of title, which, immediately upon its issue, is conclusive proof of ownership in all courts. In some states a period of two years is given for unknown persons not actually before the court to interevene, after which no suit attacking the title can be brought. Minors, married women or other persons injured by the decree can have recourse upon the assurance fund, but the title itself is fixed. Upon registration two certificates are made out, the original being kept on file in the "register's" office, and the owner receiving a duplicate which is the only evidence of his title.

Subsequent transfers are simple. The owner produces his duplicate certificate. The buyer goes to the register's office to inspect the original certificate. If he finds indorsed thereon no in.cumbrance or lien, he safely makes the purchase and receives the deed and duplicate certificate. These latter he then delivers to the registrar, who, when satisfied as to the identity of the parties, notes the transfer on the register. In case of a complete transfer of title, the old certificate must be surrendered and cancelled, and a new certificate is issued to the new owner. In this way the material facts appear upon the face of every certificate, and no examination is required. It will thus be observed that no title passes by the delivery of the deed, but only after registration of the transfer. The deed is a mere contract between the parties authorizing the registrar to register the transfer. On every subsequent transfer the registrar cancels the old certificate and issues one in duplicate as before. The deed and the original certificate is kept by the registrar.

A mortgage is executed in much the same man

ner.

The owner executes the mortgage in duplicate and delivers it together with the notes and his certificate of title to the lender. The latter turns them all over to the registrar. The latter redelivers to the lender his notes and one of the duplicate mortgages with the date of registration indorsed thereon. The registrar notes the transaction upon the original certificate of title and also upon the owner's duplicate which is then returned to the owner borrower who may use the same again like manner in affecting additional mortgages. When the mortgage is paid its release is noted on both the original and duplicate certificates or both certificates may be surrendered and canceled by the registrar and a duplicate issued without any record of the mortgage.

or

in

Homestead, dower and curtesy are all preserved in registered land. Trusts may also be created. Where a trust is created by a deed or will, the registrar notes on the certificate after the name of the trustee, the words "in trust" or "upon condition." No subsequent transfer of this certificate can be made without order of court who finally decides whether the proposed transfer complies with the terms of the trust or limitation.

As to judgments or other liens the act simplifies the subject of transfer to a degree. No judgment, mechanic's lien or other statutory, legal or equi

table lien, except taxes or special assessments, becomes a lien on registered property until a copy of the decree or instrument on which the lien is based has been filed with the registrar and noted on the certificate of title. Thus all persons dealing with registered titles can ignore any lien not indorsed on the certificate of title in the register's office. Any person injured by the registrar's failuret to enter a lien has his remedy on the assurance fund.

The most beneficial and perhaps most radical change of this system is the application to the transmission of lands on the death of the owner. Registered land, under this system, is treated as personal property and passes to the executor or administrator and not to to the heir or devisee. The executor or administrator must file with the registrar a certified copy of the order of court before he can transfer or otherwise deal with the land. On distribution, he applies to the registrar to have the land transferred to the devisee or heir, which is done in the same manner as other transfers. "The great advantages in this change," says Mr. Theodore Sheldon in his excellent commentary on Land Registration in Illinois, "in administering upon land of a deceased owner, are manifest. All questions concerning heirship, dower and rights of creditors are thus conclusively settled at the time, and do not continue, as under the old system. to remain for years afterwards as possible defects in a title."

The expense of this system is inconsiderable. In Illinois the cost of initial registration is twentyfour dollars in addition to a tax of one-tenth of one per cent. upon the value of the land for the benefit of the assurance or indemnity fund. This last tax is only paid on the initial registration and on subsequent transfers by descent or devise. The entire expense of all other transfers does not exceed three dollars.

No title to registered lands can be acquired by presumption or adverse possession, as no title passes or is affected by any act of the owner or anyone else until duly noted on the certificate in the possession of the registrar. The old certificates are cancelled upon every conveyance or loss of the fee and a new certificate issued to the new owner. If there is a change of title to only a portion of the land, the old certificate is cancelled and replaced by new certificates. It will thus be seen that the title is always perfect and can never be successfully attacked. There is only one certificate of each parcel of land on file at any one time in the registrar's office and that certificate is conclusive as to the exact state of the title and as to the extent and character of the incumbrances thereon.

It is thus observed that the last of the old feudal principles which have clogged the tenure and transfer of real property for so long has re

1 Land Registration in Illinois, by Theodore Sheldon of the Chicago Bar, published by Callaghan & Co., Chicago.

TORRENS REGISTRATION OF REAL ESTATE TITLES, AND ITS PRACTICAL OPERATION IN MASSACHUSETTS.

