it advisable to introduce into British Columbia the more perfect and elaborate system of registration which is at present in

British Columbia 59 force in Vancouver Island, for the much greater extent of the former colony would render a constant reference to the chief office inconvenient; it will therefore be necessary to form other offices in the various districts, each possessing its own registrar, who would, if the Vancouver Island system were adopted, be required to possess a special legal qualification; and it appeared to be absolutely impossible to procure, from the very limited body of practitioners in these colonies, a sufficient number of properly qualified officers. Moreover the cost of such a system would itself be, I submit, an insuperable objection to its introduction into British Columbia.8

So the non-introduction of the Torrens system on the mainland was the result of careful planning for the needs of a demographically different colony. The concern that a centralized Torrens system, in which easy access to the register was absolutely crucial, would not work was shown by later experience in Manitoba to be quite well founded, and this decision was therefore another example of Douglas’s and his advisers’ high degree of intelligence and practical good sense. Overcentralization almost caused the abandonment of the whole Torrens enterprise in Manitoba in the late 1880s. There is no reason to suspect that things would have been any better a quarter of a century earlier in the much larger and more sparsely settled colony of mainland British Columbia. Section 23 of the British Columbia Land Registry Act 1861 was the mainland statute’s key provision, and it highlights the differences between it and the Torrens principles applying on Vancouver Island: 23. From the time any instrument affecting real estate, acknowledged and certified as required by this Act, shall be delivered to a Registrar, or in the case of the Registrar-General to him or his Deputy Registrar, for registration, all persons shall be deemed to have notice of the contents and legal effect of such instrument.

Section 24 made unregistered instruments void as against later registrants, also a common provision to find in registration-of-deeds statutes. But the registry on the mainland – as the Daily Alta California’s correspondent most accurately perceived – was not a ‘hospital’ for turning bad transfers into valid ones; registration there did not transfer the ownership; and section 23 merely picked up whatever the ‘legal effect’ of a deed was without curing any defects in a deed that limited

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its ‘legal effect.’ In fact, repeated instructions were issued to the magistrates who acted as registrars on the mainland that they were not to judge the validity of documents presented to them, but merely to register them. As Henry Crease pointed out, this was ‘as low a standard for registration of land as was consistent with the name of a “system.”’9 The Ordinance of 1870 The mainland colony and the colony of Vancouver Island were united under the name of British Columbia in November 1866.10 This raised the question whether the two halves of the united colony would continue to have separate systems of land titles registration, or if not, which of the two systems then in force – the simplified and adapted Torrens system on Vancouver Island or the old-style registration-ofdeeds system on the mainland – would be adopted for the united colony. All other things being equal, the mainland’s registration-of-deeds system would have been much better placed to win this competition. It had a number of advantages, simply because it was the mainland’s system: ‘the mainland effectively annexed the Island in the spring of 1866,’ not the other way around; the capital remained at New Westminster (on the mainland) until 1868; the mainland colony provided even the name of the new whole; and it was, finally, Vancouver Island’s system of government that was abandoned in favour of that of mainland British Columbia.11 But the authorities of the united colony decided instead to extend Vancouver Island’s system of land titles over the whole of British Columbia (henceforth in this book, this name will designate the post-1866 united colony). Vancouver Island’s system was preferred partly because of its inherent superiority over the registration-of-deeds system, but also largely owing to its successful administration by E.G. Alston.12 Discussions about which system to adopt began very early in the history of the united colony. A report by Crease, as attorney general of the united colony, in early January 1867 dealt in general with the need for uniformity in the law of the united colony and stated that the Vancouver Island statute was to be preferred, although he added that ‘here haste is to be avoided’ – why, he does not say, although some obvious possible reasons might be suggested, such as the need to ensure that staff were available for a Torrens system on the mainland and to avoid sudden changes in land law.13 The aim of avoiding haste was certainly

British Columbia 61

achieved, given that the statute unifying the law was not enacted until 1 June 1870. Indeed, haste was so successfully avoided that public attention was aroused by the prolonged persistence of disuniformity in land titles law. An editorial writer for the Daily British Colonist commented drily upon the introduction of the bill to introduce the Torrens system across the whole colony that ‘the reader will scarcely need to be told that the Island has one system of registration and the mainland another.’14 People on the mainland wanted the superior Vancouver Island system, both in the interests of the existing inhabitants and in order to encourage settlement.15 Time had shown that the Torrens Act provided a system that was admirably suited to the residents of Vancouver Island. Registration and transfers under it were cheap; there was no need for expensive retrospective investigation of titles; and most people did their own conveyancing, or employed an inexpensive land agent to do it for them, on the forms provided by the registrar general’s office. Even if a solicitor was employed, the lack of retrospective investigations kept the cost down.16 It is also clear that the successful administration of the Torrens system by Alston as registrar general for Vancouver Island had a lot to do with its success.17 There is no need to emphasize the desirability of a competent and efficient registrar general in a Torrens system – one who is able to find the right balance between speed in transacting business in the interests of the smooth running of the system and the need for thorough investigations of land dealings in the interests of security of ownership. Alston’s obvious success in achieving this balance, which is established by the lack of challenge to any registration over his period as registrar general, combined with the popularity of registration, is all the more remarkable given that he was born on 6 September 1832 and was thus not yet twenty-nine years old when he became the second Torrens registrar general in the world. It is in fact hard to find anyone saying a bad word about Alston from the day he arrived on the West Coast. Robert Burnaby refers to ‘a most excellent chap – Registrar-Genl. of the colony – Alston by name – father a Dorsetshire parson – we agree famously,’ and even the snobbish British naval officer referred to earlier concedes that he ‘is a gentleman: he is very quiet, and one never hears anything about him.’ A move by our old friend Amor de Cosmos to have Alston’s office abolished during legislative debate on the Ordinance of 1870 failed dismally. In Alston’s next appointment, as Queen’s Advocate in Sierra Leone, ‘the local

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newspaper bore witness that “his abilities and high character gave him a foremost place in the staff of officials.”’ Sadly, he died of fever in Sierra Leone at the age of only forty.18 The Daily British Colonist suggested that the British Columbia legislature had its limits as a forum for opposition to the proposal to introduce the Torrens system, because it was found that the bill was a government measure and thus opposition was pointless.19 The opposition members accordingly gave up, the newspaper asserted, and did not vote, although one of them succeeded in having an amendment accepted. There is an obvious contradiction here, and the newspaper’s tendentious account of a government determined to steamroll its legislation through was designed more to aid a broader contemporary campaign for greater self-government for the colony than to inform later historians. Crease’s account to the Colonial Office was that sufficient time had been allowed for debate in the legislature and that suggestions were accepted from all sides.20 This accords with the facts. Debate on the bill in the legislature extended over almost exactly two months, and while a motion to refer the bill to a select committee on 30 March 1870 failed by five votes to fourteen, it was followed in the first half of April by an extensive consideration of the bill in Committee of the Whole, extending over several days and including a re-committal to permit the making of amendments.21 In a later letter to the governor, the opponents of the Torrens system admitted that parts of the bill had been altered to their satisfaction during the legislative process.22 Nor are any major incidents in the debate, such as might occur if dissent were being crushed, recorded in the newspaper reports of the legislative debates. There is no sign here of a government determined to ram through its own proposals. There was no need to, given the degree of support that existed for the Torrens system in the broader community. However, some financial corporations that preferred the old system did not give up easily. As well as attempting to organize local opposition, the Bank of North America, the Bank of British Columbia, and Wells, Fargo & Co. even thought it worth their while to petition the governor to withhold assent to the bill once it had passed the legislature or, if assent were given, to forward their petition to the Colonial Office where it could be treated as a request for disallowance of the bill. Neither of these actions was a serious possibility. The banks’ campaign began with a letter to the editor, in which a person signing himself ‘Observer’ objected to the bill because it made reg-

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istration ‘essential to the validity of an instrument affecting land.’23 As we shall shortly see, in strict law this in fact ceased to be the case under the 1870 Act, but the writer has grasped the intention and the actual effect of the various provisions put together. This state of affairs, he thought, opened the door to fraud via the registration of interests designed to destroy earlier unregistered interests such as trusts. Furthermore, ‘Observer’ continued, although the current registrar was ‘very efficient,’ future ones might not be, and in that case mistakes might be made jeopardizing people’s land. The bill’s opponents also drew up a petition to the legislature against the Torrens bill, testifying to their distrust and alarm [at] many of the provisions in the Bill for the Ordinance to be styled ‘The Land Registry Ordinance, 1870,’ and [they] consider it is not advisable that the Titles to Property should be liable to be defeated or injuriously affected by the caprice, neglect, errors or fraud of any Official. Your Petitioners are of opinion that a Registration Law which would give to a registered document priority over all unregistered documents, and also over all documents registered subsequently thereto, would if proper indices were kept (so that reference might be had at a glance to all Registered Documents affecting any particular land) be simple in operation and would afford every protection that is required.24

This was a petition for a registration-of-deeds rather than a Torrens system – the petition leaves no doubt that these petitioners were well aware of the difference between the two systems. As a backup, however, they also asked that if the bill were adopted as it stood, there should be a provision for indemnification by the government of persons who lost their land. At the petition’s foot stood a list of nineteen signatories, some of whom signed by agents or managers; at the head of the list was Sir James Douglas, the former governor. There is, oddly, little public comment at the time on this petition or his involvement in it. At any rate, Douglas seems to have changed his view very quickly, judging by the contents of a public display in the foyer of the Land Titles Registry at Victoria in 2006, which included a Torrens certificate issued to him in 1872, only two years after the petition was signed. Also included among the petition’s signatories were Robert Burnaby, J.F. McCreight, A.R. Robertson (a popular mayor and later a judge), and representatives of such notable institutions as the Hudson’s Bay Company and

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the Bank of British North America. As far as professional operators of land titles law were concerned, there were also two barristers, two solicitors, and two land agents.25 The leading spirit behind the petition was Robert Jackson, a solicitor and the final signatory on the list.26 Jackson had emigrated to British Columbia only in 1864, although he had been admitted to legal practice in England in 1849 and was by this stage in his mid-forties. Like the lawyers in early South Australia who had opposed the Torrens system, he was likely to have been far more familiar with the English system than with the modified Torrens system of Vancouver Island and to have preferred the familiar. The material interest that a practising solicitor might have in the maintenance of the old system of land titles registration needs no spelling out. Oddly, however, by the time Alston had departed in 1871, Jackson had so well reconciled himself to the Torrens system that the post of registrar general was offered to him, although he refused it. It is difficult to know what to make of this fact, which admits of a number of interpretations. Perhaps Jackson’s opposition to the Torrens system was either on instructions from one of his clients or was meant to ingratiate him with possible or existing clients, or perhaps he was flexible enough in his views and of sufficient standing in the profession to make him a serious contender for the job of registrar general despite his earlier opposition. Regardless of Jackson’ own position, it appears that the banks signed the petition because they were informed by him that the bill would destroy the practice of granting mortgages by the deposit of title deeds. The banks were able to clothe their concern in the more neutral colours of wishing to afford to new settlers all possible facilities for raising money, and at this stage of British Columbia’s history the attractiveness of the province for new settlers was still one of the principal concerns of the government.27 That equitable mortgages were not allowed under the Ordinance of 1870 was not strictly true, but the centrality of registration in a Torrens system made all unregistered interests in land very vulnerable, and section 33 of the Ordinance disqualified informal mortgages created by deposit of title deeds from registration entirely. Section 33 was no doubt inserted because registered mortgages had to be accompanied by a fee of $1 for registration plus one-thousandth of the value of the mortgage paid.28 The reason for the banks’ concern is thus apparent. From the government’s point of view, however, an informal mortgage of that sort was a form of tax evasion: it constituted taking advantage of the reassurance offered to a lender by the register’s iden-

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tification of the owner of the land without paying anything towards the maintenance of the system. But the banks’ interests were not entirely neglected. Section 25 required the registrar to give notice to a mortgagee in possession of ‘any document required for the proof of title’ before registering any other instrument, so that mortgagees holding a registrable – even if unregistered – memorandum of mortgage would be able to protect themselves by quick action. The local government, while willing to accept suggestions for improvement, had clearly made up its mind in favour of the Torrens principle, and so the banks’ petition was unsuccessful. Disallowance in London was also not a serious possibility. Some Acts from British Columbia were still disallowed by the imperial authorities in this period, but the Colonial Office did not oppose the introduction of the Torrens system, which it had sanctioned for all the Australian colonies.29 Nor was the Colonial Office sympathetic (as the petitioners might have hoped) to their unfavourable comparisons of the local statute with the English Land Registry Act 1862. An official’s minute on one of the papers referred bluntly to the lack of success of that Act in England.30 Furthermore, Crease was able to direct the Colonial Office’s attention to the fact that the Vancouver Island system had now been in operation for close to a decade without anyone losing their land by official default, as the anti-Torrens forces claimed to fear. Crease was on slightly thinner ground in explaining why there was no assurance fund under his Ordinance to render this danger even more remote, and the Colonial Office’s comments on his minute indicate that they recalled that there was such a thing in the Australian colonies.31 But in the end this matter was a local decision, not the sort of thing that the Colonial Office would decide for any colony. The Torrens system therefore survived in British Columbia to carry it into its existence as a province of Canada, which it became on 20 July 1871 – Canada’s first Torrens-system province. The Land Registry Ordinance 1870 (B.C.) was technically a somewhat more polished enactment than the Land Registry Act 1860 (V.I.) – better organized and more logically set out, but also recognizably the descendant of the earlier Act and the amendments to it. The 1860 Act was, Crease said, ‘largely borrowed from’ in the construction of the Land Registry Ordinance 1870, although the sparse population of the mainland made it necessary to adapt it for British Columbia, which explains why it was not simply copied word for word.32 Another reason for this was that G.H. Cary, the attorney general who had seen through the 1860/61 version of the Torrens sys-

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tem adopted on Vancouver Island, was dead and unable to exercise the influence he had exercised over the drafting of the 1860/61 statute. In the 1870 Ordinance there was still no assurance fund, Crease being of the view that one was not needed at that stage given the lack of challenge to registrations and the still relatively small size of the colony. E.G. Alston, the registrar general, was also concerned about the increase in the cost of registration if such a formal fund were instituted.33 But the provision for two classes of certificate was continued, and the five-year waiting period for indefeasibility adopted in 1860/61 was not merely retained, but lengthened to seven years (section 47). As a result of re-drafting, the Ordinance of 1870 also somewhat obscured the principle that a transfer was not effective until registered: section 45, read strictly, gave an entitlement to be registered as a result of an effective transfer. Technically this was a step backwards from 1861 because it meant that it was not the registration itself that effected the transfer. However, the Ordinance strongly encouraged registration and made it a condition of obtaining a full title, because without registration for seven years an indefeasible title could not be obtained.34 Furthermore, sections 35–37 made even certificates of title of the second, defeasible class prima facie evidence of what they asserted, offering a further substantial incentive to register.35 An unregistered interest could also effectively be destroyed by sale, even if it occurred with knowledge of the unregistered interest’s existence, as the banks had clearly worked out.36 The legislation was deliberately designed to achieve compulsory registration without actually providing for it in so many words, as both Alston and Crease stated.37 Thus full and secure title was in practice dependent upon registration and a crucial Torrens principle was preserved. I suspect that this outcome was left to inference rather than stated outright in order to obviate objections such as those of the banks and Amor de Cosmos, who was still in the local legislature. In the 1870 Ordinance, provision was also made for the conduct of business away from the head office at Victoria.38 In the interval of just under nine years since the introduction of a registration-of-deeds system on the mainland, it had been realized that if a branch-office system could be made to work in a registration-of-deeds system, it might be made to work in the Torrens system as well – something that Manitoba too was to discover in the last decade of the nineteenth century. In British Columbia, however, the attorney general’s second reading speech reveals that the branch-office system he contemplated was essentially one that used magistrates as mailboxes for the main registry; it was, in

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other words, the same as the mailbox system found in the old mainland registration system.39 The hurdle of distance having at any rate been surmounted, there was no obstacle to the introduction of the Torrens system throughout British Columbia. A decade later it was flourishing in most parts of the province: in Vancouver Island ‘nearly every transaction’ was registered, and in New Westminster ‘nearly all dealings with real estate since 1870’ used it.40

5 The Canada Land Law Amendment Association

Pre-History of the Association: Torrens Becomes Known in Central Canada The survival of the modified Torrens system in British Columbia did not by any means entail its expansion into the rest of Canada. British Columbia was still, for most Canadians east of the Rockies, an unknown land with few real connections with the rest of Canada. John McLaren and Hamar Foster remark that ‘only gradually, most notably after the completion of the transcontinental railway in 1885, does one get the sense that British Columbia began to move seriously into the orbit of Canadian cultural and economic life; and even then the rapprochement was often grudging and, among the elite, partial.’1 Nowhere is the lack of connection between British Columbia and the rest of Canada more obvious than in the Torrens system’s move into Ontario, Manitoba, Saskatchewan, and Alberta. The system came not from British Columbia, where a version of it already existed, but from Toronto, where it did not, courtesy of an organization set up specifically to lobby for its introduction, the Canada Land Law Amendment Association. And in the fullness of time – around the beginning of the twentieth century – the version of the Torrens system adopted in Manitoba was exported to British Columbia, so that British Columbia’s historically anomalous status in this field was terminated and it ended up with a Torrens system not unlike that of its eastern cousins – also thanks to the work of the Association.2

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The Canada Land Law Amendment Association (henceforth the Association) agitated for the Torrens system of land titles registration, which as a direct result of its activities was introduced in four of Canada’s provinces. The Association’s success also produced the critical mass for the Torrens system across Canada, which led in due course to Torrens reaching Nova Scotia and New Brunswick as well (even though this was well after the Association had ceased to exist, and after a number of false starts), and to the updating of the law of British Columbia just mentioned. By any standards, therefore, the Association was phenomenally successful in its agitation. But there are questions about its motives, given that so many of its members were moneylenders who stood to profit from a system under which mortgages could more securely and speedily be granted. The pre-history of the Association begins with a series of articles by George Holmested published in a general journal of public affairs, the Canadian Monthly and National Review, in 1876–7.3 As late as 1890 John Herbert Mason, the key figure throughout the Association’s history and its first and only president, referred to these articles as having ‘first brought to the knowledge of the Canadian public’ the blessings of the Torrens system (even at this late stage, the public of British Columbia is silently excluded from Canada).4 These articles are therefore of great significance in the story of the Torrens system in Canada. Holmested’s articles indicate that he had come across a copy of Robert Torrens’s work on The South Australian System of Conveyancing by Registration of Title and had been converted to the cause. Holmested grasped the basic message instantly. The Torrens system promised, he said, the prospect of reducing the costs of conveyancing to ‘a mere trifle’ because it made retrospective investigations of title superfluous and replaced a registry of deeds with a registry of title itself.5 This would also make borrowing against land easier, because it would be possible to prove ownership much more simply. It may seem remarkable that a journal of public affairs would publish articles on a system of land titles registration. However, we should recall the degree of public knowledge of and concern about the defects of the old system of land transfer in the nineteenth century. Most people who bought land came into contact with those defects and bore the resulting expense. Therefore, public discussion of this topic occurs again and again in journals and newspapers that had not the slightest pretension to legal expertise, because it was a matter in which landowners and would-be landowners among the public were vitally interested. Just as in South Australia in the 1850s, this was in central Canada

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a very broad cross section of society, enabling the Torrens system to appeal to all but the very poor. Holmested therefore writes: This question, though a legal one, is not by any means one in which lawyers are exclusively interested, and it is for that reason that we have thought this a fitting a place for its discussion, rather than the pages of a legal periodical. It is a question on which intelligent laymen are capable of forming a judgment; and it must ever be remembered that it was due, not to a lawyer, but to the strong practical common sense of a layman, that in South Australia the bull was first taken by the horns.6

Holmested added, however, that his knowledge of the Torrens system came via another Canadian, ‘a member of the legal profession, and one whose business lies chiefly in conveyancing, and who, so far as pecuniary considerations are concerned, is largely interested in maintaining things as they are.’7 At the founding meeting of the Association on 31 May 1883, Holmested identified this person as Beverley Jones.8 Jones stated that he had known about the Torrens system since about 1873.9 Although he does not say what brought it to his attention, it is reasonable to assume that his first steps along the road to Damascus were taken as a result of the more than two hundred pages of reports from four of the Australian colonies (including, of course, South Australia) that were sent to the U.K. House of Commons in 1872 and published in the parliamentary papers of that year, making them readily available in Canada.10 It is easy to imagine that these might have caught the attention of Beverley Jones as a lawyer interested in the topic. At no point in this early phase is any reference made to the law of British Columbia, which did not appear in the U.K. House of Commons’ collection of 1872. Perhaps this was because British Columbia was considered too small to warrant attention. British Honduras, which took the trouble to send in a report, was also omitted from the final collection.11 Personalities Beverley Jones and George Holmested were, in that order, Torrens’s first two apostles in Canada east of the Rockies. Who were they? Beverley Jones lived to the age of ninety-four and died in early 1934, so that by the time his obituaries were written his activities for the Torrens system were almost half a century in the past. He had, in the mean-

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time, found other causes to occupy his considerable instincts for public service and law reform, the chief of which was the care of boys in trouble with the criminal law and the law relating to juvenile offenders more generally. He and a group of like-minded persons began a public campaign in favour of a death duty on valuable estates in order to finance modern boys’ reform schools. The campaign was successful to the extent that the new tax was introduced, although the government found other uses for the money!12 Nevertheless, Jones built up a minor reputation as a public benefactor, largely based on his work for reform schools.13 By profession he was, however, a lawyer. He served for seventy years as counsel for the Canada Permanent Building and Savings Society, which was run by John Herbert Mason.14 Holmested referred to Jones as a conveyancer, and that is what his work at the Canada Permanent mostly consisted in. George Holmested, on the other hand, was not connected in any obvious way with moneylending interests. Born in 1841 in London, he came to Canada in his mid-teens. He started in private practice in 1866, but as early as 1872, when he was barely thirty, he had decided upon a career as a court official, becoming a referee in chambers at the Ontario Court of Chancery. In April 1876, just before his series of articles on the Torrens system began to appear, he was promoted to registrar of the Court, referee of titles, and inspector of titles. He was, apparently, ‘a stickler for forms and accuracy, but his great experience was ever at the service of students and junior members of his profession.’ He also was long-lived: he used to walk to work until just before his death at the age of eighty-seven, having served at Osgoode Hall for fifty-five years. Holmested was the author of numerous works, one at least of which even today is current and preserves his memory: Holmested and Watson on Ontario Civil Procedure.15 As matters stood in the mid-1870s in Canada – leaving aside the terra incognita of British Columbia – knowledge of the Torrens system was confined to these two lawyers and the readers of their articles. One of them, Jones, was nevertheless ideally placed to gain the attention of economically powerful interests. The other, Holmested, had the time, the prestige, and the independent position to be able to publicize effectively for the Torrens system. They were an ideal team. On their own, however, the two lawyers could achieve little. They needed the assistance of more powerful interests, and some money. And Jones, no doubt with the help of Holmested’s articles, was able to gain the attention of his employer J.H. Mason.

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John Herbert Mason, born in 1827, was also an Englishman who had migrated to Canada in his mid-teens. By the early 1880s, he was about to enter the period of his greatest economic success. In 1885, having been cashier and accountant of the Farmers’ and Mechanics’ Building Society of Toronto, he became manager of the Canada Permanent Loan and Savings Company, which he reorganized and expanded. The Canada Permanent went through a number of changes of name before amalgamating with two similar companies in 1899 to form the Canada Permanent Mortgage Corporation, which Mason managed until his retirement in 1905.16 It cannot have been easy to convince a practical, busy, successful businessman to start a speculative, non-profitable crusade for law reform on an Australian model. It says something about the defects of the old system, the virtues of the Torrens system, Beverley Jones, and not least Mason himself that such an enterprise succeeded. As with the two lawyers, Mason’s instincts for public service and support for worthy causes were considerable, and not confined to the advocacy of the Torrens system. For example, Mason readily lent his public support to a fair held in order to raise money for an infirmary for children suffering from contagious diseases.17 No doubt Mason himself contributed money to the children’s infirmary, and it is clear that he also contributed to many other causes, such as scholastic endowments.18 His obituary in the Canadian Law Journal, after pointing out how unusual it was for the honour of an obituary in that journal to be accorded to a nonlawyer, praised his liberal contributions to the expenses of advocating the Torrens system.19 Most importantly for the story told here, Mason’s support of the children’s infirmary also shows that his name was worth something to charity. He was the only signatory of a published letter urging people to support it. While the infirmary would probably have accepted mere money from virtually anyone, it would certainly not have wanted its publicity to come from a person who was generally despised as a loan shark and/or a ruthless oppressor of the poor. Nor, for that matter, would someone like Holmested have associated himself with such a person if Holmested had cared about the adoption of the Torrens system, let alone his own reputation. Although I do not pretend to have conducted a thorough biographical study of J.H. Mason, I did not, in all my research, come across a bad word written about him by anyone. It seems, therefore, that Mason was far from despised in his community at the time in question, and given that a moneylender has plenty of

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opportunities to alienate people and acquire a bad reputation, that is no small achievement. Beginnings Between the publication of Holmested’s articles and 1882, little seems to have happened in the direction of adopting the Torrens system. A Torrens bill for the North-West Territories (which included at that time what are now Saskatchewan and Alberta) was introduced in 1878 by David Mills as minister of the interior in the Mackenzie government, but it sank without a trace, and although Mills re-introduced the bill in 1879 after he lost office upon the return to power of Sir John A. Macdonald, this invitation to adopt the measure on a cross-party basis was not taken up.20 There is a single reference in 1884 to a speech by the prominent politician-lawyer Edward Blake on the Torrens system which is supposed to have been delivered at some time between 1876 and 1878.21 If this did happen, possibly it was a result of Holmested’s articles; possibly it occurred after Blake had met Lord Cairns (as Hugh Cairns had by then become) on a trip to England as federal minister of justice in 1876.22 But even if the speech was delivered and is still extant I have not been able to find it, and it is not mentioned later in any other sources; it can be concluded that the speech was not remembered as the inspiration for any lastingly successful action. We do not know what steps were taken following the publication of Holmested’s articles in order to convince Mason or anyone else of the merits of the system and to spread the word further. But a long letter published in the Toronto Daily Mail on 8 December 1882 over the name of H.C. Jones – Beverley Jones’s brother, writing from Osgoode Hall – marked the official beginnings of the move to organize the Association and agitate for the Torrens system in Canada east of the Rockies.23 The letter of December 1882 was very possibly sent at about the same time as J.H. Mason had been convinced to promote the system and with the aim of drawing the attention of other influential people to the cause. Probably it was sent with his knowledge, or even his approval, but there is no extant evidence of this. Lest there should be any doubt about the inspiration for this agitation, H.C. Jones’s letter, the opening shot in the war for the Torrens system east of the Rockies, begins by quoting (with appropriate attribution to the original source) the famous preamble to the Real Property Act [1858] of South Australia : ‘Whereas the inhabitants of the Province of South

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Australia are subjected to losses, heavy costs and much perplexity, by reason that the laws relating to the transfer and encumbrance of freehold and other interests in land are complex, cumbrous and unsuited to the requirements of the said inhabitants …’ The letter also includes a long quotation from the works of Torrens himself. By calling these sources to witness, Jones correctly took it as established that the problems in Canada were essentially the same as in South Australia under the inherited English law of conveyancing, and that the same level of dissatisfaction existed in Canada as had existed in pre-Torrens South Australia. H.C. Jones’s letter summarizes the two lines of argument that were to be used during the rest of the battle for the Torrens system. First, the letter points out that since the Torrens system had succeeded in South Australia, it could succeed both in Ontario and the North-West Territories. The success of the system in Australia was to become a common refrain in pro-Torrens propaganda in Canada in general and Ontario in particular. But to convince readers of the desirability of undertaking such an experiment it was necessary to point to more than just the success of the system on the other side of the Pacific Ocean, where conditions might conceivably be different in some crucial respect. Jones’s letter of December 1882 contained the first of many, many explanations of the Torrens system and its superiority over the existing system which were to appear in numerous publications over the following four years or so. Readers of the first chapter of this book are already familiar with what Jones explained to readers in his letter. After Jones’s opening salvo had been fired on 8 December 1882, one imagines that a good deal of behind-the-scenes organizing and proselytizing occurred, no doubt with the letter as a prime instrument of evangelization. The inaugural meeting of the Canada Land Law Amendment Association then took place in the boardroom of the Canada Permanent chambers (i.e., J.H. Mason’s offices) on 31 March 1883. This event was again considered to be of such importance and interest to the general public that – fortunately for the legal historian – a very long and detailed report of the proceedings appeared in the Toronto Daily Mail. J.H. Mason presided at the meeting, just as he was to be president of the Association throughout its entire existence; Beverley Jones was the meeting’s secretary. The audience, consisting as far as we are told of moneylenders and a few others, listened to long and involved explanations of the system by Jones and Holmested, along with Jones’s com-

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plaint that he ‘had had considerable odium cast upon him’ by his fellow lawyers for promoting the Torrens system, which, they feared, would lose them fees. After the presentations by the legal experts and a discussion, the details of which were not recorded in the newspaper, the following motion was passed: ‘That in the opinion of this meeting it is most desirable that no time should be lost in the introduction of the Torrens system of land transfer or some modification thereof into the North-West Territories, and that the government be requested to promote legislation with that end in view.’ An action sub-committee was formed in order ‘to draft a scheme for introducing the system.’24 Fifteen names of those present at the meeting are recorded in the newspaper report. Of those named, eleven – including Beverley Jones’s and H.C. Jones’s – are given with an affiliation to a moneylender or land speculation company. The other names were Holmested, William Houston, H. Paterson, and John Lees. The best guess is that the second of these was the librarian at the Ontario Legislative Assembly, and that the other two were lawyers.25 In addition, letters of apology for nonattendance were received from a Mr Finlay from the Monetary Times and from S.C. Wood, who in 1883 was both a member of the Ontario legislature and a director of various loan societies and banks.26 The report of the meeting might without exaggeration have been subtitled ‘A Demonstration by Some Moneylenders, Land Speculators, and Friends in Support of the Proposed Torrens System.’ At the meeting, Holmested also rode for some time his two personal hobbyhorses.27 The first was the adoption of a statute similar to the Chattels Real Act 1834 of Newfoundland (then, of course, not a part of Canada).28 That statute provided that land would descend in the same manner as personal property rather than by the inflexible rules of inheritance then applicable to land. To achieve this the Act set up the startling fiction that all land in Newfoundland should be taken to be moveable property, just as leases had technically always been, for historical reasons going back into medieval times. The second Holmested hobbyhorse was the abolition of dower and curtesy, the interests in land granted in certain circumstances by operation of law to widows and widowers, respectively, from the property held by their dead spouses. The first of these aims – the adoption of legislation similar to the Chattels Real Act – was quickly achieved without the aid of the Newfoundland fiction, but in Ontario, at least, the second was not.29 Dower and curtesy appeared to Torrens advocates as irritating relics from medieval times that arose by operation of law rather than by

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agreement between parties. Being thus more difficult to register, they were liable to hinder the aim of a register reflecting all interests in land. Common-law dower – the more frequent case – could certainly operate in a manner that was less than entirely rational and cause inconvenience for no good reason. It might, for example, be necessary to prove that some long-dead owner of land was or was not married and, if married, had taken steps to ensure that dower had been ruled out; if this could not be done the title even of a later owner could not be confirmed as flawless, because a claimant to a dower interest might emerge. There were certainly also a series of historical anomalies attached to dower (and curtesy) that made them less than perfect means of regulating property relationships after the death of a spouse.30 For example, in the prairie provinces women were not protected by dower if their husbands had made wills. This difference existed because of an English statute of 1833, which did not apply in Ontario but was inherited by the prairie provinces when they were created.31 Even when dower did exist, it gave a right to only one-third of the property. But dower was still an important way in which women’s interests in what was in strict law their husbands’ property were protected. In part this was because if dower did exist, it continued to be enforceable against the land concerned even after a sale by the husband – unless the wife consented to the sale. Thus dower also often ensured that wives at least knew what their husbands were doing with the matrimonial property, which also often included the matrimonial home. In addition dower, where it existed, did provide an interest in land for women even if they otherwise were not legally the owners of land, provided that they survived their husbands. The case for abolishing dower was therefore not as clear-cut as some Torrens advocates such as Holmested pretended, particularly if no more modern statutory scheme was introduced to take its place. Lawyers are familiar with the tension between elegant simplicity in the design of rules and complete fairness to all. In this case the push to make the law simpler and allegedly more rational by abolishing dower came into conflict with broader considerations of fairness and justice to women.32 Furthermore, Holmested’s two hobbyhorses raised important side issues and became something of a distraction from the real aim of the Association, which was the introduction of the Torrens system. They were an unnecessary distraction too, for as Torrens had explained, his system could work just as well in jurisdictions in which dower continued to exist as in those in which it had been abolished.33

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The discussion at the Association’s inaugural meeting on 31 March 1883 fortunately concentrated not on dower, but on the introduction of the Torrens system into the North-West Territories – so much so that one of those present queried why a group of Torontonians were proposing to alter the law of such a distant place. Perhaps this questioner, unlike others of those present, was not aware of the fact that D’Alton McCarthy, QC, MP was to introduce into the federal Parliament a bill to bring the Torrens system into the North-West Territories within a fortnight. No doubt this matter was in the forefront of the minds of many present and had prompted the holding of the meeting at this time. And of course, the North-West Territories also had vast tracts of unpatented Crown land that could much more easily be brought under the Torrens system from day one than could many properties in Toronto, where proving the state of titles to the extent necessary to enable the government to provide a guarantee of their validity would in many cases be difficult or expensive or both. Nevertheless, the Association very soon took on the more difficult task of advocating the Torrens system in Ontario as well. The action sub-committee of the Association appointed on 31 March met promptly, on 12 April. This was also the day on which the McCarthy Bill was introduced into the federal House of Commons. Again the Toronto Daily Mail reproduced the eight resolutions of the sub-committee in extenso.34 In fact, both principal Toronto newspapers were supportive even at this early stage: the Globe had only a few days earlier published a lucid comparison of the existing and Torrens systems, calling the former an ‘antiquated and expensive system’ unsuited for a ‘progressive community.’35 The sub-committee’s second and third resolutions stated that the Association wished to secure indefeasibility of title, introduce the Torrens system, and – a nod to Holmested’s hobbyhorse – amend the law of real property ‘so as to facilitate and promote the efficient working of the Torrens system of land transfer.’ The first resolution extended the Association’s ambitions to ‘the various provinces and territories of the Dominion.’ The fourth indicated that the Association planned to achieve its aim ‘through the press, by pamphlets, public meetings,’ and by organizing ‘branch societies having kindred objects in other places in the Dominion’ – a reference to a planned extension of its influence via a subsidiary association in Manitoba. The sub-committee’s report was submitted to a general meeting of the Association on 21 April 1883 and approved, so that this meeting

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marked the formal organization of the Association. No membership fee was fixed, as funds were expected to come from the financial companies participating in the Association.36 At the general meeting of 21 April, the officers of the Association were elected. The president, naturally, was J.H. Mason. There were two vice-presidents: D. Blain, LL.D., president of a loan company; and W.B. Scarth, manager of financial and land development companies (and from 1884 resident in Winnipeg). Beverley Jones was the Association’s secretary, and George Holmested its corresponding secretary (i.e., in charge of correspondence). The Hon. S.C. Wood was elected treasurer, and the directors were S.G. Wood, John Leys, J.J. Foy, J.A. Paterson (all lawyers), R.H. Tomlinson, William Kersteman (both managers of loan companies), John Fisken (commission and financial agent), J.P. Clark (estate agent), James Metcalf, and W.A. Douglas.37 At least a few more lawyers had been found to lend some respectability to the operation! While the presence of lawyers might not confer respectability in the view of all persons, having lawyers involved in the campaign for the Torrens system was of benefit. It showed that those with a professional knowledge of the matter, whose immediate interests might indeed be thought to be opposed to the simplification of conveyancing, supported the cause of land transfer reform. The Association Puts Torrens on the Public Agenda The Association made great strides in its first year of operations, from April 1883 to April 1884. It published a detailed prospectus in midJuly,38 which contained its constitution; long explanations both of the defects of the existing chain-of-title system and of the merits of the Torrens system; and the above list of its office holders. The prospectus summarized the advantages of the Torrens system by pointing out, in capital letters, that it involved ‘A REGISTER OF TITLE, AND NOT SIMPLY A REGISTER OF DEEDS.’39 The prospectus correctly added that this system existed in British Columbia (which had obviously been discovered in the interim) as well as in the five Australian colonies, Tasmania, New Zealand, and Fiji. This is the same list of jurisdictions that responded to a circular in 1880 from the Colonial Office seeking details of land registration systems, and since the responses were again published the Colonial Office in London is, remarkably, the probable source for the discovery of British Columbia by our group of Torontonians.40 There were also three pages of information and advocacy relat-

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ing to the proposed additional changes in the laws of descent and dower, which in context seems something of an indulgence and a distraction from the main point but was no doubt required to keep George Holmested on board. There were a number of other means by which the Association could demonstrate that the Torrens system was a success in its place of origin. Fortunately, the Association had begun its agitation just after the visit to Australia of (Sir) W.E. Maxwell, commissioner of Land Titles for the Straits Settlements (now parts of Malaysia and Singapore). Maxwell was an English barrister who had impressed the local governor with his ability and judgment and was sent to report on the Torrens system.41 He reported in April 1883 that the Torrens system worked very well and thus provided independent evidence of this fact, which the Association willingly used in its lobbying.42 His report also provided much useful information about the mechanics of operating a Torrens system, the set-up and staffing of the offices, and so on. The Association also received assistance from Henry Gawler of the Lands Titles Office in Adelaide; he provided, for example, a copy of the bill for the act that became the consolidated Real Property Act 1886 (S.A.).43 Some, but only a little, aid was also received from the successful operation of the modified Torrens system of British Columbia. Throughout 1883 there was a steady stream of propaganda from the Association pointing out the successes of the system in Australia and explaining its merits in comparison with the existing system, independently of overseas experience. Australian testimonials were of such value to the pro-Torrens forces that on 21 August 1883 the Toronto Globe deigned to notice an interview in a newly founded newspaper from a frontier town, the Winnipeg Sun, in which an Englishman who had lived in South Australia for thirty-five years, one J.O. Jones, opined that the Torrens system had worked extremely well there.44 In behind-thescenes lobbying, too, ministers were provided with copies of reports and other testimonials to the success of the system in Australia.45 When the odd voice was raised against the introduction of the Torrens system, for example in a letter to the editor of the Globe signed by ‘A Deputy Registrar,’ the argument was more often than not that there was some difference between Australian and Canadian conditions that precluded the simple adoption of the Australian reform. An attempt by ‘A Deputy Registrar’ to argue that experience in South Australia was not unequivocally good was firmly squashed by J.H. Mason, who wrote in to point out that ‘A Deputy Registrar’ had got his facts wrong.46

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As far as the intrinsic merits of the system were concerned, the following article from the Globe is representative, comprehensive, concise, and also one of the few examples of the promotion of the system in Canada by reference to sources from the United States, a country where the Torrens system was never to become as successful as it has been in Canada.47 LAND TRANSFER REFORM The Benefits to be Derived from the Torrens System The following synopsis of benefits to be derived from the simplification of land transfer is taken from a circular published by the Land Transfer Reform Association of New York:— First.— It secures all the benefits sought to be attained by a system of registration of deeds, with the additional advantage that the title itself is registered. Second.— It renders retrospective examinations of titles unnecessary. Third.— It simplifies the titles to real property in the future. Fourth.— It makes purchasers perfectly secure. Fifth.— It simplifies to the utmost possible extent the forms of transfer and modes of conveyance. Sixth.— It increases the saleable value of land. Seventh.— It tends to lower the rate of interest on loans secured on land. Eighth.— It gives facilities for the sale of large estates on allotments. Ninth.— Transactions can be effected without delay and at a minimum cost. Tenth.— Frauds in the purchase and sale of land are effectually prevented, because the certificate of title, in the possession of the vendor, shows the exact condition of the estate, whether the estate be mortgaged or leased.

