Abbildungen der Seite
PDF
EPUB

"The judicial powers of the State as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a Supreme Court, District Courts, County Courts, Justices of the Peace, and such other courts as may be provided by law."

If under that provision the legislature has the power to create the Court of Appeals, Criminal Court and Superior Court, it would seem reasonable to assume that there would be no constitutional objection to the creation of a Court of Land Registration, if it were deemed advisable to do so.

It seems to be confidently expected that the Commonwealth of Virginia will adopt a Torrens system act similar to that of Massachusetts within a comparatively short time.

RHODE ISLAND.

The General Assembly of Rhode Island recently appointed a commission, consisting of two members of the Senate, three of the House and two persons not members of the legislature, to consider the matter of land registration and to draft a bill for submission to the next legislature.

The commission is composed of the chief justice of the Supreme Court and several other very eminent lawyers. They have prepared a bill which will be submitted when the general assembly convenes, and it seems practically certain that the measure will be accepted in that State.

TENNESSEE.

The Committee on Jurisprudence and Law Reform of the Bar Association of Tennessee in 1898 submitted a report recommending a land registration act, with a short and imperfect draft of a bill.

Upon that report the Bar Association adopted a resolution that a special committee of five be appointed by the president to prepare a bill which the Association would submit to the legislature. The committee has not yet reported the bill, but they are

still considering the matter, and it will in all probability be taken up by the Association at its next meeting.

TEXAS.

The Texas Bar Association in 1896 appointed a special committee to investigate and report upon the Torrens system. At the annual session of the Association in 1897 the committee submitted a report, which was published. The consideration of the report was postponed pending the litigation over the Torrens law in Illinois. At the Asociation meeting in 1900 the committee submitted a further and quite lengthy report, earnestly recommending the adoption of the system. Mr. James E. Hill, the chairman of the committee, in an article in the Houston Daily Post, says: "Under our laws, and the decisions of our courts, no lawyer can, from an abstract or copy of records and conveyances affecting the title to a tract of land, decide certainly that the title is a perfect one after many transfers from the patent. Issues of homestead, limitations, acknowledgments of married women, fraud, failure of consideration, trusts, heirship, separate and community property, forgery and other possible issues may exist, seldom apparent on the muniments of title. Under our land system, litigation to perfect title only binds parties before the court; and after a suit quieting the title between parties, a few years may bring about another suit to clear the title or remove a cloud. The Torrens system remedies this."

WASHINGTON.

*

* *

At the meeting of the Washington State Bar Association for 1901, Mr. J. O. Abbott of Tacoma presented an interesting paper on the "Practical Advantages of the Torrens System."

Under date of June 14, 1902, Mr. Abbott sent a copy of the proceedings of their Association containing his address, and assures the writer that he will be very glad to co-operate with our State Bar Association or our Torrens commission in any way that may contribute to the adoption of "this most beneficial reform." He says that a strong sentiment is crystallizing through

out the State in favor of the adoption of the system, and confidently looks for a successful movement in this direction at the next session of the legislature.

An extended extract from his address can not but prove interesting. He says: "I must admit at the outset that I am a partisan of some improved method of transfer of land titles, whether it be the Torrens or some other system. The cumbersomeness, the expensiveness, the uncertainty and the insecurity of our present system approaches near to the barbarous. Indeed, transfer by deed is traceable to the ancient method of the barbarians.

"First, there was the actual transfer by seizure and delivery; then the symbolic transfer, the clod of earth; then the constructive transfer, the title deed, to which, for the purpose of notice, has since been added registration.

"Of all the systems so far devised for the passing of land titles the 'Torrens system' is undoubtedly the best. Not that it is faultless or that it can not be improved, but that it possesses the essential elements necessary to a practical system is not doubted. It is not, as is generally supposed, a system of registration only, but it is a system of transfer of title. In fact, this is the distinguishing feature between it and the present system—the one being transfer by registration and the other transfer by deed. By the present system, execution and delivery of the deed accomplishes the transfer, while the Torrens system is accomplished only by registration. The contrast remains the same, and is as enforceable under the new system as under the old; but, like a transfer of shares in a corporation, it is not complete until 'entered on the books.'

"In a discussion of the practical advantages of the new system, it is impossible to put aside the particular field of its operation. In all new countries transfers of real property must of necessity be more numerous than in old and well settled communities. Washington is a new State. It has great natural wealth, which is in need of development. It has forests and fields and mines, all awaiting the influx of men and money. For many years to come

there will be great activity in transfer of land, and whatever will conduce to economy, security and expedition in this respect will contribute to the prosperity of the people. Such conditions do not obtain in the older States of the Union. Titles there do not readily change their status or their ownership; they are passed from one generation to another without alteration. A transfer of land is the exception and not the rule. But here all titles are new. The title that does not frequently change ownership is the exception

and not the rule.

"In all modern civilized communities we have three distinct periods, or classes, of land-holding and land-holders:

“First—The period of the pioneer and the prospector, blazing the paths and marking the spots where the riches lie. To him it is of little moment what the particular steps of his title may be; he is concerned only in its source; possession is his law, and there is no one to dispute that with him.

"Second-The period of the speculator and the adventurer— the period of temporary acquisition. It is in this period that title usually becomes complicated and that the defects begin to creep in. It begins to assume the character of the men who acquire itmomentary, fleeting, questionable. The speculator cares but little what his title is, so long as it is sufficient to serve his temporary purpose. There are conveyances and agreements to convey, mortgages that do not mortgage and releases that do not release, suits and judgments, liens and claims, taxes and assessments, guardians and wards, proceedings in probate, deaths testate and failure to probate, deaths intestate and failure to administer, sales without authority and without jurisdiction, distributions that do not distribute all swept on a flood of incompetency and carelessness until the title is completely overwhelmed in error.

"Then comes the third period, the period of the investor and developer the season of correction. The cautious, conservative investor arrives, and he feels his way carefully, for he is building for the future. There follows the slow, painstaking search through masses of public laws for authority, and through piles of public

and private records for apparent and possible blunders; the search for the missing heir; the suit to quiet title; the compromise-and finally a doubtful opinion, concurred in by few and disputed by many. The title is accepted, with misgivings; the purchase is made, possession is taken and development proceeds, when lo, there arises the spectre of the action in ejectment, and the ouster soon follows. Thus we grope along from decade to decade, and why? All because of the influence of precedent, the multiplicity of laws and the unwisdom of legislation. Men in the concrete are slow to learn and adverse to change, especially in matters of government. They prefer to believe and accept what is as right and inevitable. As was said of this class by an eminent statesman, they 'love and revere the mysteries which they have spent so much time in learning, and cannot bear the rude hand that would sweep away the cobwebs, in spinning which they have spent their zeal and their days for perhaps half a century.'

"I shall not contend that the Torrens system will obviate all of the difficulties which I have named, but that it will minimize them and largely destroy the baneful effect of those which inevitably remain, there can be no doubt. It will accomplish this in many ways.

"It will place the responsibility for the original title in competent hands, schooled and trained to a study of the sources of title; and thus the chances of error, while, of course, not totally eliminated, will be greatly reduced.

"It will create one source of title, and only one, and that a responsible source. There will always be an available warranty

at hand.

"The title it will pass will be indefeasible, thereby avoiding the many questions which now arise to disturb and defeat legitimate possession and enjoyment.

"It will permit but one evidence of title to be outstanding at a given time, and thus expensive abstracts, searches and opinions will be obviated.

« ZurückWeiter »