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notice in any form other than by publication to those claiming interests in the land, even if known to the applicant.”

The difficulty with the first Illinois Torrens act and the Ohio act was that the authors of those bills failed to grasp the very important fact that the principal countries in which the act was in operation did not have written Constitutions. Or if they did have written Constitutions their organic laws did not contain the constitutional restraints that are embodied in our Federal and State Constitutions. Judge Jones, both in his article above referred to and in his correspondence with the writer, points out this feature of those acts very clearly in the following language:

"The registration of land titles is a radical departure from the old system of registration of deeds. Deeds recorded are evidence of title, but not always, or generally, the whole evidence; for facts outside of the records not infrequently control the title. In title registration the conclusion that a certain person has title to a particular parcel of land is registered. This conclusion in the United States must be established by judicial decree founded upon due proceedings, for the reason that the Constitution of the United States provides that no State shall deprive any person of property without due process of law, the State Constitutions also containing provisions of like effect. Necessarily the initial registration of the title,' says the Supreme Court of Minnesota in a decision just rendered, 'that is, the conclusive establishment of a starting point, binding upon all the world, must rest upon judicial proceedings.' Such judicial proceedings are the feature distinguishing all constitutional acts in the United States embodying the Torrens system of title registration from the Torrens laws of other countries in which there is no like constitutional restraint. Judicial process implies notice and an adjudication after due proceedings. No judicial act can be performed by any one not a judicial officer, though ministerial acts can be performed by others, and especially when performed under the direction of a court. As not complying with the requirements of due process of law the first Torrens laws enacted in this country were held unconstitutional. Such was the Torrens act passed in Illinois in 1895, and that of Ohio passed in

1896. The Illinois act was declared unconstitutional by the Supreme Court of the State, because it did not provide for judicial proceedings upon application for initial registration, but clothed the registrar with power to determine the ownership of land and to issue certificates therefor.

"The Ohio act, a crude and 'penitential scheme,' was declared unconstitutional on the ground, chiefly, that the notice provided for in initial proceedings was wholly inadequate. The applicant was not required to state in his petition the names of the holders of an estate or interest in the land adverse to his, if he did not admit their claims. The notice was not issued by the court, nor was it directed to any one by name. It was signed by the applicant and issued without any official mark of authenticity. Service might be made upon persons named in the application resident in the county by the applicant himself."

The writer's excuse, if any is needed, for this rather extensive reference to the defects of those two invalid acts is the hope of guarding against the recurrence of such errors in this State.


In 1897 the Torrens act was passed by the legislature of California and became operative in July, 1898. The act was based upon the Illinois law and while it seems to contain several admirable features which do not appear in the other acts, yet there are some of its provisions that are so cumbersome and expensive that the writer is informed through correspondence, that the act is practically inoperative. For instance, "each application for registration must be accompanied by an abstract of title, verified by the searchers making it. No person or corporation is authorized to make or furnish such abstract until after entering into an undertaking with one or more sufficient sureties to the people of the State of California in a sum not less than ten thousand dollars, which may be increased by order of court, conditioned to pay all damages and costs which the State may sustain by reason of any error or insufficiency in such abstract.

"The petition is to the Superior Court of the county in which the land is situated. Notice is by publication and by mail. The court appoints a referee to examine and report in writing upon the abstract. The decree is in the nature of a decree in rem, and conclusive against the rights of all persons.

"No action affecting registered land can be brought except within five years after the first registration; and such action in no way affects the rights of a bona fide purchaser after registration. Claims accruing upon causes of action after the expiration of such term of five years may be preserved by noting prior to the expiration of such term a notice of such claim. No assurance fund is provided.

"This act has not been the subject of any judicial decision. It is said that this law is practically inoperative, partly on account of the expense to the petitioner, the applicant being required to furnish an abstract of title, the furnishing of which is in the hands of abstract companies, and of searchers under heavy bonds, whose charges are very high. Another difficulty with the act is the period of limitation of five years, and still another difficulty exists in the provision for filing applications and obtaining decrees in the Superior Court of the county in which the lands are located, for the reason that great delay is necessarily experienced, especially in contested cases, and much expense incurred in the employment of counsel in looking after and conducting cases in that court."