In fact, these points were adapted from a report of the English Royal Commission on conveyancing reform of 1857.48 This item of propaganda also illustrates the degree of cross-jurisdictional exchange of ideas that was involved in the promotion of land transfer reform. The appearance of these ten points in Canada (on 29 June 1883) also coincided with a crescendo in the Association’s propaganda, and the article just quoted, which reads more like a paid advertisement, was

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probably planted by someone from the Association. Shortly afterwards – on 5 July – Beverley Jones, as Hon. Secretary of the Association, wrote to Sir John A. Macdonald, at this time minister of the interior as well as prime minister, informing him (or more accurately, attempting to persuade the Department of the Interior) of the Association’s view that as the Torrens system should be introduced in the North-West Territories and its introduction should not be prejudiced by vested interests, any registry offices or officers should henceforth be selected with a view to their suitability to operate the Torrens system.49 The letter mentions two further means of putting forward the Torrens case, which were enclosed for the prime minister’s information: an essay by Robert Torrens and another by D.H. Olmsted, a prominent advocate of land transfer reform in New York, explaining the system and its advantages. The Association’s prospectus was the chief instrument of evangelization. It was distributed as widely as possible. There was a noticeable pause in the Association’s public activities from mid-July while this occurred and people were (it was hoped) reading and digesting the information newly made available to them. We next hear of the Association at the start of October, when another flurry of activity began with a deputation consisting of most of the Association’s office-holders and one or two others to the premier of Ontario, (Sir) Oliver Mowat.50 This signalled the Association’s intention to fight on a number of fronts all at once – not just in the North-West Territories, but in Ontario as well. Mowat, also attorney general for Ontario, said perspicaciously that a Torrens statute would be a boon for new titles, but what would be done with the old titles? According to Beverley Jones, ‘the general testimony in South Australia had been that where a title was really sound there was no difficulty in bringing it under the Act.’ Mowat’s reply was cautiously encouraging for the Association: he had a ‘very strong opinion in favour of the system,’ but thought that the public would have to be convinced of its merits before he could introduce it and expect it to be accepted by the population. J.H. Mason, president of the Association, wrote that the cause of Torrens is ‘a people’s question, and it is to be hoped, now that the country is aroused to the importance of the proposed changes, the people will not slacken in their efforts to obtain the necessary legislation.’51 Convincing the populace, or at least making it look as though there was a popular clamour for Torrens, was a task that the Association had already embarked upon. It was still most important that the press were on their side and willing to publicize the cause without charge. In Octo-

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ber 1883 the Globe addressed what it said was the heavy demand for information about the Torrens system by publishing a long interview with Beverley Jones explaining the Association’s cause and singing the praises of the Torrens system in comparison with the existing one.52 Under the existing system, it ‘very often’ occurred ‘that a man who had bought a farm and lived on it for years was suddenly awakened by a writ of ejectment and loses the results of many years’ hard labour’ – an appeal to the broad mass of landowners. Jones stated that he had already convinced the grange body (an early form of small farmers’ association) to petition the legislature in favour of Torrens and that further campaigns were planned ‘following the example of Robert Torrens himself in appealing directly to the common sense of the people.’ This was a reference not merely to the proceedings in South Australia in 1856–8, but also to the campaign for a land registration system in Ireland which had started under Torrens’s aegis when Torrens, a native of Cork, had returned to that part of the United Kingdom in 1863. Many of the tactics adopted by the Association, such as soliciting the signature of petitions by local councils, were quite similar to those used in Ireland.53 On 1 December 1883, J.H. Mason addressed the Canadian Institute on what was by now clearly his mission in life, a mission that had no doubt already cost him a good deal of time that might have been more lucratively spent. His address, almost forty pages long, became the key instrument of pro-Torrens propaganda in the succeeding years. It was published as a booklet for the purposes of further propaganda; several thousand copies of it were distributed.54 No doubt this was costing Mason money as well as time. In the address, Mason pointed out that ‘in Canada, the ownership of the soil is so widely distributed, that every man is more or less directly interested in real estate, and nearly every man is, has been, or may expect to be a land owner,’ and went on to give what is already a familiar litany of defects of the old system, advantages of Torrens, and its successes in places where it already existed (including British Columbia). As December 1883 progressed, the Association attacked on a number of fronts. Deputations visited at least the larger city, town, and county councils – J.H. Mason, Blain, and Beverley Jones went to London, Ontario, in order to lobby Middlesex County Council, and Mason and Blain to the Toronto City Council.55 Each council directed a petition to the provincial government in favour of the introduction of Torrens, although as Middlesex did not sign until early 1885 it must have had second thoughts. The idea was to make it appear that there was strong

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popular demand for the Torrens system, expressed through the level of government closest to the people. But the top end of town was catered to as well: on 9 November 1883, a deputation from the Association visited the Toronto Board of Trade, which also signed the pro-Torrens petition.56 Nor was the federal government forgotten. (Sir) David Macpherson had become minister of the interior in October 1883, and various managers of loan and investment companies, headed of course by J.H. Mason, banded together in order to send him a pro-Torrens petition for the North-West Territories in their capacity as future mortgagees of the lands there.57 They followed this up with a deputation to him on 27 December, pointing out that now was the acceptable hour in the North-West Territories and that there were ‘numerous expressions from public bodies favorable to the system,’ although they did not add that most had been drummed up by themselves. The Minister’s response was that he was glad to hear of the public’s demand for the system but could not express any opinion without consulting with his colleagues in Cabinet. This was not enough for J.H. Mason, who instead of graciously thanking the minister for his time and withdrawing courteously, pushily quoted more statistics on the guarantee funds’ wealth in Australia and criticized the current system a bit more. Only then did the deputation withdraw.58 The legal profession was targeted by Beverley Jones, who wrote to the editor of the Canadian Law Times, pointing out how easy it would be to borrow money against land under the Torrens system, that land would also rise in value under it, and that there would be one or two other advantages under the system.59 This letter, however, backfired somewhat on its writer’s cause. The journal’s editor confessed his lack of intimate acquaintance with the Torrens system in terms that approached a put-down of it; and he commented upon the letter, the Association’s propaganda pamphlet, and the Torrens system generally in less than flattering terms. The editor thought also that the British Columbia Act cited in the pamphlet did not back up the claims made for the Torrens system because it still provided for all sorts of title deeds and exotic interests such as remainders, and that the Association, if it desired success, would need to distribute ‘a better class of literature than the pamphlet in question.’ The pamphlet merely showed ignorance of the law of land titles. Furthermore, there was at present ‘no outcry about the land laws of Ontario’ as the present system of registration was ‘a very good one, and very easily understood.’ Most of the trouble was caused by untrained conveyancers.60 It would, moreover,

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be hard to introduce the system in the older provinces with complicated titles: some apparently good titles might be cast into doubt in doing so, stirring up trouble for people who might otherwise have been in blissful ignorance of problems with their titles. Finally, it might not be a good idea to introduce a system that enabled people to dispose of their land quickly because it might offer too great a temptation to the improvident. It was, in short, not a very flattering review. This salvo provoked a reply in the next issue by George Holmested, explaining that in British Columbia the Torrens system of registration had been introduced but no changes made to the law of tenure, which explained the persistence of exotica there; on the part of the editor, there was a retraction, qualified by further observations about the defects of the pamphlet.61 The latter prompted yet another reply by Holmested and a further exchange in which the editor of the journal urged ‘great caution’ in making any changes to the law of land transfer, especially given what he thought was the ‘simple and easily worked system’ already in place.62 If any publicity was good publicity, the Association had reason to be pleased; and if the odd mild attack on the Torrens system from the legal profession did come to public notice this was probably no bad thing either, since such attacks could be presented as springing from a feared loss of fees. J.H. Mason himself was not above appealing to this sentiment on occasion.63 As 1883 closed, the Association had every reason to feel pleased with the fruits of its labours. How successful it had been became clear in the first months of 1884, when the Legislature of Ontario was fairly deluged with petitions from city, town, and county councils, granges and several other bodies (such as the Board of Trade) in favour of a Torrens style of registration. Over the course of twenty-seven sitting days in 1884, more than 150 pro-Torrens petitions were presented, and the fact that they were from local bodies such as councils and granges was (it was no doubt hoped) to be taken as a sign that virtually the whole province was clamouring for Torrens.64 There were a further sixteen similar petitions over nine days in 1885 after a follow-up letter was sent by J.H. Mason and Beverley Jones on 5 January 1885.65 Some of these petitioners were repeats, such as the United Counties of Leeds and Grenville, which had also petitioned in 1884; others were stragglers that had not petitioned in 1884, such as the Middlesex County Council. This response was a credit to the work of the Association and

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reflected the extraordinary success of its agitprop campaign. The Toronto Week, a rather conservative journal which nevertheless ran a number of pro-Torrens articles from 1884 to 1886 in the best Whig reforming spirit, opined that the Association’s efforts meant that ‘there are now hundreds who have an intelligent knowledge of the [Torrens system], and who are convinced of both its superior merits and the desirability and practicability of speedily introducing it into this province.’66 There was certainly a lot of truth in this observation. Such a campaign could not have been successful – such a strong impression of public demand could not have been created so quickly – had there not been a generally perceived need for improvements in this branch of the law. Half the Association’s battle was won before it started, as everyone knew that there was a need for reform. While the editor of the Canadian Law Times thought that the existing system of land titles registration was a good one, many users of that system clearly did not agree, and J.H. Mason accurately judged popular sentiment when he called land titles reform ‘the people’s question.’ Nevertheless, many petition signers, however clearly they perceived a need for reform, probably did not understand the Torrens system completely or did not accurately estimate the difficulties attendant upon conversion of much of the land under the old system to it. A more realistic estimate of public knowledge was that ‘doubtless these petitions were often forwarded to the Legislature without full consideration of the difficulties which must ever attend changes of a radical nature, but the fact that so many petitions were sent in showed conclusively that wide dissatisfaction with the present system was existing.’67 The Association’s propaganda did not help in this regard, because pains were taken not to overestimate the difficulties attendant upon the introduction of the Torrens system. Thus for example, J.H. Mason airily dismissed concern about the expense of introducing the Torrens system by stating that it merely indicated how insecure titles were under the old system.68 This was true as far as it went, but hardly a complete answer to the concern. The demonstration of popular support by the petitioning campaign, however much real knowledge as distinct from general dissatisfaction lay behind it, virtually compelled the taking of some sort of action on the part of the provincial legislature, for otherwise they could easily have been accused of ignoring the popular will. Indeed, J.H. Mason was so confident of success that by the time of the Association’s first anniversary he began to worry about what would follow it. He feared

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the ruin of the system by dilatory, incompetent, over-cautious, or even hostile administration.69 The culture of patronage in nineteenth-century Canada rendered it not improbable that some old party hack might be appointed registrar somewhere or other simply because it was another position that could be used as a reward for past services.70 This was exactly what happened in Calgary, and great embarrassment was caused to J.H. Mason himself by the malfunctioning of the system he had worked so hard for. As we shall see, a rescue mission had to be mounted there. But having traced the origins and beginnings of the Association, I propose now to postpone further consideration of each province’s introduction of and early experiences with the Torrens system to later chapters and ask: Was all this lobbying by moneylenders just naked self-interest? The Association: A Front for Loan Sharks? Was the Association, to the considerable (but by no means entire) extent that it consisted of moneylenders, land speculators, and so on, merely a front for crude economic interests? Or can it also fairly be said to have been motivated by broader considerations of the public good? A historian with a Marxist bent would answer that question differently from the answer proposed here, the beginnings of which have already been indicated. We have seen that there was a real public demand for reform: the Association could create a demand of the size that it did as quickly as it did only because there was a substantial reservoir of dissatisfaction already. They were certainly not solving an imaginary problem that they had conjured into existence for their own nefarious purposes. There is also every reason to think that J.H. Mason was a respected member of the community in which he lived, although his occupation as manager of a financial institution provided unending possibilities for making enemies on the basis of real or imagined misdemeanours, and his obsession with the Torrens system – for such it became – cost him both valuable work time and money. Needless to say, it was also a cause that to the extent that it benefited his company also benefited his competitors, as there could not be a Torrens system for Canada Permanent clients only. One of Mason’s obituaries contrasted his two spheres of activity almost as if they were opposites, describing Mason as ‘not a mere business man or financial magnate’ because of his promotion of the Torrens system.71

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Some people in the nineteenth century were also clever enough to hit upon the thought that moneylenders might put forward the Torrens system in order to promote the business of moneylending, and J.H. Mason was not a fool either: if self-interest had been the only motivation for his endeavours he would doubtless have found a better cover. But there was no need for this: first, because everyone knew that the pre-Torrens system of land transfer was in urgent need of reform; and second, because the Association’s membership was considered respectable by the community. Both lines of argument were used at the time in response to the obvious cheap shots about moneylenders reforming the system of land transfer. When it was implied in a letter to the editor of the Ottawa Citizen in 1885 that the Association was a group of self-interested persons promoting a reform to benefit themselves, Beverley Jones was able to rebut this merely by mentioning the names of the Association’s chief supporters, starting at the top with that of J.H. Mason.72 Another contemporary argument was that the Torrens system’s promoters were not actuated merely by the interests of a few, but rather were ‘nobler men who are striving to lead the masses up to the light of a better intelligence.’73 Such statements would not have been presented to the public unless they had a solid basis in fact behind them. That is also why J.H. Mason’s support was valuable to children’s charities, as noted earlier. J.H. Mason himself also responded to claims of narrow self-interest. He could not, of course, do so by praising his own character and reputation, but he could do so by pointing to the support of others such as Holmested, who were unconnected with moneylending. In an election address that he published along with Holmested in December 1886, Mason replied to the accusations of ‘interested persons’ that there was an obvious reason why moneylenders would promote the Torrens system by stating that ‘it is the borrowers’, and not the Companies’, interests which will be benefited.’74 We are not told who these ‘interested persons’ were, and I have not been able to find any immediate cause for the rebuttal just quoted, but the phrase and what we do know about the opposition to Torrens suggests that it was the legal profession Mason had in mind here. At any rate, Mason did not consider it out of place to suggest to the public that they would be the principal gainers from a reform. That was because it was a correct suggestion, as many people who had had contact with the old system of conveyancing knew from personal experience. Some people who wished to borrow against their land in order to fund some improvement found ‘nearly half the sum

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swallowed up by the cost of investigating a title.’75 Such cases were no doubt extreme, but the old system’s defects clearly caused considerable unnecessary expenses for those who took out loans against land even in less extreme cases. The alternatives under the old system of conveyancing were higher interest rates on an unsecured loan or not going ahead with plans at all – in effect, a waste of the economic potential of land.76 The facilitation of borrowing was a particularly important aspect of the Torrens system in newly settled areas in which access to the cheapest possible capital was vital for financing set-up costs. For example, in the view of Winnipeg Commercial the principal advantage of the Torrens system was the ability of the duplicate certificate of title to be used conveniently and quickly as security for a small loan, which would ‘help many a struggling pioneer’ and incidentally contribute to the more extensive settlement of Manitoba. Similar statements were made by the government of Manitoba when it introduced its Torrens system: cheapening the cost of borrowing and enabling loan companies to lend with more confidence were repeatedly mentioned as major selling points for the system. Throughout Canada, as the Torrens system was extended, it was pointed out that it would induce settlers to choose Canada if they knew that facilities existed for them to borrow conveniently and cheaply.77 It is not very surprising that people with some connection to land transactions should have started the pro-Torrens campaign. Why would persons without any interest in or connection with land dealings at all bother to campaign for the amendment of the law relating to such transactions? Everyone needs some way in. Torrens was himself accused of promoting his system simply in order to serve his own interests as a land speculator, a theme that his present-day detractors also take up. But it is quite unrealistic to expect people to spend a good deal of time and effort promoting law reform in an area of which they know nothing and in which they have no business (in the broad sense). It is the rule, not the exception, for people to campaign for law reforms that will benefit a subsection of society to which they belong, or even themselves personally. Mason, thanks to his business, saw an area in which the law was regularly failing, and resolved to fix it. Seen in this light, the Association’s moneylender element was the vehicle for telling the public how to fix the problem in a manner that would be technically sound and would be satisfactory to moneylenders so that they would be able to lend money on the security of land without crippling transactional costs. As Mason put it, he and his colleagues started the move-

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ment for reform because they ‘had had so good an opportunity of seeing the difficulties, the expenses and the annoyances to which owners of real estate are subjected under the present system when a transfer is to be effected or a title proved.’78 In our own day, however, we have seen examples of the removal of apparently pointless and antiquated restrictions upon various forms of trade and commerce, such as lending by means of credit cards and other unsecured loans, which have been promptly followed by a rapid increase in the volume of the business concerned, aggressive competition for market share, and the consequent ruin of some people who might otherwise not have been exposed to temptation. The claim that a company, by making credit more cheaply available, is merely providing better facilities for something that everyone wants to do and is doing anyway – borrowing – is not a necessarily sufficient reason to acquit the company of acting in a manner that is detrimental to society’s best interests. That is because the restrictions on trading, irksome though they might be for the trader and would-be customers who would not be exposed to ruin as a result of the increased trade, also save some people from the abyss. This point occurred to people in the 1880s as well. Thus, when the Middlesex County Council was debating whether to sign the pro-Torrens petition in early 1885, which it eventually did after some hesitation, one council member, the barrister W.W. Fitzgerald, opposed the signing of the petition on the grounds that under the Torrens system, ‘a man could sign away his property from his wife and children and leave them penniless’ because it eliminated delay, which might save the improvident. The Canadian Law Times raised the same point, as we have seen, as did others.79 While the old system of conveyancing might sometimes have the salutary effect of preventing improvidence, the question is whether that beneficial side effect is purchased at too high a price. If we wished to design a system to protect people from possibly unwise borrowings, or to protect women from the possibility that their husbands might sell their homes without even consulting them, the old system of conveyancing would be a bad choice because it is not designed to achieve those aims. It would do so only haphazardly and by creating much pointless expense for people who need no protection, and constitute a disproportionate means of purchasing mere delay. It would also, conversely, leave some people unprotected even if they actually needed protection. For example, people with unarguably valid titles could eas.

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ily obtain mortgages no matter how badly they might spend the money, and women in the prairie provinces were not protected by the pre-Torrens law of dower if their husbands happened to have made wills. The rational solution is to introduce alternative protections targeted at the problem, not restrictions which fasten on some circumstance that has no rational connection to whether protection is required or not. In late nineteenth-century Canada, much of which was still being developed, facility of borrowing was not a question of mere convenience or of permitting further improvements in developed areas. The capacity to borrow against land quickly and cheaply was vitally necessary in order to finance the costs associated with settlement. If that were not possible, the land would remain undeveloped, or the borrower might be exposed to even greater evils. A member of the NorthWest Territories Council wrote to Ottawa in February 1884 suggesting that land grants should be made registrable more quickly under the old system (his letter had nothing to do with the Torrens agitation). If this were not done, he said, farmers would continue to be ‘unable to offer security on their land, during the hard times & with the low prices at present prevailing for produce, very many of the farmers have been obliged to borrow money for their immediate necessities at ruinously high rates – the usual rates being from 24 percent upwards.’80 Once it is understood that the alternative to a reliable system for proving ownership of land in order to enable borrowing against it was – for some people – the trip to the loan shark, then we can see that J.H. Mason was not in any way insulting the intelligence of his audience by claiming that the Torrens system would be of public benefit even though it might also increase the business of his (and his competitors’) companies. Rather, he was telling them something they already knew and saving some people from financial ruin at the hands of the loan shark. A related but different point was made, although not in very elegant English, by the Royal Commission of 1857 in England, which looked at the matter from the point of view of the legitimate alternative lenders to the banks. It has been well said that the greatest condemnation of the existing system of lending money on land is the reluctance which bankers, the natural traders in loans, have to lend on mortgage or judgment. The security which they refuse, careless trustees, ignorant people who have savings, and widows and others who have some small provision are advised to

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accept, and in this way the whole risk of bad security is thrown on the classes least able to bear it.81

This reminds us that the increase in the business of moneylenders under the Torrens system, while no doubt very welcome to them, would not necessarily have come at the expense of broader society. There is some reason to think that within limits, what was good for the reputable businesses engaged in moneylending, such as that led by J.H. Mason, could also be good for society as a whole. We can therefore acquit the moneylenders led by J.H. Mason of acting from pure, naked self-interest, unmotivated by or even opposed to the interests of society at large. They were in the happy position of many law reformers of advocating a change that would be good for themselves but also beneficial to the wider community of which they were a part. This is not to deny that some of those in favour of the Torrens system had a politically charged understanding of what the good of society involved. Sometimes views such as the following were expressed: In these days when communistic ideas are afloat, and principles are openly advocated which, in plain English, amount to nothing less than robbery under the form of law, the most useful counter-movement that can be inaugurated is that which will increase the facility with which land may be bought and sold. If land be placed on the footing of goods and chattels in point of facility of transfer, people will readily see that visionary schemes for robbing people of their land are about as honest as breaking into men’s homes and stealing their furniture would be.82

However, such trenchant views are infrequently encountered, and it would not be right to see them as the principal motivation of the Association. As far as I know J.H. Mason did not say anything even remotely similar until 1894, when, in a speech in Chicago, he mentioned the idea that anarchism and property ownership generally did not go together. Either serendipity or a very advanced sense of humour – I suspect the latter – led him, in the same speech, to speak of the introduction of the Torrens system almost in the same terms as a Marxist might use of the introduction of communism: ‘Sooner or later the suffering owners of the soil, hitherto dumb, will become aware of the fact now indisputable, that there is a remedy for the exactions and uncertainties they have so long and so patiently submitted to, and will arise in their might

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and sweep away the class interests and other impediments which block the way, not only to the adoption of a better system, but also to its most effective administration.’83 But the Torrens system was not really designed or adapted for such a world-historical task as putting a stop to socialism, and a man of J.H. Mason’s practical sense certainly knew that. The Torrens system admittedly did have some potential for extending property ownership in Canada. As the Association’s fourth annual report ungrammatically put it, ‘The facilities it [the Torrens system] affords to working men in acquiring a home for themselves is one of the most important results of the new system.’84 Thus a Torrens reform might conceivably have made some contribution towards social stability and increased society’s antipathy to revolutionary change by contributing to the creation of what later became known as a ‘propertyowning democracy,’ in which all or almost all members of society had a stake in the soil. However, this potential was very limited in Canada, not only because the likelihood of a communist revolution even without the Torrens system was not very high, but also because the circle of property owners was already quite wide. In Ontario, land ownership had been widely distributed from the very beginnings of the province. Although land ownership was never equal, a very wide degree of individual ownership of the soil had always been a key feature of the nascent corporate identity of the inhabitants of the province.85 In the newer provinces to Ontario’s west, the same pattern was unfolding as the Association began its activities. Thus a major argument for the Torrens system was, as we saw, that small holders such as farmers and working-class people who already owned land would be able to borrow against it – not that they would be enabled by the system’s introduction to own land for the first time. No doubt a sharp reduction in the transaction costs of buying land would have enlarged the circle of landowners, but as it was already quite large there was little traction in this argument, and advocacy concentrated instead on enabling existing landowners to borrow or sell and move if they wished. Generally speaking, Canada in the 1880s (and probably much earlier) was in the same position in this respect as was South Australia in the 1850s: the Torrens system could be made a popular cause in Canada, as we have seen the Association doing, precisely because the category of landowners or potential landowners embraced a wide cross-section of men in society (and growing numbers of women, too) except the very poor.86 The Torrens system’s introduction was thus readily supported by the

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Dominion Trades Congress (which was also lobbied by J.H. Mason) and the small farmers’ body, the grange association.87 Some people might see this broad support as springing from what Marxist doctrine would call false consciousness. It is preferable to see the support rather as a result of the attractiveness of prosperity. There is, I conclude, no good reason to think that the moneylenders who formed and joined the Association were seeking narrow sectional interests or trying to promote a change in the law which was not in the wellunderstood interest of society as a whole. Later History of the Association It is impossible to tell the story of the introduction of the Torrens system to Canada, other than British Columbia, without involving the Association at every step of the way, and I shall therefore postpone further recounting of its activities to the following chapters. Given the importance of the Association to this story, however, it is worth saying a few final things about its later history. Although stalwart members such as J.H. Mason, Beverley Jones, and George Holmested were in the Association from the start to the finish, its membership fluctuated. Further influential people joined its committee. Perhaps the most notable was William Gooderham, a representative of one of the richest and most influential families in nineteenthcentury Toronto.88 He was elected at the annual meetings for 1885, 1886, and 1887. The annual meeting of 1886 was still newsworthy enough, even after the adoption of the first Torrens act in Ontario, to merit a long report in the Mail.89 Gooderham’s name was alongside the names of more ordinary, run-of-the-mill new members such as R.H. Tomlinson and James Watson, both managers of moneylending companies. This infusion of new blood, even if it was not of a different type from the old, indicates that the Association continued to be a very active force in the community and membership attractive to businessmen – perhaps even something in which businessmen of more modest attainments took pride, as it was a form of community service and furthermore indicated their acceptance by the leaders of the business community. As late as 1898, R.H. Tomlinson referred to his membership in the committee of the Association as one of his achievements in his entry in the standard biographical reference work of the day.90 The Association had ceased operations by then, although it continued to be vigorous until well after its cause was apparently won by the

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enactment of the Torrens statutes for Ontario and the North-West Territories in 1885 and 1886, respectively. A need existed to keep an eye on the implementation of the system; in Ontario, where it took off very slowly and was available only in a restricted geographical area, agitation continued for its extension and improvement.91 An example of this agitation is an address to the electors of Ontario published by the Association in advance of the provincial election held on 28 December 1886. The Association’s address urged voters ‘to press upon the attention of all candidates the importance of giving their support to the extension of the Torrens system of land transfer to the whole of the province,’ for although Ontario had passed a Torrens Act in 1885, until its amendment early in 1887 the Act restricted the system’s area of operation geographically to the city of Toronto and County York. For the purpose of approving this address ‘a large and influential meeting’ of the Association’s committee took place, including such names as J.H. Mason (of course), William Gooderham, Goldwin Smith, and Holmested (who clearly considered this cause a non-partisan one and thus appropriate for his involvement, despite his position in the court service).92 Although long newspaper reports of the Association’s doings are rare after the one recording this event, there are reports of a large public meeting conducted in the Toronto City Hall in 1890. The meeting was chaired by the mayor, addressed by Mason and Holmested, and commemorated in a forty-page booklet published, no doubt for propaganda purposes, in 1890. Shortly thereafter the annual meeting for 1890 was held, and its proceedings also received some considerable newspaper publicity.93 The public meeting in 1890 in Toronto City Hall seems to have been the last great public function put on by the Association, but there are records of activities in 1891 and 1892, when J.H. Mason, as president of the Association, read a paper on the Torrens system at the Central Farmers’ Institute in aid of the cause of extending the operation of the Torrens system within Ontario.94 But by 1894, while Mason was still promoting the Torrens cause by personal appearances and speeches, his comments on the Association take on the flavour of a reference to a historical rather than a present fact.95 However, the Association seems never to have been formally dissolved, and in 1907 and 1911 Beverley Jones still affected the title of secretary when writing about the Torrens system. But this was surely nothing more than reminiscence. Yet Jones probably thought that the Association’s services to the cause of law reform in half of Canada amply justified such a memorial. He was right.96

6 Ontario

English or Australian Model? It has become the received opinion that Ontario’s version of the system of title to land by registration (commonly called there the ‘land titles’ or Torrens system) was based on the English system of registration rather than the Australian one.1 It is not surprising that this opinion should have taken hold given that the marginal notes to the original statute, the Land Titles Act 1885 (Ont.), refer repeatedly to provisions of the Land Transfer Act 1875 (U.K.), and that there are many obvious similarities in the drafting. Even so, this hardly represents the whole story: there are scattered among the marginal notes occasional references to Australian statutes and even to D’Alton McCarthy’s bill for the North-West Territories introduced in 1883. And for some reason, the marginal notes to the Ontario Act of 1885 do not reveal what is obvious from reading its provisions alongside contemporary Australian statutes: namely, that its sections 105 and 106 setting up the assurance fund and providing for compensation from it to persons deprived of land were drafted on the model of Australian provisions. Even today there is a distinct similarity in wording (and effect) between section 57 of the Land Titles Act of Ontario and several provisions in Part 18 of South Australia’s Real Property Act 1886. Ontario’s statute thus drew upon multiple sources.2 Moreover, the discussion in the previous chapter has revealed that Australian models were of much greater significance in Ontario than

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the marginal notes of the original statute of 1885 reveal. While Ontario’s Act of 1885 was drafted primarily but by no means exclusively along English lines, the inspiration for the introduction of a system of title to land by registration in Ontario came almost exclusively from Australian models. That can be said even without reviewing the extent to which the English Act of 1875 was itself influenced by the Torrens systems in operation in Australia – although we know that the Lord Chancellor responsible for the 1875 English Act was at least aware of the Torrens system, for he was none other than our old friend Lord Cairns, the English conduit for the first importation of the Torrens system into what is now Canada. The Australian example was more important than the English one in the campaign for the introduction of the Torrens system to Ontario simply because it was necessary to show that the system worked somewhere, and given the lack of success of land registration in England to this point, Australia was the only jurisdiction of significance with a long experience of a working system of title by registration encompassing significant numbers of land parcels.3 But it was not only the inspiration for adopting the scheme that came from its success in Australia. The principles behind the system were also more or less taken over from the Australian system. As we have seen in the previous chapter, the agitation sparked by the Canada Land Law Amendment Association, which was the cause of the system’s successful introduction in Ontario, was based upon the principles adopted by Torrens in Australia. The Association advocated a system in which the register would be the only means of obtaining title to land, making the effective step in land transfer an entry on a public register and ensuring that the register would show a complete and accurate picture of interests in land. Countless examples, beyond those cited in the previous chapter, exist of Canadian advocacy based on those principles as successfully implemented in Australia. Hardly any reference at all was made to the very limited English experience in the Association’s lobbying or the broader public debate. The importance of the Australian model was reflected in the speech of Ontario premier Oliver Mowat on introducing the bill which became the Land Titles Act 1885. After outlining the Torrens principles along classic and familiar lines, he had this to say in moving the second reading: [The Torrens system] was first introduced in South Australia by a gentleman who thought there was no reason why the titles to land and their

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transfer should not be as simple as in the case of titles to shipping, and after discussing the subject thoroughly induced the Legislature to pass an Act. It is now introduced into every one of the Australasian colonies and there is no suggestion made that it does not work well and [it has] been a most beneficial Act, and we have the most satisfactory evidence because the system attracted attention in England likewise. Commissions were issued and were addressed to very able men – chancellors, Judges, lawyers and others – for taking evidence as to the work of this system in those colonies. We have the results of their investigations, from which it is perfectly manifest that the system has been a great success; that it has the effect of preventing frauds, of facilitating transfers, of removing uncertainty, of diminishing the expense. Finally an Act was passed in England which adapted all the main features of the Australasian system, and it is upon that Act that this Bill is founded … I have compared this English Act with the Acts of the colonies, and that comparison has satisfied me that it was much more scientifically and much more simply expressed than these colonial Acts were, and also that it contains some provisions which are desirable over theirs in other respects, and for that reason I thought it better to adopt it as the best.4

In other words, (South) Australia provided the idea and the inspiration, while England merely provided endorsement, a conduit, and sundry improvements in wording. Ontario’s statute was the most obvious product of the movement for land titles reform of the early 1880s, and given that the wording of Ontario’s statute was largely (although far from wholly) based on English models, it is understandable that some have been misled into thinking that Ontario adopted the English system in 1885 in preference to the Australian one. But if we consider that the statute is the culmination of a long process, and that the preceding steps in that process, without which no statute would have come to pass at all, were almost solely based on arguments from Australian precedents, it is easy to see why the outward appearance presented by the statute is deceptive. Introduction of the Torrens Principle As we saw in the previous chapter, the Canada Land Law Amendment Association’s campaign tapped into a huge unmet public demand for a better land titles system than Ontario’s old-style registration-of-deeds system of conveyancing, with the defects that were familiar to Ontario inhabitants. The Association’s campaign was so immediately success-

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ful at causing public demand for this improvement to manifest itself that politicians were more or less compelled to take action, lest they should be accused of disregarding the will of the people. In the midst of the deluge of petitions that descended upon the Legislature of Ontario in 1884, a motion was indeed moved by a member in favour of the immediate introduction of the Torrens system. On 10 March 1884, C.O.Z. Ermatinger, a thirty-three-year-old Conservative member of the Ontario Legislature and later a judge, moved for the adoption of the Torrens system, citing many of the arguments against the old system and in favour of the new one that are by now familiar. But just as he had to the Association’s deputation a few months earlier, Premier Mowat urged caution given that ‘the system was revolutionary so far as it related to transactions in property, and he thought it could not be introduced hastily or till the people were prepared for it’ – a sentiment that sounds somewhat odd in the mouth of a Liberal premier responding to a motion from the Conservative ranks, unless understood as a way of appealing to the Conservatives on their own territory, so to speak. Mowat mentioned that he had prepared a bill, mostly on the model of the English bill, but that it was unlikely to be introduced in the current session because he had not had time to discuss it with his colleagues. Ermatinger’s motion was therefore withdrawn and the topic postponed to the following session of the legislature – that is, for almost a year. Mowat added that he found it ‘quite remarkable that an important and extensive reform regarding the transfer of land should come from a new colony like Australia’5 – a statement that highlights the difference in perspective between Ontario and British Columbia relating to the comparative age of the Australian colonies. This was a matter of importance in Ontario because the Torrens system might be thought less suitable to an older province, as titles were likely to become more complicated with time, and thus harder to convert to a state-guaranteed system. Although this delay was disappointing for the advocates of the Torrens system, Mowat was not merely attempting to dismiss the subject with vague insincere promises of future action. While he honestly saw the Torrens system as a worthwhile reform in principle (he had said the same thing to the Association’s delegation in October 1883), Mowat was also correct to see the introduction of the Torrens system as a substantial change and to anticipate that it would meet with difficult obstacles. Mostly he judged these difficulties quite accurately, as experience would show in the first few decades of the Torrens system’s operation

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in Ontario. The obstacles included the difficulty of converting titles and providing a state guarantee of converted titles in an older province; the need for the public not only to petition for, but actually to use and above all to pay for the Torrens system; the difficulties of either centralizing all business in Toronto, which was a particular concern to Mowat, or paying for a series of regional registries; and general worries about the expense to the province in setting up a system that might be little used. It is also occasionally hinted that there were divisions in the Mowat Cabinet on the question, with some ministers strongly opposing the Torrens system despite the premier’s warm-to-lukewarm support for it.6 Mowat further perceived that lawyers were ‘apprehensive’ of the change, because it might lead to a loss of fees. But he rejected this as a reason for postponing action, as it was necessary for the public good to be served regardless of such considerations. He also thought that the lawyers’ fears were exaggerated, because the examination of titles to be brought under the Act would supply them with more than enough work.7 Perhaps not all lawyers were as venal as their detractors believed; for whatever reason or reasons, once the Torrens system had been introduced lawyers soon reconciled themselves to it. Only four years after its introduction the ‘great majority’ of the profession was ‘heartily’ in favour of the system, according to the Canada Law Journal, which kept a friendly eye on the system’s development.8 Although legislative action was postponed until 1885, the issue of conveyancing reform was kept before the public in the meantime by means such as a lively correspondence on the question in the columns of the Globe from March to May 1884, in which J.H. Mason took on a significant role and the ground was gone over yet again.9 This correspondence unearthed some who doubted the value of the Torrens system, but the majority was for it. When the Ontario Legislature resumed in 1885 the promise made in the debate on Ermatinger’s 1884 motion was redeemed, and the legislature passed the government’s Torrens bill – but it was a very limited one, geographically speaking. Section 2(1) of what became the Land Titles Act 1885 (Ont.) provided that it applied ‘to the City of Toronto and County of York only.’ The Act was not only limited in that way, but also inflexibly so: extensions of the Act’s geographical reach could occur only by amendment to the Act and not, for example, by executive decree embodied in a proclamation of the lieutenant-governor. In introducing the bill, Mowat stated that the Land Titles Act, as an experiment,

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was to be limited to Toronto and the County of York.10 Furthermore, even within that area the system was to be optional, even for newly patented lands. This decision deprived the Torrens system of its greatest natural source of customers and meant that it was bound to grow very slowly in Ontario, because bringing land under the Torrens system would be entirely dependent upon private willingness to incur expense today in order to save it tomorrow. An exchange in the provincial legislature with William Meredith, the leader of the Opposition – later Sir William Meredith, C.J.O. – suggests that the government, or at least some of those in it, felt stampeded by the petitioning campaign into taking possibly ill-considered action. Perhaps the Association would have done better to make less noise and concentrate more on convincing the real holders of power in Ontario. Hon. O. Mowat. — … We have had petitions from almost all the councils in the province in favour of that Act, but of course the system has not been thoroughly discussed. These petitions are owing to the fact that a very active organization has been formed, whose publications have been sent out in all quarters, but the sufficiency of the proposal has not been discussed. Mr Meredith. — The hon. gentleman has not faith in the society. Hon. O. Mowat. — I have the greatest possible faith. Here is the Act itself.11

The Act certainly indicated some faith, but perhaps not of the variety that moves mountains. In fact more faith was shown by the Conservative Opposition, or at least by its leader, Meredith, emphatically a progressive conservative whose main complaint on this occasion, as on some others, was that the government was not reforming the law quickly enough.12 It may also be, however, that the doubts within the government were not chiefly Premier Mowat’s: tellingly, he also referred to his lack of personal desire to limit the bill. This may have been a broad hint that divisions in Cabinet did in fact exist, and that this compromise of limiting the Act to a restricted jurisdiction was what they had produced. The compromise, if it was one, at least had the merit of obviating the need for special officers to be appointed and thus ensured that the experiment could be carried out at minimum cost to the province.13

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The only other statement of note in Mowat’s speech introducing the Torrens bill was that he was not entirely convinced of the need for a guarantee fund, as there was not one in England, but had decided ‘on the whole’ to depart from it in this respect and follow the Australian model. On moving the second reading, on 19 March, Mowat referred to the fact that the assurance funds in the Australasian colonies had generally been over-supplied with money, no doubt the reason for his doubts about whether such a fund was necessary at all. That he resolved them in favour of the Australasian model rather than the English solution is the most noticeable feature of the Act itself showing the importance of Australian influence. The Opposition made the further suggestion that dower should be abolished. But Mowat said flatly that he ‘did not approve of the abolition of dower,’ and that was pretty much the end of that branch of the Association’s campaign in Ontario.14 Section 22(7) of the Land Titles Act 1885 (Ont.) preserved rights to dower and curtesy even if not shown on the register. In fact, curtesy was not formally abolished in Ontario until 1977, and dower not until the following year – over half a century after their abolition even in England paved the way for a more modern means of regulating matrimonial property interests. Until their abolition in Ontario they prevailed, even if unregistered, over registered interests.15 Slow Beginnings Once the Land Titles Act had passed and the Torrens system became available to the public, it got off to rather a slow start, not surprising given that it was both limited in geographical extent and even within that area compulsory for no one. In its first six months the registry attracted only fifty-three applications. A year later the total was only 102 applications, although many of those were for large blocks of land of significant value which were furthermore to be subdivided into allotments.16 Beverley Jones, for example, had brought a tract of 290 new allotments under the Act just after Christmas 1885, and in a communication to the House of Assembly of New Brunswick in March 1886, which was considering the introduction of the system in that province, he mentioned that there were many similar cases.17 But even the Canada Land Law Amendment Association, at its annual general meeting on 24 April 1886, could not hide its disappointment at the small number of applications. This slow start was not due to any unduly high barriers in the legal

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requirements for obtaining a title, which if anything were slightly more generous than under Torrens’s original scheme of 1858. Drafted on the model of the English Land Transfer Act 1875, the system adopted in Ontario involved merely a decision by the Master of Titles on documents provided by the applicant, with a possible reference of disputed questions to the High Court. There were numerous other barriers, however. First and foremost, Ontario’s registration-of-deeds system was, within the limitations of its type, an efficient and well-administered system. It had been considerably improved in 1865 by the organization of its contents by land parcels rather than by the names of the persons lodging documents, making searches easier and thus both reducing cost and increasing certainty.18 It was still no ‘hospital,’ unlike the Torrens system, but for the general run of cases it was quite serviceable. There was also an optional extra procedure for increasing certainty, the Quieting Titles Act of 1865.19 This statute, rather like some earlier British legislation and an old Chancery procedure, permitted declarations to be made by courts to the effect that the title to a particular parcel of land was indeed vested in the claimant.20 There was admittedly one weakness in the Quieting Titles Act which made it inferior to the Torrens system: after the declaration was made, the transfer of land becomes subject to the general law, and as to all transactions taking place after the purchase the title is liable to become again involved in complications and embarrassments similar to those from which it was relieved … Permanent simplification of title and simplicity of transfer are not attained by the Act, and retrospective investigation of title becomes again necessary (though … not to the same extent as formerly).21

Despite their defects, these alternatives as well as plain inertia deterred possible applicants from incurring the once-off but higher expense of bringing their titles under the Torrens system. They had less to gain by shifting from the old system than in places with less well-designed oldsystem registers. People also naturally tended to hope that they would not need the Torrens system, trusting that no difficulty would arise in relation to their own titles. The Canada Land Law Amendment Association also referred on other occasions to what it saw as the unduly cumbersome procedure for bringing land under the Act.22 Although any procedure was likely to be unduly cumbersome from the Association’s point of view, there seems, however, to have been some basis for these

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complaints. When J.G. Scott, Q.C. , the first Master of Titles for Ontario, retired in 1921 after thirty-five years in the job, the Canada Law Journal, despite the nature of the occasion, referred to the fact that ‘some practitioners might think him unduly careful,’ suggesting another wellknown and clearly long-lasting source of vexation and expense for would-be holders of a Torrens title. Occasionally there are other hints that this problem did indeed exist.23 The chief effect of undue caution was to save claims on the assurance fund. By 1908 the fund had reached $80 000, or about $1.5 million in today’s money, while less than $2000 had been paid out in compensation.24 This suggests that perhaps a little less caution might not have been a bad thing. Cost was also a significant problem for the early Ontario Torrens system. Excessively large contributions to the assurance fund deterred people from applying.25 Moreover, applicants did not know the precise cost of obtaining a Torrens title in advance: the titles office was not authorized to provide an advance bill of costs until the extent of the difficulties in registering and the expenses in general (such as the contribution to the assurance fund) were known. Furthermore, many of the areas in which the Act applied were less well-off so that even a few dollars could be a significant expense for people, and unless an owner was about to sell land with an imperfect or doubtful old-system title there would be no immediate return upon the investment.26 The extent of this problem was indicated by a law clerk in the federal Department of the Interior, which was responsible for the Torrens system in the Territories. In a confidential memorandum he wrote that the cost of transferring land in Ontario was in fact so much higher under the Torrens system than under the old one that only persons with complicated titles would derive any benefit from the Act.27 But there was no intention to fix this problem. When complaints about the level of the fees were brought to Premier/Attorney General Mowat by a deputation from the Canadian Land Law Amendment Association in April 1887, his response was that the fees were, if anything, too low.28 When we add to all this the fact that as early as 1887 – the second year of the Torrens system’s operation in Ontario – there was a surplus of about $9000 in the Land Registry, we may suspect that the government was using the system more for the raising of revenue than for the improvement of land titles.29 There was an easy way of testing the government’s intentions. In 1887 a bill to enable the surplus money to be used for the purposes of extending the Torrens system was introduced by John Leys, a member of the Association’s executive – but it was not

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supported by the government and withdrawn. The Association itself petitioned the legislature to take action along similar lines in the following year, but without effect.30 Perhaps there was little that could be done. In 1890 the Master of Titles said that the fees did not cover the cost in many cases, and pointed out that where Torrens was used to transform poor titles into marketable ones, considerable expense was inevitable.31 The broader context of this is the complication of land titles that was inevitable in an older province. Although relatively few in number, those who used the Torrens system appeared very satisfied with it, and happy customers were good for publicity purposes. The hopes that the availability of a Torrens title would be a selling point also came true. As early as 1887, the possession of a Torrens title was already being cited in advertisements as a desirable feature of land for sale.32 Beverley Jones’s New Brunswick testimonial included praise by a client for the Torrens system, whom it had saved large amounts of money and time; it had permitted at least one transaction to proceed at very short notice which would have been abandoned under the old system for lack of time to carry out the necessary searches.33 The Association made similar claims in its annual report for 1887.34 By the following year ‘a very gratifying advance [had] been made in the amount of land brought under the Act,’ largely due to the addition of newly subdivided land to the system, and it became likely that the Land Titles Office would shortly cover its recurrent costs through fees received.35 This did indeed occur in the following year, 1889.36 However, any hopes of being able to promote the system by a reduction of fees were short-lived: a general downturn in land sales started to bite in 1891, and there was a deficit of over $1000 in operating costs for that year (although the assurance fund still had a balance of over $15 000).37 In his address at Toronto City Hall in 1890, just before the land bust of the nineties struck, J.H. Mason was able to boast of almost $10 million worth of land in Ontario under Torrens. The Torrens system, he added, had been a factor in the rapid expansion of Toronto: a variation on the theme, so often heard in newer areas, that the Torrens system would attract settlers. But all this activity came to a halt shortly afterwards as land prices plummeted. By 1892 the year’s new registrations were down to twenty; the average for 1886–90 had been almost fifty per year. In 1895 there were only eight applications to bring land under the Act during the whole year. In reporting this fact to the legislature, the Master of Titles provided a list of suggestions headed by a proposal to