The United States are indebted to Australia for two striking innovations in their systems of state government, the secret, or Australian ballot and the Torrens system of registering titles to land. Both seem to be simple and effective, and what would naturally have been thought of first, but no one did think of them in this country, and perhaps never would, if the attention of legislators and reformers had not gradually been attracted in recent years to the advantages of the Australian voting and land title systems over our own. It was then discovered that Sir Robert R. Torrens introduced his land title system into South Australia in 1858. He was a collector of customs at Adelaide, and drafted the original "Torrens Title Act," after the "Merchant Shipping Act," of 1854, for the mortgage and sale of ships, with which he was doubtless familiar. Torrens was not the first inventor, so to speak, for similar systems had been in operation in parts of Europe for many years before, as for instance, in Vienna at least since 1368, in Prague 1377, in Munich 1440, in Austria 1811, in Saxony 1843, and in Hungary 1849; but he seems to be the first person who obtained letters patent to indissolubly link his name with the system. It is also interesting to notice that the Australian system was not the production of any law yer or skilled conveyancer, but was conceived and put into operation by a business man. Property in land or property in a ship doubtless seemed to him an indifferent matter, if the one paid as well on the invested capital as the other. The evidence of ownership was a mere matter of detail, the right to have and to hold, to manage and make profitable was, and ever will be, the important fact of ownership of property. He was doubtless satisfied with the certain and

simple method by which the government furnished a certificate as evidence of one's ownership of a vessel, and naturally thought, "let's do the same way as to land," and thereupon proceeded to do it. Alas, be little knew, we may assume, the immeasurable distance which the common law had placed between rights of ownership of real estate and of personal property. He never dreamed that, out of the dead past, the ghostly hand of the "unknown claimant," the "party entitled to notice," "the person under disability," "the absent defendant," and other well-known spooks clad in the dignity of judicial decisions of many generations, is held able to stretch out and fasten upon real property, as distinguished from personalty, with the blind unholy accuracy of the potato bug seeking its own peculiar vine.

Cromwell, that embodyment of stern common sense, condemned the "godless and profitless jungle" through which land titles were searched. Yet the same chaotic system has continued to the present time. Herein lies the strongest indictment of the business man of to-day against the laws' delays and shadows in reference to real estate titles. What is the answer to the impatient question, "Why is my right of ownership in a piece of real property to be the subject of ceaseless inquiry and examination? I never have this trouble when selling or pledging personal property." There is no reasonable answer. The question suggests a condition crying for some remedy. If a modicum of the advancement in science for the last one hundred years could have prevailed in the field of real property law, "flaws in the title" would now be only the mummery of by gone days.

But a genuine awakening seems to have come about at last. Ohio passed the first act mb dying the principles of the Torrens System, and the same was promptly cast out into everlasting darkness by the state supreme court on the ground of unconstitutionality. The act was held fatally defective, because the original decree of registration was founded on insufficient rotices and lack of judicial proceedings. The court found some other objections which have not been sustained by subsequent decisions of the courts of last resort in three 1 State v. Guilbert, 56 Ohio St. 575, 629.

other states.2 Illinois followed with an act which, after amendment, was sustained by its supreme court. Next the Massachusetts act was passed, and in due time held to be regularly begotten out of the loins of the constitution, both state and federal, and the writ of error to the United States Supreme Court was dismissed by that court. In the meanwhile California and Oregon passed land registration acts, and lastly Minnesota; and the act in the latter named state has just been sustained' by its supreme court. Similar acts are being considered in various other states, and a bills copying the Massachusetts act verbatim has been introduced in the senate of the United States by Senator McMillan, providing for the registering of land titles in the District of Columbia. It may now safely be assumed that, if acts are properly drawn, they will be sustained as constitutional by the state courts on the authority of the Illinois, Massachusetts and Minnesota decisions, that the United States Supreme Court will consider no appeal from the decision of a state court on its merits if the plaintiff has not suffered an actual loss, and then the decisions will be only as to the particular case10 presented; and if reasonable time and notice are given respondents to appear and answer, that the state "has power by statute to provide for the adjudication of titles to real estate within its limits," and to enter conclusive degrees of ownership.

9

What is the ultimate end sought for in Torrens title legislation? Simply to have on file in the registry of deeds a single sheet of paper, of which the owner has a duplicate containing the name of the owner of a given piece of land, a description of the land referring to a filed plan of the same containing sufficient data to enable an engineer to reproduce the boundary lines at any future time, and a list of the incum

2 People v. Simon, 176 Ill. 165; Tyler v. The Judges, etc., 175 Mass. 71; Minnesota v. Westfall (Feb. 14, 1902), 89 N. W. Rep. 175, 54 Cent. L. J. 290

3 People v. Simon, 176 Ill. 165.

Ch. 128, Revised Laws.