Associate Judge Davis of the Court of Land Registration of Massachusetts speaking of the California act, says: "The trouble with the California system is that it operates through the ordinary State courts. It is our belief and experience that this cannot successfully be done in any State with a long established registry system. The common law courts have no proper machinery for handling real estate matters, as conveyancing is now done in this State, and people who have neither liking nor confidence in the Torrens system are, nevertheless, for this reason alone, beginning to use our court as a court for the trial of real estate questions. Our method of having a complete abstract of title filed by the examiner nowhere appears in the act. It is simply a matter of practice with

us, introduced because of prior experience in revising titles. It has worked satisfactorily, and we now feel very strongly in regard to its necessity. No matter how good a conveyancer an examiner may be (and we have found by practice the absolute necessity of appointing as official examiners the best conveyancers obtainable), it is necessary to a safe and proper adjudication, or even the issuing of a formal decree by the court, that the judge should have the title itself before him and should have made himself familiar with it. In drafting a new act, I should advise making this obligatory. To work safely and successfully, slow progress is necessary. cess of registration under our act is a process of elimination, slow but continuous. I do not think that any system which attempted a wholesale change of the method of tenure and transfer of real estate would prove practicable.

The pro

"We are satisfied that the Massachusetts act has proved itself, from actual operation (to quote a recent number of the Harvard Law Review), 'quick, cheap, convenient, substantially fair, novel, but not arbitrary,' and, in a word, practical and successful."


A Torrens act following closely the provisions of the Illinois law was adopted by the legislature of Oregon in 1901. The law, however, differs from the Illinois act in that it applies throughout the State. The system has not yet been in operation a sufficient length of time to give it a trial or cause the people of that State to decide as to whether they approve of it in its present form or not, and its constitutionality has not yet been passed upon by the courts. The Hon. Lionel R. Webster of Portland, Oregon, the Attorney General of that State, in his letter to the writer says: "Personally, I am an earnest advocate of this system and would be glad to do anything in my power to further its adoption. But the act of our legislature has not yet received a practical application in this State."


In response to the writer's inquiries recently addressed to the Presidents of the State Bar Associations of all the States, Hon.

Mark Norris of Grand Rapids, under date of June 12, writes in part as follows: "I send you under separate cover a pamphlet containing the proceedings of the meeting of the Bar Association of this State held a year ago last May, in which you will find an extended report from the Committee on Legislation and Law Reform favoring the adoption of the Torrens system in Michigan. This report was prepared by the writer. The annual meeting of the State Bar Association for 1902 will not be held until August. At that time the Committee on Legislation and Law Reform will make further report touching the matter and will present a bill which the legislature of 1903 will be asked to enact. The writer has given considerable attention to this subject during the past four or five years, and has reached the same conclusion which has been reached by every other person who has attentively studied the subject, namely, that the Torrens system is a great reform and would be of exceeding great benefit to any community which should adopt it. These benefits, however, cannot be expected to be very marked until some time shall have elapsed and a considerable percentage of the real estate in a given community brought under the act. So long as but a single county adopts the system and registration is voluntary, the actual practical experience of the community with the system will be so small that the benefits will not be distinctly noticeable. At the same time, in my judgment, that very slowness in adoption will be one of the safeguards of the system, as the community will have a chance to get accustomed to it, and the officers who are to execute the law will not be so crowded but that they can do it thoroughly."

The first four of the nine subdivisions of the report referred to by Mr. Norris state the position of the Bar Association of Mich igan upon this subject so succinctly that they may be advantageously quoted:


"The Torrens system substitutes for the present system of registering deeds a system of registering titles. Instead of an ever lengthening list of deeds to be examined by a lawyer, whose opinion

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