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lower the fees. As he pointed out, the province could afford to take a short-term loss in the interests of extending a system that was for the public benefit. But most of the suggestions, including lowering the fees, would have required legislative action that was not taken.38 But by 1903 the land market had picked up again, and with it came a pleasing increase to 850 in the number of new registrants; that number included many old residents who had seen the light and were having their titles converted.39 Although it was pleasing that the Torrens system had not entirely ceased to attract customers and had been saved from complete oblivion, 850 new registrations was still a minuscule proportion of land parcels in the province. The Torrens system had failed to become the generally accepted system in most parts of Ontario. Beverley Jones, making another appearance in the Canadian Law Times, saw the Torrens system’s clients in this period as falling into two classes: subdividers of land, and those with doubtful titles for whom it was of significant benefit to go through the procedure of obtaining an indefeasible title.40 The system had sufficient critical mass to ensure that it would not be wholly abandoned in the province or entirely disappear from public view, but no one in Ontario could sensibly have refused to consider land for purchase that was not already under the Torrens system – this would have been the point of no return, so to speak, which, as we shall see, had been reached in Manitoba at about this time. The Torrens system was not being taken up by those with no particular immediate need for it. In 1907 the Globe returned to the question of conveyancing reform, an issue that was still outstanding in its view because the Torrens system had failed to bring relief to the public.41 The Globe did not say why this was so, but probably the chief reason it had in mind was the low take-up rate. By 1911, demand for new registrations was reported to be slow again, with people not registering in the hope that they would not need the increased security of the Torrens system and that some later owner would have to bear the expense.42 Clearly the system, like most luxuries, was very sensitive to changes in people’s income and in market needs; it was, in economic jargon, an example of a service for which there was a very elastic demand. From Morden, Manitoba, came a blunter, homelier view of the reasons for the slow progress of Torrens registration in Ontario. One A. McLeod, presumably of the firm of McLaren, McLeod and Black, barristers in Morden,43 contributed an article to the Canadian Law Times in 1909 in which he contrasted the efficiency of his local lands titles office at Morden with that at Winnipeg, which was ‘notorious as a resting

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place for political hacks and incompetents’ and ‘a discredit to the Torrens system.’44 The people of Ontario, however, were in another class again. Hostile to all simple solutions, they preferred complicated social, religious, commercial, educational, political, and legal conditions. And they were wedded to traditional solutions.45 If they ever really adopted it, they could probably ruin even the Torrens system by spoiling its beautiful simplicity. McLeod had asked legal friends in Ontario why the Torrens system was making such slow progress there, and they explain the dormant condition of the Torrens system in Ontario by pointing out that the expense is too great, that there is much delay, and that by the time one has satisfied all the requisitions on title that are made, he doesn’t need a Torrens title. They say that if they could get a Torrens title in Toronto … as we do in Morden, where we make an application one day and go back the next day for the certificate of title, everyone in Toronto would have Torrens titles. And then they go on and say things about the Toronto Land Titles Office not fit for publication. But that explanation doesn’t explain. Why do the people of Toronto put up with a circumlocution office of that kind, if they really want Torrens titles? The fact is that the Torrens-title-while-you-wait system is not wanted in Ontario; if it was wanted, the people would have it. The cause lies deep down in the conditions of life in the province [– this is a reference to the supposed love of Ontarians for complicated solutions and their respect for tradition –] and the non-user of the Torrens system is only one small indication of these conditions.46

If this analysis was right, it was not just the over-cautious approach of the Master of Titles that was to blame for the slow progress of the Torrens system, although McLeod’s article clearly also suggests that that was indeed a difficulty. That was but a symptom of the real problem, which went much deeper. Ontarians were simply temperamentally unsuited to the Torrens system. It was, in short, too good for them. Gradual Extension and Conquest of Ontario If we go back twenty years in time before this analysis and return to legal history as distinct from essays in mass psychology conducted by country lawyers, we can recall the earlier observation that the Canada Land Law Amendment Association’s efforts in the late 1880s were not

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merely devoted to suggesting improvements in the operation of the Torrens system where it existed. It was also the Association’s aim, battling against the obstacles just outlined by our commentator from Morden, to extend the system’s geographical reach within Ontario beyond the city of Toronto and York County. In this aim the Association, and pro-Torrens lobbyists more generally, after the effective end of the Association’s corporate existence some time in the early 1890s, had steady but only very slow success until the 1980s. In 1886, along familiar lines, the Association had organized petitions to the Ontario Legislature from the counties of Hastings, Welland, Perth, Lambton, Ottawa, and Wellington asking for extension of the system, and had introduced a petition itself seeking the extension of the system to the whole of Ontario. Bills were also introduced seeking its extension to the counties of Carleton and Perth.47 The bills got no further. The cynical view was that the government had refused to sponsor them simply because the Opposition had.48 The Torrens system clearly had considerable local support in the northwest. A local newspaper was supportive and called for the circulation of a petition to replace the old system, which it strikingly called ‘as verbose and reiterative as the geneology [sic] of a Jew, traced back to the days of Noah’s ark.’49 The newspaper was not deterred by the opposition it anticipated from the members of the legal profession in the legislature, and although it did not expressly say why, its reasoning was doubtless that pecuniary loss to the legal profession was proof that the system was a beneficial one. Its advocacy of the Torrens system for its district found support in the Toronto press on the grounds that the district was new and therefore the more easily brought under the Torrens system.50 A fortnight later, the Port Arthur newspaper printed an interview with the local member of the provincial legislature, in which he expressed his aim of attracting more settlers to the area and added his voice to the pro-Torrens clamour.51 We learn from this report that the pro-Torrens petition was already in circulation. On 13 February 1886, the newspaper called for the Torrens system to be extended to the district in the current session of the legislature. However, no action occurred until 1887, when two important statutes were passed. The first extended the Torrens system to Algoma, Thunder Bay (including Rainy River), Muskoka, Parry Sound, and Nipissing, and came into effect on 31 December 1887 with the Revised Statutes of that year.52 But the new Act did not merely effect an extension of the existing

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optional system. The Act required all new patents in the areas named to be forwarded to the local Master of Titles for registration.53 The government – still the Mowat government – had thus roused itself from its torpor, resolved any divisions that existed in Cabinet and decided that the initial trial of the Torrens system had shown that the system was working well enough that registration could be made practically compulsory for newly patented lands in the named districts, the first time that this occurred anywhere in Ontario. The result of this reasonably although not excessively prompt action is that in northwestern Ontario only the very few parcels of land patented before that date and not since brought under the Act are not Torrens land.54 The second statute from 1887 contained a new power to extend the system further if local councils made by-laws for that purpose. This in turn enlivened a power in the lieutenant-governor to extend the system to the council’s area by proclamation. Councils were required to supply the funding for all staff, offices, and equipment, including fire-proof vaults, which were then used by the provincial government for the registry office.55 When proposed in the provincial legislature, the bill for that second statute ran into objections on the part of Mr Meredith, for the Opposition, to the effect that it would probably remain a dead letter because it required the local council concerned to pay the expenses of the scheme without having any voice in how it was run or who was employed to run it.56 In fact, on the introduction of the bill for this scheme, Meredith provoked laughter in the House by stating that this scheme had been dreamt up ‘with a view to destroying instead of extending the system. Some enemy had done this’57 – a reference, perhaps, to the rumoured splits in Cabinet on the desirability of the Torrens system. Indeed, if one wished to design a plan for the slowest possible extension of the Torrens system in Ontario consistent with a show of support for the system (and leaving aside northwestern Ontario, in which it was about to become practically compulsory), it would be hard to design a better system than one which threw all the costs onto one level of government, if it chose to bear them, and left all the decisions to be taken by another. This solution is uncannily reminiscent of Sir Humphrey Appleby’s dictum that non-serious issues can safely be left in the hands of local authorities, whose incapacity to solve them can be relied upon.58 The niggardly nature of this apparent concession was obvious to observers at the time.59 If it were not for the other statute of 1887 relating to northwestern Ontario, it would indeed be hard to avoid the

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conclusion that the government was trying to sabotage the Torrens system. The most that could be said for this solution was that it did nothing to promote centralization of all work in Toronto, a possibility that Mowat claimed aroused strong feelings in other parts of the province.60 But as was shortly afterwards shown in Manitoba, a government that was really committed to the extension of the Torrens system could do much better than this while still avoiding undue centralization. Nevertheless, some councils did take up this scheme.61 But predictably enough the response rate remained low because of the cost to councils. The slow extensions of the Torrens system can be followed in the regular issues of the Revised Statutes from 1897. By that year Elgin County (including the city of St Thomas), and the district of Manitoulin had been added. J.H. Mason was thus able to boast that the system extended over more than half of the province.62 By 1914 the list was extended to include the city of Ottawa, the counties of Carleton and Ontario (the latter is now part of Durham Region), and all provisional judicial districts (that is, Sudbury, Temiskaming, and Kenora, in addition to the list given earlier of northwestern Ontario districts).63 There was now also a provision in the statute for ratepayers to petition for extension as well. In northwestern Ontario, where the Torrens system was now a serious competitor to the old system and on the way to becoming dominant, costs were kept down and the spectre of centralization avoided by uniting the old-system and Torrens offices in most places.64 In this Ontario was actually taking a leaf out of Manitoba’s book, for the same strategy had already proved a success in Manitoba. Despite a minor campaign by politicians and commercial bodies such as the Border Cities Real Estate Board and the Ontario Associated Boards of Trade and Chambers of Commerce to extend the Torrens system in the early 1920s, which met with initial interest on the part of the government but was not sustained, there were no further additions to the lists in the statutes after 1914 until 1960.65 In the Revised Statutes of that year, reflecting developments since 1950, Lincoln County (including St Catharine’s), Halton County, and the United Counties of Prescott and Russell were added to the list of Torrens areas. In 1970, only ten years later, in the last statutory list to appear before the task of designating the areas in which the Act applied was remitted to the regulation-maker, the list is a very long one: every provisional judicial district (as defined earlier); the counties of Bruce, Durham, Elgin, Essex, Halton, Hastings, Ontario, Oxford, Peel, Simcoe, and

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Wentworth; the registry division of the west riding of Middlesex County and the city of London; the United Counties of Prescott and Russell; the judicial districts of Niagara North, Niagara South, OttawaCarleton, and York; and such other parts of the province as might be designated by the lieutenant-governor. This explosion was the result of enthusiastic political support for the extension of the Torrens system and a campaign by the provincial director of titles.66 Under the regulations in force in 2006, the list of areas in which the Torrens system applies is even longer: there are now over fifty designated areas.67 This in no way means that all land in the counties, districts, ridings, and cities mentioned in the regulations is under the Torrens system. The list simply identifies the areas in which it is available and says nothing about the percentage of properties which are actually held under Torrens title. But with the exception of the period from 1914 to 1950/60, there was a steady growth of availability testifying to a steady demand, and even in the period mentioned ground was held and there was no decline in geographical coverage. The number of parcels of land under the system grew gradually, too. A message from Ontario read at the Torrens system’s centenary banquet in Adelaide in July 1958 indicated that many subdividers still insisted on Torrens titles for their subdivisions.68 It was the computer age that made the difference and led to the system’s really taking off after that final statutory list of 1970. In 1971, after eighty-six years of Torrens, 85 per cent of the parcels in Ontario were under the old system and about 15 per cent were Torrens, with the latter ‘very slowly gaining land’ as it had been doing for the past fifty years.69 At the rate of 15 per cent of land every ninety years or so, the Torrens system would have taken about another five centuries to become generally adopted in Ontario, and if exactly the same rate of progress were kept up as for the period from 1885 to 1971 the last oldsystem title could have been expected to disappear in the year 2458. But in its landmark report of 1971, the Ontario Law Reform Commission recommended the adoption of the Torrens system as ‘the sole system for land registration in Ontario’ for all the usual reasons connected with its superiority over the old system, plus the likelihood that it would be better adapted to coming technologies.70 By the 1980s the Torrens system was clearly the way of the future. It was greatly helped by the suitability to the computer age of a system that enables the ownership of land and any encumbrances on it to be readily and instantly discoverable anywhere at the touch of a button: the mirror principle

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works extremely well when the mirror is visible throughout the world because it is online. Furthermore, electronic transaction processing could be introduced and was more efficient under the Torrens system. By the mid-1980s, therefore, the Torrens system was being ‘constantly expanded,’ even in southern Ontario.71 A vigorous administrative program for the conversion of the province began. In 2006, the percentages of 1971 had been more than reversed, with almost 90 per cent of the parcels of land in the province under the Torrens system. These titles are often subject to qualifications, particularly in regard to the possibility that someone might have a better right to the land as a result of adverse possession.72 But time will take care of many such qualifications. In two decades Ontario has thus moved from an old-system province with some significant Torrens areas, mostly in its more remote corners, to a Torrens province with a few remaining old-system pockets. The conquest of the great province of Ontario by the Torrens system in the late twentieth century is surely its most significant one since its early victories in South Australia and its neighbouring colonies in the late 1850s and early 1860s. Some Concluding Thoughts At an election meeting in 1893, A.S. Hardy, shortly to succeed Mowat as premier and attorney general on the latter’s retirement, pointed out that since 1872 the government had among other good things established for the benefit of the people the following institutions: asylums at Hamilton, Orillia and Mimico; the Central Prison; School of Science and Mining; Industrial School; additional hospitals, refuges, orphanages, houses of industry, teachers’ institutes, schools of art and design, School of Pedagogy, Experimental Farm, Dairy School, Farmers’ Institute, Agricultural College, Factory Act, Torrens system, Bureau of Mines, national parks, etc.73

It is hard to imagine a more striking demonstration of the statement by Professor H.L.A. Hart, one of the twentieth century’s most influential legal philosophers, that there are some ‘laws which provide facilities or powers and say, “If you wish to do this, this is the way to do it.”’74 Here the Torrens system is treated in exactly the same way as any new facility that the state might be asked to provide for the benefit of those of its

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citizens who are interested in taking advantage of it, or even compelled to. This utilitarian perspective, however startling for lawyers when it is expressed as bluntly as Hardy did, is perhaps less startling for the layperson for whom law and lawyers are more of a necessary evil, or at best a means to an end, than a lovingly cherished and studied phenomenon. The layperson’s point of view is, moreover, admirably suited to a system such as the Torrens system, which was promoted as a streamlined modern system shorn of all medieval hocus-pocus and unnecessary complication – a utilitarian solution to a modern need. The idea that the Torrens system was an optional facility for those who were interested in it or needed it (except in northwestern Ontario), which the statement just quoted reflects, also indicates one basis of the government’s attitude to making it compulsory. This perspective was also the reason why the Torrens system grew so slowly in the first century of its existence in Ontario. Rather than being the result of any natural love of complication (as our commentator from Morden, Manitoba, speculated), the slow growth of the Torrens system in Ontario was merely the result of rational assessments of economic advantage on the part of those to whom the state offered this facility. Only once the state itself had adopted Torrens as in the interests of the whole polity, as occurred in Ontario in the 1980s, could it come into its own. Until then, it remained the preserve of private initiative, and the short-term utilitarian perspective often favoured staying with the old system and avoiding the expense and possible unpleasant discoveries consequent upon the process of investigation of title and conversion to the Torrens system. This was especially so given that the old system in Ontario was reasonably well designed and administered, so that the benefits to be obtained even from a smooth transition to a Torrens title were often not very high and the expense not justified. The early exceptions to this general approach – subdividers and persons with doubtful titles – prove the point, for these are people whose immediate financial interest lay in obtaining a Torrens title so that their properties could compete more efficiently or even at all on the market. The minimal coverage of Torrens titles in most of Ontario meant, however, that the general run of properties could still compete without a Torrens title. From the point of view of a rationally acting citizen of Ontario, other than in northwestern Ontario, the Torrens system was thus a service provided by the state which could be purchased if the need arose – if the cost of doing so outweighed the costs of not doing so – and which was otherwise to be treated as a luxury.

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The Torrens system came so late to Ontario (other than the new areas of northwestern Ontario) that it is lucky that it gained a foothold in the province at all. In older jurisdictions where land titles will as a rule have a greater likelihood of being complicated, it is more difficult for the state to give a guarantee of them. Ontario, when the Torrens system reached it, was older than any of the Australian colonies had been when they adopted the system. Furthermore, with the important exception of South Australia, the Australian colonies had been convict settlements, so that land sales had not featured greatly in their early history anyway. Until the Torrens system reached the Maritimes in the first years of the twenty-first century, Ontario was far and away the oldest province of Canada in which Torrens land could be found. Had the Torrens system come twenty or thirty years later to Ontario, after the beginnings of mass settlement in northwestern Ontario, it is less likely that it would ever have been established in sufficient strength for it to survive. For that reason the Canada Land Law Amendment Association chose a fortunate time for its advocacy, and even then it required forceful, persistent, and well-connected efforts on its part to have the system made available in Ontario. It is tempting to compare the adoption of the Torrens system in Ontario with its failure in the United States (where private near-universal title insurance commonly takes its place) and to speculate that something called ‘Canadian values’ is responsible for the difference. It is certainly noticeable that the Torrens system involves the provision of a guarantee of titles and a registry of them by the state, while under title insurance the first function and frequently also the second is carried out by private enterprise. Very occasionally one comes across attempts in the history of the Canadian Torrens system to create a sense of Canadian difference on this basis.75 Thus as part of the unsuccessful agitation in the 1920s for more Torrens in Ontario, a commission of inquiry reported that the Canadian Torrens system ‘is a source of pride to Canadians living near the international boundary’ and quoted a criminal lawyer from Minnesota as stating that it ‘is far better than the system we have,’ as a result of which his Canadian property was worth more than his American property, acre for acre.76 This sort of thing, and arguments that the Torrens system was more attuned to Canadian values, would be more convincing if the Torrens system had been adopted with alacrity by the citizens of Ontario, instead of grudgingly and strictly on a utilitarian needs basis, or until pushed into it by the provincial government. It is also the case that substantive differences of law unrelated to any obvious relevant difference

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in national values between Canada and the United States were significant causes of the lack of success of the Torrens system in the United States: the constitutional problems that bedevilled the Torrens system in many of the American states did not intervene in Canada. The difference between Canadian and American reception of the Torrens system may also have arisen because a group of moneylenders and lawyers got together at what was the eleventh hour for the Torrens system in Ontario and buttonholed the provincial government for so long that in order to shut them up, the government brought in a system which was just attractive enough that in Canada – unlike in the United States – it acquired just enough momentum to survive until the computer age. At that point the Torrens system became far more attractive because its inherent advantages over the registration-of-deeds system were greatly magnified by technology. But however much this difference may owe to unrelated or random factors, it is at least fitting that the Torrens system and the public sector should have been the solution developed in the largest province of Canada, despite the historical obstacles to doing so and in preference to the private-sector solutions that have either been chosen by or forced upon the Americans, by constitutional or other factors.

7 Saskatchewan, Alberta, and the North-West Territories

Historical Background The Prairies were purchased from the Hudson’s Bay Company and conferred on the infant Dominion of Canada in 1869. With the exception of the special case of Manitoba, created as a province in 1870 in the wake of the Métis rebellion of that year, the whole area remained under direct federal suzerainty until 1905, when the provinces of Saskatchewan and Alberta were created. In 1885 and 1886, all three provinces (or provinces-to-be) received the Torrens system. This chapter is about how Saskatchewan and Alberta did so jointly by federal legislation – as part of the North-West Territories – in 1886. What remained of the Canadian federal territories after 1905 also shares the same inheritance, and so this is the story of the present-day Northwest Territories, the Yukon, and Nunavut as well. In the remainder of this chapter, I shall often use ‘the Territories’ to mean the enormous area encompassed by the North-West Territories in 1886, including therefore what are now Saskatchewan, Alberta, the presentday Northwest Territories, the Yukon, and Nunavut. The Canada Land Law Amendment Association had as one of its principal objects the introduction of the Torrens system into the Territories. In the Territories an old-style, pre-Torrens system of registration had been established on the Ontario model. Under this system, the registrar was required to accept for registration all deeds apparently

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affecting interests in land without any determination of, or addition to, their effectiveness.1 This was a standard old-style registration-of-deeds system that recorded, concealed, and perpetuated problems rather than resolving them. In its endeavours to have the old system replaced by a Torrens system, the Canada Land Law Amendment Association had, in one crucial respect, a much easier task than in Ontario (other than northwestern Ontario): the Territories had not yet been opened up to large-scale settlement. Only about three hundred patents had been issued to the middle of 1884.2 It was therefore much easier to have the Torrens system’s state-run register and guarantee of title introduced there. There was far less danger of running into existing complicated titles. The Torrens system profited for another reason from the fact that the Territories were still to be exploited. As was repeatedly pointed out in the House of Commons, it was necessary to make the area as attractive as possible to settlers, and cheap and secure conveyancing was important in this cause.3 However, the Torrens agitators also ran into several small and two large obstacles in the struggle to introduce the system into the Territories – obstacles that did not exist elsewhere. The first of the large obstacles, which almost sank the entire project, was called Senator the Hon. Sir Alexander Campbell, Q.C. The second was the incompetence and cupidity of Thomas Alexander McLean, the registrar at Calgary. Introduction of the Torrens System The Torrens system for the Territories had a somewhat rocky road before its adoption as a government measure in 1886. Attempts in the late 1870s to have a Torrens system bill passed for the Territories were abortive, as we have seen.4 In 1883, D’Alton McCarthy’s bill appeared in the House of Commons. It was drafted by Beverley Jones and his brother H.C. Jones of the Canada Land Law Association, and proposed the introduction of the Torrens system in the Territories.5 At about the same time John A. Macdonald was asked in the House of Commons by Edward Blake whether he would sponsor the Torrens system for the Territories as a government measure. Prime Minister Macdonald’s response was that this topic would be considered by the minister of justice and by the government, but that he was ‘not at all sure, however, that the system which has been found to work well in Australia, where they have a peculiar population, and certain peculiarities due to the

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character of the country, and which do not exist here, can be well adopted here.’6 In 1883, as it turned out, the government did not decide to adopt the Torrens system either of its own motion or after D’Alton McCarthy’s bill for that purpose had been introduced. The government maintained its determined lethargy when the bill was re-introduced in early 1884, and McCarthy was absent and unable to pursue the matter personally.7 Shortly after the introduction of the bill of 1883, Edward Blake said that in his private lobbying of the prime minister on behalf of the Torrens system, Macdonald had not given any reason for his doubts about the applicability of the system in the Territories.8 It is hard to know quite what peculiarity Macdonald can have had in mind in the extract quoted above, in which he purported to give his reasons for not adopting the Torrens bill. It is not that Australia is without peculiarities; it is just that none seems especially relevant to the question at hand. Sometimes the competition between the British colonies for imperial attention, resources, settlers, and so on did lead to Canadian disparagement of Australia in internal political debate.9 Yet competition can inspire the adoption of useful ideas from one’s competitors, for otherwise one might be left behind, so that this factor explains little in this instance. Was the Prime Minister’s response an opportunistic sneer at the supposed convict origins of Australia? If so, the sneer was entirely misdirected, for no convict presence ever disgraced the South Australian soil on which the Torrens system was first conceived. But it is difficult to see what difference it would have made to the question under discussion even if South Australia, like all its Australian sisters, had originally been a convict colony. John A. Macdonald, furthermore, had a history of not treating the Torrens system seriously. His failure to take up the cause on regaining office in 1878, despite the availability of a recently drafted bill for that purpose, caused the Globe to reflect on his ‘ingenuity,’ ‘tact,’ and even ‘manliness.’10 The more conservative Toronto Week shared the liberal Globe’s view on this point, making the cause a cross-party one in the media of the day; but still the prime minister was unmoved.11 In his business career, which involved both land trading and lending, Macdonald must have come into contact with the defects of the old system of conveyancing, and others of a conservative temperament and lesser gifts saw the need for reform in the field.12 Beverley Jones’s facesaving explanation for the targets of his pro-Torrens propaganda was that delay had been caused federally, because the government had

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decided to wait for the Territories to have their own constitutions and legislatures so that they could do the deed themselves.13 This, however, was merely window dressing, and indeed when the Torrens system was eventually adopted in the Territories the federal government actually refused to devolve power over the topic to them. The real reason for the Prime Minister’s lack of interest in the Torrens system eventually leaked out: Sir Alexander Campbell, the minister of justice, was opposed to it, and the prime minister was taking his cue from his close political ally.14 Alexander Campbell was an ‘aloof man, contemptuous of the masses and somewhat scornful of popular politics’; his style was ‘cool, conscientious, conservative, legalistic, narrow, paternalistic and frugal.’15 Although Beverley Jones had attempted to convert him to the Torrens system in early 1883, Campbell was very sceptical of its worth – no doubt the more so because it was supported by a popular petitioning campaign.16 In private notes in early 1884 he cautioned John A. Macdonald against hurriedly changing the time-honoured inherited English system just because ‘a few enthusiasts have got hold of it [the Torrens system] and they have impressed Macpherson,’ the minister of the interior.17 For his part, David Macpherson argued to Macdonald that ‘the measure is really more an economic than a legal one.’18 This was an attempt to deprive the minister of justice of the last word on its desirability, but it was hard to overcome Campbell’s blockade given his close political relationship with the prime minister. Campbell’s opposition infuriated the ‘enthusiasts,’ as he had called them. One of them, H.C. Jones, resorted to abuse and wrote to Macdonald, stating, ‘I honour you for what you have done. I despise Sir Alexander Campbell for putting a stop to the best legal reform in the country!’ Jones warned that just as Sir Alexander had put a stop to the Torrens system, he ‘will put a stop to the Conservative Party having anything to do with the govt if you do not look out.’19 Campbell’s public line, which he expressed in a debate on the inevitable petition to the Senate from the Canada Land Law Amendment Association, was that he would carry out a ‘careful investigation’ of the merits of the Torrens system.20 And a close reading of his private notes to Macdonald reveals that he was at this stage not an incorrigible opponent of the system, as the ‘enthusiasts’ clearly thought, but rather someone yet to be convinced of its merits, and certainly not capable of being convinced by petitioning campaigns or enthusiasm alone. Fortunately for the Torrens system and the North-West Territories,

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Campbell redeemed his promises to study the Torrens system with an open mind late in 1884 and became convinced that it was a good thing.21 He claimed to have read everything available on the system, which was certainly a creditable effort for a busy minister, even given the smaller volume of legal literature in those days.22 A number of factors besides Campbell’s own reading clearly also helped. At the end of November 1884 his department provided him with a briefing note, based in part on information they had received from Adelaide about the costs of and revenue produced by the system, which stated that the Torrens system was by far preferable to the old system.23 Hugh Richardson – one of the stipendiary magistrates for the Territories, in which capacity he was shortly to preside at the trial of Louis Riel – also assisted in convincing Campbell of the merits of the Torrens system during Campbell’s conversion experience of late 1884. It is not known how Richardson had come into contact with the Torrens system, but Campbell had him brought down from the Territories in order to discuss the practicability of a Torrens registry in the Territories face to face, and was convinced by him that Torrens could work there.24 Richardson was a member ex officio of the Territories’ legislature, the NorthWest Territories Council, which was strongly in favour of Torrens.25 It was thus distinctly possible that the Council might legislate on the matter itself if Ottawa did not move, and this perhaps also assisted in winning over Campbell. Once Campbell had been convinced, the task of drawing up the initial draft bill was entrusted to Hugh Richardson, who handed in his work just before Christmas 1884. A final draft was completed within the following month, and on 30 January 1885 it was introduced in the Senate. On 23 February 1885 none other than Senator Sir Alexander Campbell moved the second reading for the bill for the Torrens system.26 By this stage Sir Alexander was clearly a convert. In late February 1885 he wrote to his son stating that the Torrens system was to be introduced in the North-West Territories; we do not have the original letter, but what his son wrote indicates that Sir Alexander had not, even in this private forum, expressed any reluctance to take this step.27 Shortly afterwards in debate in the Senate, Sir Alexander vigorously defended the Torrens system against attack in the Senate as ‘according to my judgment … a good system’, and added that the question is not what the loan societies desire; the question is what is the best thing to do for the people, and for the titles that exist in the North-

120 The Law of the Land West. It is not whether the loan companies desire this, or whether they do not desire it, that is the question before the House. That a certain society in Toronto, of which this gentleman, Mr Mason, is the president, have taken an active part in promoting this Bill is quite true; that it may facilitate their operations is also quite true; but these are not the motives that are actuating the government and the House. … [Is it not] the duty of the government to give the settlers [in the Territories] every facility to enable them to deal with their lands and promote settlement? Will it not promote settlement there if the people find that the transfer of land titles is easy, and they can acquire property without much expense? Will it not be a good thing to say to the people in England, ‘Go to the North-West, you will have good land there, and you will not have the difficulty that you have at home, you will be able to get a deed for your land without expense or delay’?28

The promotion of settlement in the North-West, in late-nineteenth-century Canada, was a trump card that always won an argument. By the following year, in a nice reversal of roles, ‘this gentleman, Mr Mason,’ in defending himself from charges of self-interest, was citing Alexander Campbell as one of the ‘earnest advocates’ of the Torrens system in order to show that it was not just being put forward by a group of selfinterested, money-hungry loan companies.29 Once Alexander Campbell had been converted, the bill for introducing the Torrens system in the North-West Territories enjoyed a relatively smooth passage through the Senate. The bill itself was an eclectic production. It included many borrowings from the then-current South Australian legislation, which was drawn upon very heavily – including for crucial provisions such as one stating that instruments were not to be effectual unless registered (s. 59), which in letter, spirit, and effect was strongly reminiscent of the very first Torrens statute, the Real Property Act [1858] of South Australia.30 There were a couple of sections from the statutes of New South Wales and a considerable number from D’Alton McCarthy’s bill; for example, machinery provisions relating to the division of the Territories into registration districts, which had no equivalents in the South Australian legislation. This was an obvious necessity in such a large territory, and indeed a settler in the Territories – or at least a person claiming to be such – wrote to the Ottawa Citizen in the middle of the debate in the Senate stating that the Torrens system could not work in the Territories because of the large distances involved.31 These provisions provided part of the answer to such concerns.

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There was also one clause each from the statutes of Newfoundland (the 1834 Chattels Real Act), Manitoba (that abolishing curtesy), and Lord Cairns’s Land Transfer Act 1875 (U.K.) (s. 92: ‘A purchaser for valuable consideration shall not be affected by the omission to send any notice by this Act directed to be given, or by the non-receipt thereof’).32 Finally, there were a few newly drafted sections relating to things such as the appointment of deputy registrars and the opening hours of registrars’ offices. In its 1885 debates, however, the Senate took exception to the adoption of the Chattels Real Act in the Territories, and Alexander Campbell withdrew the clauses concerned; but on a division the abolition of dower and curtesy was saved, after a strong defence by Sir Alexander.33 This (together with a similar decision made at about the same time in Manitoba) meant that all three prairie provinces inherited systems of property law that lacked protection for women’s interests afforded by the law of dower, and after the adoption of the Torrens system an ultimately successful campaign was started in all three provinces to restore that protection in a somewhat more modern form.34 A great deal of what the adoption of Newfoundland’s Chattels Real Act was meant to achieve was saved in 1885, as another clause was amended to state that land would always vest in the personal representative of a deceased person, like moveable property, rather than in the heir-at-law.35 Other than that, the amendments made in 1885 were of detail only. But time ran out for the consideration of the 1885 bill, and although it passed the Senate it received nothing more than a first reading in the House of Commons.36 However, the work of 1885 was not in vain, for it meant that the bill would receive a swift passage in 1886. A determined effort was made to get it through that year, and a select committee of the Commons considered the bill in detail. The select committee included convinced pro-Torrens members such as D’Alton McCarthy and David Mills, so the bill was sure of a favourable reception.37 Even the proposed section based upon Newfoundland’s Chattels Real Act was restored and made it to the statute book. In this connection the Senate was content with the somewhat less than exhaustive – or truthful – statement that Chattels Real Act was ‘the gist of the whole Bill, and it is essential to the carrying out of the principle of this legislation.’ No one pointed out that there was no exactly equivalent provision in the law of South Australia, for example.38 The resulting product became the Territories Real Property Act [1886] (Can.) when the Torrens bill for the Territories received royal assent on

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2 June 1886. The Act, and with it the Torrens system across the huge area embraced by the Territories, came into force on 1 January 1887. The Act required all future patents to be forwarded to the registrar and a Torrens title issued.39 This meant that the North-West Territories, in which to this point only a few hundred patents had been issued, would enjoy from the outset one of the ‘purest’ Torrens systems in the world, with very little contamination by old-system land titles.40 This being so, less depended upon the mechanism for bringing already patented land under the Act than in Ontario or South Australia. For what it was worth, the mechanism selected for the Territories, originating with the McCarthy bill, involved a judicial decision except in cases in which the applicant was the original grantee of the land and there was no other issue about title, or in which there were otherwise no doubts of the applicant’s good title. The aim of this unusual involvement of the judiciary appears to have been the minimization of opposition from the legal profession on the grounds that the final say should not be vested in an administrative officer.41 But in the North-West the arrangements for conversion were not very important, and the concession was easily made. Trouble in Paradise I: Early Problems with the Torrens System As late as 1907 the Department of the Interior claimed to have never received any complaints about the Torrens system, although it had been compulsory for over twenty years.42 It was correct to say that the Torrens system had largely been successful in the Territories, but it was nevertheless unrealistic to think that any new system, made obligatory over a huge area and entrusted to officials of various standards of competence, could be designed and administered in such a way that universal satisfaction would result and no defects would come to light. Dissatisfaction with the Territories Real Propery Act was expressed by a variety of persons, for a variety of reasons. There was the special case of the registrar at Calgary, who caused so much frustration that he deserves a section (the next one) all to himself. Here I deal with three less persistent and less difficult irritants: the Legislative Assembly of the North-West Territories (as the the Territories’ Legislative Council became in 1888), H.C. Jones, and users of the system. On the constitutional front, the Legislative Assembly became annoyed that it had no control over the system of land titles registration in its jurisdiction. This was because the Territories Real Property Act and

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its successor statute, the Land Titles Act 1894 (Can.), were federal legislation and thus beyond the Assembly’s powers to alter. Throughout the 1890s it complained to Ottawa of this gap in its powers.43 Its predecessor, the Council, had asked for federal legislation in the first place, but the Territories had had a full-scale Legislative Assembly since 1888, were looking forward to provincial status at least for their southernmost parts, and were eager to take responsibility for themselves in as many areas as possible. But the federal government did not act on these complaints, and it remained beyond the capacity of the local legislature to alter the Act until shortly after Saskatchewan and Alberta were created as provinces in 1905.44 This was a strangely intransigent attitude for the federal authorities to adopt: there was no reason to fear that the Legislative Assembly might have done something unacceptable to the Torrens system, and it had authority in many other areas. I have not found any explanation for this obstinacy, so I must assume it was simply due to a conviction that Ottawa knew best, coupled with inertia and perhaps also a desire to retain a useful source of government patronage. H.C. Jones of the Canada Land Law Amendment Association became annoyed for a different reason, but one that was very typical of Canada under John A. Macdonald. Jones felt that he had not received sufficient patronage from the government in recognition of his labours in drafting D’Alton McCarthy’s bill of 1883, which was used to a large extent as the basis of the government bill of 1885 and the Real Property Act of 1886. Jones had in fact already been paid $250 for his labours in drafting the bill, apparently at the instance of Alexander Campbell, and despite the fact that in his letter to John A. Macdonald in January 1885 seeking payment he had again taken the opportunity to abuse Campbell for not supporting the Torrens system when he, Campbell, had in fact just been converted to it and was about to act on the matter.45 But clearly Jones considered his payment insufficient, and he addressed a long and tedious series of petitions, letters, and memorials to various persons associated with the federal government in an attempt to have the government purchase gradually diminishing but always numerous copies of his manual (or ‘practical treatise,’ as he had called it) on the Torrens system at $5 each, about $100 in today’s money. His campaign started in 1885, even before his book had been published or the Torrens system had reached the statute book.46 I suspect that these letters, petitions, memorials, and so on had the same effect on the government officials of the day as they have on the researcher reading them 120 years later, namely a growing sense of irritation at the volume of

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correspondence. Perhaps Jones was reckoning with this effect and trusting that it would produce for him what has been elegantly referred to in the Australian Senate as ‘piss off money.’47 At first Jones mentioned a judgeship or the post of registrar general in the North-West as a suitable reward for himself but quickly abandoned this idea in order to concentrate on securing an order for several hundred copies of his book, an ambition which if realized would, after all, require no further work on his part and no tiresome change of address. He started off asking for an order of perhaps three hundred or four hundred copies; that is to say, an expenditure of about $30 000 or $40 000 in today’s values. But unfortunately for him there was a decree by the federal Privy Council from 1880 that prohibited orders for more than four copies of any book, so it was quite easy for these requests to be dismissed. Eventually Jones reduced his ‘bid’ to an order of two hundred, and then to fifty copies; he suggested all sorts of unlikely outlets for copies of his book, such as members of Parliament, justices of the peace in the Territories, and so on.48 On several occasions H.C. Jones wrote to John A. Macdonald personally, urging this claim in one form or another. By 1889 it had clearly occurred even to him that his persistence might be annoying the prime minister of Canada, and he apologized by stating, ‘You cannot think how I require money or I would not bother the govt,’ and by trying to cajole Macdonald by referring mysteriously to his ‘story of the “Jew, the thunderstorm and the pork.”’49 This last letter had some success and the government ordered an extra ten copies of the book, so that the result of Jones’s sustained campaign from 1885 to 1889 was that the federal government ordered a total of twenty-five books.50 Compared to this long-running campaign, users of the system were more easily satisfied. The most serious complaint about the Torrens system in the Territories was a familiar one: it was too expensive for those subjected to it. The Calgary Tribune suggested abolition of the assurance fund, as it was not required for the operation of the system, deterred improvements in land values, and also because ‘in Australia it was inserted in the Act to conciliate opponents when it was first introduced in Parliament. The insurance [sic] fund has been found to be a sort of stupid thing in Australia and there is no reason why we should copy that stupidity on the part of our antipodes.’51 Private parties occasionally raised the same complaint. One J.G. Gordon wrote from Moose Jaw to the federal minister of justice, pointing out that the fees were $25.10 on a property worth $500, and ‘we can’t call that a boon. It will

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create the utmost dissatisfaction and prohibit the transfer of property in these Territories.’52 In addition to the usual complaints about the cost of the system, various minor drafting defects in the legislation inevitably came to light and were pointed out by those affected by them. These were easily resolved, given that the Department of the Interior was committed to the basic Torrens principle and quite willing to promote amending legislation as needed in order to improve the system in detail. In 1889, for example, a prominent firm of barristers in Calgary wrote to the Department of Justice pointing out that the Reverend Oblate Fathers had registered their mission property under the 1886 Act despite doubts about whether this was lawful. These doubts arose, they said, because of the wording of section 120 referring to subdivision plans for ‘a town plot.’53 (The wording of the section was otherwise largely copied from the South Australian statute about plans of subdivisions, which as we saw in table 3.1 was also copied on Vancouver Island.) By 1892 work was in hand on amending legislation to remove such minor irritants, which (as had also occurred in early South Australia) turned into a full-scale consolidation and minor amendment exercise and became the Land Titles Act 1894.54 Among other things, the Act of 1894 resolved the question raised by the Reverend Oblate Fathers: section 121 of the Land Titles Act 1894 contained words confining the requirement for the lodgement of a plan to land for which a certificate of title had been granted, thus making it clear that it did not apply to first registrants. The 1894 Act also made important gestures towards reducing costs. It provided that no fees would be payable to the assurance fund for the first registration of unencumbered land.55 This, clearly, was a great boon to first registrants, particularly those whose patents were issued without encumbrances. For mortgagor first registrants, the contribution to the assurance fund could be added to the loan, in comparison with which it was likely to be a small expense indeed. Clearly the Torrens system was generally a success from the point of view of its users, and the Department of the Interior’s assessment of the success of the Torrens system with which I began this section was generally correct. The public comments and correspondence I have seen, whether from lawyers or laymen, advocated without exception the fine-tuning of the Act rather than fundamental change or repeal. This was so despite the fact that registration was compulsory and applied to several millions of dollars worth of land over an enormous and disparate area that included districts experiencing very rapid growth.56 But

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the Act’s success also depended on the quality of the officials appointed to administer it. Trouble in Paradise II: The Registrar at Calgary Thomas Alexander McLean (1824–96) was one of seven children of Archibald McLean, chief justice of the Court of Queen’s Bench for Upper Canada in the 1860s. Although a graduate of Osgoode Hall and admitted to practice as a lawyer in Ontario, McLean made his career chiefly as a political organizer. He was a life-long Conservative, a rousing platform speaker – and a friend of Sir John A. Macdonald.57 By 1884 he was tiring of life in Toronto and wished for a post in some quiet corner of Canada. For such people, the North-West Territories were a godsend.58 He applied for and received the post of registrar at Calgary under the old system, since the Torrens Act had not yet been passed. When it was passed, as a money-saving measure section 23 provided that on taking the oath of office and furnishing a fidelity bond, the existing registrars of deeds should become the registrars under the Torrens system. In this way McLean succeeded to the post virtually automatically. Clearly, McLean had little to no knowledge of his new area of work before his appointment in 1884. When writing to the Department of the Interior to ask when his salary would commence (and suggesting a suitably early time for this to occur), he took the opportunity to ask, ‘Can you give me any information as to what sort of place Calgary is?’59 Could he, for example, buy furniture there? His salary was $1200 per annum, but the legislation also provided that he might retain all the fees of his office if for two consecutive years they amounted to more than $1500.60 McLean therefore made it his personal mission to maximize the fees coming into his office, and once the Torrens system started operation on 1 January 1887 this ambition became a serious obstacle to its acceptance in what is now southern Alberta. He adopted various strategies to achieve his aim, such as insisting on a new certificate of title (and thus a new contribution to the assurance fund) with every transfer (against which practice the bar at Calgary petitioned) or alternatively, a new contribution with every document registered, a practice which a prominent legal firm reported caused ‘general disgust.’ There were also more general complaints of delays in completing the work because he was inefficient.61