5 Tyler v. The Judges, etc., 175 Mass. 71. Tyler v. The Judges, etc., 179 U. S. 405.

7 Minnesota v. Westfall (Feb. 14, 1902), 89 N. W.

Rep. 175, 54 Cont. L. J. 290.

8 Senate Bill No. 1911, 57th Congress.

9 Tyler v. The Judges, etc., 179 U. S. 405.

10 Roller v. Holley, 176 U. S. 398.

41 Arndt v. Griggs, 134 U. S. 316, 327.

brances against such land in the order of their priority, which sheet of paper, called the "Certificate of Title," shall be conclusive evidence in any court of all matters stated therein, and unassailable for any cause whatever, except for fraud of the holder or forgery.

With that object attained, what are the advantages flowing therefrom to the land holders of a given state? They are many. It makes real property a quick asset, the same as stocks, bonds and other forms of personalty. In times of panic and stringency in the money market "it would be of great benefit if all the real estate of the community, possessing as it does, greater stability of value than anything else, could be made as immediately available as a means of raising money as stocks of goods or other personal property."12 The saving of expenses for repeated searches of the same titles would amount to a very large sum of money annually to the people of any state. In the two most populous counties of Massachusetts, Suffolk and Middlesex, there are now recorded each year not less than thirty thou. sand deeds and mortgages. It is fair to assume that the charges for examining titles. in these various transactions would aggregate not less than $300,000. The saving in time and human energy would be great. At present it ordinarily takes from one to three weeks to consummate a real estate transaction. The deal may be consummated just as well in one day if the land is registered. The county expenses for keeping the public records would be materially diminished. 13 One register of deeds estimates that half his present force would suffice if all the land in his district was registered. The quarters for registries of deeds have to be frequently enlarged at great public expense to provide space for storing the rapidly multiplying records.14 Within the last ten years the four leading registries of the state have all been provided with new and enlarged quarters, and two of them are already filled up again. It would be entirely practical under a land registration act, at short intervals, to de

12 Gov. Wm. E. Russell's message to the Massachu setts Legislature, Feb. 17, 1891.

18 Report of Controller of Accounts to Legislature of 1901, Public Document, 29, p. 29.

14 Land Registration Act of Massachusetts, pamphlet distributed from land office at Boston, p. 6.

stroy all cancelled certificates, deeds authorizing the same, and discharged documents on file, and thus prevent the constant necessity for more space in a record office. The added security of holding to a real estate investor is immense. His certificate of title tells the whole story. The only adverse rights in his land that can legally exist must be registered rights, noted on his certificate in black and white, which is conclusive evidence of his ownership and the nature and extent of all incumbrances. The holder of land under the old system is never aware of what a day may bring forth. The most careful examination of title will not necessarily disclose fatal defects, or there may be serious record defects which his examiner fails to discover, or more commonly to fully appreciate the legal effect of. State courts are constantly engaged in hearing real actions which under a proper and sensible registry system could never arise. A suit in equity A suit in equity is the only proceeding in the nature of a real action that can be brought against the land described in a registered certificate of title; and the only question open in such suit is whether the present holder thereof by the exercise of fraud or forgery obtained the issuance of the same in his name, or if the land should be charged with some trust or equity which he himself is responsible for.

What are the practical results of the operation of a land registration act in Massachusetts thus far? Petitions for regis tration of land have been filed in the court of land registration from sixty-nine of the cities and towns of the commonwealth, aggregating in assessed value about three million dollars. Dealings in registered land, after original decrees for registration, have begun in eleven of the twenty-one registries of deeds in the state. About one thousand certificates of title have probably been issued, and the number of documents registered creating incumbrances, and noted on the incumbrance side of certificates, would be very many more. The classes of property registered include nearly all forms of real estate, except expensive business blocks in the cities, the fees for which would be quite high. Under another classification, however, petitions will usually come under one of three heads: first, where the record title is defective or the real title in dispute; sec