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McLean regularly had to be directed to stop his fee-maximizing practices.62 At times he pursued them to the point of rendering himself a laughing stock. On one occasion, for example, he registered a transfer of a fee simple as an encumbrance on the existing fee simple in order to increase the fees payable and was rightly reprimanded for doing so by the Department of the Interior. He thereupon wrote a ‘private, personal’ letter to the head of the Department in order to have the decision reversed. The departmental head, however, referred the ‘private’ letter to the Department’s legal adviser and sent a devastatingly worded opinion to McLean: the legal adviser rightly called the view taken by McLean ‘absurd in the extreme,’ because a fee simple could not be subject to (encumbered by) another fee simple, an equal estate.63 In 1889 the long-hoped-for day dawned when McLean’s fees exceeded $1500 for two consecutive years. On his interpretation of the law, therefore, he was entitled to retain them. But the Department of the Interior took the view that the relevant provisions of the North-West Territories Act 1880 had in effect been repealed by the Territories Real Property Act [1886] because the latter made no such provision for Torrens registrars, but merely stated that they should be paid salaries voted by Parliament.64 The omission in the Torrens statute of any provision for payment by fees, historically well understood to be the opposite of the payment of officials by salary for which it did provide, was all the more significant because fees play a greater role in the Torrens system, owing to governmental investigation and guarantee of titles and transfers. This omission suggests that the drafters of the statute did not overlook the matter or leave it to be regulated by the rule set out in the earlier and very different statute of 1880, but had rather deliberately decided to pay the Torrens registrars by salary only. Thus the Department’s view of the law was correct. However, the converse position was also arguable, and needless to say McLean lost no time in writing to John A. Macdonald to argue it. He also wrote to the minister of justice, to the great irritation of the Department of the Interior.65 There is a huge amount of correspondence on this topic. The Department of the Interior eventually won this battle, and also took the earliest opportunity to have one further point clarified. When the Land Titles Act 1894 was passed, a special and unusual provision (section 23) indicated that the registrars ‘shall be attached to the Department of the Interior and be under the control of the Minister of the Interior.’ This was passed, as an internal memorandum explained, ‘in consequence of certain officers taking their own views of the law

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and hesitating to obey the orders of the Minister of Interior acting under the advice of the Minister of Justice.’66 Towards the end of 1890, McLean’s fidelity bond was cancelled by the guarantee company. Some of his office’s takings had not been properly banked, and this news had clearly reached the Guarantee Company of North America. Perhaps McLean was acting on his own interpretation of the law and just taking what in his view was rightfully his, although he never said that. Another problem for McLean that emerged at about the same time was that the attention of one J.H. Mason (president of the Canada Land Law Amendment Association) had been drawn to his incompetence, and it is easy to imagine the latter’s reaction to the fact that his system was not succeeding as well as it should have been because the officials running it were not capable. Even more galling for Mason must have been the news that one loan company had withdrawn its agency at Regina because of the slowness of the aged registrar there, one G.A. Montgomery.67 McLean and Montgomery had made a powerful enemy,68 but McLean was particularly vulnerable, being already in the Department of the Interior’s bad books because of his avarice. The cancellation of his bond provided an easy and convenient means of getting rid of him. All registrars were required to have a fidelity bond according to section 26 of the Act, so McLean could not continue without one. At the last minute, however, he managed to provide a bond – from his sister – and the takings were eventually banked in full.69 For the time being McLean also managed to survive the disapproval of J.H. Mason: the problem of inefficiencies and delays was solved by the provision of additional clerical assistance following a visit by the departmental inspector.70 Sir John A. Macdonald died in June 1891, and immediately the Department of the Interior began moves to remove McLean, citing the complaints made by J.H. Mason. Montgomery, the Regina registrar, was eventually compelled to retire at the age of seventy-five, but the moves against McLean were unsuccessful.71 The files do not reveal why, but McLean probably managed to pull strings elsewhere. Or perhaps (to traduce a play of about the same period) to lose two registrars would have made the Department look careless in its appointments. McLean was again suspended in July 1894 after the money went missing again, and this time it was not banked at all. McLean wrote a grovelling letter admitting to having learnt ‘a terrible lesson’ and in essence pleading not to be dismissed; it is clear that he had indeed misappropriated fees to the value of about $820, around $15 000 in today’s

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values. Yet again he managed to avoid dismissal, and after the Department told the guarantee company, no doubt through gritted teeth, that he had been reinstated ‘by the Minister’ his fidelity bond was even continued by the company.72 The minister of the interior at the time was T.M. Daly, a perfectly unexceptionable and reasonably competent but now forgotten politician of the day. As far as published biographical notes indicate, he had no particular reason to show kindness to McLean, but McLean was an old Conservative Party warhorse with many contacts: something was clearly going on behind the scenes here, and the files do not reveal precisely what it was. The best the Department of the Interior could do to remedy the situation was to provide McLean with a competent deputy officer, Lawrence Clarke, who ran the office capably until the burden on the public funds constituted by McLean’s existence was removed with his death on 28 November 1896, news of which was conveyed to the Department by telegram that same day.73 No official comment on these tidings is recorded in the files, but it is not difficult to imagine the private feelings of the civil servants in Ottawa. The Torrens System in Saskatchewan and Alberta after 1905 On becoming provinces in 1905, Saskatchewan and Alberta naturally seized the opportunity, so long denied to the North-West Territories, to bring the Torrens system under local legislation: the legislature of each province passed a Land Titles Act in 1906, which came into force when the federal legislation was repealed in early September of that year. There were some minor differences of detail but the Acts followed the federal parent very closely.74 Having thus adopted the Torrens system as part of their own provincial legal systems, the two new provinces had a further and even more agreeable task: dividing almost all the collected wealth of the Territories’ assurance fund between them. Most of the money in the fund had been raised from transactions in what was now Saskatchewan and Alberta, and in almost twenty years there had been only one claim against the fund.75 This was a case in 1895 resulting from the registrar’s omission to note a mortgage on a certificate of title, which cost the assurance fund $259.60 plus the costs of the action.76 In addition, the fees from the date of the grant of provincial status to the actual transfer of administration were passed on by the federal authorities to the new provinces.77

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The result was a very useful initial war chest for both provinces, distributed to them pursuant to special federal legislation which, naturally enough, also required them to accept the risk of any further claims against the assurance fund – something that they were quite willing to do in order to access the money. The federal government’s initial further claims to perpetual rights of free registration and free access to the records met with provincial opposition, however, and were abandoned.78 In the end, Saskatchewan received $125 621.12 (rather more than $2.25 million in today’s money), and it promptly transferred a considerable sum from the assurance fund to its general revenue account. Alberta’s share was $85 350.70 (about $1.5 million today).79 To this day, the Torrens system remains virtually the exclusive system for the registration of freehold land titles in Saskatchewan and Alberta. Within a few decades of its introduction, it was impossible to conceive of any other system on the Prairies; it had become a natural and irreplaceable part of the local legal scene.80 And even after more than a century and a half, numerous changes in both the content and the linguistic style of the law, and developments in technology undreamt of when the Torrens system was first designed, provisions such as section 25(1) of Saskatchewan’s Land Titles Act 2000 and section 53 of Alberta’s Land Titles Act, which state that only registration can transfer interests in land and not private dealings between parties, are still clearly in their wording, spirit, and legal effect derived from the pioneering South Australian legislation of 1858.81

8 Manitoba

The Mission of June 1883 Before Manitoba was founded, the law of the Red River Colony, the Hudson Bay Company’s settlement based around Fort Garry (now Winnipeg), was that land could be transferred by oral agreement. The formal legal reason for this was that English legislation of 1677, the Statute of Frauds, which required transfers of land to be in writing, did not apply in the territories of the Hudson’s Bay Company, which had been incorporated seven years before the statute was passed.1 The basis for allowing land transfer by oral agreement in the society in which it operated was – as Mr Justice Albert Killam, one of the chief drafters of Manitoba’s Torrens title legislation, put it – that this was ‘a time when land seemed of little value, when possession was the all-important evidence of title, and when there was scarcely any knowledge of law or any attempt at administering law in the country, and when any such attempt was naturally of the rudest sort.’2 A written register of land transactions was kept by the Hudson’s Bay Company, but as well as being rather rudimentary its use was not even essential to the validity of a transfer.3 As fur trading, a peripatetic activity, slowly gave way to agriculture in the middle third of the nineteenth century, land ownership became more important in Manitoba’s economy. Furthermore, when Manitoba was created as a province on 15 July 1870, the past two hundred years

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of English law – from 1670 to 1870 – were introduced, so that land transactions were required to be in writing from that date.4 Beginning in 1870 several further factors united to create a need for the Torrens system in Manitoba. In the rough-and-ready conditions of the frontier, untrained conveyancers could cause legal chaos in Winnipeg just as much as they had in Adelaide and elsewhere. In 1881, in the middle of a land boom in Manitoba, the provincial legislature passed legislation to restrain the activities of unlicensed conveyancers, but it could not undo damage already done by them.5 In addition, the frantic trading in land during such booms often led to the cutting of corners and a resulting legal mess that only a Torrens system of registration could clean up and prevent from recurring. In the conditions prevailing in Winnipeg in 1881, legal niceties such as accurate conveyancing could easily be neglected in favour of making a quick profit. For twelve hectic months Winnipeg lived in a frenzy of speculation. Lots on Main Street were exchanged for higher prices than those then commanded on Michigan Avenue in Chicago. Auctioneers chanted day in, day out and far into the dusk on every street corner. The advertisements screamed out the fleeting opportunities to invest in the limitless future of the boundless west. All were drawn into the whirl – tradesmen, workmen, lawyers, ministers – buying lots on margin, on options and on agreements of sale, in mushroom subdivisions and bubble town sites.6

There were associated booms in rural areas as well, with similar problems. The end of the boom times in 1882 provided an opportunity for calmly surveying the legal mess (and assorted other messes) left behind in their wake. The abrupt ending of land speculation also provided another reason for reforming conveyancing law by an innovation such as the Torrens system. As land prices fell suddenly, buyers tried to find any available reason to withdraw from their contracts. Flimsy grounds for objecting to a seller’s title were put forward by buyers who had changed their minds and were searching for an escape clause from their contracts.7 The seller faced a choice between initiating a lawsuit to compel the buyer to take the land and looking for another buyer at a lower price – a Hobson’s choice that would not have existed at all if an adequate system of registration had made it impossible for buyers to urge frivolous grounds of objection from ulterior motives. On a broader front, Manitoba faced the same pressures as other new provinces to make itself an attractive place for settlement. Settlers had

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to be induced to go west to Manitoba, but not so far west that they ended up in what was to become Alberta or Saskatchewan. The need to attract settlers was felt particularly acutely in Manitoba on the part of those who saw its future as being a part of Anglophone Canada rather than as the joint inheritance of Ontario and Quebec, and who therefore felt a pressing need to ensure that the French-speaking, largely Roman Catholic Métis were outnumbered as rapidly as possible.8 By making land titles more secure it was hoped that the Torrens system would help to fill two further significant needs in early Manitoba, namely the need to attract capital and to reduce rates of interest by reducing the risk to which lenders were exposed.9 One of the earliest improvements made to Manitoba’s Torrens system reflected this by permitting certificates of title to be issued on receipt of a telegram from Ottawa that a patent had been granted: this was to ensure that loans could be granted under Torrens conditions with the patent, which was to the borrower’s benefit because it meant a lower rate of interest.10 The Canada Land Law Amendment Association had an equivalent in Manitoba: the Manitoba Land Law Amendment Association, founded in 1883. As its name suggests, it was formed very much on the Toronto model, and was the result of a missionary expedition led by Beverley Jones from Toronto in 1883 that included James Foy, later attorney general for Ontario, and other prominent lawyer-politicians of the day such as Alfred Boultbee. The initial impetus for the introduction of the Torrens system in Manitoba came from W.B. Scarth, managing director of the Canada North-West Land Company and a Conservative mover and shaker in early Winnipeg.11 Jones accompanied a number of locals to a meeting with Manitoba’s premier, John Norquay, on Saturday 9 June 1883, as part of a delegation that introduced Norquay’s government to the advantages of the Torrens system. The delegation presented an adaptation of an Australian Act, written by Jones and allegedly suitable for Manitoba. Although this event consisted of a delegation of lobbyists waiting upon the provincial government, in reality it was a public event at which newspaper reporters were present, much like a press conference today. Jones had spent the previous day lobbying the government in private, an undertaking which had clearly met with success.12 The function of the event on 9 June was to inform the public of the proposal, to demonstrate that it had the support of the government and of business interests, both local and from the east, and for Beverley Jones formally to present his draft bill for the introduction of the Torrens system. At this open meeting, local business interests, some with connections

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to the east, were prominent. The first speaker was C.S. Drummond, a leading light in the North-West Navigation Company.13 Local businessman and property magnate Robert Gerrie then took up the cause and explained that Winnipeg would not be ‘in the shape it was in today if the proposed Act had been in force’:14 much more land would have been traded because the Torrens system prevented buyers from backing out of contracts on pretexts. The government reacted very favourably to this presentation, as it had no doubt been agreed it would, and the premier indicated that he would be proud to have Torrens legislation associated with his government. The deputy attorney general ‘saw more necessity for the Bill here than there was perhaps anywhere else’ owing to the state of titles after the land boom, which had resulted in there being few good titles and few respectable legal firms that would undertake to assure potential purchasers of the validity of titles. While all were agreed that the bill could not be introduced immediately, and that time would be needed to draft a final version, have it accepted by the people, and have it considered by the legislature, it was clear that both the political and the administrative organs of the local government were in favour of it, as were many leaders of local commerce. Beverley Jones also left a number of pro-Torrens pamphlets with W.F. Luxton, the editor of the Manitoba Daily Free Press, who on the same day as the report of the meeting with the premier devoted a long article to the description of the system and to singing its praises. This was in fact seed cast onto fertile ground, because the newspaper had been advocating the Torrens system as early as August 1882.15 There is no indication how the newspaper had come across the system, but its information was fairly comprehensive: it published an accurate if brief summary of the system’s workings as well as mentioning the fact that it had also been introduced in British Columbia and New Zealand. As in South Australia thirty years earlier, therefore, the support of the press was thus assured early on, and in a small frontier society largely consisting of new arrivals the voice of the press was very important. The newspaper continued to note events such as the inaugural meeting of the Canada Land Law Amendment Association and use them as a platform for further advocacy of Torrens.16 It also printed a letter on the subject from one H.C. Jones of Ottawa. That practised advocate of the Torrens system cleverly integrated references to Canadian national and local pride, along with a reference to the Wayne Gretzky of his day, which he no doubt hoped would assure him of mass appeal:

Manitoba 135 The only way in which Canada has beaten the Australians yet is the production of [Ned] Hanlan [Canada’s world champion rower, who had recently beaten several Australian stars]. They are far ahead of both Canada and England in their registry laws. It is for Manitoba to show her wisdom and energy by adopting the Torrens system, and thus manifesting to her sister provinces, that if the last to enter the Confederation she is by no means the least, either in legislative ability or quickness in assimilating that which is good.17

The statement that Manitoba was the last province to enter the Confederation was, at best, poetic licence. Not only British Columbia but also Prince Edward Island had been forgotten or ignored. After Beverley Jones’s missionary journey and the delegation/press conference of June 1883, the newspaper became an even louder and more persistent advocate of the Torrens system, assuring it of favourable press as the debate on its merits continued. Unconsciously emulating the role of Anthony Forster thirty years earlier as editor of the Register in South Australia, W.F. Luxton devoted several further editorials in the Manitoba Daily Free Press in 1883 to singing the praises of the Torrens system.18 His view was finally that ‘no person of ordinary mental capacity can fail to see the immense advantages’ of the Torrens system19 – in other words, that anyone who disagreed with him was an idiot. As well as exercising these evident talents in advocacy, he also took the opportunity to publish further propaganda, such as a synopsis of J.H. Mason’s paper to the Canadian Institute on 1 December 1883.20 By mid-1883 the whole press of Manitoba had become a choir praising Torrens. The Winnipeg Daily Times expressed itself in favour of the proposal and avidly followed the progress of Beverley Jones’s expedition back east, no doubt concerned that they should bring back good reports of Manitoba.21 Also as a result of Jones’s journey and letters from advocates of the system, the business newspaper The Commercial changed its view on the Torrens system from one of mild scepticism to enthusiastic support.22 The Winnipeg Daily Sun beat all these rivals by locating one J.O. Jones, who had lived in South Australia for thirty-five years and was currently visiting Winnipeg in order to see his daughter and son-in-law. He gave the Torrens system a glowing reference as ‘a great boon’ that ‘aids business in every way, and facilitates the loaning of money’ – something that he too considered to be in the general interest, not merely that of moneylenders.23

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The Manitoba Land Law Amendment Association Yet by early July 1883, the Norquay government had decided that there would be no Torrens bill in that year’s session of the legislature. On 5 July Premier Norquay told the legislature that the legislative recess would be used to ask those familiar with the system for opinions of its workability, which was necessary because it was such a major change.24 Clearly the initial burst of enthusiasm attendant upon the visit of the Torontonian advocates had dissipated, and the extent of the change proposed, and of the drafting task involved, had begun to sink in. It must also be recalled that at this stage the Torrens system was unknown in Canada outside British Columbia, which was virtually a foreign country anyway, and the deputation in early June had told the premier that even the system in British Columbia ‘was in certain respects imperfect.’25 It is not surprising, therefore, that the government of a small and new province should have been hesitant about taking the first step, even if – or perhaps, especially because – it had been pushed on them by outsiders, however well qualified. Further research and consideration were definitely in order. We do not actually know what else the government did in order to find out how the Torrens system was working elsewhere. Any communications with the authorities in British Columbia or South Australia, for example, have not survived. Quite possibly there was none: as late as October 1884, a local lawyer suggested writing to British Columbia for further information about the operation of their system.26 He at least was unaware of any earlier communications. While Beverley Jones was still in Winnipeg, a public meeting was held on 20 June 1883 to form a ‘Manitoba Branch of the Canada Land Law Amendment Association.’ A committee was appointed to draft a constitution. When this had been done and the association was formed, on 28 September 1883, the name had been changed to ‘Manitoba Land Law Amendment Association.’ There was thus a vehicle for the longer and more sustained advocacy for the Torrens system, which was required now that the promise of a swift victory had dissipated.27 As in Toronto, the committee was an all-star cast of local business, legal, and intellectual leaders with some unsurprising connections to the east. The president was C.J. Brydges, land commissioner for the Hudson’s Bay Company and general manager or commissioner of various railways. As in the Toronto association, there were two vice-presidents: in Manitoba they were C.S. Drummond (mentioned above) and

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Duncan McArthur, a railway magnate and banker. The treasurer was J.H. Brock, general agent of the Canada Permanent Loan and Savings Company, J.H. Mason’s outfit. The Association’s secretary was F.B. Ross, whose day job was manager of the Western Canada Loan and Savings Co., and its corresponding secretary T.C.L. Armstrong, a local teacher and man of letters. The remaining directors were William Bathgate, a businessman and managing director of the local gas and electric lighting company; W.F. Luxton, editor of the Manitoba Daily Free Press; J.B. McKilligan, a land broker; Robert Gerrie, the property magnate encountered earlier; A.F. Eden, land commissioner of the Manitoba and North-Western Railway; A.G.B. Bannantyne, land agent and dealer; G.B. Spencer, one of the promoters of the Bank of Winnipeg; J.E. Steen, secretary and later president of the Winnipeg Board of Trade and publisher of the Commercial; and finally two lawyers, J.S. Ewart and A.C. Killam.28 Again we find a mixture of disinterested lawyers and men of letters with commercial men, very cannily leavened, in this case, by two representatives of the local press. The two lawyers were exceedingly well chosen. They were to become Manitoba’s most distinguished of the early twentieth century. Mr Justice Killam was elevated to the local bench in 1885, became chief justice of the Manitoba Court of Queen’s Bench in 1899, and then a justice of the Supreme Court of Canada, the first from the west, in 1903. J.S. Ewart, Q.C. never rose to quite such heights but was a very able barrister who was also successful in the east, and in addition published a number of works on the law that showed him to be a scholarly and original thinker.29 The newly formed Association was therefore a very able group, intellectually strong as well as commercially sound. Given such prominent support from within the local legal community, it comes as no surprise that the legal fraternity as a whole was in favour of the Association’s cause; this approbation extended even to Mr Justice Taylor of the local bench, although as a judge he could not take an active part in the campaign.30 It also causes no surprise, given factors such as power relationships in society at this time and whose interests were more immediately served by the attraction of immigrants and capital, that Métis Manitobans were not on the list; but in fairness it should be noted that A.G.B. Bannantyne, for example, had a Métis wife and had been sympathetic enough to Riel’s party to join his provisional government as postmaster-general in January 1870. One of the Association’s first actions was to appoint a lobbying committee consisting of C.J. Brydges, C.S. Drummond, J.S. Ewart, and

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T.C.L. Armstrong – again very well balanced occupationally. The committee’s task was to place pressure on the government to bring in a Torrens bill in 1884.31 A deputation was duly formed (with a somewhat different and wider membership) and met James Miller, attorney general for Manitoba, in April 1884, but heard from him that he doubted whether sufficient time remained to have the bill passed in 1884.32 This was despite the unsurprising view of the Free Press that the Torrens system should be introduced without any delay.33 Given its composition, it was also easy for the Manitoba Association to garner the support of the local Board of Trade: in March 1884 J.S. Ewart addressed the Board to promote the Torrens system, and the successful motion of the Board in its favour was moved and seconded by two of its number who also happened to be directors of the Association, G.B. Spencer and R.D. Bathgate.34 The Manitoba Association also sent petitions to local councils for their consideration: Beverley Jones had passed on tips for effective agitprop. But the Manitoba organization went beyond the Toronto method when it commissioned its own bill in order to speed up matters.35 It took as its basis Beverley Jones’s ‘rough draft,’ presumably the same as that presented at the meeting with Premier Norquay in June 1883.36 There was a precedent for the drafting of a Torrens bill by the equivalent lobbying organization in Ireland in 1864.37 The Manitoba lobbyists probably did not have access to the Irish bill itself, but it is possible that the Irish example was known to them in general terms; on the other hand, they might have taken the extra step independently. However that may be, the task of drafting the Manitoba bill, or of refining Jones’s, eventually devolved upon A.C. Killam.38 There were nevertheless some signs of waning enthusiasm quite early on. There was no dynamo in Winnipeg comparable to J.H. Mason, president of the Ontario Association. One local citizen was asking at the end of 1883 why ‘these Torrens system people’ were not stirring up more demand for the Torrens system by speaking to local councils, property owners’ associations, and so on.39 A March 1884 meeting of the Manitoba Land Law Amendment Association had to be adjourned for lack of a quorum.40 This would never have happened in J.H. Mason’s Toronto operation. But the Manitoba Association certainly still had enough momentum to send out petitions for signature, which was occurring by no later than early March 1884; some but not all councils returned them signed.41 On 18 March 1884 there was presented to the provincial legislature what a local newspaper, clearly unable to keep count, referred to as a ‘large number’ of such petitions; by early 1885

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over twenty councils had duly petitioned, and there were no petitions against.42 The government, however, remained unmoved by all these petitions, deputations, and press advocacy, and refused to sponsor the Torrens bill introduced in 1884 by A.C. Killam. Premier Norquay now said rather noncommittally that he had not had time to look into the details of the system and that the bill should be introduced in the following session. James Miller, the attorney general, expressed surprise that Killam had introduced the bill, given that he ‘had admitted that it was not in reality the Torrens system, but an adaptation; and that even he himself, its [the bill’s] promoter, had not been able to give it that careful consideration which it deserved.’43 Killam had stated at the deputation to the attorney general earlier in the same month that his bill, ‘although not identical with the one now in force in Australia, embraced all the good points appertaining to the Torrens land transfer Acts now in force in various parts of the world.’44 Apparently the fact that the new bill was a modified version of other Torrens statues was now held against it; such a peremptory dismissal of an intelligent adaptation by a leading local lawyer does not suggest an overwhelming degree of enthusiasm for the proposal it embodied. Killam was not entirely without supporters in the debate, for Joseph Martin thought it ‘was a pity’ that the bill could not pass this session. But Killam withdrew his bill, ‘in deference to the opinion of the House, and feeling the desirability of having this measure made as perfect as possible.’45 One thing that was worrying the attorney general was the cost of introducing the system, and whether it would pay its way or rather be a constant drain on the finances of the province. To the deputation that met him in April 1884 he estimated the total cost of setting up the system at $20 000, about half of which would have to be spent on buildings alone.46 The estimated cost was about 4 per cent of the province’s yearly budget at the time. In the first year alone of Torrens in Manitoba the province’s supplementary estimates included an item of $9000 for the introduction of the Torrens system, which was almost exactly 2 per cent of the provincial budget for the year.47 On proroguing the legislature in May 1885, just after the first Torrens Act for Manitoba had been passed, even the lieutenant-governor referred to the ‘considerable cost’ involved in the Torrens system.48 As it turned out, however, concern about cost was misplaced. The system was already breaking even by 1886–87, and it continued to do so throughout the rest of the 1880s and in 1890, even though more offices

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had to be opened and paid for in that period. By 1891 there was in addition $21 389.81, about the same as the estimated initial set-up costs, in the assurance fund alone.49 In 1892 – by which time, as we shall see, the fees had been reduced in order to ensure the acceptance of the system by the public – there was, unusually, a loss of about $1500 on operating expenses, but the assurance fund had reached the grand total of $34 184.71, about two-thirds of a million dollars in today’s money.50 However in 1884, before the passing of the bill, the precise cost of and return from the system were unknown quantities. Further lobbying in the legislature and the government and promotion of the system to the general public were required. Success James Miller, attorney general for Manitoba during the events of 1884, was the member of the Manitoba Legislative Assembly for the Varennes riding. This area was the subject of a dispute between Ontario and Manitoba until mid-1884. When the Privy Council awarded the area to Ontario, Miller lost his seat in the Legislative Assembly, and thus his office as attorney general.51 Therefore, 1885 started off unexpectedly for the advocates of the Torrens system with the naming of a new attorney general, Charles Hamilton.52 He obtained a seat in the legislature in a by-election against none other than W.F. Luxton in A.C. Killam’s old riding, Winnipeg South; the by-election was caused by Killam’s appointment to the judiciary. Unsurprisingly, the merits of the Torrens system were not in contest between Luxton and Hamilton.53 Within six months, James Miller was to be appointed as registrar general under Manitoba’s Real Property Act 1885, the Torrens statute for the province, and the first certificates of title were being issued under that system.54 This happened so quickly because the new attorney general was a Torrens believer. We do not know precisely when he saw the light, but he did recount his conversion experience: originally, Hamilton said, he had been against the system, ‘but when he came into closer contact with the measure, and examined it in all its details … he deemed that this was the best system of land transfer that had ever been devised.’55 In 1913, when Charles Hamilton was the British viceconsul in St Paul and returned to Winnipeg briefly, one of his principal boasts was his role in the introduction of the Torrens system, even after almost thirty years had passed.56 Other pressures assisted in the adoption of the new registry. The

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need to make good use of the strengths of the province was highlighted by the lost boundary dispute with Ontario, and one way of doing that was through the adoption of an efficient system of land titles that encouraged settlers. At the same time, the loss might also have caused a minor public relations problem: even though Manitoba had not entered the dispute with undue zeal, the defeat of a small new province by a large old wealthy one did generate some adverse feeling.57 At this stage in Manitoba’s history, even less than usual was to be gained by promoting a system to Manitobans from an omniscient headquarters in Toronto. It was lucky indeed that the Manitoba Land Law Amendment Association had chosen that name for itself. Once Hamilton had been appointed attorney general, the Manitoba Land Law Amendment Association lost little time in forming a large deputation to see him at another publicly reported meeting in order to urge the introduction of the Torrens system. They met Hamilton barely a month after his appointment, on 16 March 1885. Twenty-three persons constituted their delegation, and they included newcomers such as the estate agent W.G. Fonseca, assorted aldermen, and even Hamilton’s predecessor in office, James Miller, despite his previous lukewarm attitude to the Torrens system; perhaps he already had some inkling of who would be registrar general if the system were to be introduced. Fred Ross, manager of the Western Canada Loan and Savings Co. and leader of the deputation, alleged that the previous bill had been withdrawn on the understanding that it would be re-introduced as a government bill at the following session, and he thus sought merely the redemption of this alleged promise. He was supported in this claim by James Miller, so perhaps there was some truth in it despite the lack of any recorded statement to that effect at the time. The delegation was also able to point to the fact that twenty-five local councils had by now expressed themselves in favour of adopting the system. The upshot of the meeting was that a drafting committee was formed consisting of Justices Taylor and Killam, C.J. Brydges, W.B. Scarth – previously a vice-president of the Toronto-based Canada Land Law Amendment Association, he had now moved to Winnipeg – J.H. Brock, J.S. Ewart, and E.G. Conklin, MPP. The attorney general, for his part, assured them of the free use of his office for their purposes.58 The Association continued also to attempt to stir up popular enthusiasm for the Torrens system. Its cause received the support of the Farmers’ Union in January 1885.59 Petitions to the legislature numbered two dozen by the time the session of 1885 was underway. However, recol-

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lecting in 1889 the state of public sentiment at the time, Joseph Martin, by then attorney general for Manitoba, thought that by 1885 ‘public sentiment had not grown at all so far as could be judged by the expression of members of the House, in fact it almost seemed to have receded’60 – but, he added, the government nevertheless decided to proceed. This recollection suggests that the system was introduced largely because of a degree of belief and commitment to Torrens at the top – on the part of Attorney General Charles Hamilton. Hamilton’s wholehearted support certainly contrasts with the equivocal support of Ontario’s provincial government for its own Torrens statue. Hamilton introduced the bill that became the Real Property Act 1885 into the Legislature on 16 April 1885, only a month after he had met the lobbying delegation. Even considering the existence of previous drafts, the drafters must have worked fast; or perhaps again the delegation that appointed them was working to an agreed script that was mostly for public consumption, and work was quite advanced when it received its commission publicly. As befitted a new province on the frontier, Hamilton placed a lot of emphasis in his official justification of the bill on the increase in investment and the reduction in the costs of borrowing which could be expected from Torrens.61 A great deal was also made of the successful South Australian experience; virtually nothing was said about Ontario’s new Act, which had received royal assent just over a fortnight beforehand. However, just before the second-reading debate concluded there were presented to the House ‘the Bills in force [sic] in other provinces, with reports, and returns from their Attorney-Generals [sic]’ – probably this referred rather to the U.K. House of Commons paper of 1881, in which the existing legislation of the Australian colonies, New Zealand, and British Columbia had been collected.62 If Ontario’s legislation received as little mention as the newspaper reports of the debates suggest, no doubt this was partly because there was no successful experience under it, but it was also certainly due to some lingering bitterness as a result of the recently lost boundary dispute. As the debate continued, various members expressed their views. Of particular note is that of Thomas Greenway, next premier but one of the province, who was to be in office when the Torrens system faced a crisis of public support; in this debate he identified a general desire in the population for the bill, and hoped that it would pass unopposed. That is indeed what occurred at the second reading. Debate did however ensue on whether to refer the bill to the committee of the whole or to

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the select Committee on Law Amendments; the former course was decided upon, only Joseph Martin opposing it, ‘in order to expedite its passing.’63 The Committee devoted some time to the bill, its third reading occurred on 21 April, and it received royal assent on 2 May.64 Under section 2, it came into operation on 1 July 1885. Several sources were used as a basis for drafting the Manitoba legislation.65 Earlier writers have pointed out the similarity between the preamble to the colony of Victoria’s consolidation of its Torrens statute, the Transfer of Land Statute [1866], and that of Manitoba’s Real Property Act 1885;66 clearly, the former was available to the drafters of the latter and used by them. However, the interpretation section and the provisions abolishing dower and copying the Chattels Real Act are similar to those of the federal bill of 1885 that became the Territories Real Property Act 1886. Other obvious similarities between the two Canadian statutes exist, such as that between the provisions relating to the assurance fund, which are better organized internally than the Victorian statute’s and are also more logically grouped together under one heading. In this the Manitoba drafters were actually copying sections 124–32 of the Real Property Act 1861 (S.A.) as mediated through the federal statute.67 Again, there seems to be little borrowing from Ontario and thus little English influence even at the superficial level of drafting. In one point that was to become crucial, however, the drafters in Manitoba deviated from the federal plan and provided for only one registration office, in Winnipeg (although there was a facultative provision permitting further offices to be opened). In this the Real Property Act merely reflected the opinion of Beverley Jones and of the parent body in Toronto as a whole about the preferability of one central office.68 The preference for one central office rather than a series of district offices was based ultimately on practice in the Australian colonies and on the views of Robert Torrens himself.69 The two lobbying Associations (although not Torrens) might have been justly accused in this regard of preferring their own interests to those of the populace at large, for certainly one central office was beneficial to moneylenders and lawyers based close to the office concerned. Furthermore, they ignored the reasoned opinion of the Straits Settlements’ commissioner, W.E. Maxwell, in favour of an office in each district of a jurisdiction. While they might have argued that Manitoba was different from the Straits Settlements in several obvious and relevant respects, Maxwell also referred to the existence of several offices in New Zealand.70 Events showed Torrens wrong and Maxwell right on this point as far as

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the needs of Manitoba were concerned, and the single-office system was so inconvenient for the general public that it almost caused the collapse of Manitoba’s Torrens system. As in South Australia, and unlike in Ontario, the Torrens system in Manitoba was to be compulsory for newly granted lands, while land granted before it came into operation could be brought voluntarily under the system. Titles were to be granted in the latter case on the decision of the registrar general, who might adjudicate disputes personally or refer them to the courts.71 Failure? As it began its operations in Manitoba, the Torrens system appeared somewhat ill-starred. The Manitoba Law Journal published a mildly critical report on the statute’s drafting, although the anonymous writer – very possibly the journal’s editor, J.S. Ewart, Q.C. – was clearly not opposed to the principle: ‘On the whole we are prepared to welcome the new system, and to give it a fair trial.’72 Nevertheless, this was a surprisingly cool stance for a director of the Manitoba Land Law Amendment Association to adopt himself, or at least to permit to be published. On the ninth day of the Torrens system’s operation in Manitoba, the Winnipeg Daily Times, which to this point had given not the slightest hint of opposition to the Torrens system – it had, for example, duly lamented the death of Robert Torrens in the previous year73 – appeared with a far less friendly critique under the attention-grabbing headline: THE TORRENS SYSTEM An Iniquitous Measure with its Excessive Fees Justly Condemned A Costly Mode of Land Conveyance, Bunglingly Enacted74

This assessment turned out to be based on a conversation with ‘a wellknown member of the Bar’ who was currently grappling with the intricacies of the new legislation. Some of our anonymous lawyer’s discomfort was perhaps due to the irritation that practising lawyers sometimes feel when they find that the legislature has changed the law radically and effort has to be put into understanding completely new principles expressed in unfamiliar language. He expressly referred to the fact that the Act was opposed to ‘the old, well understood principles of conveyance,’ as if that assisted in

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demonstrating its iniquity. He also thought that the public would be ‘loath to part’ with the old law, a view which certainly greatly overestimated the public’s enthusiasm for the forms and rituals of pre-Torrens real property law and underestimated its exasperation at the expense, delay, and risk associated with them. Our lawyer further claimed to know that the Act had already meant that ‘several loan transactions could not be successfully completed.’ This seems unlikely given that there was no land under the Torrens system yet, but it could possibly have been true for any land patented in the four working days since the Real Property Act had come into operation. Perhaps, too, people needed a few days to work out what the Act said and meant, and this had held up transactions briefly even in situations in which the new legislation turned out not to affect them at all. Much of the criticism offered by the unnamed lawyer also concerned minor details, drafting points, or the extraneous provisions unrelated to the Torrens system proper, such as the Chattels Real Act. None of this was enough to justify a wholesale condemnation of the Real Property Act by any fair-minded person. However, opposition by the legal profession could cause serious problems for the operation of the Torrens system, as had been seen in South Australia in the late 1850s and early 1860s. Therefore this lawyer’s feeling, if shared by a significant sector of the legal profession in Manitoba, could not be dismissed as simply immaterial. And one complaint made by our lawyer was to become shared by the general public in Manitoba and to prove, in combination with other complaints, almost fatal to the Torrens system there: the scale of the fees. The final unforeseen difficulty for the Torrens system in Manitoba was that James Miller, attorney general turned registrar general, died in an accident only fifteen months into the Act’s operation, on 27 October 1886. He slipped while descending some stairs, and since he was a very heavy man and fell onto a marble floor he sustained injuries that caused his death.75 The tenure in office of his successor, L.W. Coutlée, was cut short through no fault of his – he had clashed with Joseph Martin, who did not quickly forgive him, and in a breathtaking display of malicious spite Martin took the opportunity to abolish Coutlée’s office on being appointed attorney general. The office of registrar general was revived in 1890, however, and passed to W.E. Macara, whose competent administration was for decades a real asset for the Torrens system in Manitoba.76 In April 1886 complaints that the cost of registering under the Tor-

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rens system was too high reached the Manitoba Daily Free Press. That paper, as we have seen, was in general favourably disposed towards the system. It was, however, far less favourably disposed towards the government then in office and opined that the Torrens system ‘is a good one, threatened to be ruined through governmental incompetency and official cupidity.’77 The paper also mentioned what it called a ‘fatal objection to the system as we have it in this province: the centralization which has been made part and parcel of it.’78 It suggested opening local offices that were empowered to conduct dealings. Commenting on this, the Daily Manitoban79 – a newspaper much more sympathetic to Norquay’s Conservative provincial government – thought that it was premature to discuss such suggestions until the system was more solidly established, as it surely would be given the converts it was winning among its former opponents, including some among the Free Press (i.e., Liberal) party. Either ignorantly or provocatively, it included the Free Press itself among the Torrens converts, prompting an outraged editorial in the latter pointing out that it had supported Torrens from the very beginning, if not earlier.80 Clearly, association with the Torrens system’s introduction was still a desired prize at this stage, and defects in its administration, its costs, and its centralization were kept separate from its intrinsic merits. The two newspapers had, however, put their finger directly on the two significant causes of dissatisfaction with the system: cost and centralization. The complaint that governmental fees and charges are too high is always easily made, like other usual boilerplate complaints such as undue leniency in criminal sentences. Such complaints are really inevitable, and clever governments, rather than simply defending the existing position, try to appear to do something about such gripes, even if there is nothing that can effectively be done and the complaints are not justified. Complaints about the fees in the Manitoba Torrens system were certainly not always justified. For original grantees the average fees were very low: in March 1886 the monthly average was only $6.84 (about $125 today), for example, although it was slightly higher in some other months. The average cost of bringing old-system properties under the Torrens system, at least in its first few months, was in the order of $15 to $25, plus lawyers’ fees.81 But not even a show of action was undertaken as a means of dispelling the complaints against the Torrens system in Manitoba in 1886. In the Legislative Assembly on 19 March, the attorney general merely stated in reply to such criticisms that $5.75 for a property valued at

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$1000 was hardly an excessive charge.82 Inevitably, he was swiftly contradicted: someone had paid $10 to register a property worth $1400.83 Perhaps the difference is explained by disbursements and lawyers’ fees. Lawyers’ overcharging, another perennial complaint, was also the target of public objections in this instance.84 To the public, it was all good money that had to be paid for a Torrens title, no matter to whom it was paid. Given the promises that had been made about the new millennium to be expected under the Torrens system, public expectations had been raised too high, and some people thought that the Torrens system would deliver perfectly secure titles at little to no expense. Furthermore, the first voluntary conversions were likely to involve more complicated titles whose owners had most to gain from having their titles perfected, which in turn would produce cases in which costs were quite high. However that may be, people continued to complain of (for example) a total governmental charge of $33.55 in order to have a property worth $250 registered, and in that case the person concerned had not employed a lawyer; in addition, he said, the process of obtaining a Torrens title had caused him a lot of trouble and inconvenience.85 He did not seem to realize that the trouble and inconvenience suffered might be connected to his refusal to employ a lawyer. The Free Press reminded the public that much of the expense, such as that associated with obtaining details of his chain of title, would also have been incurred if this individual had transferred his property under the old system. Now that the title had been brought under the Torrens system that expense would never be incurred again, whereas it would have arisen with every transfer of an interest in the property if it had continued under the old system.86 The cry for decentralization – although seemingly inconsistent with the call for lower fees, because more offices usually mean more expense – is less easily dismissed as a hardy perennial with no real justification. In this case there was also an attempt to turn the Association’s populist tactics back on its cause: a circular was written and sent out – it was not clear by whom – advocating improvements to the Torrens system, in particular decentralization.87 By 1888 the complaint of over-centralization was also being made by local councils.88 As a result of these complaints, a campaign sprang up to make the Torrens system optional, as it was in Ontario – although again, no one had the bad strategic sense to announce that fact very loudly in public, but it must have been known to some at least. Joseph Martin began this

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campaign as early as March 1886 with the expressed aim of improving the system by allowing the public to see its benefits for themselves, without the burden of compulsion; it was, he claimed, losing popularity because of its defects.89 Martin’s bill to make the system optional was lost in 1886; in 1887, it was re-introduced by a legislative member elected at the general elections of December 1886, John Kirchhoffer, later a senator. In a major debate on the optional bill, which took up virtually a day’s parliamentary time, Kirchhoffer expatiated on the inconvenience and delays caused to country dwellers by the need to conduct business with an office in Winnipeg and also thought that ‘in a free country like this, where all are grown up and old enough to know what is good for themselves,’ the system might safely be made optional.90 The bill to make the system optional was lost in 1887 by only one vote.91 In early 1888 the provincial government changed: the premier was now the Liberal Thomas Greenway, who had strongly supported the Torrens system in 1885.92 As a result of the dissatisfaction it had caused, however, his provincial government appears to have given at least fleeting consideration to abolishing the Torrens system as a failure and a mistake.93 We do not know how seriously that was considered or advocated. However, that course was not taken, and the ensuing debates on the future of the Torrens system in Manitoba were to show that the new premier at least was still a strong supporter of the system. Premier Greenway’s attorney general was Joseph Martin,94 and therefore the optional bill came up yet again. Interestingly, the government was not only split on the proposal, but also permitted the split to be publicly visible despite the usual rule of Cabinet solidarity: the case for keeping the system compulsory was led by the new premier himself against his own attorney general. But what was now the Norquay opposition supported the optional bill almost unanimously (also odd, given that the Norquay government had introduced the Torrens system and made it compulsory).95 In the legislative debate the old arguments were rehearsed, but this time the optional bill passed through the legislature by fourteen votes to twelve,96 and the Torrens system of registration became optional on 18 May 1888.97 Shortly afterwards, in the election of 11 July 1888, Kirchhoffer lost his riding of South Brandon when a local newspaper attacked him for not knowing the needs of the farmers he claimed to represent;98 perhaps his far-reaching claims of massive inconvenience and resulting resentment of the Torrens system in the country as a result of the lack of decentralized offices were exag-

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gerated, although other sources indicate that they were not entirely without foundation. At the end of the session in which the optional bill was passed, and just before the election, the legislature responded to accusations expressed in the debate on the optional bill and in the local press (still pro-Torrens) that the real agenda behind the moves to make the system optional was the destruction of the Torrens system.99 It did so by unanimously passing a motion referring to Torrens as ‘the most desirable and perfect system of registration’ and urging decentralization and the reduction of fees as a means of promoting it.100 Some indication that this was not mere cant is provided by a statute which received royal assent the next day and made improvements in the law that could only encourage voluntary registration.101 For example, section 5 of the new Act required proof of a safe holding title rather than a marketable title from would-be registrants, and section 8 expressly authorized registration to occur in reliance on evidence ‘whether the same is or is not receivable or sufficient in point of strict law or according to the practice of English conveyancers.’ One wonders why it was necessary to enact this latter rule expressly, and whether action on the contrary principle also lay behind some of the dissatisfaction with the Torrens system in Manitoba. Despite these indications of good faith on the part of the Legislative Assembly, once the optional bill had been assented to the Torrens system was compelled, in Manitoba as well as in Ontario, to compete on the free market for adherents. In Ontario, as we have seen, the voluntary principle meant that Torrens got off to a very slow start indeed there. In Ireland, it had led to the failure of the land registration statute of 1865, because there was no support base for the legislation in question in the community and so if it was voluntary no one took it up.102 It was to be otherwise in Manitoba. Success! Unlike in Ontario, and despite the dark accusations of anti-Torrens conspiracies during the debates on the optional bill, in Manitoba the government was very willing to promote the Torrens system as a provincebuilding exercise. Although optional, it flourished in Manitoba partly for that reason and partly because of its inherent superiority over the old system.103 Let us permit Joseph Martin, attorney general for Manitoba, to tell us

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the story in his own words, in a letter to J.H. Mason that was read at a meeting of the board of directors of the Canada Land Law Amendment Association in February 1890. The Real Property Act, introducing the Torrens system, was passed in this province in the year 1885 … In 1888 a change was made by which the system became entirely optional. In the meantime the merits of the system had become more or less known, and a very considerable amount of property was coming in from optional sources. In 1889 the statutes respecting this system, amendments having been made each session, were consolidated. The great expense in connection with the system up to that date had been the necessity of getting and paying for abstracts, searches, certificates and productions in the old registry offices. It therefore occurred to the government that it was necessary to make the system cheap in order that it should become at all popular. That has been accomplished by the provisions of the 1889 Act, under which the old registry offices are abolished. Torrens offices have been established in the city of Winnipeg, the city of Brandon, the town of Portage la Prairie and the village of Morden. Eventually all the territory in the province will be divided up between these four offices. The old registry offices have been abolished and the books, documents and papers transferred to the new offices. The result is that a transfer from the old system to the new has been made as cheap as possible. All that is now paid is the Torrens office charges, i.e., the assurance fund, which is one quarter of one per cent., except in the case of new patents, where it is one-tenth of one per cent., and the fee for receiving the application and issuing [the] certificate, which is not large. All the work of examining the title, making searches, getting certificates, etc., etc. under the old system is done for nothing. The result is that a man can transfer his title from the old system to the new, getting a clear certificate of title, cheaper than he could have his title examined under the old system by a competent lawyer ... The recent changes have tended to considerably popularise the system and it is hoped that sooner or later we will be able, without working undue hardships, to practically make the Torrens system compulsory. I may say that the merits of the new system are becoming very well known indeed throughout the province, especially with dealers in real estate, and it is now quite difficult to dispose of land unless a Torrens certificate is promised. The system meets with very strong approbation from the legal profession. It is the practice of nearly all lawyers in case any difficulty

Manitoba 151 turns up in connection with a title to strongly advise the bringing of the property under the Real Property Act.104

There is little that needs to be added to this accurate assessment of the position, which indicates how well thought through and ingenious the government’s response to the difficulties of administering the Torrens system in Manitoba was.105 In fact it managed to square the circle, decentralizing while at the same time reducing fees charged to the public and not imposing an excessive burden on the provincial revenue. The result was general satisfaction. The Manitoba Torrens system (version two) even received praise in French, from a section of the population that was the last from which praise for the Greenway government could be expected. Le Manitoba recorded that ‘le Torrens System introduit dernièrement s’adopte [sic] admirablement aux institutions et au caractère du pays.’106 The key to this remarkable success was the amalgamation of the old and the new registration offices into what today would be called a ‘onestop shop.’ This move both effected decentralization of the Torrens system and enabled the costs to be reduced by having the work of conversion of land from the old system ‘done for nothing’ (at no cost to the owner of the land) within one and the same office. In effect, the government shouldered much of the expense of conversion in the interests of the province as a whole, and it was obviously more efficient to have a bulk conversion process carried out by the civil service than for each individual aspirant for a Torrens title to employ his own lawyer. To enable this work to be done, each dual-system office was equipped with a district registrar, a deputy district registrar mostly responsible for the old system titles, and a number of clerks. In Winnipeg the establishment was somewhat more elaborate, and to the office’s eight clerks there were added a number of positions that existed only in the central office: an extra deputy district registrar for the Torrens system, three examiners of titles, a draughtsman, a stenographer, and an accountant. In 1891 there were seventeen employees in Winnipeg, ten in Portage la Prairie, five in Brandon, and four in Morden. Many of these officers were in fact formerly employed to administer the old system and had come from the offices abolished under the 1889 scheme.107 As we have already seen, even despite the reductions in fees and the extra work, the system continued to pay its way in most years, as was essential in a smaller province such as Manitoba. The consolidated statute to which Martin referred in his letter was

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the Real Property Act 1889.108 There is little that needs to be said about it as such, as the summary given by Joseph Martin is accurate enough in highlighting the main changes made – with one exception that I shall come to shortly. To a large extent the statute was a reconfiguration of previous Manitoba laws, and retained, for example, the improvements made in 1888 that lessened the burden upon applicants by requiring only a safe holding title and by extending the evidence admissible beyond that approved by English conveyancers.109 But instead of beginning, as did section 4 of the 1885 Act, with the words, ‘There shall be an office in Winnipeg,’ section 4 of the 1889 version provided for district offices at places to be appointed. That was the legislative expression of the most important change, and it has lasted from that day to the present one. The four offices mentioned by Joseph Martin still exist; only two further ones, at Neepawa and Dauphin, are now in existence. Three further offices at Virden, Carman, and Boissevain, all opened before 1913, have since been closed.110 Improvements in transport and communications that have occurred since, along with the conclusion of the process of converting the province to Torrens, explain these closures. The other major change under the 1889 Act received considerably less publicity. Newly patented land was again required to be registered as a matter of course. Given the immediate past stance of many legislators in the matter of compulsion, it is understandable that the Act was drafted to conceal that reality and that Joseph Martin did not draw attention to it. A formal legal declaration that the Torrens system was compulsory for newly patented land was not made until 15 February 1913. This caused no comment at the time, as it merely formalized the existing position.111 The reality of compulsion from 1889 was nevertheless another expression of the government’s commitment to bringing the whole province under the Torrens system. The 1889 statute provided that a certificate of title might be issued as a matter of course for newly patented land without even so much as an application by the grantee, and registrations under the old system were not allowed in areas in which a Torrens office existed.112 The effect of this is clear. Some people were not fooled at the time: a motion that the bill should be amended in order to keep registration voluntary was lost in the Legislative Assembly by five votes to twenty-nine;113 clearly decentralization made all the difference to the view of most legislators who had previously voted to make the system wholly optional. Manitoba also repealed its Quieting Titles Act [1884] (based on Ontario’s), ‘it being practically superseded by

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the Torrens system,’ as Joseph Martin explained in the legislature.114 There was to be only one system of land titles registration in Manitoba’s future, and that was the Torrens system. Like everything, the changes, while on the whole beneficial, had their disadvantages. ‘As one lawyer tersely put it, “It would be best to have but one central office, but we can’t do it”’115 – and the price was perhaps a certain degree of lack of uniformity in the administration of the system that irritated loan companies, although perhaps not as much as the simple fact that there was not one central office in the capital any more.116 But as long as the danger of a lack of uniformity was recognized, that alone would render it unlikely that a major problem would emerge. There was always (except for a brief period of about a year in 1889–90, when the office was left in abeyance after the Coutlée sacking) a registrar general in Winnipeg to ensure a sufficient degree of uniformity in the practice of the offices. Despite the terse opinion just reproduced, and the initial grave misgivings of ‘a well-known member of the bar’ mentioned earlier, it seems that, very importantly, Manitoban lawyers or at least those of their voices that have survived were also persuaded of the merits of the Torrens system and cooperated in its extension and improvement, and the local legal journal reflected this. As early as 1890 the Western Law Times noted with approval the government’s commitment to the ‘entire abolition of the old registration system,’ a stance that had ‘met with the distinct approval of the people.’117 In the following year the same journal, noting that there were now 7971 properties under the Torrens system, stated that the legal profession in Manitoba had given ‘hearty and generous support to the proposed reform’ and added (rather obliquely for today’s reader) that the old system was kept alive in certain parts of the province only by ‘the pernicious influence of local politicians.’118 The Torrens system made rapid progress in Manitoba thereafter. According to Mr McLeod of the Morden firm of McLaren, McLeod, and Black – encountered in chapter 6 proffering his blunt assessment of the reasons for the incapacity of Ontarians to adopt the Torrens system – the Torrens system was by 1909 ‘rapidly displacing the old system’ in Manitoba even though the fees (he thought) had been used as a means of revenue raising. In Manitoba, he added, there were ‘no two opinions as to the value of the Torrens system.’119 In 1911, Beverley Jones reported on a nostalgia-fuelled trip to Winnipeg that in Manitoba, ‘the Torrens system has almost entirely superseded the old system.’120 This was something of an exaggeration, for as late as 1958 about 85 per cent

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of the valuable land in the province was Torrens land. By the late 1980s the figure for non-Torrens land was down to 5 per cent of all farm land; the current estimate is less than 5 per cent of all land in the province.121 In such a situation, land not under the Torrens system is less marketable simply because people will find it preferable to own land under the simpler, cheaper, and more prevalent system. The mere need to explain the old system to potential purchasers will deter some.122 From very early in Manitoba’s history the Torrens system began to enjoy this hegemonic position. We have seen Joseph Martin refer to the difficulty of selling land without a Torrens title in his letter of 1890. Nine years later the same Joseph Martin, attorney general – but he had moved and was now attorney general for British Columbia123 – said that ‘no person would buy property in Manitoba now without the security of a Torrens title.’124 Although this was probably an exaggeration, it was not an exaggeration to state that such land was already at a disadvantage in the marketplace. A large number of contemporary advertisements mention the Torrens title of land for sale as an inducement to buy.125 Equally satisfactory for the government was the large amount of money collected by the assurance fund. There were no successful claims until 1894 and significant sums were regularly transferred from the fund to the government’s consolidated revenue.126 Until 2005 approximately $2.4 million had been collected for the fund, $211 829 paid out on 117 claims, and the rest (minus the standing balance of $125 000) had been made available for the purposes of the province.127

9 Quebec, the Maritimes, and Newfoundland and Labrador

By the end of the 1880s, a Torrens system of some form or other was established, more or less firmly, in what are now the five provinces and three territories to the northwest of Quebec. Had the Torrens system continued its march eastwards, its next conquest would have been Quebec. This province had inherited the old French law of real property, but had also had a land registry system of the old English chainof-title type since 1830. This system had been improved by means of an index to land parcels (not just the names of owners) and systematic maps in 1860, although there was still no concept of indefeasible titles guaranteed by the state, and the chain-of-title procedure continued to be necessary.1 There were isolated proposals to introduce some form of the Torrens system into Quebec at the same time as it was gaining its foothold in Ontario. In May 1887 a committee of the Montreal Board of Trade visited Ontario and on its return advocated the system’s introduction in Quebec.2 However, as even the incurably boosterish J.H. Mason was compelled to admit, there was no public movement in Quebec for the introduction of the Torrens system, and thus it was harder to convince legislators there to act than it was in provinces in which such a popular feeling existed, or could easily be created.3 The lack of popular demand existed even though improvements were needed in the law of conveyancing. The chain-of-title system had just as many defects in Quebec as it did elsewhere; land transactions in

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Quebec could therefore be ‘cumbrous, tedious, expensive and hazardous.’4 Even in France itself, at about the same time, a campaign was started by jurists in favour of the Torrens system, no doubt because they thought it would be a significant improvement on the existing system there.5 But the lack of a demand for reform in Quebec is easy to understand: as well as simple inertia, there was also a need to translate materials, deal with numerous important questions about how the Torrens system would fit into a civil-law environment, and combat a general lack of enthusiasm for legal imperialism from English Canada. To the extent that this lack of enthusiasm existed, it cannot have been reduced by the preponderance of Anglophones within the local commercial community and on bodies such as the Board of Trade committee that recommended the Torrens system for Quebec. Furthermore, in Quebec there was the same if not an even greater problem of expense and difficulty connected with converting old titles to Torrens as in Ontario: clean slates, as in northwestern Ontario and the prairie provinces, were much more promising fields for the Torrens system than was the cradle of European settlement in Canada. Finally, there was one significant respect in which Quebec was better off because of its inheritance of French law: notaries in Quebec were involved in most transactions relating to the sale of land, meaning that there was less room for sloppiness in conveyancing and also a more permanent record of transactions that had occurred, both of which were an improvement on the common law’s extreme laissez faire attitude. For all these reasons, ‘a root-and-branch displacement was out of the question.’6 This remains the case today, although objectively the Torrens system would represent a distinct improvement on the present law of Quebec.7 The new Civil Code of Quebec was recently shorn of its Torrensinspired provisions for land titles registration beyond the old chain-oftitle model because of the difficulties involved in bringing titles into a state that enables them to be guaranteed by the province – the standard difficulty in any long-settled province. As a result of this, a Quebec scholar of property law has recently concluded that ‘we are hanging on to a very inefficient system.’8 This phenomenon also means that a solid wall of non-Torrens territory has long divided and continues to divide the Maritimes from Ontario, even considering the fact that in Ontario the Torrens system was distinctly in the minority for almost all of the twentieth century. The Maritimes, as long-settled provinces, were also not the most fertile

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ground for Torrens. Nevertheless, most of the other reasons just given for the lack of enthusiasm for Torrens in Quebec did not apply to them, since the Maritime provinces were largely English-speaking and suffered under the same defective English law of conveyancing as applied in the rest of English Canada. The first faltering steps to introduce a Torrens system in the Maritimes – the beginning of a battle that was to last over a century – were taken in New Brunswick. By early 1886 the movement to introduce the Torrens system to the West had become known there. This was only to be expected given the degree of publicity the Torrens promoters were receiving and the fact that federal parliamentarians from New Brunswick had participated in debates about the introduction of the system to the North-West Territories by federal legislation. There were also some personal connections. A.A. Stockton – one of New Brunswick’s leading lawyers and a man of considerable distinction in both scholarship and the practice of the law – had received a recommendation of the Torrens system from a friend in Toronto. William Pugsley, also a legal member of the New Brunswick House of Assembly whose business interests included land trading in the Territories, moved for a committee of the Assembly to consider introducing the Torrens system in New Brunswick.9 The recommendation of the committee, consisting of Pugsley, Stockton, and a third member, W.A. Park, was that further action should be postponed until the operation of the system in Ontario could be observed with regard to the difficulties involved in introducing the Torrens system in a longer settled community.10 In 1914 another attempt at introducing a form of land registration was made in New Brunswick. However, Stockton had died in 1907, and Pugsley had moved to federal politics – he was to return to Fredericton only in 1917 as lieutenant-governor. The initial burst of enthusiasm for the Torrens system had thus dissipated, and what emerged in 1914 was not a version of the Torrens system. The statute – the Land Titles Act 1914 – was passed on the initiative of the Conservative attorney general J.G. Clarke, K.C. – at the time acting premier as well, and later in the year premier in his own right. The Act caused virtually no perceptible reaction in the legislature or the community.11 It was a very slim Act of forty-six sections that provided a mechanism for obtaining a binding determination of the ownership of land at particular points in time. There was no provision for keeping the state of the title up to date, for example by registering transfers of ownership, such as would exist in a version of the Torrens system. Although this was the first piece of leg-

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islation to provide a facility for obtaining a statutory title to land in the province, it was along very much the same lines as Ontario’s and Manitoba’s pre-Torrens Quieting Titles Acts. It shared their defects as a means of ensuring that title to land continued to be unimpeachable. The statute was never proclaimed nor even included in later consolidations of the provincial statutes.12 Quite possibly Clarke’s poor health and the degree of political opposition he faced even within his own party contributed to the feebleness of the statute and the inertia in setting its limited machinery in motion.13 The lack of compulsion to use its machinery along with the minimal gains from doing so meant that no demand for it from the public was to be expected. The 1914 Act was eventually repealed by section 85 of the province’s 1981 Land Titles Act without ever having come into force.14 The result of this inaction was that by the 1960s ‘the land administration in New Brunswick more closely resembled that of less developed nations than many existing systems in the Western world.’15 Nova Scotia underwent a similar process to that of New Brunswick. J.W. Longley, attorney general for the province and a ‘difficult, egotistical individual whose unattractive personality prevented his rising higher in politics,’ made an attempt to introduce a Torrens system in 1897.16 However, his Torrens bill was not even read a second time and the idea was abandoned because of strong, and hardly creditable, opposition from the legal profession: the Nova Scotia Barristers’ Society went so far as to pass a resolution against the bill.17 In 1904, however, a private member’s bill was introduced and succeeded, or rather made it onto the provincial statute books – as we shall shortly see, there was a great difference between enactment and success on the ground. The new bill was sponsored by B.F. Pearson, barrister, newspaper publisher, and above all a prominent and very successful local businessman (in fields other than moneylending). In 1908 he was president of the Nova Scotia Barristers’ Society, which had opposed the Torrens system in 1897.18 Pearson’s bill had been drafted by one of the local commissioners for statutory revision, on the model of the Massachusetts Torrens legislation. Pearson’s very long and erudite speech in the legislature suggests that he simply thought the Torrens system a better one and was anxious lest Nova Scotia should be left behind and overtaken as a desirable place for land investments by other jurisdictions, especially American states – for this was the era of expansion for the Torrens system in the United States. He made a special mention of the four American states

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with Torrens systems as well as various Continental locations with similar systems such as Vienna, Prague, Munich, and Saxony – although he did not include Hamburg, the supposed true source of the system according to some recent would-be historians.19 In addition to his considerable book learning, indicating a degree of serious study of the Torrens system, Pearson as a businessman clearly had dealings in land of considerable value – his public transport company, for example, needed land for offices, depots, and so on – and Pearson had doubtless noticed how difficult such transactions could become under the old system. Pearson’s bill passed and became the Land Titles Act 1904, ‘which,’ as another commentator has bluntly put it, ‘requires no further mention since it was a complete failure.’20 The Act was a dead letter in practice. It was a full-scale Torrens statute, but conversion was voluntary and the Act resulted in precisely no conversions of land to the Torrens system even though the facility it offered was made available in three counties, including Halifax.21 The failure of the Torrens system at this point in Nova Scotia was not caused by any lack of need for the Torrens system there. It was needed there as much as in any other older common-law province. As early as 1885, in the Senate’s debate on the legislation for the North-West Territories, Senator Kaulbach thought that ‘any member of the legal profession in Nova Scotia knows that we are frequently very uncertain about titles.’22 Similar statements were made in the province itself: in 1897 Attorney General Longley pointed out the superiority of the Torrens system in relation to cost, clarity, and facilitating the lending of money against land.23 As we saw, however, the opposition of the legal system was strong enough to overcome the government’s resolve, which was probably not very strong anyway. By the time of the 1904 episode Longley, still attorney general but now faced with the promotion of the Torrens system by a barrister member of the Nova Scotia legislature, identified a wider-reaching inertia affecting the whole polity: in his view ‘the greatest problem’ was stirring up interest in the Torrens system in the populace.24 And no doubt the legal profession’s opposition of 1897 had not entirely dissipated only seven years later. The combined effect of public inertia, the opposition of the legal profession, and the inherent difficulties of introducing a Torrens system in an older province meant that no progress was made. The easy passage of the bill through the legislature in 1904 was in fact a portent of doom: since conversion was to be optional, few

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bothered to notice, let alone to take the trouble to oppose, a bill that would be safe to ignore even when it had become a statute. In Prince Edward Island land law reform has tended historically to mean a discussion of absentee ownership rather than methods of conveyancing and transfer of land.25 Finally a Land Titles Act was passed there in 1974, but it lacked crucial Torrens-system features and was never proclaimed, because developments, particularly technological progress and changes in government planning, rapidly overtook it.26 It is no longer on the statute books. Matters have rested there ever since in Prince Edward Island, and there appear to be no current moves for change in Newfoundland and Labrador. In Nova Scotia and New Brunswick, however, the provincial governments have made determined and successful efforts to introduce the Torrens system in the first decades of the twenty-first century, prompted by its considerably greater degree of efficiency in general, and in particular its superior suitability for modern computer systems and online transaction systems compared to the old registration-ofdeeds model.27 Just as in Ontario, in these two provinces the Torrens system’s advantages over the old system are magnified many times by the potential for the delivery of information online, because the Torrens system allows for far more useful and succinct information to be delivered. Despite the discouraging history in Nova Scotia in particular, the legal profession in both provinces nowadays is cooperating with these endeavours via agreements and consultative mechanisms entered into between the provincial governments and the legal profession’s representative organizations. Lawyers are no longer attempting to obstruct the rationalization of conveyancing in the interests of keeping fees high for themselves and their professional posterity. Nowadays there exists a real sense of partnership between the legal profession and the land titles offices. Under the arrangements for the conversion of Nova Scotia and New Brunswick to the Torrens system, lawyers are responsible for certifying titles as suitable for conversion, and a statutory requirement exists for this to occur when transactions such as sales take place, so that conversion is quasi-compulsory.28 At least in the short term this will ensure plenty of work for the legal profession. In Nova Scotia the failed legislation of the past has been entirely abandoned and new legislation passed, the Land Registration Act [2001]; in New Brunswick, the Land Titles Act [1981] has been updated for the

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project of converting that province’s system to Torrens. Despite the great gap in time between the creation of the original version of the Torrens system in 1858 and these statutes, each contains principles that mark it out as a version of the Torrens system and would be familiar to Torrens himself. Each statute provides that registration is the only means for transferring interests in land, subject to the usual exception for short-duration leases; each assures to the registered owner an indefeasible title subject to the usual sorts of exceptions.29 (Although, as is quite common in Torrens statutes, the word ‘indefeasible’ is not actually employed, the meaning of the statutory provisions is clear.) There is one interesting difference among the principles adopted in the two provinces. Section 61 of the New Brunswick statute expressly states that knowledge of the existence of any unregistered interest in land is not to be considered fraud, or affect the title of a registered owner; exactly the same rule also exists in South Australia.30 Under section 4 of the Nova Scotian statute, however, actual knowledge that a proposed transaction will defeat an unregistered interest can in many circumstances be considered fraud – but even so, the old law’s principles relating to knowledge that one in hindsight might have obtained but did not actually have are abolished in the interests of the conclusiveness of the register. It will be interesting to see how this variation on the usual rule operates in practice; there is much to be said for it as a matter of principle, as long as it does not become a back door by which the old rules about knowledge are gradually reintroduced and the centrality of the register undermined. Finally, each statute creates a scheme for the indemnification of persons who have lost property by any error or mistake in the register. In each case this involves a provincial guarantee of the title, but in neither case is there a formal assurance fund consisting of money raised by a levy on transactions under the Torrens system.31 This was omitted because experience has shown that such a fund amasses too much money, far more than is required to meet actual claims. Instead, in each province the internal departmental budget includes provision for possible claims.32 As a matter of law, any claims will be payable from the ordinary revenue of the province. Thus it is that the Torrens system is, as I write, adding a sixth and seventh Canadian province to its world-wide empire.

10 Concluding Remarks

The story I have told is, of course, a lawyer’s story. That is nothing to be ashamed of, but a story told by someone from another profession involved in land titles would be different in emphasis. In particular, a surveyor might have concentrated less on the details and origin of the legislation and its reception in the various jurisdictions in which it was introduced, and said rather more about the – too often neglected – practical requirements of accurate surveys and maps needed to support a system that provides for a state guarantee of title. I lack the expertise to tell that story, but I do not wish to let it be thought that such things can simply be forgotten or taken for granted. Without them a functioning Torrens system is not possible. This study of a major reform in a private law that migrated from Australia to Canada could be replicated in the reverse direction in other cases. Because its oldest provinces were older than the oldest Australian colony – by many decades if we discount the convict origins of New South Wales and look instead only at its time as a free settlement – Canada was in many respects a model for Australia, in constitutional development in particular. Thus the achievement of responsible government in the Province of Canada in the late 1840s was held up for emulation by those in Australia who sought the same thing for themselves; later, after 1867, one repeatedly comes across calls in Australian newspapers for a local equivalent of Canada’s Dominion Parliament. Nowadays, with the growth of the Internet, globalization, and so on,

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it excites less surprise to see solutions from one country received into the law of another. Even today, however, this occurs perhaps less frequently than a non-lawyer might expect, owing to the difficulties that often arise in transplanting between legal systems that in many respects may still vary widely, both in the detail of rules and more broadly in inherited habits of thought and reasoning – to say nothing of variations between societies as a whole. In the nineteenth century barriers of distance and barriers to understanding were much greater. Even the time needed to find out about the law in another country could be enough to deter its adoption elsewhere, again to say nothing of the need to examine the broader context in which that law operated. We have seen how barriers in parts of Canada, most noticeably in Quebec, were and are still too high for the reception of the Torrens system to take place there, even though this has occurred in other provinces and, looking at the matter objectively, it would probably benefit Quebec to adopt the Torrens system as well. Despite the improvements in communications that have occurred since the nineteenth century, conditions were in some respects more favourable at that time for the adoption of Australian law in some parts of Canada (and vice versa) than they are today. The settler societies within the British Empire shared many characteristics and a strong sense of affinity. Movements of people between them were still very common as there were no internal barriers owing to the common citizenship; and an emigrant from England might try several colonies before finally settling down in one. For example, in chapter 3 we encountered J.F. McCreight, later British Columbia’s first premier, practising as a lawyer in the Australian colony of Victoria while it considered the introduction of the Torrens system. Because of the common citizenship, a solution adopted elsewhere in the Empire did not count as ‘foreign’ in any way: all involved were British subjects and the overall law was more or less similar in most parts of the Empire – leaving aside exceptional cases such as Quebec (and other jurisdictions, like South Africa, with a non-English legal inheritance). Furthermore, there was the central bureaucracy of the British Empire in London, which knew about all colonial laws everywhere and could share good ideas around, something which we saw greatly aided the Torrens system’s expansion into British Columbia and was also of use in the other provinces.1 From this point of view, the Torrens system arose at a propitious time for its own spread. The bonds of Empire were still strong, both legally and in people’s hearts and minds; communications were improving

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thanks to the telegraph and the steamship; with the growth in the number of white settler societies in the Second British Empire in the first half of the nineteenth century, there were now many jurisdictions in which land was regularly bought and sold by a fairly broad cross section of society. Most male landowners also had the vote in such communities, so many people with a share in political power were faced with, and interested in finding a solution to, the problems presented by the antediluvian English law of conveyancing that those communities had inherited. Given the crying need for reform everywhere, it was not very surprising that the first colony that achieved some considerable improvement – even if not a perfect solution – found its law gratefully copied in many other imperial jurisdictions. From an Australian point of view, the most noticeable thing about the adoption of the Torrens system within Canada is how long it took once the system became known there. In Canada, the story starts on Vancouver Island in 1861 and has not finished even in the early twentyfirst century – the adoption of the Torrens system being in various stages of completion in the various provinces and not begun at all in three. On the other hand, all the Australian colonies, as they then were, had adopted the Torrens system by the mid-1860s, except what was then the small, remote, struggling colony of Western Australia, which followed in 1875. This difference should not be attributed to lassitude on the eastern side of the Pacific, however – or at least not wholly. No one would claim that politicians always adopt necessary reforms with sufficient speed, in any country. But there was a particular reason for Canadian tardiness in this matter which is only dimly apparent to the observer from afar, until he visits Canada: it is the greater variety among its parts, even those that share the inheritance of the common law and the English language. With the exception of Western Australia, all the Australian colonies were quite similar in composition by the mid-1860s. That is a generalization that will not bear undue weight. South Australia, for example, had had no convicts, and a large German sub-colony in its midst. Victoria suddenly became unbelievably wealthy during the 1850s as gold was discovered and mined there. But – recalling the fact that free settlement in New South Wales did not seriously commence for some decades – the Australian colonies, as communities of land owners, were founded largely at the same time and had similar social, demographic, political, and economic features. The comparative homogene-

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ity of the Australian colonies meant that the Torrens system could be introduced into all of them in roughly the same way: there was still a good deal of land ungranted by the Crown, and land that had already been granted was likely to have been granted in the reasonably near past, so that less time existed for titles to become obscure. It was otherwise in Canada. Sometimes even basic information about the state of the law in one part of the country was little known in others. The adoption of the Torrens system in Vancouver Island and then the whole of British Columbia had little to no influence to the east, even after British Columbia joined Confederation, partly because of simple ignorance of what was going on in other provinces. Another reason was that in Ontario the circumstances under which the law operated were completely different. In that much older province it was considerably more difficult for the state to give a guarantee of titles, and for many owners to show that they were even eligible for such a guarantee because their titles were in a sufficiently good condition. That the Torrens system has nevertheless slowly but surely conquered most of Canada is a testimony partly to its superiority, but perhaps even more to the defects of the old system. The basic ideas behind the Torrens system are really incredibly simple, so simple that they could be invented by a non-lawyer who was able to cut through the Gordian knot of complication and difficulty that the legal profession had created and in many places, including some in Canada, attempted to defend. Lack of complication has some demerits as well. For example, most versions of the Torrens system leave some significant questions resolved by only the vaguest of rules, such as what degree of sharp practice constitutes fraud and thus enables an entry on the register to be reversed for that reason. As we have just seen, in Nova Scotia a variation on the usual rules has been adopted with the aim of identifying more clearly and more justly what constitutes fraud, and it will be interesting indeed to see how that turns out as the courts apply it to cases that arise. Whatever rule is adopted on that or any other topic will inevitably contain some elements of uncertainty. It is not possible in any area of law to draft a rule that will operate with certainty all the time. But under the more traditional rule about fraud the courts are perhaps too often required, in individual cases, to fill in the gaps and work out their own definition of fraud with regard to the aims of the system and the clues given in the statutory text, and must occasionally accept conduct as legal even though it falls far short of ideal. Filling in gaps is, how-

166 The Law of the Land

ever, something that common-law courts are used to doing in many areas of law. It is also the case that there is also no perfect conveyancing system, and no system will prevent fraud in all cases, avoid all disputes, and provide complete fairness all the time. For all its faults the Torrens system is a great improvement on the old chain-of-title system, and one of its great virtues is its comparative simplicity. The success of the work of the Canada Land Law Amendment Association across Canada is in part a tribute to the power of the lobby group. I have attempted to defend the Association from the claim of narrow grasping self-interest, although like most lobby groups its members were interested in the adoption of the reform they advocated. The record of the legal profession in Canada is also mostly an honourable one: lawyers in Manitoba, with one notable exception who made the front page of the newspaper, were almost completely in favour of the Torrens system; they assisted it in gaining its original Canadian foothold in Vancouver Island; and lawyers were also prominent, along with the moneylenders, in the work of the Canada Land Law Amendment Association, which was directly responsible for bringing the Torrens system to three further present-day provinces. The Association and the lawyers were not, however, conducting a conversation only among themselves and with bureaucrats. One of the most remarkable things about the second half of the nineteenth century, from the point of view of a lawyer, is the enthusiasm and depth of knowledge with which technical details of land titles law were debated in the public space even by non-specialists. It is normally difficult enough nowadays to awaken even many law students’ interest in the refinements of the law of land registration, let alone that of the general public! But in the nineteenth century there was a need for reform that was apparent to most members of the public who came into contact with the old system. This was, moreover, something that all parts of Canada had in common with each other and with the Australian colonies, because land ownership was, in each society, widely distributed among the populace. The Torrens system was the answer, in most parts of Canada as in Australia, to the demands of the growing class of landowners for a better way. It was technology, however – the computer – that finally delivered most of Ontario as well as Nova Scotia and New Brunswick to the Torrens system at the close of the twentieth and opening of the twenty-first century. It is an extraordinary testimony to the virtues and simplicity of

Concluding Remarks

167

the basic principles of the system that 150 years after its invention, it is so well suited to modern technology. But rapidly changing technology will also present a challenge both to administrators and to legislators in keeping the Torrens system up to date. In this respect Australian jurisdictions can learn from Canadian jurisdictions: for example, Queensland’s legislation and practice relating to computerized Torrens registration are modelled on British Columbia’s.2 Technology will also be the key to coping with the challenges of real estate fraud, as is exemplified by Susan Lawrence’s and other recent Ontario cases mentioned in the introduction. Computer-based systems of registration both present new challenges to the traditional paperbased Torrens system and enable new solutions to age-old problems such as fraud to be developed. For example, computer systems, if properly designed, can ensure that many would-be fraudsters cannot even have access to the register, and that unusual transactions are identified and investigated further. Imaginative solutions to problems of real estate fraud can easily be suggested. For example, homeowners could be automatically informed if their property changes ownership on the register without their also having changed their address on the electoral rolls.3 With sufficient imagination, diligence, and dedication on the part of its administrators, the Torrens system will be able to continue to be strong in Canada, and wasteful private title insurance on the American model will not be needed. Another task for the future will be the harmonization of the provincial Torrens statutes. As in Australia, there is in Canada much variation among the provinces’ and territories’ Torrens statutes. Although the Canadian provinces are more heterogeneous than the Australian states, much of the variation in Canada too is random, unrelated to any differences between the societies that the law serves and not justifiable. Such differences add to transaction costs and constitute a barrier to interjurisdictional commerce.4 A greater measure of uniformity would be desirable. In 1993 the governments of the five provinces and two territories that then possessed versions of the Torrens system appointed a Joint Committee on Land Titles to prepare model legislation for Canadian Torrens systems.5 This has not been adopted except on certain Métis settlements in Alberta, in an adapted form.6 However, some distinct traces of its influence are detectable in Nova Scotia’s statute, the newest in Canada. But given Canadian diversity and the consequent fact that Nova Scotia, unlike four of the five older Torrens provinces,

168 The Law of the Land

must devote significant attention to the task of conversion, it is not surprising that that province’s statute could not follow the proposed model completely. It may well be that, with the exception of the special case of Quebec, Canada will in due course be solely Torrens. That would require the completion of conversion in all nine common-law provinces, and that in turn would require two provinces (Prince Edward Island and Newfoundland and Labrador) to adopt the system in the first place. But it can be said now that the Torrens system is the dominant system of land titles registration in common-law Canada as a whole. Thirty or forty years ago it could almost still be treated as a solely western Canadian phenomenon; it is not so now. Thus Canada has again attested its willingness, in dealing with assets of great importance to the public such as land, to carry on aspects of its corporate life through agencies of the state as the representative of the whole community, rather than through private enterprise such as title insurance companies.

Appendix

Torrens Statutes in Canadian Jurisdictions For ease of reference, this appendix sets out the first and current Torrens statute in each Canadian jurisdiction in which the system now exists. British Columbia Land Registry Act 1860 (Vancouver Island only); Land Registry Ordinance 1870 (mainland as well) Land Title Act, Revised Statutes of British Columbia 1996, c. 250 Ontario Land Titles Act 1885, Statutes of Ontario 1885, c. 22 Land Titles Act, Revised Statutes of Ontario 1990, c. L-5 Manitoba Real Property Act 1885, Statutes of Manitoba 1885, c. 28 Real Property Act, Continuing Consolidation of the Statutes of Manitoba, c. R-30 Saskatchewan Territories Real Property Act, Statutes of Canada 1886, c. 26 Land Titles Act 2000, Statutes of Saskatchewan 2000, c. L-5.1

170 Appendix

Alberta Territories Real Property Act, Statutes of Canada 1886, c. 26 Land Titles Act, Revised Statutes of Alberta 2000, c. L-4 Northwest Territories Territories Real Property Act, Statutes of Canada 1886, c. 26 Land Titles Act, Revised Statutes of the North-West Territories 1988, c. 8 (Supp.) Yukon Territory Territories Real Property Act, Statutes of Canada 1886, c. 26 Land Titles Act, Revised Statutes of the Yukon 2002, c. 130 Nunavut Territories Real Property Act, Statutes of Canada 1886, c. 26 Land Titles Act, Revised Statutes of the North-West Territories 1988, c. 8 (Supp.) Nova Scotia Land Titles Act 1904, Statutes of Nova Scotia 1904, c. 47 Land Registration Act, Statutes of Nova Scotia 2001, c. 6 New Brunswick Land Titles Act, Statutes of New Brunswick 1981, c. L-1.1

Notes

Chapter 1 1 This and the following chapter are updated adaptations of a chapter in my earlier book, ‘A Great and Glorious Reformation’: Six Early South Australian Legal Innovations (Kent Town: Wakefield Press [www.wakefieldpress .com.au], 2005). There is also some material from a conference paper entitled ‘Hamburger to Go?: The German Contribution to the Torrens System Examined’ (conference on the German presence in South Australia, University of Adelaide, 2005). 2 A. Buck, The Making of Australian Property Law (Sydney: Federation, 2006), 104, 112–16; S. Petrow, ‘Knocking Down the House? The Introduction of the Torrens System to Tasmania,’ University of Tasmania Law Journal 11 (1992): 167–81; S. Petrow, ‘Responses to the Torrens System in Tasmania, 1862–1900,’ Australian Property Law Journal 5 (1997): 194–212; D. Whalan, The Torrens System in Australia (Sydney: Law Book, 1982), 8–11; D. Whalan, ‘The Origins of the Torrens System and Its Introduction into New Zealand,’ in The New Zealand Torrens System: Centennial Essays, ed. G. Hinde (Wellington: Butterworths, 1971), 12–32; D. Whalan, ‘Immediate Success of Registration of Title to Land in Australasia and Early Failures in England,’ New Zealand Universities Law Review 2 (1967): 424–5. 3 L. Agbosu, ‘Land Registration in Ghana: Past, Present and the Future,’ Journal of African Law 34 (1990): 104–5, 123; B. Brereton, Law, Justice and Empire: The Colonial Career of John Gorrie, 1829–92 (Kingston: University of the West

172 Notes to page 4

4

5 6

7

8

Indies Press, 1997), 111–12, 126, 212, 293; S. Cooper, ‘Equity and Unregistered Land Rights in Commonwealth Registration Systems,’ Oxford University Commonwealth Law Journal 3 (2003): 209–11; W.P. Lo and J.H. Lim, ‘The Development of Land Registration in Singapore,’ in Essays in Singapore Legal History, ed. K. Tan (Singapore: Marshall Cavendish, 2005), 231–2; P. O’Connor, ‘Security of Property Rights and Land Title Registration Systems’ (PhD thesis, Monash University, 2003), 165–7; M. Raff, Private Property and Environmental Responsibility: A Comparative Study of German Real Property Law (The Hague: Kluwer, 2003), 9; T. Ruoff, An Englishman Looks at the Torrens System, Being Some Provocative Essays on the Operation of the System after One Hundred Years (Sydney: Law Book, 1957), 7; D. Wong, Tenure and Land Dealings in the Malay States (Singapore: Singapore University Press, 1975), 108–25, 150–8. A. Garro, The Louisiana Public Records Doctrine and the Civil-Law Tradition (Baton Rouge, LA: Paul Hebert Law Center Publications Institute, 1989), 75 n. 5; Raff, Private Property, 9; S. Simpson, Land Law and Registration (Cambridge: Cambridge University Press, 1976), 77–85, chap. 21. I have no means of checking these claims, and it is possible that the word ‘Torrens’ is being used for systems that bear only the vaguest resemblance to the original version. B. Ziff, Principles of Property Law, 2nd ed. (Scarborough, ON: Carswell, 1996), 412. The third edition (2000) is vaguer about this: see p. 423. K. Gray, Elements of Land Law, 3rd ed. (London: Butterworths, 2001), 192; P. Young, ‘Why Did the Torrens System Succeed in Australia yet Fail in North America?’ Australian Property Law Journal 2 (1994): 227. (The title of this article is of course misleading.) Letter from Justice Maurice Lemarchand to federal Department of Justice, 29 April 1885, Library and Archives Canada (hereafter LAC), RG 13/62/ 1885/569. 1885 is also the date given for the adoption of the Torrens system in Tunisia in some sources, e.g. Young, ‘Why Did the Torrens System Succeed?’ 228. However, Pierre Gebert, an acquaintance of this author who visited Tunisia in the 1980s as part of a review of the system of land titles in that country, reports that the system there could at best be said to have been inspired by the Torrens system, that indefeasibility is not offered by the legislation, and that title insurance flourishes there owing to confused land records and uncertainty as to boundaries. Unless there have been changes since the 1980s, therefore, Tunisia may no longer be a Torrens jurisdiction. Letter from H.R. Hanmore to John A. Macdonald, undated (received 1 Dec. 1885), LAC, microfilm [hereafter MF] C-1774, vol. 421, 204763–4; letter from American Consulate-General Ottawa to deputy attorney general, Edmon-

Notes to pages 4–6 173

9 10

11

12

13

14

ton, 13 June 1907, Alberta Archives, GR 1966/0166/263a; Manitoba Daily Free Press, 7 Dec. 1888 (registrar general for Manitoba interviewed by Minneapolis Tribune). There are also numerous discussions by scholars and advocates such as J. Hassam, ‘Land Transfer Reform,’ Harvard Law Review 4 (1891): 278; S. Maxwell, ‘Land Transfer Reform,’ American Law Review 28 (1894): 204; W. Turner, ‘Land Transfer and Registration of Title,’ American Law Review 25 (1891): 774. On the Philippines in particular: LAC, RG 88/A1/I-1/337/1910/11733; D. Van Doren, ‘Torrens System of Land Title Registration,’ Columbia Law Review 17 (1917): 354; J.R. Innes, ‘Land Law and Registration of Title in the Philippine Islands,’ Journal of Comparative Legislation and International Law n.s. 18 (1918): 266; Republic of the Philippines, Department of Justice, ‘Land Registration Authority,’ http://www.doj.gov.ph/ agencies/lra-history.html (visited 14 Nov. 2006). O’Connor, ‘Security of Property Rights,’ 162; Young, ‘Why Did the Torrens System Succeed?’ 225. B. Goldner, ‘The Torrens System of Title Registration: A New Proposal for Effective Implementation,’ University of California at Los Angeles Law Review 29 (1982): 670. In the Globe, 7 Nov. 1912, it is recorded that a title insurance company in the United States had required land to be withdrawn from the Torrens system before approving a loan. O. Browder et al., Basic Property Law, 5th ed. (St Paul: West, 1989), 912–13; A. Casner et al., American Real Property: A Treatise on the Law of Property in the United States, 7 vols (Boston: Little, Brown, 1952), 4:640; Garro, Louisiana Public Records, 90–1; Goldner, ‘A New Proposal’; G. Grimes and G. Thompson, Commentaries on the Modern Law of Real Property, 14 vols (Indianapolis: Bobbs-Merrill, 1963), 8A:86–95 (on the constitutional objections in particular); F. Upham, ‘An Introduction to the Principles of Private Land Ownership, Transfer and Control in the United States,’ in Land Law in Comparative Perspective, ed. M. Jordan and A. Gambaro (The Hague: Kluwer, 2002), 48– 9; Young, ‘Why Did the Torrens System Succeed?’ 226. Registry Act, Revised Statutes of Ontario 1990, c. R-20, ss. 112, 113(5). See further T. Youdan, ‘The Length of a Title Search in Ontario,’ Canadian Bar Review 64 (1986): 511–15. The statutory period in England and Australia is significantly shorter, between fifteen and thirty years: A. Bradbrook, S. MacCallum, and A. Moore, Australian Real Property Law, 4th ed. (Sydney: Law Book, 2007), 92. R. Torrens, The South Australian System of Conveyancing by Registration of Title, with Instructions for the Guidance of Parties Dealing, Illustrated by Copies of the Books and Forms in Use in the Lands Titles Office (Adelaide: Register, 1859), 8. R. Stein and M. Stone, Torrens Title (Sydney: Butterworths, 1991), 6–8; Whalan, Torrens System, 14–16.