ond, where a large tract of land is about to be cut up into streets and lots and offered for sale to dwelling house builders; and third, where parties, individually or in trust capacities, who are about to invest in real estate, require titles to be registered before purchasing or making a loan, so as to insure absolute security of holding. Those who have dealt most in registered land, or made loans on registered certificates, appear to be best satisfied with the operation of the system, and with entire unanimity testify to the saving of time, trouble and money in their transactions, and to the absolute security of their holdings and certainty of boundary lines enjoyed. There has been but one suit brought against a certificate holder, and that. of the nature heretofore suggested, namely.: a bill in equity, alleging that the holder of the certificate purchased the land described in the same with money intrusted to him by the complainant for that purpose, and that he fraudulenty took out a certificate in his own name instead of the complainant's, for whom he was merely acting as agent. Experience in Massachusetts demonstrates the fact that if officials are discreet and painstaking in the administration of a registration act, claims made against the assurance fund will be exceedingly rare. No claims whatever have thus far been made in Massachusetts. Great care is exercised in all original petitions to find and personally notify all possible adverse claimants stated by the petitioner, disclosed by the report of the official examiner of the record title, or otherwise brought to the attention of the court. Notice to all known parties is by registered mail, which experience has demonstrated to be the surest method of actually reaching a party. As to unknow respondents constructive notice by publication and posting on the land must need suffice. But if there is any clue to follow, resort is made to a published request for information of the whereabouts of the unknown party, or a notice is posted in some locality where the party may have formerly have resided. A notice thus posted in a little village in France brought an appearance in court for a party who had for years been missing. It does not follow that such parties have any maintainable claim, but they ought in every instance to have an op

of

7

portunity to be heard, more in deference to the long established rules of the common law perhaps, than because such parties are likely to have valuable rights to preserve. Indeed, the writer is of the opinion from experience thus far that not one party among the very many notified in this class of respondents has had a claim that he could successfully maintain as plaintiff. It is easy in argument to construct a set of facts establishing title in a party who suddenly disappears and as suddenly reappears, in person or by his heir, after a long lapse of time; but as a matter of fact owners of real estate do not go away and leave their property unattended for twenty years or more. It isn't profitable. And, besides, the Anglo-Saxon has a notion that it is so far one's duty to roost on his land, that if he neglects to do so for twenty years the place of his former abode shall know him no more.

Experience has also demonstrated that if a state establishes a separate court to administer a land registration act, it may, and eventually should, become the forum in which all questions relating to the legal title to real estate are tried in the first instance. The Massachusetts act gives the court of land registration jurisdiction to decide all questions arising upon a petition for registration of title to a given parcel of land, subject to a general appeal to the superior court with or without a jury trial, or to the supreme court direct on questions of law. In the various petitions for registration of titles thus far filed, about every conceivable legal question relating to real estate has arisen one or more times. The advisability of such a court for the trial of all real actions is in accordance with the modern idea of specializing every form of business, public or private. The form of proceedings gives the court in every instance the advantage of a full abstract of the record title by a disinterested official examiner, and a plan of the land as it actually exists when the petition is filed, the two important prerequisites to a proper understanding and decision of the average real action. With these reasons in view, it may be assumed, Attorney-General Knowlton, in his report to the legislature of 1902, in speaking of the court of land registration, says: "Having thus created an important court of record having possible juris

diction over all the real estate of the commonwealth, the commonwealth, in my judgment, should foster the growth of the jurisdiction of the court, and, so far as may be, relieve the other courts from questions affecting land titles. It can well be, and in my opinion should be, made the real estate court of the commonwealth, to the same extent as the probate court has jurisdiction over estates of deceased persons.''15

The writer is enabled to say in the light of experience thus far that the Massachusetts act may safely be taken as a model by other states in drafting similar acts, with two exceptions: first, if a state legislature considers a land registration act worth adopting at all,. it ought to provide in the original bill for compulsory registration to some extent, so that the transition from the old system to the new will be more rapid and systematic than under purely voluntary actions; second, while the title to real estate under the Massachusetts act passes, only by issuance of the certificate, deeds and mortgages in common form are still required to be executed and filed with the assistant recorder for the district where the land lies. They merely amount to a written request to him to issue a new certificate to the grantee, or, to charge the mortgagor's certificate with a new incumbrance. It costs money and takes time to write these papers. Their use may well

be dispensed with altogether, and the ordinary methods of a stock transfer office adopted. When a sale is made the seller can indorse his duplicate certificate in blank, hand it to the purchaser who will turn it into the transfer office, to-wit: the local registry of deeds, and order a new certificate in his own name. If the property is to be mortgaged let the owner give a collateral note for the amount borrowed, indorse his duplicate certificate in blank, and deliver the papers to the mortgagee. This would be a radical departure from the methods of the fathers, but it is the ordinary course of business in transactions in personal property aggregating and averaging in any large business community many times the money value of its real estate transactions, and all with very rare instances of loss or damage that would not, under either system be inevitable. Boston, Mass. CLARENCE C. SMITH.

15 Public Document, No. 12, p. 20.