174 Notes to pages 6–11 15 E. Harris, Democracy and the Rule of Law in Classical Athens: Essays on Law, Society and Politics (Cambridge: Cambridge University Press, 2006), 194. 16 The concept of ‘constructive notice’ is well explained in T. Mapp, Torrens’ Elusive Title (Edmonton: Alberta Institute for Law Research and Reform, 1978), 23–4. 17 The legal framework for this was in the Imperial statute 4 & 5 Wm IV, c. 95 (1834), s. 6. See also A. Castles, An Australian Legal History (Sydney: Law Book, 1982), 311; D. Pike, Paradise of Dissent: South Australia, 1829–1857, 2nd ed. (Melbourne: Melbourne University Press, 1967), 120–1; Pike, ‘Introduction of the Real Property Act in South Australia,’ Adelaide Law Review 1 (1962): 171. 18 Pike, ‘Introduction of the Real Property Act,’ 173–4. See also P. Fox, ‘The Story behind the Torrens System,’ Australian Law Journal 23 (1950): 491; S. Robinson, Transfer of Land in Victoria (Sydney: Law Book, 1979), 2. 19 South Australian Register, 10 June 1856, 2; S. Noel, Patrons, Clients, Brokers: Ontario Society and Politics, 1791–1896 (Toronto: University of Toronto Press, 1990), 10–13; Pike, ‘Introduction of the Real Property Act,’ 169; Whalan, ‘Immediate Success,’ 423. The view has also been expressed that the Torrens system was designed to deprive Aboriginal people of land: S. Ainger, ‘Aboriginal Trailblazer Uncovers “Extraordinary Conspiracy,”’ Sydney University Gazette 1991:18–19. This draws a very long bow indeed, and the promised elaboration of the theory has not appeared. 20 As is pointed out B. Arrunada and N. Garoupa, ‘The Choice of Titling System in Land,’ Journal of Law and Economics 48 (2005): 722, the question here is more complicated than it seems: Do the benefits foregone by not having a registration system outweigh the disbenefits of registration? The latter include not only the obvious costs of running the system but also the possible absence of any system at all for land that does not meet the more stringent criteria for registration and the consequent diminution of the value of that land. 21 R. Risk, ‘The Records of Title to Land: A Plea for Reform,’ University of Toronto Law Journal 21 (1971): 467–8. 22 Ziff, Principles of Property Law, 3rd ed., 420–1. 23 Stein and Stone, Torrens Title, 4; Whalan, Torrens System, 13. 24 Stein and Stone, Torrens Title, 13 (these authors are actually referring to a different system in the original but their words are also applicable as in the text). 25 Ontario Law Reports (Third Series) 84 (2007) 94. 26 See the amendments to the Land Titles Act, Revised Statutes of Ontario 1990, c. L-15, made by the Ministry of Government Services Consumer Protection and

Notes to pages 12–19 175 Service Modernization Act 2006 (Statutes of Ontario 2006, c. 34), s. 15. 27 See, for example, Bradbrook, MacCallum, and Moore, Australian Real Property Law, 135–40. 28 This terminology was first coined by Ruoff, An Englishman, 8, and the explanation here takes account of later contributions by other commentators. 29 The current South Australian statute accordingly protects people with leases for a year or less who are in actual occupation of the land: Real Property Act 1886 (S.A.), ss. 69 VIII, 119. In Ontario the period is three years or less of the lease still remaining: Land Titles Act, s. 44(1)IV. 30 For example, Real Property Act 1886 (S.A.), s. 149. 31 See, for example, Bradbrook, MacCallum and Moore, Australian Real Property Law, 146–51; V. di Castri, Registration of Title to Land (Toronto: Thomson, loose-leaf 1987–2007), 19-21–19-36. 32 E.g., Land Titles Act (Ont.) s. 57(4)(b); Transfer of Land Act 1958 (Victoria), s. 110(3)(a). 33 See also, for a fuller history and more details, South Australian Parliamentary Debates, Legislative Council, 23 Mar. 1983, 563; 19 April 1983, 831; Ruoff, An Englishman, 33; and in relation to the American Torrens systems, Goldner, ‘A New Proposal,’ 706 n. 216. The current statute is the Real Property Act 1886 (S.A.), s. 201(7). 34 This is now not always so: see for example Condominium Act 1998 (Statutes of Ontario 1998, c. 19), ss. 3(1)(a), 139(1)(a)(iii). 35 12 & 13 Vic. c. 77 (1849), s. 1. See further J. Dowling, ‘The Landed Estates Court,’ Journal of Legal History 26 (2005): 148–50, 176. 36 I give further details about this in ‘The Torrens System’s Migration to Victoria,’ Monash University Law Review 33 (2007): 323–71. 37 Victorian Parliamentary Papers, Legislative Assembly, 1862–3, vol. 1, 663. 38 R. Hague, A History of the Law in South Australia (Adelaide: Barr Smith Press, 2005), 265. Chapter 2 1 The biographical sources used for this part include D. Pike et al., eds., Australian Dictionary of Biography, 16 vols (Melbourne: Melbourne University Press, 1967), 2:534–6; 6 : 292–3; G. Smith et al., Dictionary of National Biography, 22 vols (Oxford: Oxford University Press, 1917), 19: 993–5; Pike, Paradise, passim. 2 G. de Vivo, ed., Collected Works of Robert Torrens, 8 vols (Poole: Thoemmes Continuum, 2000). 3 See Fox, ‘Story behind Torrens,’ 489–90. 4 South Australian Parliamentary Debates, House of Assembly, 17 Nov. 1857, col.

176

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6 7

8 9 10 11

12 13 14 15 16

17 18

Notes to pages 19–22

658; 18 Nov. 1857, col. 660; 27 Nov. 1857, col. 678; South Australian Archives, Government Records Group [hereafter GRG] reference 1/6/ 1853/307; Register, 23 July 1856; 31 July 1856; 23 Sep. 1856; 24 Oct. 1856; 25 Nov. 1856; Southern Australian, 15 Sep. 1838; Hague, A History, 781, 788, 790; Pike, ‘Introduction of the Real Property Act,’ 175. Under the Constitution Act [1855–6] (S.A.), s. 21, the qualifications for the franchise for the House of Assembly (the lower House) were being male and at least 21, registration on the electoral roll for six months, and not being under sentence for treason, felony, or another ‘infamous offence.’ For a discussion of the meaning of the latter phrase and its Canadian link, see Roach v. Electoral Commissioner, Australian Law Journal Reports 18 (2007), 1843–5. See G. Taylor, ‘A Great and Glorious,’ chaps 4, 5, 7. An excellent overview of the intellectual climate in England in this area at this time is in J. Anderson, Lawyers and the Making of English Land Law 1832–1940 (Oxford: Clarendon, 1992), chap. 1. See also A. Offer, ‘Lawyers and Land Law Revisited,’ Oxford Journal of Legal Studies 14 (1994): 269–78. Pike, ‘Introduction of the Real Property Act,’ 179. Register, 17 Oct. 1856. Ibid., 14 April 1857; 15 April 1857. Ibid., 17 Oct. 1856. As mentioned earlier, the first body officially styled ‘Parliament’ was not opened in South Australia until the following year. Here ‘parliamentary’ is used loosely for the Legislative Council, the predecessor of Parliament as provincial legislature. South Australian Parliamentary Debates, Legislative Council, 22 Jan. 1858, col. 779. Register, 17 Oct. 1856. Ibid., 20 Jan. 1858. Ibid., 2 Feb. 1857. Ibid., 10 April 1861. The question was whether the Torrens system should be compulsory not just for land alienated by the Crown after the system came into force, but for all other land as well. As Torrens records, Parliament refused to accept his advisers’ view, but as a result of experience he later came to think it correct. See further R. Stein, ed., ‘Sir Robert Richard Torrens: Selected Documents,’ South Australiana 23 (1984): 17. Robinson, Transfer of Land, 9–10, 15; Whalan, Torrens System, 6; Whalan, ‘Origins,’ 5–8, 12. Torrens’s statement about ‘our previous meeting,’ quoted in Robinson, Transfer of Land, 9 and reproduced in Stein, ed., ‘Selected Documents,’ 17, might refer simply to an informal discussion between himself and Forster, not to a meeting of a committee.

Notes to pages 22–5 177 19 A. Esposito, Die Entstehung des australischen Grundstücksregisterrechts (Torrenssystem) – eine Rezeption Hamburger Partikularrechts?! (Berlin: Tenea-Verlag, 2005), chap. 3; A. Esposito, ‘A New Look at Anthony Forster’s Contribution to the Development of the Torrens System,’ University of Western Australia Law Review 33 (2007): 251–88. Note also the statement by Henry Gawler in the Register, 8 Sep. 1884. 20 Register, 16 May 1859 (emphasis added). A bit later, in 1866, Forster said that Torrens had already begun thinking about the topic independently, and his articles motivated Torrens to present the fruits of his deliberations to Forster: A. Forster, South Australia: Its Progress and Prosperity (London: Sampson Low, Son and Marston, 1866), 219–20. 21 Register, 31 July 1856. In addition to the other models mentioned in the text, the idea of making every transfer a re-grant may also have been suggested by the archaic English tenure system of copyhold, on which see A. Simpson, An Introduction to the History of Land Law (Oxford: Oxford University Press, 1961), 160–1. An explanation of the complexities of this system is outside the scope of this book. 22 As ss. 57 and 107 of the Merchant Shipping Act 1854 show. 23 Robinson, Transfer of Land, 8–9. A more detailed, clause-by-clause comparison may be found at 480–4 and in Dr Robinson’s thesis, ‘Equity and Systems of Title to Land by Registration’ (PhD thesis, Monash University, 1973), 117–23. 24 Register, 13 Nov. 1857. 25 Report attached to letter of 3 Mar. 1853, South Australian Archives, GRG 59/6/1. 26 Robinson, ‘Equity and Systems of Title,’ 12 n. 1, declares this letter lost; but the excellent research work of Paul Huntley unearthed it for me in the South Australian Archives, GRG 59/6/1. 27 No. 23 of 1855–6 (S.A.); and see s. 2 of Act no. 22 of 1853 (S.A.), to which s. 1 of the former Act referred. 28 Adelaide Times, 23 Nov. 1857; 30 Nov. 1857. See also Adelaide Times, 15 Jan. 1858 (a confession that some of the provisions of the bill were adopted from those of R.D. Hanson); Robinson, Transfer of Land, 10. 29 Adelaide Times, 23 Nov. 1857. 30 Ibid., 15 Jan. 1858. 31 Register, 14 Jan. 1858. Fox (‘Story behind Torrens,’ 490–2), suggests that virtually the whole legal profession was opposed, whereas Pike (‘Introduction of the Real Property Act,’ 182) records that once it had been enacted, ‘most of the legal profession accepted the new law graciously and many constructive suggestions were offered’; and see Torrens in South Australian Parlia-

178 Notes to pages 26–9

32 33 34 35

36

37 38

39 40 41 42 43 44 45 46 47

mentary Debates, House of Assembly, 4 June 1857, col. 201. Cf. Offer, ‘Lawyers and Land Law,’ 270. Pike, ‘Introduction of the Real Property Act,’ 184. They were the Real Property Law Amendment Act [1858] (S.A.), the Real Property Act 1860 (S.A.) and the Real Property Act 1861 (S.A.). A good summary of the travails of the Torrens system in this context may be found in Pike, ‘Introduction of the Real Property Act,’ 183–9. See, for example, S. Anderson, ‘The 1925 Property Legislation: Setting Contexts,’ in Land Law: Themes and Perspectives, ed. S. Bright and J. Dewar (Oxford: Oxford University Press, 1998), 117–18; A. Dowling, ‘Of Ships and Sealing Wax: The Introduction of Land Registration in Ireland,’ Northern Ireland Legal Quarterly 44 (1993): 360–79; Whalan, ‘Immediate Success,’ 416. E. Rogers, ‘The Impact of the Australian Torrens System on the Land Transfer Debate in the United Kingdom, 1858–1914’ (paper presented at the twenty-fifth annual conference of the Australian and New Zealand Law and History Society, Hobart, 2006), published in Australia and New Zealand Law and History E-Journal 2006, http://www.anzlhsejournal.auckland.ac.nz/pdfs_2006/Paper_4_Rogers.pdf . Globe, 14 April 1885. Esposito, Die Entstehung; A. Esposito, ‘The History of the Torrens System of Land Registration with Special Reference to Its German Origins’ (LLM thesis, University of Adelaide, 2000); A. Esposito, ‘A Comparison of the Australian (“Torrens”) System of Land Registration of 1858 and the Law of Hamburg in the 1850s,’ Australian Journal of Legal History 7 (2003): 193–229; A. Esposito, ‘Ulrich Hübbe’s Role in the Creation of the “Torrens” System of Land Registration in South Australia,’ Adelaide Law Review 24 (2003): 263–303. U. Hübbe, Proceedings of the Royal Geographical Society of Australasia (South Australian Branch) 32 (1931): 112. Fox, ‘Story behind Torrens,’ 492; Robinson, Transfer of Land, 11; Whalan, ‘Immediate Success,’ 416 n. 2. Esposito, ‘A Comparison,’ 193; Raff, Private Property, 95. Forster to Miss A. Ridley, 15 May 1892, South Australian Archives A792; quoted in Esposito, ‘The History,’ 24. Pike, ‘Introduction of the Real Property Act,’ 178; Robinson, Transfer of Land, 3. Register, 16 May 1859. Forster, South Australia, 220–1. Register, 18 Feb. 1857. U. Hübbe, The Voice of Reason and History Brought to Bear against the Present

Notes to pages 29–32 179

48

49 50

51

Absurd and Expensive Method of Transferring and Encumbering Immovable Property, With Some Comments on the Reformatory Measures Proposed in the Opening Speech of the Governor-in-Chief and the Bill Recently Introduced by the Hon. R.R. Torrens, Esq., into the House of Assembly (Adelaide: Gall, 1857), 3, 79, 90 (similar phrases may be found at 70, 78, 97). Letter from Hübbe to the Council of the University of Adelaide, 7 Dec. 1874, available at University of Adelaide Archives, http://www.adelaide .edu.au/records/archives/series169/169-009.htm (visited 18 Oct. 2007). See Mark 8:30. We know this because Hübbe states that his meetings with Torrens came about because of some letters to the editor he (Hübbe) wrote, and these letters can be dated. I expand on the points made in this section in my forthcoming article ‘Is the Torrens System German?’ Journal of Legal History 29 (2008). H. de Soto, The Mystery of Capital (London: Bantam, 2000), 183. Chapter 3

1 Commonly referred to as Vancouver’s Island until the early 1860s. The modern form without the possessive ‘s’ was adopted without any definite statutory or other authority; see http://srmwww.gov.bc.ca/ bcgn-bin/bcg10?name=24321 (visited 4 Dec. 2006). As the modern form was in common use when the Torrens system was adopted, I use it throughout. 2 L. Wrinch, ‘Land Policy of the Colony of Vancouver Island, 1849–66’ (MA thesis, University of British Columbia, 1932), 1–5, 15. 3 J. Little, ‘The Foundations of Government,’ in The Pacific Province: A History of British Columbia, ed. H. Johnston (Vancouver: Douglas and McIntyre, 1996), 68. 4 R. Herbert, ‘A Brief History of the Introduction of British Law into British Columbia,’ University of British Columbia Legal Notes 2 (1954): 95. 5 G. Woodcock, British Columbia: A History of the Province (Vancouver: Douglas and McIntyre, 1990), 83. 6 Wrinch, ‘Land Policy,’ 16–18. 7 See the Letters Patent of 13 January 1849 reprinted in the Revised Statutes of British Columbia 1979, 7:15–19. There was an omission here, namely the Aborigines. On the steps taken in recent times in this connection, see wellknown cases such as Delgamuukw v. British Columbia, Supreme Court Reports [hereafter SCR] 3 (1997) 1010. There is of course a vast literature on this

180 Notes to pages 33–5

8 9

10

11

12

13

14 15

16 17 18

topic, but an examination of it would not be germane to the topic of the Torrens system in Canada. Times, 13 Jan. 1862. Daily British Colonist, 9 Feb. 1861; H. Foster, ‘British Columbia: Legal Institutions in the Far West, from Contact to 1871,’ Manitoba Law Journal 23 (1996): 308; Wrinch, ‘Land Policy,’ 178. J. Weaver, The Great Land Rush and the Making of the Modern World, 1650– 1900 (Montreal: McGill-Queen’s University Press, 2003), 24. Emphasis in original. Cf. also G. Stevenson, Ex Uno Plures: Federal-Provincial Relations in Canada, 1867–96 (Montreal: McGill-Queen’s University Press, 1993), 178. See also Little, ‘Foundations,’ 69–70. An idea of the variety of challenges that James Douglas surmounted in his remarkable life can be obtained from his biography in the Dictionary of Canadian Biography. See also, for example, W. Trimble, The Mining Advance into the Inland Empire (New York: Johnson Reprint, 1972), 193; W. Sage, Sir James Douglas and British Columbia (Toronto: University of Toronto Press, 1930), 289. J. Hendrickson, ‘The Constitutional Development of Colonial Vancouver Island and British Columbia,’ in British Columbia: Historical Readings, ed. W. Ward and R. McDonald (Vancouver: Douglas and McIntyre, 1981), 248–9; M. Ormsby, British Columbia: A History (Vancouver: MacMillan, 1958), 97– 100. See generally R. Mackie, ‘The Colonization of Vancouver Island, 1849–58,’ B.C. Studies 96 (1993): 3–40, and also R. Cail, Land, Man and the Law: The Disposal of Crown Lands in British Columbia, 1871–1913 (Vancouver: University of British Columbia Press, 1974), 13–5; Little, ‘Foundations,’ 77; Woodcock, British Columbia, 87; Wrinch, ‘Land Policy,’ 40, 45, 169–70, 180–1. Statistics may be found in the return to the order of the U.K. House of Commons, Papers, 1857–8, vol. 41, 571ff (reprinted in the Irish University Press series of British Parliamentary Papers, 21:475–8); Wrinch, ‘Land Policy,’ 26–32, 46– 50. Above, chap. 3 n. 8; Times, 21 Sep. 1861. Letter of 18 Mar. 1850, quoted in Howay, ‘The Raison d’Etre of Forts Yale & Hope,’ Proceedings of the Royal Society of Canada, 3rd ser., 16 (1922), 2:63; in Mackie, ‘Colonization,’ 34. Woodcock, British Columbia, 99; Wrinch, ‘Land Policy,’ 45, 169–70. Victoria Gazette, 11 Dec. 1858; 5 Nov. 1859. J. Finn, ‘Australasian Law and Canadian Statutes in the Nineteenth Century: A Study of the Movement of Colonial Legislation between Jurisdictions,’ Dalhousie Law Journal 25 (2002): 196. Dr Finn is not to be blamed for

Notes to pages 35–7 181

19

20

21

22

23 24

25 26 27

finding little in the official archival record showing that the authorities on Vancouver Island knew of the land titles registration system adopted in South Australia. The record is incomplete because a detailed report to the Colonial Office on Vancouver Island’s Land Registry Act 1860 was promised by the authorities on Vancouver Island but never actually delivered. A note dated 23 April 1863 in the U.K. National Archives [hereafter UKNA], Colonial Office files reference [hereafter CO] 305/17/111, by a Colonial Office clerk states that the promised report on the Land Registry Act 1860 ‘has not been received.’ No further action appears to have been taken. Weaver, Great Land Rush, 25. The legal obligation to send South Australian laws to London was contained in Australian Constitutions Act 1850 (Imp.), s. 12; Constitution Act [1855–6] (S.A.), s. 1. Toronto Daily Mail, 20 Mar. 1885; Hassam, ‘Land Transfer Reform,’ 273; H. Jones, The ‘Torrens System’ of Transfer of Land: A Practical Treatise on the Land Titles Act 1885 (Ontario) and the Real Property Act 1885 (Manitoba), Embracing the Latest Decisions, Both in England, Australia and Canada, together with a Brief History of the Origins and Principles of the System, the Forms, Methods of Administration and a Copious Index (Toronto: Carswell, 1886), 4–5; Maxwell, ‘Land Transfer Reform,’ 204; Turner, ‘Land Transfer,’ 771. UKNA, CO 13/97/101 (Australian Joint Copying Project reel [hereafter AJCP] 797); CO 13/99/54 (AJCP 798); CO 13/99/60 (AJCP 798); CO 13/ 102/274 (AJCP 800). Letter from Hugh Cairns, 15 June 1863, in State Library of South Australia, Public Record Group 1008/7. This was also quoted in the Parliament of South Australia: South Australian Register, 9 Sep. 1864. Cairns appears, however, to have had some doubts about some inessential details and the actual drafting of the Act: South Australian Parliamentary Papers, 1861–2, no. 50. See generally Cary’s biography in the Dictionary of Canadian Biography; U.K. House of Commons Papers, 1859 (session 1), vol. 17, 109. J. Hendrickson ed., Journals of the House of Assembly, Vancouver Island 1856– 63 (Victoria: Provincial Archives of British Columbia, 1980), 104; Victoria Gazette, 21 May 1859. Royal British Columbia Museum Archives [hereafter RBCMA], MS-0055/ 4/33/83–5. D. Smith, ed., Reminiscences of Dr John Sebastian Helmcken (Vancouver: University of British Columbia Press, 1975), 179. The Sale and Purchase of Land Bill 1853 (U.K. House of Commons Papers, 1852– 3, vol. 6, 65ff), cl. 20, may possibly have inspired the idea behind the sections about to be quoted, but its terms are so different that it cannot explain the similar wording. There is always, of course, the possibility of some

182

28 29 30 31

32 33 34 35

36 37

Notes to pages 34–40

now-lost common source, or a source I have not been able to find, but that would be mere speculation unsupported by any evidence. Furthermore, any putative common source would need not only to have existed, but also to have been available on Vancouver Island in 1860, as South Australia’s Torrens Act was. Any such common source was also not known to the drafters of the Territories Real Property Act, Statutes of Canada 1886, c. 26, who adapted the same provision in s. 120 of their Act and referred to it in their table of origins (see below, chap. 7 n. 30) as having been taken from solely South Australian sources. There is still a distinct echo of this provision in the Real Property Act, Continuing Consolidation of the Statutes of Manitoba, c. R30, s. 117(6)(a),(b). This bill may be found in its most developed form in U.K. House of Commons Papers, 1852–3, vol. 6, 13, 45. UKNA, CO 13/102/272ff (AJCP 800). Victorian Parliamentary Debates, Legislative Council, 8 Dec. 1859, 183. Finn, ‘Australasian Law and Canadian Statutes,’ 191; P. Johnson, ‘McCreight and the Law,’ British Columbia Historical Quarterly 12 (1948): 133, 137. We find McCreight in 1870 taking a leading role in a petition against the Torrens principle (UKNA, CO 60/39/141 [RBCMA, MF B-1448– 9]), but this may have been on instructions and is not much evidence of his attitude ten years before, when the system did not exist in any jurisdiction with which he was acquainted. RBCMA, MS-0055/4/33/83–5. A fourth early legal luminary is added to the drafting team in Re Shotbolt, British Columbia Law Reports 1:2 (1888) 344. For another example, see Finn, ‘Australasian Law and Canadian Statutes,’ 200 n. 137. See below, chap. 3 n. 22. Daily British Colonist, 2 Nov. 1860. On the Dutch system’s similarity to the Torrens system, see J. Hogg, The Australian Torrens System: Being a Treatise on the System of Land Transfer and Registration of Title Now in Operation in the Six States of the Commonwealth of Australia, the Colony of New Zealand, and Fiji and British New Guinea (London: Clowes, 1905), 21; Weaver, Great Land Rush, 240–1. B. McPherson, The Reception of English Law Abroad (Brisbane: Supreme Court of Queensland Library, 2007), 82 n. 325, reports that the greater certainty of the Dutch conveyancing system over the English was one reason why Roman-Dutch law was preferred in Southern Rhodesia in 1892. South Australian Parliamentary Debates, House of Assembly, 4 June 1857, col. 210. Daily British Colonist, 24 Nov. 1860.

Notes to pages 41–7 183 38 Daily Alta California,18 Oct. 1861. The assessment of the Californian system is confirmed by Henry Crease in UKNA, CO 60/39/80 (RBCMA, MF B1448–9). 39 This fact emerges from my discussions with and enquiries of various local historians; references on file. 40 Canadian Parliamentary Debates, Senate, 23 Feb. 1885, 71–2. Sir Alexander was, moreover, contradicted in his assessment shortly afterwards by the scholarly senator Lawrence Power, a graduate of Harvard Law School who was eminently qualified to make an assessment of the question. See Canadian Parliamentary Debates, Senate, 5 Mar. 1885, 190–1; see also 12 Mar. 1885, 274–5. 41 Cf. Real Property Act 1861 (S.A.), s. 47. 42 See also Re Trimble, British Columbia Law Reports 1:2 (1885) 320. 43 For similar reasons, ss. 31–33 of the Land Registry Amendment Act 1865 (V.I.) permitted persons to require the registrar to make copies of their deeds and other instruments, but such a copy had no legal status beyond being evidence of the contents of the original if unavailable. Little use was made of this facility: see U.K. House of Commons Papers, 1881, vol. 64, 567. 44 Daily British Colonist, 28 Oct. 1864. The amending Act was the Land Registry Amendment Act 1865 (V.I.), s. 8. 45 U.K. House of Commons Papers, 1881, vol. 64, 764. 46 Canadian Parliamentary Debates, House of Commons, 13 April 1886, 670. See also the similar distinction to be found in G. Holmested, Letter to Editor, Canadian Law Times 3 (1883): 537–8; Legislature of Nova Scotia, House of Assembly, Debates, 16 Feb. 1897, 110. 47 U.K. House of Commons Papers, 1857 (2), vol. 21, 245, 285–6. 48 Ibid., vol. 21, 245, 287. The limitation period was twenty years in the general run of cases under the Real Property Limitation Act 1833 (U.K.), s. 2. 49 Ibid., 293. 50 U.K. House of Commons Papers, 1859 (1), vol. 2, 619, 628. For the amendment, see Parliamentary Debates, House of Commons, 28 Feb. 1859, coll. 1044–5; and contrast the earlier version, available at U.K. House of Commons Papers, 1859 (1), vol. 2, 595, 603. In that bill, one comes across occasional echoes of other provisions in the Vancouver Island Act; e.g., the conclusion of cl. 46 of the English bill is similar to the commencement of s. 24 of the Act which was just quoted in the text above; cl. 23 of the bill and s. 23 of the Act are also quite similar, except that the Vancouver Island Act is again clearer on the need for registration before the law of property is affected. 51 Shotbolt, 342. 52 As indicated in Crease’s biography in the Dictionary of Canadian Biography.

184 Notes to pages 47–9 53 Vancouver Island’s population in 1863, even after the immigration of the previous years, was 7000: U.K. House of Commons Papers, 1866, vol. 81, 261, 454. For that of South Australia, see Pike, Paradise of Dissent, 517. 54 UKNA, CO 60/39/93 (RBCMA, MF B-1448–9); see also Shotbolt, 345. 55 Stevenson, Ex Uno Plures, 134. 56 Shotbolt, 345; see also UKNA, CO 60/39/79 (RBCMA, MF B-1448–9). It is notable here that Crease believes that the South Australian legislation did not come into force until 1861, and concludes from this that it was based on the British report of 1857. There is a simple explanation for this. After over a quarter of a century the details have become hazy in his recollection, and in order to refresh his memory he is using sources referring to the Real Property Act 1861 (S.A.), such as U.K. House of Commons Papers, 1881, vol. 64, 601ff. Very possibly G.H. Cary kept whatever version of the South Australian statute was used by the drafters, and it was not available to Crease at this point. The judgment in Shotbolt was provided to (Sir) Edmund Barton, attorneygeneral for New South Wales, in 1893 and returned with ‘a written note that the principles of our own Registry Act are identical with those in use for registration of titles to land in South Australia’ (RBCMA, MS-0054/4/1/ 2009). Barton also visited Canada in 1893. Perhaps this was how Crease was put right, and managed the improved but still not entirely accurate statements in his unpublished history that were quoted earlier. 57 Shotbolt, 341. 58 Quoted in Finn, ‘Australasian Law and Canadian Statutes,’ 208. 59 Email from the registrar general for Nova Scotia to the author, 14 June 2006; copy on file. Given opinions I have expressed elsewhere (book review, Adelaide Law Review 26 [2005]: 361–3), I add that the significance of the assurance fund in establishing the historical origins of the Torrens system, and in particular the fact that in South Australia it was not merely a transplant from Hamburg where no such institution existed, is one thing; whether an assurance fund is absolutely essential to the Torrens concept is another. 60 Foster, ‘British Columbia,’ 307–8; Hendrickson, ‘Constitutional Development,’ 253; P. Mikkelsen, ‘Land Settlement Policy on the Mainland of British Columbia, 1858–74’ (MA thesis, University of British Columbia, 1950), 69. J.H. Mason in the Globe, 2 Jan. 1894, attributes this to Vancouver Island’s having been a Crown colony at the time, but this educated guess is not quite right: Hendrickson, ‘Constitutional Development,’ 246. 61 LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). 62 ‘The Laws of British Columbia,’ Canadian Law Times 10 (1890): 127, 160. Cf.

Notes to pages 49–52 185

63 64

65 66 67 68 69

70 71

72 73 74 75

76 77

78 79

H. Robinson, ‘The Assurance Fund in British Columbia,’ Canadian Bar Review 30 (1952): 446. Admittedly, however, the report by Alston dated 2 Nov. 1870 and preserved in RBCMA, GR 1372/F71A/18, does not suggest this intention. A. McLeod and P. McGeachie, eds., Land of Promise: Robert Burnaby’s Letters from Colonial British Columbia, 1858–63 (Burnaby, BC: City of Burnaby, 2002), 105. Smith, ed., Reminiscences, 176 n. 2. See the biography of Cary in the Dictionary of Canadian Biography. Woodcock, British Columbia, 114. Smith, ed., Reminiscences, 176–7. Daily British Colonist, 14 Sep. 1866. This journal had by this stage passed out of the editorship of Amor de Cosmos, the significance of which will shortly become apparent. Law Times 41 (1866): 684. A. Pritchard, ed., Vancouver Island Letters of Edmund Hope Verney, 1862–5 (Vancouver: University of British Columbia Press, 1966), 105. Verney appears to be the same man as one of the justices of the peace mentioned in D. Farr, ‘The Organisation of the Judicial System in the Colonies of Vancouver Island and British Columbia, 1849–71,’ University of British Columbia Law Review 3 (1967): 11. Foster, ‘British Columbia,’ 337–8. Hendrickson, ‘Constitutional Development,’ 254. New Westminster Times, 17 Sep. 1859. (This newspaper was published at Victoria, despite its name.) The definitive and very amusing account is A. Harvey, ‘How William Alexander Smith Became Amor de Cosmos,’ Washington Historical Quarterly 26 (1935): 274–9. M. Ross, ‘Amor de Cosmos: A British Columbia Reformer,’ Washington Historical Quarterly 23 (1932): 111; Ormsby, British Columbia, 144. G. Woodcock, Amor de Cosmos: Journalist and Reformer (Toronto: Oxford University Press, 1975), 48–9. On the habeas corpus case, see Daily British Colonist, 26 Sep. 1860; 27 Sep. 1860; C. Kilian, Go Do Some Great Thing: The Black Pioneers of British Columbia (Vancouver: Douglas and McIntyre, 1978), 80–1. Daily British Colonist, 3 June 1859; Woodcock, British Columbia, 105. Admittedly, de Cosmos was already identified with the ‘opposition’ (Little, ‘Foundations,’ 71; W. Sage, ‘Amor de Cosmos: Journalist and Politician,’ BC Historical Quarterly 8 (1944): 193; Trimble, Mining Advance, 194–5; Wrinch, ‘Land Policy,’ 81–2), but that does not necessarily imply opposition to every measure of the government. Indeed, in Mikkelsen, ‘Land Settlement

186 Notes to pages 53–8

80 81 82 83

84 85 86 87

88 89 90

Policy,’ 94, the author tantalizingly records an objection by de Cosmos to the system under which land claims were merely recorded but their validity was not judged, but does not give a source other than a reference (without date) to an article in his newspaper. Cary was, however, able to reciprocate obstinacy: Farr, ‘Organisation,’ 11. Daily British Colonist, 17 Oct. 1860; 9 Nov. 1860. This is the best interpretation of RBCMA, C/AA/20.2A/4/199; Daily British Colonist, 24 Nov. 1860. Hendrickson, ‘Constitutional Development,’ 247, 249. The Governor’s Council’s proceedings were not public, but most of its activities can be reconstructed from RBCMA, C/AA/20.2K/2; Daily British Colonist, 4 Jan. 1861. The Assembly’s agreement is in RBCMA, C/AA/ 20.2A/4/221. Daily British Colonist, 25 Feb. 1861. Ibid., 30 Oct. 1861, 3. E.C. Brewer, Brewer’s Dictionary of Phrase and Fable, 17th ed. (London: Weidenfeld and Nicolson, 2005), 1017. British Columbia Gazette, 22 Feb. 1868. For a later official statistical report, see British Columbia Legislature, Sessional Papers, 1897, 487. The statement about what de Cosmos published depends on the accuracy of the index to his newspaper held in the RBCMA. Letter by Crease dated 28 Oct. 1870, RBCMA, GR 1372/F71A/18. Daily British Colonist, 3 Mar. 1868. U.K. House of Commons Papers, 1881, vol. 64, 764–5. Chapter 4

1 See J. McLaren and H. Foster, ‘Hard Choices and Sharp Edges: The Legal History of British Columbia and the Yukon,’ in Essays in the History of Canadian Law, vol. 6, British Columbia and the Yukon, ed. J. McLaren and H. Forster (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 1995), 8–9; Ormsby, British Columbia, 179; and on the constitutional structures in particular Hendrickson, ‘Constitutional Development,’ 260–7. 2 The British Columbia Land Registry Act 1861, unlike its Vancouver Island equivalent, is reprinted in U.K. House of Commons Papers, 1862, vol. 36, 469, 555ff, and thus in the Irish University Press series of U.K. Parliamentary Papers, Colonies: Canada, vol. 24, 137ff. It was enacted pursuant to the Imperial statute 21 & 22 Vic., c. 99, s. 2. 3 Proclamation of 15 Sep. 1858, reprinted in Statutes of British Columbia 1858

Notes to pages 58–62 187

4

5

6 7 8 9 10 11 12 13

14 15 16 17 18

19 20

to 1871 as B.C. no. 2. For the background see Mikkelsen, ‘Land Settlement Policy,’ 29; Wrinch, ‘Land Policy,’ 200. RBCMA, GR 1372/F142C/6C/17 (MF B-1308). The bill is in House of Lords Papers, 1852–3, vol. 7, 119ff, 165ff; the involvement of Lord Campbell, to which Chief Justice Begbie refers, is established by the bills in House of Lords Papers, 1851, vol. 6, 137ff, 181ff, 225ff. D. Williams, ‘… The Man for a New Country’: Sir Matthew Baillie Begbie (Sidney: Gray, 1977), 156. The biographer further records Chief Justice Begbie’s own personal difficulties caused by the uncertain state of lands titles (p. 187). Little, ‘Foundations,’ 77–8; Mikkelsen, ‘Land Settlement Policy,’ 4–-52, 94–5. UKNA, CO 60/10/194 (LAC, MF B-84); British Columbian, 28 Feb. 1861. UKNA, CO 60/11/83f, 87–8 (LAC, MF B-85). UKNA, CO 60/39/80 (RBCMA, MF B-1448–9); Mikkelsen, ‘Land Settlement Policy,’ 94–5. British Columbia Act 1866 (Imp.); Union Proclamation 1866 (B.C.). British Columbia Act 1866 (Imp.), s. 4; Little, ‘Foundations,’ 74; McLaren and Foster, ‘Hard Choices,’ 8–9. Crease summarizes the points of superiority in UKNA, CO 60/39/82ff (RBCMA, MF B-1448–9). RBCMA, MS-0054/11/1/7023. This report by Crease, dated 18 January, had been preceded by an internal departmental note dated 9 January: ‘Land Registry. Our [i.e. Vancouver Island’s] system works well and has been succ[ess]fully superintended and succeeded [?] by our Registrar Mr Alston. I believe our principle is a sound one.’ In the margin someone, I suspect Crease, has written ‘Everyone speaks highly as to the working of the V.I. Act.’: RBCMA, MS-0054/11/1/70363. Crease’s explanation for the delay is in UKNA, CO 60/39/94f (RBCMA, MF B-1448–9). Daily British Colonist, 23 Feb. 1870. UKNA, CO 60/39/70f (RBCMA, MF B-1448–9). Report by E.G. Alston, 2 Aug. 1870, LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). See above, chap. 4 n. 13. Daily British Colonist, 26 Feb. 1870; Alston’s entry in the Dictionary of Canadian Biography; McLeod and McGeachie, eds., Land of Promise, 160; Pritchard, ed., Letters of Verney, 165. Daily British Colonist, 29 April 1870. UKNA, CO 60/39/95–7 (RBCMA, MF B-1448–9). In addition, Crease’s

188 Notes to pages 62–6

21

22 23 24 25 26

27 28 29 30 31 32 33 34 35

appointment as a judge had already been announced, which perhaps further restricted his willingness to ram through legislation: see D. Verchere, A Progression of Judges: A History of the Supreme Court of British Columbia (Vancouver: University of British Columbia Press, 1988), 43. J. Hendrickson, ed., Journals of the Legislative Council of British Columbia (Victoria: Provincial Archives of British Columbia, 1980), 279, 286, 299, 321, 323, 326, 329–30, 332, 334, 346–7, 349. The period of two months does not include the transmission of a suggested amendment by the governor to the legislature removing a mistake which would have left the ordinance encumbered with a provision more suited to a registration-of-deeds statute: see ibid., 352–3; UKNA, CO 60/39/99 (RBCMA, MF B-1448–9). UKNA, CO 60/39/122 (RBCMA, MF B-1448–9). Daily British Colonist, 15 Mar. 1870. See also his further letter : Daily British Colonist, 24 Mar. 1870. RBCMA, GR 674/3/2; MS-0054/13/4/9067; see also Hendrickson, ed., Journals B.C., 317. RBCMA, MS-0054/13/4/9062. On McCreight, see further above, chap. 3 n. 31. RBCMA, MS-0054/13/4/9602–3; Daily British Colonist, 8 April 1870. In another context, Verchere, Progression of Judges, 45, refers to Jackson as a junior solicitor. This was quite true in terms of his strict seniority at the bar of British Columbia, but takes no account of his earlier experience. The remaining details in the text, including the reference to the refusal of the registrar generalship, are from the biographical notes to be found in H. Morgan, ed., Canadian Men and Women of the Time: A Handbook of Canadian Biography (Toronto: Briggs, 1898), 497. I imagine that these were provided by Jackson himself. UKNA, CO 60/39/133–4, 151 (RBCMA, MF B-1448–9); RBCMA, MS-0054/ 13/4/9063. Section 33 was actually copied from s. 3 of the Land Registry Amendment Act 1865 (V.I.). See further UKNA, CO 60/39/106 (RBCMA, MF B-1448–9). British Columbia Gazette, 20 Oct. 1870, 1. For a list of laws disallowed in London, see Revised Statutes of British Columbia 1979, vol. 7, 181–3. UKNA, CO 60/39/132 (RBCMA, MF B-1448–9). UKNA, CO 60/39/145-7, 155 (RBCMA, MF B-1448–9). UKNA, CO 60/39/93 (RBCMA, MF B-1448–9). RBCMA, GR 1372/F71A/18. Land Registry Ordinance 1870 (B.C.), ss. 45 and 47. Indefeasible certificates were conclusive evidence: s. 49. This provision was originally from the Land Registry Amendment Act 1865 (V.I.), s. 8.

Notes to pages 66–9 189 36 Section 40 of the 1870 Ordinance, identical in principle to s. 24 of the 1861 Act, freed purchasers of registered real estate from subjection to any unregistered interest other than leases of three years’ duration or less (changed from one year in the 1861 statute). 37 Crease’s report for the Colonial Office, 11 May 1870, UKNA, CO 60/39/ 149–50 (RBCMA, MF B-1448–9); Alston’s report, 2 Aug. 1870, LAC, RG 15/ D-II-1/310/68236 pt. 1 (MF T-13029). 38 Land Registry Ordinance 1870, 3, 21. 39 Daily British Colonist, 9 Mar. 1870. See further UKNA, CO 60/39/102–4 (RBCMA, MF B-1448–9). 40 Registrar General’s report, U.K. House of Commons Papers, 1881, vol. 64, 764– 5. Chapter 5 1 McLaren and Foster, ‘Hard Choices,’ 10. See also Stevenson, Ex Uno Plures, 157–8. 2 See Finn, ‘Australasian Law and Canadian Statutes,’ 198. Dr Finn does not, however, make much of the presence in Vancouver at this time of Joseph Martin, of whom more in the chapter on Manitoba. He was a member of the Manitoba legislature when it introduced the Torrens system in the mid1880s, and attorney general for that province when it made important changes to it in the late 1880s. He was then (1898–1903) a member of the British Columbia legislature when it imported the Manitoba version of Torrens, and attorney general on two occasions in that period as well. It is not surprising that he considered his version of the Torrens system the standard against which all others were to be judged. See Vancouver Province, 19 Jan. 1899, recording a ‘lucid explanation’ by Martin of the Torrens system; Vancouver Province, 23 June 1903; V. di Castri, Thom’s Canadian Torrens System: With Special Reference to the Land Titles Acts of Alberta, Canada, British Columbia, Manitoba and Saskatchewan, 2nd ed. (Calgary: Burroughs, 1962), 19–21; Morgan, Canadian Men and Women, 2nd ed., 735–6. However, the amendments to the system of land titles registration in British Columbia making it more like that of the provinces to its east occurred in a number of stages spread over almost a decade, and a complete history cannot be given here. 3 G. Holmested, ‘Suggestions for the Amendment of the Laws Relating to Land,’ Canadian Monthly and National Review 9 (1876): 322–6; G. Holmested, ‘The Simplification of the Transfer of Land,’ Canadian Monthly and National Review 11 (1877): 76–82; G. Holmested, ‘The Law of Succession to Land in Ontario,’ Canadian Monthly and National Review 12 (1878): 475–80.

190

Notes to pages 69–72

4 Toronto Globe, 11 Dec. 1911, reproduced in Toronto Central Reference Library, Biographical Scrapbooks, 1:735; Canada Land Law Amendment Association [hereafter CLLAA], Proceedings of a Public Meeting Held in the City Hall, Toronto, on 12 January 1890 (Toronto: Robinson, 1890), 13. 5 Holmested, ‘Suggestions,’ 326. 6 Holmested, ‘Simplification,’ 82. 7 Holmested, ‘Suggestions,’ 325. 8 Toronto Mail, 2 April 1883. 9 Toronto Globe, 8 Oct. 1883. 10 U.K. House of Commons Papers, 1872, vol. 42, 499–738. These reports were, in fact, mentioned by Holmested in one of his articles in 1877: Holmested, ‘Simplification,’ 76–7. Mention should also be made of the intriguing letter from John A. Macdonald to H.C. Jones on 19 June 1872 promising to talk over the latter’s ‘scheme,’ which he had drawn to the former’s attention in a letter dated 5 June (LAC, MF C-31, vol. 17, 716). The letter is intriguing because it is indexed under ‘Torrens system’ in Macdonald’s papers, but there is nothing else to indicate what it was about, and the original letter of 5 June has not, it seems, survived. The date makes it perhaps too early to be about the Torrens system, and I suspect that the indexer has classified it thus simply because of the identity of the addressee and his later association with the Torrens system. 11 Despatch no. 88 of 21 June 1870, attachment, UKNA, CO 123/140; CO 348/ 7. 12 P. Bennett, ‘Turning “Bad Boys” into “Good Citizens”: The Reforming Impulse of Toronto’s Industrial Schools Movement, 1883 to the 1920s,’ Ontario History 78 (1986): 219. 13 Toronto Mail, 10 June 1932; Toronto Star, 10 June 1932, both reproduced in Toronto Central Reference Library, Biographical Scrapbooks, 7:203; Bennett, ‘Turning “Bad Boys,”’ 201. 14 Toronto Mail, 19 Jan. 1934, reproduced in Toronto Central Reference Library, Biographical Scrapbooks, 7:204. 15 The biographical details are from Morgan, Canadian Men and Women, 2nd ed., 543–4; Toronto Central Reference Library, Scrapbooks, 7:408–9. The quotation is from the latter. 16 The biographical details are from Morgan, Canadian Men and Women, 2nd ed., 737–8; Toronto Central Reference Library, Scrapbooks 1:735. The mergers left traces on the statute book. See Canada Permanent Loan and Savings Company’s Act 1886 (Can.); Statutes of Canada 1887, c. 108, especially s. 2, giving power to acquire real estate throughout Canada; and for further statutory developments see Statutes of Canada 1899, c. 101; 1903, c. 63.

Notes to pages 72–6 191 17 18 19 20

21 22 23

24 25

26 27

28

29

30

Toronto Mail, 12 April 1887. Morgan, ed., Canadian Men and Women, 2nd ed., 737–8. Canadian Law Journal 48 (1912): 40. Journals of the Canadian House of Commons, 11 Mar. 1878, 74; 6/7 May 1878, 269; 12 Mar. 1879, 80; Canadian Parliamentary Debates, House of Commons, 11 Mar. 1878, 951; 6 May 1878, 2485; 12 Mar. 1879, 293. Toronto Week, 1 May 1884. See further Canadian Parliamentary Debates, House of Commons, 26 Feb. 1883, 79; 12 April 1883, 573. See Blake’s entry in the Dictionary of Canadian Biography. H.C. Jones said later that this letter marked the commencement of the Torrens agitation: letter of 31 May 1887, LAC, RG -15/D-II/1/454/120777 (MF T-13142). This was said in connection with a plea for government patronage for himself, but given that the letter of Dec. 1882 was followed by, and appears to have been the signal for, the formation of the Association, the statement is not an exaggeration. Toronto Daily Mail, 2 April 1883. The Globe, 2 April 1883, 2, carried a very much briefer report. See R. Polk, Toronto City Directory for 1885 (Toronto: Polk, 1885), 468, 523 (reading ‘Leys’ for ‘Lees’), 562, 632, 823. The Paterson referred to may well have been J.A. Paterson, barrister: see Morgan, Canadian Men and Women, 1st ed., 804; such a person appears in connection with the Association’s work in the Globe, 10 Nov. 1883. Morgan, Canadian Men and Women, 2nd ed., 1182–3. The same impression appears from the Manitoba Daily Free Press, 9 April 1883. Jones does mention the topic in the Globe, 22 Oct. 1883, but it is scarcely at the forefront of his concerns. Originally 4 Wm IV (2nd sess.) no. 18 (1834) (Nfld); now Revised Statutes of Newfoundland and Labrador 1990, c. C-11. See further Cahill v. Caines, Newfoundland & Prince Edward Island Reports 120 (1952) 87; Canadian Parliamentary Debates, Senate, 10 Mar. 1885, 242–3; B. Ziff, ‘Warm Reception in a Cold Climate: English Property Law and the Suppression of the Canadian Legal Identity,’ in Despotic Dominion: Property Rights in British Settler Societies, ed. J. McLaren, A. Buck, and N. Wright (Vancouver: UBC Press, 2005), 108–9. On the first aim, see the Devolution of Estates Act, Statutes of Ontario 1886, c. 22 – now the Estates Administration Act, Revised Statutes of Ontario 1990, c. E22, ss. 2, 4; in relation to the second, see below, chap. 6 n. 15. Alberta Law Reform Institute, The Matrimonial Home (Edmonton: The Institute, 1995), 8 has a concise summary with further references. Solutions short of abolition could have been contemplated, and indeed an obvious one was expressed by J.H. Mason in the Globe, 10 Nov. 1883; Mail, 14 April

192 Notes to pages 76–9

31 32

33 34 35 36 37

38 39 40 41 42

1885. He took a dimmer view of the very existence of dower, however, in the Globe, 2 Jan. 1894. See the further discussion and references in P. Girard, ‘Land Law, Liberalism and the Agrarian Ideal: British North America, 1750–1920,’ in Despotic Dominion, ed. McLaren, Buck, and Wright, 122. Dower Act 1833 (U.K.), s. 4; M. McCallum, ‘Prairie Women and the Struggle for a Dower Law, 1905–1920,’ Prairie Forum 18 (1993): 21. C. Cavanaugh, ‘The Limitations of the Pioneering Partnership: The Alberta Campaign for Homestead Dower, 1909–25,’ Canadian Historical Review 74 (1993): 204, 211. Melbourne Argus, 2 May 1860. Toronto Daily Mail, 13 April 1883. Ibid., 7 April 1883. Globe, 23 April 1883. Globe, 23 April 1883; Daily Mail, 23 April 1883. The same list is found in the CLLAA’s Prospectus and Constitution, Together with Some Remarks on the Present System of Land Transfer in Ontario and the Torrens’ System of Registration of Title, Together with Suggestions for the Amendment of the Present Law of Descent (Toronto: Globe, 1883), 1, which also contains the Association’s aims and constitution (pp. 3, 17–19). I have added occupations where I have been able to find them and they have not previously been mentioned. The sources for these are, unless otherwise indicated, Morgan, ed., Canadian Men and Women, and Polk, Toronto City Directory. In relation to Metcalf, the latter source gives his address at 50 Church Street but does not state what he did in this central city office. In relation to Scarth, see G. Rose, A Cyclopaedia of Canadian Biography, Being Chiefly Men of the Time, 2nd ed. (Toronto: Rose, 1888), 624–5. I date its appearance by the notice in the Globe, 16 July 1883. CLLAA, Prospectus, 9. U.K. House of Commons Papers, 1881, vol. 64, 601ff. UKNA, CO 273/115/420 (AJCP 446ff). For a similar assessment, see S. Das, The Torrens System in Malaya (Singapore: Malayan Law Journal, 1963), 62. The original report is attached to a letter from Maxwell dated 9 April 1883, found in a volume kindly lent to me by the National University of Singapore, and also in the Colonial Office files in the UKNA, CO 275/28/143– 71. See also UKNA, CO 275/27/103, 107; CO 275/28/342–3; W. Maxwell, Straits Settlements: Present and Future Land Systems (Rangoon: Government Press, 1883), 28–32. In the South Australian Archives, GRG 1/6, there is a letter dated 9 Aug. 1884 from the attorney-general for South Australia to the minister of justice, Ottawa, enclosing copies of then-current legislation

Notes to pages 79–83 193

43

44 45 46 47 48 49 50 51 52

53 54

55 56 57 58 59 60

and referring to Beverley Jones’ possession of a copy of Maxwell’s report; see also the follow-up letter of 6 Mar. 1885 to the deputy minister of justice, Ottawa. Maxwell’s report is also referred to in various other Canadian sources. See further Lo and Lim, ‘Land Registration in Singapore,’ 226–7; Wong, Tenure and Land Dealings in the Malay States, 149–56. Preserved in LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029) in a letter to the minister of justice dated 14 June 1886. Occasional reference was also made to New Zealand, e.g. Globe, 6 May 1884. Winnipeg Sun, 16 Aug. 1883. Despite my researches, I have not been able to find out anything of significance about Jones. For example, letter of 23 Sep. 1884 from the Association to the minister of the interior, LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). Globe, 22 Mar. 1884; 5 April 1884; 15 April 1884. Ibid., 29 June 1883. U.K. House of Commons Papers, 1857 (2), vol. 21, 245, 297–8. LAC, MF C-1762, 189035. Globe, 8 Oct. 1883; Mail, 8 Oct. 1883. The latter is the source of the two quotations following in the text. Globe, 29 Mar. 1884. Ibid., 22 Oct. 1883. The report states that this petition was printed in the Globe, but I have not been able to find it. However, I shall shortly mention the records of the petitions in the journals of the legislature; see also Globe, 1 Dec. 1886, for a later expression of support. On granges, see Noel, Patrons, Clients, Brokers, 236–7. Dowling, ‘Ships and Sealing Wax,’ 364–5. J. Mason, Land Transfer Reform: An Address Delivered before the Canadian Institute, Toronto, 1 December 1883 (Toronto: CLLAA 1884). The quotation about to follow is from p. 5. See further the Globe, 2 Jan. 1894; CLLAA, Synopsis of First Annual Report and Treasurer’s Statement (Toronto?: CLLAA?, 1884), 1–2; D. Thom, The Canadian Torrens System, with Special Reference to the Statutes of Manitoba, Saskatchewan and Alberta, and of the Dominion of Canada and with a Collection of Forms, Statutes and Leading Cases (Calgary: Burroughs, 1912), 10–14. Globe, 8 Dec. 1883; 11 Dec. 1883; Mail, 11 Dec. 1883. Globe, 10 Nov. 1883. LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). Winnipeg Daily Times, 28 Dec. 1883; Manitoba Daily Free Press, 4 Jan. 1884. Canadian Law Times 3 (1883): 475–6. Ibid., 479. See also Mail, 2 April 1886; 6 April 1886. Interestingly, we find a lawyer arguing in April 1884 that the old system was not greatly defective

194 Notes to pages 84–8

61 62 63

64

65

66 67 68 69 70 71 72

73 74 75 76

because people could be their own conveyancers under it: Globe, 1 May 1884; there was a letter in reply, 3 May 1884. That argument was surely one of desperation. Canadian Law Times 3 (1883): 532, 536. Ibid. 3 (1883): 581; 4 (1884): 16, 19, 20. Mail, 5 Feb. 1892 (and probably on other earlier occasions as well). Generally speaking, of course, if they did harbour this fear lawyers did not express it publicly. See however Mail, 26 Dec. 1882, where the question is raised for them by a law stationer! Journals of the Legislature of Ontario, 29 Jan. 1884, 29–30; 30 Jan. 1884, 31; 31 Jan. 1884, 32–3; 1 Feb. 1884, 34; 5 Feb. 1884, 37; 6 Feb. 1884, 44; 7 Feb. 1884, 49; 8 Feb. 1884, 53; 12 Feb. 1884, 58; 13 Feb. 1884, 61; 14 Feb. 1884, 63; 15 Feb. 1884, 69; 19 Feb. 1884, 75; 21 Feb. 1884, 78; 22 Feb. 1884, 82; 26 Feb. 1884, 90; 27 Feb. 1884, 91; 28 Feb. 1884, 95; 29 Feb. 1884, 98; 4 Mar. 1884, 105; 5 Mar. 1884, 112; 7 Mar. 1884, 118; 12 Mar. 1884, 130; 15 Mar. 1884, 145; 18 Mar. 1884, 151; 21 Mar. 1884, 165; 24 Mar. 1884, 179. 150 is in fact a minimum number, as the contents of some petitions were not recorded. In the letter referred to below, chap. 5 n. 1, the figures are given as sixteen county councils, 112 township councils, three town councils, twenty-five granges, and one from each of the Toronto Board of Trade, the City of Toronto, and the Board of Arts and Manufacturers – a total of 159 petitions. Journals of the Legislature of Ontario, 4 Feb. 1885, 26; 10 Feb. 1885, 33; 12 Feb. 1885, 42; 13 Feb. 1885, 44; 17 Feb. 1885, 50; 19 Feb. 1885, 53; 24 Feb. 1885, 66; 10 Mar. 1885, 100; 17 Mar. 1885, 118. The letter is reproduced as Canadian Institute for Historical Microreproductions, microfiche no. 53570. Toronto Week, 1 May 1884 (quotation); 30 Oct. 1884; 26 Feb. 1885; 25 Mar. 1886; 1 April 1886. Globe, 26 Oct. 1885, 4. Mason, Land Transfer Reform Address, 1 December 1883, 26. Globe, 15 April 1884. Noel, Patrons, Clients, Brokers, 215f; Stevenson, Ex Uno Plures, 37. Globe, 13 Dec. 1911, cited in Toronto Central Reference Library, Scrapbooks, 1:735. Ottawa Daily Citizen, 11 Mar. 1885; 19 Mar. 1885. Another prominent example is in Canadian Parliamentary Debates, Senate, 11 Mar. 1885, 259; 18 Mar. 1885, 354. Globe, 31 May 1884. Ibid., 11 Dec. 1886. Toronto Week, 30 Oct. 1884. Weaver, Great Land Rush, 243.

Notes to pages 88–94 195 77 Canadian Parliamentary Debates, House of Commons, 11 Feb. 1884, 213; 16 Feb. 1885, 116; Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 16 April 1885, 91; Scrapbook Hansard (Daily Manitoban), 19 Mar. 1886, 150; Winnipeg Commercial, 6 Jan. 1885. 78 Globe, 8 Oct. 1883; similar Mail, 8 Oct. 1883. Mason made the same point in a letter to the editor of the Mail, 22 Mar. 1886; and see Toronto Week, 25 Mar. 1886. 79 Canadian Parliamentary Debates, Senate, 11 Mar. 1885, 259; Journals of the Legislature of Ontario, 10 Feb. 1885, 33; London Advertiser, 30 Jan. 1885; Cavanaugh, ‘Limitations of the Pioneering Partnership,’ 212; Anon., London [Ont.] City and Middlesex County Directory 1886 (London, ON: R. Hills, 1886), 128. 80 LAC, RG 15/D-II/1/317/72942 (MF T-13036). 81 U.K. House of Commons Papers, 1857 (2), vol. 21, 245, 298. 82 Toronto Week, 1 May 1884. Similar: 26 Feb. 1885; 25 Mar. 1886. 83 Globe, 2 Jan. 1894. 84 The annual report may be found attached to LAC, RG 17/I-1/573/64543; the quotation is from p. 2. 85 Noel, Patrons, Clients, Brokers, 10–13. 86 Toronto Week, 30 Oct. 1884; Mason, Land Transfer Reform Address, 1 December 1883, 5. 87 Globe, 16 Sep. 1886; Mail, 17 Sep. 1886; above, chap. 5 n. 64. 88 I. Kyer, ‘Gooderham & Worts: A Case Study in Business Organization in Nineteenth-Century Ontario,’ in Essays in the History of Canadian Law, vol. 8, In Honour of R.C.B. Risk, ed. G. Baker and J. Phillips (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 1999), 337. 89 26 April 1886. The 1885 meeting was also reported, e.g. Globe, 14 April 1885. The report for 1887 may be found where indicated above, chap. 5 n. 84. 90 Morgan, Canadian Men and Women, 1st ed., 1016; Polk, Toronto City Directory, 767, 871. 91 See, for example, the petition by the Association itself recorded in the Journals of the Legislature of Ontario, 5 Mar. 1886, 78. 92 Globe, 11 Dec. 1886. 93 CLLAA, Land Transfer Reform: Proceedings of a Public Meeting Held in the City Hall, Toronto, on 12 February 1890 (Toronto: Robinson, 1890); Globe, 22 Feb. 1890; Mail, 22 Feb. 1890. 94 Globe, 16 Sep. 1891; 5 Feb. 1892; Mail, 5 Feb. 1892. 95 Globe, 2 Jan. 1894; 11 Aug. 1894. 96 LAC, RG 15/D-II/1/1010/1496223 (MF T-14587); Globe, 28 July 1911.

196 Notes to pages 95–101 Jones’s last appearance in the Torrens cause that I could find is in Canadian Law Times 33 (1913): 210. There is no mention of the Association. Chapter 6 1 Di Castri, Registration of Title, 1–24; J. Hogg, ‘Uniformity in Registration of Title Law,’ Canadian Law Times 37 (1917): 376; Risk, ‘Records of Title,’ 469; Simpson, Land Law, 78, 83. 2 M. Neave, ‘Indefeasibility of Title in the Canadian Context,’ University of Toronto Law Journal 26 (1976): 192 (referring to the version current then). See also Jones, ‘Torrens System,’ 16. 3 Ziff, ‘Warm Reception,’ 109. 4 Scrapbook Hansard, 19 Mar. 1885 (from the Globe). The Mail, 20 Mar. 1885, 3, has a slightly differently worded report, but it is the same in all essentials. 5 Scrapbook Hansard, 10 Mar. 1884 (from the Globe). 6 Globe, 7 April 1887; the Association’s annual report for 1887, LAC, RG 17/I1/573/64543, 1; the leader of the Opposition’s claim in the Globe, 30 Mar. 1887. 7 Scrapbook Hansard, 19 Mar. 1885 (from the Globe). 8 Canada Law Journal 25 (1889): 289. 9 Globe, 22 Mar. 1884; 29 Mar. 1884; 5 April 1884; 15 April 1884; 3 May 1884; 5 May 1884; 6 May 1884; 16 May 1884; 26 May 1884; 31 May 1884; 21 June 1884. 10 Scrapbook Hansard, 13 Feb. 1885 (from the Globe); see also Scrapbook Hansard, 20 Mar. 1885 (ditto). 11 Ibid., 13 Feb. 1885 (from the Globe). 12 See Meredith’s entry in the Dictionary of Canadian Biography. 13 This point was made on the second-reading speech: Scrapbook Hansard, 19 Mar. 1885 (from the Globe). 14 Mail, 20 Mar. 1885. There is no equivalent passage in the equivalent report in the Globe, but Mowat repeats the view in the Globe, 11 Mar. 1886. But see Girard, ‘Land Law,’ 126, for a later change of mind or perspective. 15 Succession Law Reform Act 1977, Statutes of Ontario 1977, c. 40, s. 49; Family Law Reform Act 1978, Statutes of Ontario 1978, c. 2, s. 70(1); see further Girard, ‘Land Law,’ 122–7. The current statute still reflects the former position, although now the provisions concerned can apply only to pre-abolition rights: Land Titles Act (Ont.), s. 44 (1)(14); see also s. 119.1. Dower and curtesy were abolished in England by the Administration of Estates Act 1925 (U.K.), s. 45 (1)(b), (c).

Notes to pages 101–4 197 16 Globe, 11 Mar. 1886; 30 Mar. 1887. See also Canada Law Journal 22 (1886): 211. 17 Journals of the House of Assembly of New Brunswick, 31 Mar. 1886, 168. 18 W. Magwood, ‘Systems of Land Registration and Guarantees of Title in the Province of Ontario,’ University of Toronto Law Journal 13 (1959): 94; Youdan, ‘Length of a Title Search,’ 512. 19 Later the Ontario statute was supplemented and then wholly replaced by a statute similar in effect, although somewhat different in detail, known as the Certification of Titles Act, and this title is still in use today (Revised Statutes of Ontario 1990, c. C-6). See Legislature of Ontario, Debates, 10 April 1984, 626–7. 20 Declaration of Title Act 1862 (U.K.), which applied in England; Landed Estates Court (Ireland) Act 1858 (U.K.), ss. 51, 52; Anon., ‘Enhancing the Marketability of Land: The Suit to Quiet Title,’ Yale Law Journal 68 (1959): 1266–7. 21 U.K. House of Commons Papers, 1857 (2), vol. 21, 245, 300 (speaking of the legislation for Ireland). For a quotation to the same effect in relation to the Ontario legislation, see Globe, 6 Aug. 1885. 22 Ontario Sessional Papers, 1896, no. 55; Globe, 14 April 1885. 23 Canada Law Journal 57 (1921): 79; below, chap. 6 n. 46. 24 Journals of the Legislative Assembly of Ontario, 3 April 1908, 242. I calculate equivalents in today’s money in this work using the Bank of Canada’s inflation calculator at http://www.bankofcanada.ca/en/rates/ inflation_calc.html (visited 27 Mar. 2007), using the nearest available year. 25 Mail, 26 April 1886; Globe, 26 Oct. 1885. See also the CLLAA, Annual Report for 1887, LAC, RG 17/I-1/573/64543, 2. 26 Ontario Sessional Papers, 1891, no. 50, 4–5. For a comment on this from the point of view of the better-off, see Canada Law Journal 27 (1891): 353. 27 LAC, RG 15/D-II-1/504/141949 (MF T-13182). 28 Globe, 7 April 1887. 29 CLLAA, Annual Report for 1887, LAC, RG 17/I-1/573/64543, 2. 30 Journals of the Legislative Assembly, 6 April 1887, 103; 21 April 1887, 130; 23 Feb. 1888, 61; CLLAA, Annual Report for 1887, LAC, RG 17/I-1/573/ 64543, 2. 31 Ontario Sessional Papers, 1890 no. 69, 3. 32 Globe, 30 April 1887; 9 May 1887; 15 Mar. 1888 (‘Torrens System. Ensuring absolute security and easy transfer’). 33 Journals of the House of Assembly of New Brunswick, 31 Mar. 1886, 168. 34 See above, chap. 5 n. 84; the quotations about to follow are from p. 2. And see Canada Law Journal 23 (1887): 337. 35 Canada Law Journal 24 (1888): 322. 36 Ibid., 25 (1889): 289.

198

Notes to pages 104–8

37 Ontario Sessional Papers, 1892, no. 72, 3, 5; Canada Law Journal 28 (1892): 300, 302. 38 Ontario Sessional Papers, 1890, no. 69, 4; 1893, no. 61, 3; 1896, no. 55; CLLAA, Proceedings of a Public Meeting on 12 February 1890, 17, 21; Canadian Law Times 13 (1893): 251. 39 Globe, 19 Feb. 1904. 40 Canadian Law Times 29 (1909): 354. The latter class was also mentioned in the Globe, 21 Mar. 1922. 41 Globe, 11 Oct. 1907. See also 14 Nov. 1907. 42 Canada Law Journal 47 (1911): 638. 43 Anon., Henderson’s Western Canada Gazetteer and Directory for 1908 (Winnipeg: Henderson Directories, 1908), 511, 1186. 44 A. McLeod, ‘The Torrens System in Ontario,’ Canadian Law Times 29 (1909): 695. 45 Cf. the similar opinion expressed by an Australian visitor in the Globe, 14 July 1894. 46 Canadian Law Times 29 (1909): 699–700. 47 Journals of the Legislative Assembly of Ontario, 4 Feb. 1886, 22; 15 Feb. 1886, 38; 16 Feb. 1886, 39–40; 17 Feb. 1886, 41; 23 Feb. 1886, 53; 24 Feb. 1886, 54; 25 Feb. 1886, 58; 5 Mar. 1886, 78; 10 Mar. 1886, 92; 16 Mar. 1886, 112. Similar petitions were received in following years, as a look at the Journals for years such as 1887 and 1891 confirms. 48 Toronto Week, 25 Mar. 1886. 49 Weekly Herald and Lake Superior Mining Journal, 19 Dec. 1885. Note, too, the earlier editorial of 17 Jan. 1885. The quoted phrase may however have been taken from earlier sources, such as the Winnipeg Commercial, 2 Oct. 1883; 6 Jan. 1885. 50 Globe, 25 Dec. 1885. 51 Weekly Herald and Lake Superior Mining Journal, 2 Jan. 1886. 52 Statutes of Ontario 1887, c. 16. 53 Ibid., s. 2(1). 54 Canada Law Journal 23 (1887): 318; D. Donahue, P. Quinn, and D. Grandilli, Real Estate Practice in Ontario, 6th ed. (Toronto: Butterworths, 2003), 25. 55 Statutes of Ontario 1887, c. 15, ss. 132ff.; CLLAA, Proceedings of a Public Meeting on 12 February 1890, 15–16; CLLAA, Annual Report for 1887, LAC, RG 17/I-1/573/64543, 1. 56 Journals of the Legislative Assembly of Ontario, 1/2 April 1890, 150; Globe, 13 April 1887; Mail, 13 April 1887. 57 Globe, 30 Mar. 1887. The Mail’s report (30 Mar. 1887) is slightly different. 58 J. Lynn and A. Jay, The Complete Yes Minister: The Diaries of a Cabinet Minister by the Rt Hon. James Hacker, M.P. (London: BBC Books, 1987), 380.

Notes to pages 108–16

199

59 Canada Law Journal 23 (1887): 227. 60 Globe, 7 April 1887. Cf. also Journals of the Legislative Assembly of Ontario, 1/2 April 1890, 150–1. 61 Globe, 17 June 1896; 8 Dec. 1896; 23 Nov. 1897; Ottawa Citizen, 22 Nov. 1897. 62 Globe, 11 Aug. 1894. 63 Territorial Division Act, Revised Statutes of Ontario 1914, c. 3, s. 2 (44)–(53). From the Revised Statutes of 1927 the list included Cochrane. Ontario County was added in 1896 as a result of a petition from its council: Globe, 17 June 1896; 8 Dec. 1896. 64 Ontario Sessional Papers, 1922, no. 69, 1. 65 Ibid., 1922, no. 69; Archives of Ontario, RG 4-32/1717; Globe, 27 May 1920; 3 July 1920; 22 Sep. 1920; 27 Nov. 1920; 21 Sep. 1922; Mail, 27 May 1920. 66 Magwood, ‘Systems of Land Registration,’ 102; Risk, ‘Records of Title,’ 471. 67 Land Titles Divisions Regulations, Regulation 428/99, reg. 1 & Schedule, column 3. 68 Magwood, ‘Systems of Land Registration,’ 95 n. 9. 69 Ontario Law Reform Commission, Report on Land Registration (Toronto: Department of Justice 1971), 16. Compare also Risk, ‘Records of Title,’ 471; Ontario Sessional Papers, 1922, no. 69, 1. 70 Ontario Law Reform Commission, Land Registration, 23. An eminent academic came to the same conclusion: Risk, ‘Records of Title,’ 477–8. 71 Donahue, Quinn, and Grandilli, Real Estate Practice, 23. The same statement is in the 4th ed. of 1990, p. 19. See also M. Moore, Title Searching and Conveyancing in Ontario, 5th ed. (Markham, ON: Butterworths 2003), 11. 72 Emails from Eric Black, Legal Counsel, Implementation, Teranet Inc., to the author, 17 Aug. 2006 and 9 Aug. 2007; copies on file. 73 Globe, 30 Nov. 1893. 74 H. Hart, The Concept of Law (Oxford: Clarendon Press, 1991), 28. 75 As well as that mentioned in the text, see Globe, 29 Oct. 1886. 76 Ontario Sessional Papers, 1922, no. 69, 4. In British Columbia the same song could be sung even more lustily for a while: in 1881 the registrar general included the ‘eastern provinces’ along with the United States as lands of darkness (U.K. House of Commons Papers, 1881, vol. 64, 767). Chapter 7 1 Re Land Titles Act 1894, Territories Law Reports 4 (1899), 233. 2 LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). 3 Canadian Parliamentary Debates, House of Commons, 12 April 1883, 572–3; 11 Feb. 1884, 213; 16 Feb. 1885, 116; 5 Mar. 1885, 201, 203; 11 Mar. 1885, 261. 4 See above, chap. 5 n. 20.

200 Notes to pages 116–20 5 The drafters’ identity is stated in numerous sources, for example the Globe, 10 July 1883; of the sources, the most definitive is House of Commons, Sessional Papers 1886, no. 3, 510. 6 Canadian Parliamentary Debates, House of Commons, 26 Feb. 1883, 79. 7 Ibid., 24 Jan. 1884, 43; 1 April 1884, 385; CLLAA, Synopsis of First Annual Report, 2. 8 Canadian Parliamentary Debates, House of Commons, 12 April 1883, 573–4. 9 Finn, ‘Australasian Law and Canadian Statutes,’ 213. 10 10 July 1883, 4; see also Canadian Parliamentary Debates, House of Commons, 3 Mar. 1886, 41; Toronto Week, 1 May 1884, 342. 11 Toronto Week, 1 May 1884. 12 See John A. Macdonald’s entry in the Dictionary of Canadian Biography. 13 Winnipeg Daily Times, 8 June 1883. 14 Globe, 10 July 1883. 15 Thus Macdonald’s biographer in the Dictionary of Canadian Biography. 16 Winnipeg Daily Times, 20 Feb. 1883. 17 John A. Macdonald’s papers, vol. 197, 82465–8, 82469–72, LAC, MF C1591. 18 Ibid., vol. 249, 11631, LAC, MF C-1672. 19 Ibid., vol. 410, 197759; vol. 411 part II, 198738–9, LAC, MF C-1769. All emphases as in original; underlining replaced by italics. 20 Journals of the Senate of Canada, 4 Mar. 1884, 111; Canadian Parliamentary Debates, Senate, 1 April 1884, 885. 21 Cf. Canadian Parliamentary Debates, Senate, 29 May 1886, 868. 22 Ibid., 18 Mar. 1885, 363. 23 LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). 24 Canadian Parliamentary Debates, Senate, 23 Feb. 1885, 76. 25 House of Commons, Sessional Papers, 1886, no. 79, 5; for earlier proceedings see Journal of the Council of the N.W.T., 28 July 1884, 57; and cf. letter from Hugh Richardson, S.M., 27 Oct. 1884, LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). 26 See above, chap. 3 n. 40; Canadian Parliamentary Debates, Senate, 30 Jan. 1885, 22; LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). See also LAC, RG 13/2246/1885/20. 27 Archives Ontario, F 23-1/MU 477. 28 Canadian Parliamentary Debates, Senate, 11 Mar. 1885, 259–61. 29 Mail, 22 Mar. 1886. See also Globe, 14 April 1885. 30 A table of origins showing the derivation of the various provisions was annexed to the bill of 1886 and is preserved in LAC, RG 14/E1/1941. The 1885 bill, as passed by the Senate, is also preserved, although with-

Notes to pages 120–2 201

31

32 33 34

35

36 37

38

39

out any such table, in LAC, RG 14/E1/677. It is also clear that one or other of the editions of Thomas à Beckett’s Introduction and Notes to the Transfer of Land Statute of Victoria was available to the drafters (LAC, RG 13/2246/ 1885/20; RG 15/D-II-1/310/68236, pt. 1 (MF T-13029)), although they do not appear to have copied any provisions found only in the law of Victoria. Ottawa Citizen, 11 Mar. 1885; reproduced in Canadian Parliamentary Debates, Senate, 11 Mar. 1885, 258. Scepticism was expressed about the writer’s identity in Canadian Parliamentary Debates, Senate, 11 Mar. 1885, 261. The response by Beverley Jones is in the edition of 19 Mar. 1885 and was also reproduced in the Winnipeg Daily Times, 24 Mar. 1885. In the Territories Real Property Act [1886] (Can.) this became s. 63. The words ‘or encumbrancee’ appear after ‘purchaser,’ and the comma is missing. Canadian Parliamentary Debates, Senate, 10 Mar. 1885, 252; 20 Mar. 1885, 373– 80. Cavanaugh, ‘Limitations of the Pioneering Partnership’; McCallum, ‘Prairie Women’; Rasmussen et al., A Harvest Yet to Reap: A History of Prairie Women (Toronto: Women’s Press, 1976), 147–71. This is the state of the law that the amendment would have brought about, and see Canadian Parliamentary Debates, Senate, 31 May 1886, 893. There was, however, some confusion about this in the Senate at the time, and it is possible that the clause might have been interpreted as achieving less than it appeared to. See Canadian Parliamentary Debates, Senate, 18 Mar. 1885, 363–4. It may not have been appreciated that in Australia, one of the principal aims of the law reform adopted in Newfoundland in the Chattels Real Act had also been adopted by assimilating the law of inheritance for real property to that applying to personalty without entirely abolishing land as a legal category. See, for example, the statute of New South Wales, 26 Vic. no. 20 (1862), s. 1. Canadian Parliamentary Debates, House of Commons, 24 Mar. 1885, 742. Ibid., 13 April 1886, 670. The committee’s report is no longer extant: email to the author from the Information Service of the Library of Parliament, 28 April 2006; copy on file. Canadian Parliamentary Debates, Senate, 31 May 1886, 890. The nearest approach in the law of South Australia is what is now s. 46(1) of the Administration and Probate Act 1919 (S.A.), under which land is inherited as if it were a chattel real. This does not actually make interests in land, other than leases, into chattels real; it merely states that for one purpose, they are to be treated as if they were. Territories Real Property Act [1886] (Can.), s. 44; see also s. 4.

202

Notes to pages 122–4

40 Canadian Parliamentary Debates, Senate, 9 July 1894, 681; A. Dubuc, ‘Uniformity of Laws in the Western Provinces,’ Canada Law Journal 53 (1917): 290. In a report of 1890 in LAC, RG 15/D-II-1/620/229729/27–8 (MF T-13867), the Inspector of Lands Titles Offices states that ‘nearly all’ of Edmonton has been brought under the Act. By 1957 all land in Alberta was registered: I. Head, ‘The Torrens System in Alberta: A Dream in Operation,’ Canadian Bar Review 35 (1957): 10, 19. On the fate of the small number of old-system titles, see Setter v. Forbes, Alberta Law Reports 8 (1914), 206–7. It is intriguing to find an advertisement as late as 1912 mentioning that the land was held by Torrens title (Calgary Eye Opener, 4 May 1912) as if some real chance existed of encountering an old-system title in Calgary. 41 LAC, RG 15/D-II-1/644/257969, pt. 1 (MF T-13891). The source of the provision (s. 48) was stated to be the McCarthy Bill in the table of origins referred to above, chap. 7 n. 30. The definition of ‘judge’ in s. 3 was also quite wide, and included all officials authorized to adjudicate in civil disputes involving titles to real estate. 42 LAC, RG 15/D-II/1/1010/1496223 (MF T-14587). 43 Journals of the Legislative Assembly of the North-West Territories, 16 Aug. 1892, 34–5; 23 Oct. 1896, 70; 24 April 1899, 48. 44 Canada Gazette, 18 Aug. 1906, 364; 25 Aug. 1906, 454; 1 Sep. 1906, 479–80; 8 Sep. 1906, 533. 45 See above, chap. 7 n. 5; John A. Macdonald’s papers, vol. 411, pt. 2, 198742, LAC, MF C-1769. Further correspondence on payment for drafting is in LAC, RG 13/2246/1885/20. 46 The book was Jones, ‘Torrens System.’ The comment in an anonymous review of the book in Canada Law Journal 22 (1886): 211 is apt: as there was little to no practice under the system when the book was published, the book could ‘scarcely be said to be a “practical treatise.”’ The campaign started with Sir John’s papers, vol. 419, 203561–3, LAC, MF C-1773 (only twenty copies at this early stage). Jones also induced the Association to take up this cause: see its annual report for 1887, LAC, RG 17/I-1/573/64543, 3, resolution 4. 47 Australian Parliamentary Debates, Senate, 16 Feb. 1999, 1985. 48 Canada Gazette, 17 April 1880, 1393; Sir John’s papers, vol. 426, 207870–5, LAC, MF C-1776; letter of 19 May 1886, LAC, RG 15/D-II-1/310/68236, pt. 1 (MF T-13029). 49 John A. Macdonald’s papers, vol. 475, 236414–5, LAC, MF C-1797. Further correspondence with Macdonald may be found in ibid., vol. 249, 112630–3

Notes to pages 124–8 203

50 51

52 53 54 55 56

57 58 59 60 61 62 63 64 65 66 67

(MF C-1672); vol. 433, 213546–50 (MF C-1780); vol. 444, 220111–12 (MF C1787); vol. 445, 230758–61 (MF C-1786); vol. 450, 223321–3 (MF C-1788); vol. 475, 236680–2 (MF C-1797), and as above, chap. 7 n. 46. See LAC, RG 15/D-II-1/454/120777 (MF T-13142), which is the main file on the matter and the source of most of what is said here about this topic. Calgary Tribune, 22 Feb. 1888. Unfortunately it is not possible to know the content of the petitions referred to in the Journals of the Canadian House of Commons, 2 June 1887, 210; 3 June 1887, 214; 8 June 1887, 245; 10 June 1887, 251; 13 June 1887, 263; 15 June 1887, 288. An email from Parliament’s Information Service, rather amusingly for a pedant such as this author, reads, ‘In reply to your request, these petitions were destroyed in the fire in 1916.’ LAC, RG 15/D-II-1/504/141949 (MF T-13182). For a similarly detailed complaint ($4.35 for a $25 lot), see Regina Leader, 4 May 1899. LAC, RG 13/73/1889/40; see also RG 13/70/1888/370. Statutes of Canada 1894, c. 28. The file on the drafting of this is LAC, RG 15/ D-II-1/644/257969 (MF T-13891-3). See Re Land Titles Act 1894, Reports of the Supreme Court of the North-West Territories 2 (1898) 332. LAC, RG 15/D-II-1/644/257969, pt. 1 (MF T-13891) gives a figure of $3 million worth of land registered from July 1890 to March 1892 alone. On the position in the Yukon in 1900, see Canadian Parliamentary Debates, House of Commons, 15 Feb. 1900, col. 479. Calgary Herald, 30 Nov. 1896. The problems that arose with McLean were thus easily foreseen: Canadian Parliamentary Debates, Senate, 5 Mar. 1885, 200. LAC, RG 15/D-II-1/323/76448 (MF T-13042). Section 63 of the North-West Territories Act 1880 (Statutes of Canada 1880, c. 25) as amended. LAC, RG 15/D-II-1/549/161275; RG 15/D-II-1/620/229729 (MF T-13867); RG 15/D-II-1/644/257969, pt. 1 (MF T-13891). For example, LAC, RG 15/D-II-1/484/135998 (MF T-13165); RG 15/D-II-1/ 566/170377 (MF T-13818). Ibid., RG 15/D-II-1/566/170377 (MF T-13818). Territories Real Property Act [1886], s. 24. LAC, RG 13/A-2/75/1889/1225; RG 15/D-II-1/323/76448 (MF T-13042). LAC, RG 13/A-2/75/1889/1225; RG 15/D-II-1/323/76448 (MF T-13042). Ibid., RG 15/D-II-1/644/257969, pt. 1 (MF T-13891). Ibid., RG 3/A-2/79/1890/1250; RG 15/D-II-1/322/75923 (MF T-13042);

204 Notes to pages 128–32

68 69 70 71 72 73 74

75 76 77 78

79

80 81

RG 15/D-II-1/323/76448 (MF T-13042); RG 15/D-II-1/596/203458 (MF T-13844). Ibid., RG 15/D-II-1/323/76448 (MF T-13042). Ibid., RG 15/D-II-1/591/200281 (MF T-13840). Ibid., RG 15/D-II-1/620/229729 (MF T-13867). Ibid., RG 15/D-II-1/322/75923 (MF T-13042); RG 15/D-II-1/323/76448 (MF T-13042). Ibid., RG 15/D-II-1/591/200281 (MF T-13840). Ibid., RG 15/D-II-1/591/200281 (MF T-13840); RG 15/D-II-1/323/76448 (MF T-13042). On Clarke, see also Calgary Herald, 2 Dec. 1896. See above, chap.7 n. 44. One difference, relating to caveats against unregistered land, appears from Paulette v. The Queen, SCR 2 (1977) 638–9, and others from the Alberta Scrapbook Hansard (Edmonton Bulletin), 10 April 1906. An official file on the draft Alberta statute is preserved in the Alberta Archives, GR 1966/0166/423. LAC, RG 19/495/I/119-4. Morris v. Bentley, Territories Law Reports 2 (1895) 253. On the delay, see Canadian Parliamentary Debates, House of Commons, 22 June 1906, col. 5978. Statutes of Canada 1908, c. 42; LAC, RG 13/A-2/1915/1908/1296; RG 13/ 2329/1906/439; RG 13/2340/1908/332; RG 15/D-II-1/983/146224A (MF T-14562). Sessional Papers of the Legislative Assembly of Saskatchewan, 1908–9, Public Accounts, 204; Public Accounts for the Province of Alberta for the Year Ended 31 December 1910 (Edmonton: Government Printer, 1911), 137. Head, ‘Torrens System in Alberta,’ 1. The provision of the original Torrens statute giving effect to the same principle is s. 31 of the Real Property Act [1858] (S.A.). Chapter 8

1 For a note on the history of the Statute of Frauds, see H. Foster, ‘You Say Goodbye, and I Say Hello?’ Advocate 63 (2004): 39–42. 2 Sinclair v. Mulligan, Manitoba Law Reports 3 (1886) 492; appeal dismissed: Manitoba Law Reports 5 (1888) 17. 3 A. Martin, The Hudson’s Bay Company’s Land Tenures and the Occupation of Assiniboia by Lord Selkirk’s Settlers, with a List of Grantees under the Earl and the Company (London: Clowes, 1898), 131. 4 On the mechanism adopted to introduce two centuries’ law, see B. Laskin, The British Tradition in Canadian Law (London: Stevens and Sons, 1969), 7–8;

Notes to pages 132–6 205

5

6 7 8 9

10 11 12 13 14

15 16 17 18 19 20 21

22 23 24 25 26 27

W. Morton, Manitoba: A History, 2nd ed. (Toronto: University of Toronto Press, 1979), 104–5, 115. Statutes of Manitoba 1881, c. 25; Manitoba Scrapbook Hansard (Winnipeg Daily Times), 21 May 1881; D. Gibson and L. Gibson, Substantial Justice: Law and Lawyers in Manitoba, 1670–1970 (Winnipeg: Peguis, 1972), 177; Morton, Manitoba, 200. Morton, Manitoba, 200. Manitoba Daily Free Press, 26 Mar. 1883. Commercial, 6 Jan. 1885; Morton, Manitoba, 231–3. Manitoba Scrapbook Hansard (Manitoba Daily Free Press), 16 April 1885, 91. See also Anon., ‘The Torrens System,’ Manitoba Law Journal 1 (1884): 39; Commercial, 26 Feb. 1884. Statutes of Manitoba 1886, c. 28, s. 30. Globe, 28 July 1911. Winnipeg Daily Times, 8 June 1883. Journals of the Senate of Canada, 1888, vol. 22, Appendix 1, 18. Manitoba Daily Free Press, 11 June 1883. See also Winnipeg Daily Times, 9 June 1883, Commercial, 19 June 1883; and note also the earlier references to the Torrens system in that newspaper’s edition of 13 April 1883. The deleterious consequences of the boom are also noted in Manitoba Daily Free Press, 24 July 1883. Manitoba Daily Free Press, 26 Aug. 1882; 11 June 1883. Ibid., 9 April 1883. Ibid., 16 April 1883. Ibid, 9 April 1883; 16 April 1883; 9 June 1883; 24 July 1883; 11 Oct. 1883; 12 Oct. 1883. Ibid., 12 Oct. 1883. Ibid., 8 Dec. 1883. Winnipeg Daily Times, 8 June 1883; 20 June 1883. There is a less enthusiastic piece in the edition of 28 June 1883, where the newspaper has clearly confused land transfer and land selection; however, some of those reading this article were probably ignorant of the fact that Torrens dealt with the former only. See also Manitoba Daily Free Press, 20 June 1883. Commercial, 15 May 1883; 19 June 1883; 2 Oct. 1883. Winnipeg Daily Sun, 16 Aug. 1883. There may be a further contribution from the same person in the Winnipeg Daily Times, 15 Oct. 1884. Manitoba Daily Free Press, 6 July 1883; Winnipeg Daily Times, 6 July 1883. Ibid., 11 June 1883. Winnipeg Daily Times, 7 Oct. 1884. Manitoba Daily Free Press, 20 June 1883; 21 June 1883; Winnipeg Daily Times,

206

28

29

30 31 32 33 34 35 36 37 38 39 40 41

42

43 44

Notes to pages 137–9

19 June 1883; 21 June 1883; Commercial, 26 June 1883. There was a long delay, not well accounted for; possibly a death in the family of William Bathgate (Manitoba Daily Free Press, 4 July 1883) caused it. The list of members is from the Winnipeg Daily Times, 29 Sep. 1883; Commercial, 2 Oct. 1883. For occupations etc., see Statutes of Canada 1885, c. 90; Journals of the Senate of Canada, 1 Feb. 1884, 54; House of Commons, Sessional Papers, 1888, vol. 16, no. 21, 180; Manitoba Legislative Library, Biographical Scrapbook B4, 27, 45; Henderson’s Directory; Steen & Boyce Winnipeg City Directory. R. Risk, A History of Canadian Legal Thought: Collected Essays (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 2006), chap. 5. Winnipeg Daily Times, 29 Sep. 1883. Manitoba Daily Free Press, 16 Oct. 1883; Winnipeg Daily Times, 16 Oct. 1883; Commercial, 16 Oct. 1883. Manitoba Daily Free Press, 10 April 1884. Ibid., 8 April 1884. Ibid., 5 Mar. 1884; Winnipeg Daily Times, 5 Mar. 1884. Commercial, 17 Mar. 1885. Winnipeg Daily Times, 29 Sep. 1883. Dowling, ‘Ships and Sealing Wax,’ 365. Manitoba Daily Free Press, 20 April 1886. Ibid., 27 Dec. 1883. Ibid., 25 Mar. 1884; Winnipeg Daily Times, 25 Mar. 1884. For example, Winnipeg Daily Times, 25 April 1884; 26 April 1884. The earliest reports I have found relating to the receipt of a petition are Manitoba Daily Free Press, 6 Mar. 1884; Winnipeg Daily Times, 6 Mar. 1884. An instance of a council that refused to sign is recorded in the Minnedosa Tribune, 21 Mar. 1884. Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 18 Mar. 1884; Commercial, 6 Jan. 1885. Some of these petitions are preserved in the Manitoba Archives, G 7152/25/17. Unfortunately the Journals of the Legislative Assembly of Manitoba (e.g. 18 March 1884, 20–1) indicate the identity of petitioners (there are in fact twenty-seven councils recorded as petitioning on that day and twenty-four on the previous day (ibid., 13)) but – unlike the Ontario legislature’s journals – Manitoba’s do not state the subject of petitions, so a precise count is not possible. Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 17 April 1884. Manitoba Daily Free Press, 10 April 1884.

Notes to pages 139–43

207

45 Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 17 April 1884. 46 Manitoba Daily Free Press, 10 April 1884. 47 Statutes of Manitoba 1885, c. 1, s. 1 & Schedule 1885–6. 48 Journals of the Legislature of Manitoba, 2 May 1885, 102. 49 Anon., ‘Some Results of the Torrens System,’ Western Law Times 2 (1891): 172–3; Manitoba Sessional Papers, 1888, no. 1, 18, 21, 133, 138. 50 Manitoba Sessional Papers, 1893, no. 9, 8, 28, 31, 35–6, 206, 208–10, 214. 51 Gibson and Gibson, Substantial Justice, 156–9; A. Poole, ‘The Boundaries of Canada,’ Canadian Bar Review 42 (1964): 129–32; E. Pridham, ‘The Title to Land in Manitoba,’ Transactions of the Manitoba Historical and Scientific Society, 3rd ser., 13 (1958): 13–15. 52 Manitoba Gazette, 14 Feb. 1885, 223. 53 At least, there is nothing in reports of the election meeting such as may be found in Winnipeg Daily Sun, 20 Feb. 1885; 25 Feb. 1885. 54 Manitoba Gazette, 20 June 1885, 533; 11 July 1885, 637. 55 Manitoba Legislature, Scrapbook Hansard (Daily Manitoban), 19 Mar. 1886, 150. 56 Manitoba Legislative Library, Biography File B5, 186, reproducing Free Press, 7 Oct. 1913. 57 The reasons for Manitoba’s attitude are explored in Noel, Patrons, Clients, Brokers, 257. 58 Winnipeg Daily Times, 16 Mar. 1885. 59 Globe, 22 Jan. 1885. 60 Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 7 Feb. 1889, 133. See also 16 April 1885, 92. 61 See above, chap. 8 n. 9. 62 Manitoba Scrapbook Hansard (Manitoba Daily Free Press), 16 April 1885, 92; above, chap. 3 n. 90. 63 Ibid., 16 April 1885, 92. 64 Manitoba Scrapbook Hansard, 17, 20, 21 April 1885, 93–6. 65 At the deputation of 16 March 1885, the attorney general made express reference to the federal and Ontario bills and to A.C. Killam’s. For a contemporary assessment of the drafting of Manitoba’s Act, see Anon., Manitoba Law Journal 2 (1885): 107–10. 66 J. Hogg, ‘Uniformity in Registration of Title Law,’ Canadian Law Times 37 (1917): 379; Pridham, ‘Title to Land in Manitoba,’ 19. 67 This is revealed by a comparison of the Manitoba provisions with the federal one and reference to the table of origins referred to earlier, chap. 7 n. 30.

208

Notes to pages 143–8

68 Mail, 8 Oct. 1883; Globe, 14 April 1885. 69 Torrens, South Australian System, 14–15; letter to the editor of the London Times, 8 Mar. 1875. 70 Above, chap. 5 n. 42, paras. 182–4. 71 Real Property Act 1885, ss. 28, 38ff., 54, 56. 72 Anon., Manitoba Law Journal 2 (1885): 110. 73 Winnipeg Daily Times, 5 Nov. 1884. See also the edition of 28 Jan. 1885. 74 Ibid., 9 July 1885. 75 See Miller’s entry in the Dictionary of Canadian Biography. 76 Pridham, ‘Title to Land in Manitoba,’ 16–18. Coutlée was later appointed assistant reporter to the Supreme Court of Canada, and his name may be found at the commencement of several volumes of its reports and in J. Oddy, ‘The Jubilee of the Law Reports, 1865–1915,’ Journal of the Society of Comparative Legislation, n.s., 15 (1915): 213. 77 Manitoba Daily Free Press, 24 April 1886; see also 20 April 1886. 78 Ibid., 19 April 1886. 79 Daily Manitoban, 22 April 1886. 80 Manitoba Daily Free Press, 24 April 1886. 81 Manitoba Archives, G 8143/0518/3. 82 Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 19 Mar. 1886, 150. 83 Manitoba Daily Free Press, 20 April 1886. 84 Cf. Journals of the Canadian House of Commons, 1909, Appendix no. 1, 95ff. 85 Manitoba Daily Free Press, 5 May 1887. 86 Ibid., 6 May 1887. 87 Portage la Prairie Weekly Review, 27 Jan. 1888; see also Minnedosa Tribune, 30 Mar. 1888. 88 Manitoba Archives, G 8146/OS21/1/10–21. 89 Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 19 Mar. 1886, 149–50. 90 Manitoba Legislature, Scrapbook Hansard (Morning Call), 27 April 1887, 2. 91 Journals of the Legislature of Manitoba, 27 April 1887, 27. 92 See above, chap. 8 n. 63. 93 Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 7 Feb. 1889, 133. 94 Manitoba Gazette, 21 Jan. 1888, 48–9. 95 Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 14 May 1888, 99. 96 Journals of the Legislature of Manitoba, 14 May 1888, 94. 97 Statutes of Manitoba 1888, c. 21.

Notes to pages 148–53

209

98 Brandon Sun Weekly, 28 June 1888. 99 Manitoba Daily Free Press, 4 May 1888; Daily Manitoban, 20 Mar. 1886; Morning Call, 16 May 1888; 19 May 1888; Commercial, 21 May 1888. 100 Journals of the Legislature of Manitoba, 17 May 1888, 132; Manitoba Legislature, Scrapbook Hansard (Manitoba Daily Free Press), 17 May 1888, 111. 101 Statutes of Manitoba 1888, c. 22. 102 Record of Title Act (Ireland) 1865 (U.K.); Dowling, ‘Ships and Sealing Wax,’ 376. 103 Anon., ‘The Torrens Act in Manitoba,’ Canada Law Journal 24 (1888): 610. 104 Globe, 22 Feb. 1890; Mail, 22 Feb. 1890. I have added paragraphing. 105 On the reduction of the fees, contrast Manitoba Gazette, 27 June 1885, 578; 26 Mar. 1887, 476; 22 Sep. 1888, 520. For an indication of the jealousy with which lawyers guarded their business under the Torrens system from unqualified conveyancers, see Anon., ‘Illegal Practising,’ Western Law Times 1 (1890): 167–9. 106 Le Manitoba, 21 Mar. 1889; italics in original. 107 On the names and number of persons employed at the various offices, see Manitoba Archives, G 8165/OS33/2. 108 Statutes of Manitoba 1889, c. 16. There is an earlier draft with handwritten amendments in Manitoba Archives, G 8152/OS27/3. 109 Real Property Act 1889, s. 56; Schedule S, cl. 3(2). 110 In 1940, 1970, and 1985 respectively. This information was kindly provided to me by Mr R.M. Wilson, registrar general for Manitoba. 111 Statutes of Manitoba 1913, c. 56, s. 5; Scrapbook Hansard (Manitoba Daily Free Press), 14 Feb. 1913, 61; and note the absence of commentary on this at the time in the Free Press generally. 112 Real Property Act 1889, ss. 14, 15, and 38. 113 Journals of the Legislature of Manitoba, 11 Feb. 1889, 31. 114 Statutes of Manitoba 1891, c. 1, s. 15; Manitoba Daily Free Press, 26 Mar. 1884; Scrapbook Hansard (Tribune; Manitoba Daily Free Press), 16 April 1891, 63, 76. For a further statement by Joseph Martin, see Canadian Parliamentary Debates, House of Commons, 9 May 1895, col. 801; however, partisan considerations appear uppermost in his mind at this point. 115 Manitoba Daily Free Press, 11 Feb. 1889. 116 The recently deposed registrar general L.W. Coutlée notes this in LAC, RG 13/A-2/75/89/1236; possibly this was why his office, although not he, was reinstated (see above, chap. 8 n. 76). 117 Anon., ‘Notes and Comments – The Real Property Act,’ Western Law Times 1 (1890): 141. This report also included the statement that ‘two-thirds of the thickly settled portions of the province’ were under the Act (noted also in

210

118 119 120 121

122

123 124 125 126

127

Notes to pages 153–6

Gibson and Gibson, Substantial Justice, 159), but this probably refers to the portions of the province serviced by the Torrens offices rather than parcels of land actually subject to Torrens titles. Anon., Western Law Times 2 (1891): 170, 174. This report was noted in Anon., Canada Law Journal 27 (1891): 573. McLeod, ‘Torrens System in Ontario,’ 695. Globe, 28 July 1911. See also Dubuc, ‘Uniformity of Laws,’ 290. Email to the author, 27 Oct. 2006, from the registrar general and deputy registrar general for Manitoba; Pridham, ‘Title to Land in Manitoba,’ 11; J. Slagerman, ‘Legal Concerns of Buying and Selling Farm Land’ (Winnipeg?: Manitoba Agriculture, 1987), 10. T. Miceli et al., ‘Title Systems and Land Values,’ Journal of Law and Economics 45 (2002): 565–82, although note the commentary on their conclusions in Arrunada and Garoupa, ‘Choice of Titling System.’ I am not qualified to decide this dispute. See above, chap. 5 n. 2. Daily British Colonist, 19 Jan. 1899. For example, Le Manitoba, 14 June 1893. Pridham, ‘Title to Land in Manitoba,’ 21. On the claim of 1894, see Manitoba Morning Free Press, 28 July 1894. The case is reported on a pleading point only in the law reports: Wilson v. District Registrar Winnipeg, Manitoba Reports 9 (1893) 215. There is a reference to an unsuccessful claim in Anon., Western Law Times 2 (1891): 173. Property Registry (Manitoba), Annual Report 2005/2006 (Winnipeg: The Registry, 2006), 17. The statutory requirement (Real Property Act, s. 181(5)) is for a standing balance of only $75 000, but it appears that a higher sum has been voluntarily adopted, presumably at some time after Pridham, ‘Title to Land in Manitoba,’ 21 noted the transfer of all balances above $75 000. Chapter 9

1 F. Brochu, ‘The Internet’s Effect on the Practice of Real Property Law,’ Journal of Information, Law and Technology 2 (2003), http://www2.warwick .ac.uk/fac/soc/law/elj/jilt/2003_2/brochu (visited 10 Nov. 2006); W. Renton, ‘French Law within the British Empire,’ Journal of the Society of Comparative Legislation, n.s., 10 (1909): 101. 2 Montreal Gazette, 2 June 1887. 3 CLLAA, Proceedings of a Public Meeting Held on 12 February 1890, 10. 4 Montreal Gazette, 2 June 1887.

Notes to pages 156–8 211 5 J. Dumas, Registering Title to Land: A Series of Lectures Delivered at Yale (Chicago: Callaghan, 1900), 76–7. 6 E. Common, ‘The Role of the Notary in the Province of Quebec,’ Canadian Bar Review 36 (1958): 347–8; Weaver, Great Land Rush, 240 (quotation). See also Canadian Parliamentary Debates, Senate, 23 Feb. 1885, 71. 7 F. Brochu, ‘Le système Torrens et la publicité foncière québécoise,’ McGill Law Review 47 (2002): 625–65. 8 Brochu, ‘The Internet’s Effect,’ [3.2]. 9 Fredericton Evening Capital, 6 Mar. 1886; Daily Sun, 4 Mar. 1886. See the named members’ entries in the Dictionary of Canadian Biography. Victoria University, from which Stockton received an LLD in the next year, is now part of the University of Toronto. It is also worth noting a later advertisement for land in the west trumpeting the fact that the purchaser would enjoy a ‘Torren[s] Government Title’: Sun (St John, NB), 1 Dec. 1906. 10 Journal of the House of Assembly of New Brunswick, 31 Mar. 1886, 168–70. 11 Thus there is, for example, little to nothing in the newspapers of the day or the legislature’s own synopsis of the debates. 12 R. Stein, ‘Some Aspects of Title by Registration in the Maritime Provinces,’ Dalhousie Law Journal 2 (1976): 635 n. 9. 13 There is a useful brief online biography of Clarke at The Legislative Library of New Brunswick, http://www.gnb.ca/legis/leglibbib/Special_Projects/ premiers-bios/english/GJClarke.pdf (visited 9 Nov. 2006). 14 Finn, ‘Australasian Law and Canadian Statutes,’ 206, provides an explanation for this, although I am not sure what his source is for the statement that the government changed its mind. 15 E. Quinton, R. De Vet, and G. Mulholland, ‘Improving Government Services in Atlantic Canada: Modernising Cadastre by Public/Private Partnership,’ GIM International 18, no. 8 (2004): 12. 16 Finn, ‘Australasian Law and Canadian Statues,’ 205; Journal of the House of Assembly of Nova Scotia, 16 Feb. 1897, 95 (bill read a first time, but no further proceedings); Longley’s entry in the Dictionary of Canadian Biography. 17 Nova Scotia Debates of the Legislature, 25 Jan. 1904, 92. This debate is also notable for the attorney general’s description of Torrens as ‘a very ordinary man’ who had merely succeeded in having ‘a little everyday piece of common sense’ (ibid., 92–3) accepted by the law. He extends this rather dismissive attitude to South Australia itself in Nova Scotia Debates of the Legislature, 16 Feb. 1897, 109. The barristers’ opinion is expressed in Archives of the Nova Scotia Barristers’ Society, committee report of 20 Mar. 1897; resolution of 27 Nov. 1897. (I am extremely grateful to Prof. Philip Girard, who kindly searched the records for me and provided this

212 Notes to pages 158–67

18 19 20 21

22

23 24 25 26 27 28 29 30 31 32

information.) See also R. Stein, ‘Implementation of Enacted Title-by-Registration Legislation in the Maritimes,’ Dalhousie Law Journal 10, no. 3 (1987): 125. See Pearson’s entry in the Dictionary of Canadian Biography. Nova Scotia Debates of the Legislature, 25 Jan. 1904, 87ff. Simpson, Land Law, 83 n.*. Stein, ‘Some Aspects of Title,’ 635 n. 9; M. Coffin and K. Pierre, ‘Land Registration: The Nova Scotia Experience,’ (paper delivered at the Caris Conference, 2005), 10; http://www.caris.com/conferences/caris2005/ proceedings/paper s/11.pdf (visited 3 Nov. 2006); copy on file with author. A similar experience with a voluntary statute is reported from the Leeward Islands: Brereton, Law, Justice and Empire, 212. Canadian Parliamentary Debates, Senate, 5 Mar. 1885, 193. Rather remarkably given the controversy referred to in chap. 2, the senator also declared himself naturally disinclined to accept the Torrens system because he was of German stock and the system was alien to his people. Morning Chronicle (Halifax), 17 Feb. 1897, 4. Nova Scotia Debates of the Legislature, 25 Jan. 1904, 92. Finn, ‘Australasian Law and Canadian Statutes,’ 205–6. Stein, ‘Some Aspects of Title,’ 646–8 and addendum at 657. Brochu, ‘The Internet’s Effect,’ [4]. Land Registration Act, Statutes of Nova Scotia 2001, c. 6, s. 46; Land Titles Act, Statutes of New Brunswick 1981, c. L-1.1, ss. 12–14. N.S.: ss. 21, 45; N.B.: ss. 15(1), 16. Real Property Act 1886, s. 72. N.S.: ss. 85–89; N.B.: ss. 73–77. This was stated to me in emails from Mark Coffin, registrar general of Land Titles, Service Nova Scotia, 14 June 2006; 2 Jan. 2007. Chapter 10

1 On the broader historiographical issues raised by this paragraph, I gratefully adopt the good sense shown in the recent reflections of B. Wright, ‘Self-Governing Codifications of English Criminal Law and Empire: The Queensland and Canadian Examples,’ University of Queensland Law Journal 26 (2007): 39–40. See also ibid., 52, for a further indication of the strength of the bonds of Empire between Canada and the Australian colonies in the nineteenth century. 2 Bradbrook, MacCallum, and Moore, Australian Real Property Law, 120. 3 After writing this sentence I discovered that something along these lines

Notes to pages 167–8 213 has been adopted in Saskatchewan, is now possible under the law of Ontario, and has been recommended for Manitoba. See the survey in Manitoba Law Reform Commission, Private Title Insurance (Winnipeg: Manitoba Law Reform Commission, 2007), 54–5. 4 Ibid., 119. 5 The final document is Joint Land Titles Committee, Renovating the Foundation: Proposals for a Model Land Recording and Registration Act for the Provinces and Territories of Canada (s.l.: The Committee?, 1993). 6 Métis Settlements Land Registry Regulation, Alberta Regulation no. 361/1991.

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Index

acts. See statutes Adelaide Times, 24–5 adverse possession, 9, 13 Alberta. See Territories (1886) Alberta (after 1905), 129–30 Alston, Edward Graham, 31, 39, 44, 48, 53, 54, 60, 61–2, 64, 66 Armstrong, T.C.L., 137, 138 assurance fund, 48–9, 103 Baker, John, 21, 24 Bank of British Columbia, 62 Bank of British North America, 64 Bank of North America, 62 Bank of Winnipeg, 137 Bannantyne, A.G.B., 137 Barton, Edmund, 40 Bathgate, R.D., 138 Bathgate, William, 137 Begbie, Matthew Baille, 58 Bentham, Jeremy, 20 Blain, D., 78, 82 Blake, Edward, 73, 116, 117

Blanshard, Richard, 32 book of registry. See public registry Boothby, Benjamin, 16, 26 Border Cities Real Estate Board, 109 Boultbee, Alfred, 133 British Colonist, 36 British Columbia, 57–67, 84, 165; dispersed population, 58–9; opposition to Torrens system, 62–5; registration-of-deeds system, 60 Brock, J.H., 137, 141 Brydges, C.J., 136, 137, 141 Burnaby, Robert, 50, 61, 63 Cairns, Hugh, 35, 36, 44, 45, 46, 72, 96, 121 Calgary Tribune, 124 Campbell, Alexander, 42, 116, 118– 20, 123 Canada Land Law Amendment Association (Association), 68–94, 166; advocacy on behalf of Torrens

216 Index system, 78–86; end of operations, 93; extension of the Torrens system in Ontario, 104, 106; not a front for loan sharks, 86–93; inaugural meeting, 74–5, 77; membership, 78, 93; newspaper coverage, 73, 74, 77, 79, 80, 82, 85, 88, 93, 94, 117, 135; Oliver Mowat, 103; Ontario election of 1886, 94; petitions to the Legislature of Ontario, 84–5, 107; pre-history, 68–70; Toronto City Hall meeting in 1890, 94; Torrens system, 68–9 Canada North-West Land Company, 123 Canada Permanent Building and Savings Society, 71, 72 Canada Permanent Loan and Savings Company, 137 Canada Permanent Mortgage Corporation, 72 Canadian Institute, 82 Canadian Law Times, 83–4, 85, 89, 105 Canadian Monthly and National Review, 69 ‘Canadian values,’ 113 Carnarvon, Lord, 35 Cary, George Hunter (G.H.), 35, 36, 39, 40, 44, 46, 49–54, 57, 58, 65–6 Central Farmers’ Institute, 94 ‘chain of title,’ 6 Clark, J.P., 78 Clarke, J.G., 157–8 Clarke, Lawrence, 129 Collected Works of Robert Torrens (father), 18 Colonial Office, 35, 38, 46, 62, 65, 78 The Commercial (Manitoba), 135 Commissioners for Sale of Incumbered Estates in Ireland, 16

computers and the Torrens system, 5, 110–11, 160, 166–7 Conklin, E.G., 141 Coutlée, L.W., 145, 153 Crease, Henry, 36, 39, 40, 43, 46–8, 60, 62, 65, 66 ‘curtain principle,’ 12, 13–14 Daily Alta California, 41, 46, 48, 52, 55, 59–60 Daily British Colonist, 40, 51, 52, 54, 61 Daily British Colonist and Victoria Chronicle, 50 Daily Manitoban, 146 Daly, T.M., 129 de Cosmos, Amor, 51–5, 60, 61, deeds of sale, 5–6 dependent titles, 6 descent and dower, 79 Dominion Trades Congress, 93 Douglas, James, 33, 54, 57, 58–9, 63 Douglas, W.A., 78 dower and curtesy: abolition, 75–6, 79, 90 Drummond, C.S., 134, 136, 137 easements, 13 Eden, A.F., 137 Ermatinger, C.O.Z., 98 Esposito, A., 27, 28 Ewart, J.S., 137, 138, 141, 144 Farmers’ and Mechanics’ Building Society of Toronto, 72 Finn, Jeremy, 35 Fisher, John, 19 Fisken, John, 78 Fitzgerald, W.W., 89 Fonesca, W.G., 141 Forin, John, 49

Index Forster, Anthony, 21, 22, 25, 27–8, 29, 30, 135 Foster, Hamar, 68 Foy, J.J., 78 Foy, James, 133 fraud and error, 10–11, 13 Gawler, Henry, 79 Gerrie, Robert, 134, 137 Globe (Toronto), 77, 79, 80, 82, 105, 116, 117 Gooderham, William, 93, 94 Gordon, J.G., 124–5 Greenway, Thomas, 142, 148 Hamburg system of land titles registration, 27–8 Hamilton, Charles, 140, 141, 142 Hanlan, Ned, 135 Hanson, Richard Davies, 19 Hardy, A.S., 111 Hart, H.L.A., 111–12 Hector, John, 21 Helmcken, J.S., 37, 50 Holmested, George: Association membership, 78, 93; birth, 71; career, 71; Chattels Real Act (Newfoundland 1834), 75; corresponding secretary of the Association, 78; descent and dower, 79; dower and curtesy, 75–6, 79; Holmested and Watson on Ontario Civil Procedure, 71; John Herbert (J.H.) Mason, 69; Ontario election of 1886, 94; publications, 69, 70, 71, 73; Torrens system in British Columbia, 84; Torrens system in South Australia, 70 Houston, William, 75 Hübbe, Ulrich, 27, 28, 29, 30

217 Hudson’s Bay Company, 31–3, 63, 115, 131 ‘insurance principle,’ 14–15. See also Assurance Fund Jackson, Robert, 64 Joint Committee on Land Titles, 167 Jones, Beverley, 70–1, 72, 74–5, 78, 81, 82, 94, 101, 116, 143; Association membership, 78, 93; Canadian Law Times, 83–4, 105; Manitoba, 133, 135, 138, 153; New Brunswick, 104; North-West Territories, 117–18; reaction to claims of self-interest, 87 Jones, H.C., 73–4, 75, 116, 118, 122, 123–4; supports Torrens system in Manitoba, 134–5 Jones, J.O., 79, 135 Kaulbach, Henry Adolphus, 159 Kersteman, William, 78 Killam, Albert (A.C.), 131, 137, 138, 139, 141 Kirchhoffer, John, 148–9 Lands Titles Commissioners, 16 Land Titles Office (Ontario), 104 Lawrence, Susan, 11, 14, 167 Lawrence v. Maple Trust, 11–12 Law Times (England), 50 Lees, John, 75 Legislative Assembly of the NorthWest Territories, 122–3 Leys, John, 78, 103 Longley, J.W., 158–9 Luxton, W.F., 134, 135, 137, 140 Macara, W.E., 145

218 Index MacDermott, Marshall, 21 Macdonald, John A., 73, 81, 116–17, 118, 123, 124, 126, 127, 128 Macpherson, David, 83, 118 McArthur, Duncan, 137 McCarthy, D’Alton, 77, 95, 116, 120, 121, 123 McCreight, J.F., 38–9, 63, 163 McKilligan, J.B., 137 McLaren, John, 68 McLean, Archibald, 126 McLean, Thomas Alexander, 116, 126–9 McLeod, A., 105–6, 153 Mail (Toronto), 93 Manitoba, 131–54, 166; criticism of Torrens system, 144–9; land speculation, 132; Manitoba Land Law Amendment Association, 133, 136–40; petitions, 138–9; settlement, 132–3; support for Torrens system, 133–5; Torrens system becomes optional, 147–9. See also statues: Real Property Act (Manitoba 1885); statutes: Real Property Act (Manitoba 1889) Le Manitoba, 151 Manitoba and North-West Railway, 137 Manitoba Daily Free Press, 134–5, 137, 146 Manitoba Land Law Amendment Association, 133, 136–40, 141 Manitoba Law Journal, 144 Mann, Charles, 19 Maple Trust, 11, 14 Maritimes, 156–61 Martin, Joseph, 139, 142, 143, 145, 147–8, 152, 153, 154; John Herbert (J.H.) Mason, 149–51

Mason, John Herbert (J.H.): Alexander Campbell, 120; Association, 74; Association membership, 78, 93; Association president, 78, 81, 84, 85, 86; birth, 72; borrowing against land, 90; Canadian Institute speech, 82, 135; career, 71, 72; Chicago speech, 91–2; conveyancing reform, 99; George Holmested, 69; Joseph Martin, 149–51; lobbies Dominion Trades Congress, 93; lobbies federal parliament, 83; need for land title reform, 88–9; obsession with Torrens system, 86; Ontario election of 1886, 94; Quebec, 158; responds to Globe article, 79; Robert Richard Torrens, 27; Thomas Alexander McLean, 128; Toronto City Hall speech, 104 Maxwell, W.E., 79, 143 Meredith, William, 100, 108 Metcalf, James, 78 Métis, 133, 137 Miller, James, 139, 140, 141, 145 Mills, David, 73, 212 ‘mirror principle,’ 12–13, 110–11 Monetary Times, 75 Montgomery, G.A., 128 Montreal Board of Trade, 155, 156 mortgages, 12–13 Mowat, Oliver, 81, 96–7, 98–9, 103 Neales, John Bentham, 20 New Brunswick, 157–8, 160, 166 Newfoundland and Labrador, 160 Norquay, John, 133, 136, 139 North-West Navigation Company, 134 North-West Territories: Torrens sys-

Index tem, 73, 77, 81, 83. See also Territories (1886) North-West Territories Council, 119 notice, 6–7, 8, 12, 43 Nova Scotia, 158–9, 160, 165, 166 Nunavut. See Territories (1886) Olmstead, D.H., 81 Ontario, 95–114, 165, 166; Australian influence, 101; extension of the Torrens system, 104, 106–11; introduction of the Torrens system, 97– 101; Oliver Mowat, 96–7, 98–9, 103; opposition to extension of Torrens system, 109; registration-of-deeds system, 102. See also under statutes Ontario Associated Boards of Trade, 109 Ontario Law Reform Commission, 110 Ottawa Citizen, 87, 210 Park, W.A., 157 Paterson, H., 75 Paterson, J.A., 78 Pearson, B.F., 158–9 Prince Edward Island, 160 ‘property owning democracy,’ 92 public register, 9–10, 11; exceptions, 12–14 Pugsley, William, 157 Quebec, 155–6 ‘race-notice,’ system, 8 Raff, Murray, 28 real property law (U.K.), 20 reception: definition, 3 register. See public register Register (Adelaide), 21, 22, 25, 135

219 registration-of-deeds system, 8–9, 44; British Columbia, 60 Report of the Royal Commission 1857 (U.K.), 45–6, 90–1 Richardson, Hugh, 119 Riel, Louis, 119 Robertson, A.A., 63 Ross, F.B., 137, 141 Saskatchewan. See Territories (1886) Saskatchewan (after 1905), 129–30 Scarth, W.B., 78, 133, 141 Scott, J.G., 103 short-term leases over land, 12, 43 Smith, Goldwin, 94 Smith, William Alexander. See de Cosmos, Amor Soto, Hernando de, 29 South Australia, 3–5, 7–8, 10, 18–30; link to Torrens system on Vancouver Island, 35–42; Wakefield system of colonization, 7–8, 32. See also statutes: Real Property Act (South Australia 1858); statutes: Real Property Act (South Australia 1860) South Australian Company, 26 The South Australian System of Conveyancing by Registration of Title, 69 Spencer, G.B., 137, 138 statutes – British Columbia Land Registry Act (1861), 57, 59–60 – Certification of Title Act (Ontario), 197n19 – Chattels Real Act (Newfoundland 1834), 75, 121, 143 – Colonial Laws Validity Act (Imperial 1865), 26 – Land Registration Act (Nova Scotia 2001), 160–1

220 Index – Land Registry Act (U.K. 1862), 45, 65 – Land Registry Act (Vancouver Island 1860), 34, 35, 37, 38, 42, 54, 55, 58, 65; assurance fund, 48–9; exceptions, 43–4; two-tier system, 45–6 – Land Registry Ordinance (British Columbia 1870), 60–7 – Land Titles Act (Alberta 1906), 129 – Land Titles Act (Canada 1894), 123, 125, 127–8 – Land Titles Act (New Brunswick 1914), 157–8 – Land Titles Act (New Brunswick 1981), 158, 160–1 – Land Titles Act (Nova Scotia 1904), 159 – Land Titles Act (Ontario 1885): assurance fund, 103; Australian models, 95–7, 101; barriers to obtaining titles, 101–2; cost, 103; English models, 95, 97; geographical limitations, 99–100; slow start, 101–6; subsequent legislation, 107– 9 – Land Titles Act (Prince Edward Island 1974), 160 – Land Titles Act (Saskatchewan 1906), 129 – Land Transfer Act (U.K. 1875), 95, 102, 121 – Merchant Shipping Act (Imperial 1854), 22–3 – North-West Territories Act (Canada 1880), 127 – Quieting Titles Act (Manitoba 1884), 152–3, 158 – Quieting Titles Act (Ontario 1865), 102, 158 – Real Property Act (Manitoba 1885),

140, 142–7. See also Torrens system: Manitoba – Real Property Act (Manitoba 1889), 150–3. See also Torrens system: Manitoba – Real Property Act (South Australia 1858), 3, 10, 12, 14, 36, 38, 120, 143; Association, 73–4; Hamburg system, 27–8; Lands Titles Commissioners, 16; opposition, 24–5; preparatory work, 20–4; Royal Assent, 25. See also Torrens system: South Australia – Real Property Act (South Australia 1860), 37–8 – Real Property Act (South Australia 1861), 26 – Real Property Act (South Australia 1886), 79, 95 – Registration of Assurances Bill (U.K. 1853), 37, 58 – Registry of Landed Estates Bill (U.K. 1859), 46 – Statute of Frauds (England 1677), 131 – Territories Real Property Act (1886), 120–2, 127, 143. See also Torrens system: Territories (1886) – Transfer of Land Statute (colony of Victoria 1866), 143 Stawell, William, 39 Steen, J.E., 137 Stockton, A.A., 157 Territories (1886), 115–31; early problems in Torrens system, 122–6; introduction, 116–22; Registrar at Calgary, 126–9. See also NorthWest Territories; statutes: Territories Real Property Act (1886)

Index Thompson, John, 44 Tomlinson, R.H., 78, 93 Toronto Board of Trade, 83 Toronto Daily Mail, 73, 74 Toronto Week, 85, 117 Torrens, Robert (father), 18, 36 Torrens, Robert Richard, 3, 18–27, 30, 81, 82, 143, 144; arrival in Adelaide, 18; birth, 18; death, 27; land title reform (South Australia), 19; member of Imperial parliament, 27; member of South Australian parliament, 20; premier of South Australia, 24; preparatory work for land title reform, 20–4; registrar general, 23, 25, 27; role in Real Property Act (South Australia 1858), 30; The South Australian System of Conveyancing by Registration of Title, 69 Torrens Statutes in Canadian Jurisdictions, 169–70 Torrens system, 9–17; adverse possession, 13; Alexander Campbell, 118–20; Association, 68–9; British Columbia, 57–67, 84, 165; computers, 5, 110–11, 160, 166–7; conditions favourable to, 163–4; ‘curtain principle,’ 12, 13–14; D’Alton McCarthy, 77; definition, 9–10, 42, 44; facilitation of borrowing, 88–91, 92; fraud and error, 10–11, 13; harmonization, 167–8; ‘insurance principle,’ 14–15; Manitoba, 131– 54; Maritimes, 156–61, 166; mortgages, 12–13; objections to, 89; Ontario, 95–114, 165, 166; ‘property owning democracy,’ 92; Quebec, 155–6; South Australia, 3–5, 7–

221 8, 10, 18–30; Statutes in Canadian Jurisdictions, 169–70; Territories (1886), 115–31; United States, 114, 115; Vancouver Island, 31–56, 165. See also statutes; Torrens, Robert Richard United States: failure of Torrens system, 113, 114 Vancouver Island, 31–56, 165; Hudson’s Bay Company, 31–3; land sales, 32; link to Torrens system in South Australia, 35–42; settlement and land sales, 34; Wakefield system of colonization, 32, 33–4. See also statutes: Land Registry Act (Vancouver Island 1860) Wakefield system of colonization: South Australia, 7–8, 32; Vancouver Island, 32, 33–4 Watson, James, 93 Weaver, John, 33 Wells, Fargo & Co., 62 Western Canada Loan and Savings Co., 137, 141 Western Law Times, 153 Winnipeg (1883), 133, 134, 135 Winnipeg Board of Trade, 137, 138 Winnipeg Commercial, 88 Winnipeg Daily Star, 135 Winnipeg Daily Times, 135, 144–5 Winnipeg Sun, 79 Wood, S.C., 75, 78 Wood, S.G., 78 Yukon. See Territories (1886)

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publications of the osgoode society for canadian legal history 2008

2007

2006

2005

2004

2003

2002

Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 Jim Phillips, R. Roy McMurtry, and John T. Saywell, eds., Essays in the History of Canadian Law, Volume X: A Tribute to Peter N. Oliver Greg Taylor, The Law of the Land: The Advent of the Torrens System in Canada Hamar Foster, Benjamin Berger, and A.R. Buck, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies Robert J. Sharpe and Patricia I. McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood Lori Chambers, Misconceptions: Unmarried Motherhood and the Ontario Children of Unmarried Parents Act, 1921–1969 Jonathan Swainger, ed., The Alberta Supreme Court at 100: History and Authority Martin L. Friedland, My Life in Crime and Other Academic Adventures Donald Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 Dale Brawn, The Court of Queen’s Bench of Manitoba, 1870–1950: A Biographical History R.C.B. Risk, A History of Canadian Legal Thought: Collected Essays, edited and introduced by G. Blaine Baker and Jim Phillips Philip Girard, Bora Laskin: Bringing Law to Life Christopher English, ed., Essays in the History of Canadian Law, Volume IX: Two Islands, Newfoundland and Prince Edward Island Fred Kaufman, Searching for Justice: An Autobiography Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle Frederick Vaughan, Aggressive in Pursuit: The Life of Justice Emmett Hall John D. Honsberger, Osgoode Hall: An Illustrated History Constance Backhouse and Nancy Backhouse, The Heiress versus the Establishment: Mrs Campbell’s Campaign for Legal Justice Robert J. Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey Jerry Bannister, The Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699–1832 George Finlayson, John J. Robinette, Peerless Mentor: An Appreciation Peter Oliver, The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison, 1856–1878 John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism Patrick Brode, Courted and Abandoned: Seduction in Canadian Law David Murray, Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791–1849 F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume Two: Rebellion and Invasion in the Canadas, 1837–1839

2001

2000

1999

1998

1997

1996

1995

1994

Ellen Anderson, Judging Bertha Wilson: Law as Large as Life Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen Barry Cahill, ‘The Thousandth Man’: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet: Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law, Volume VIII: In Honour of R.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge Sidney Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in NineteenthCentury Ontario James W. St.G. Walker, ‘Race,’ Rights and the Law in the Supreme Court of Canada: Historical Case Studies Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944–1948 Ian Bushnell, The Federal Court of Canada: A History, 1875–1992 Carol Wilton, ed., Essays in the History of Canadian Law, Volume VII: Inside the Law: Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume I – Law, Politics, and Security Measures, 1608–1837 David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, Volume VI: British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason, Trials, and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law, Volume V: Crime and Criminal Justice

Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866 1993 Greg Marquis, Policing Canada's Century: A History of the Canadian Association of Chiefs of Police Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution 1992 Brendan O’Brien, Speedy Justice: The Tragic Last Voyage of His Majesty's Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography 1991 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada 1990 Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law, Volume III: Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law, Volume IV: Beyond the Law: Lawyers and Business in Canada 1830–1930 1989 Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Brode, The Odyssey of John Anderson 1988 Robert J. Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge 1987 C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957 1986 Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 Martin L. Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada 1985 James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution 1984 Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff: A Life in the Law 1983 David H. Flaherty, ed., Essays in the History of Canadian Law, Volume II 1982 Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914 1981 David H. Flaherty, ed., Essays in the History of Canadian Law, Volume I