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TORRENS SYSTEM OF REGISTERING TITLE TO LAND.
first transfer, either by deed or descent. In their letters they insist that eventually all of the States will be forced to that position. But, notwithstanding those opinions, which are entitled to the most profound respect, the writer is very positively opposed to any attempt to enact in this State at this time a compulsory registration law. Such a bill could not be passed through the legislature, and a vigorous effort to pass such an act would probably prevent the enactment at this time of any kind of a law on the subject. In his excellent little work above referred to, and which is based entirely upon the Illinois law, Judge Sheldon, who is the examiner of titles for Cook county, Illinois, says:
“L'pon investigation of the subject it will be found impossible to resist the conviction that the public good requires compulsory registration of title. This was the result in England, in 1997, after some thirty years of parliamentary discussion. Ilow this benefit can be obtained by our own land owners is an economic problem soon to come before the bar of the United States."
Under the above title and subdivision of Initial Registration the author says:
“It is optional with the owner to register his land. lle files in a court of competent jurisdiction his application in writing for the registration of his title. This in ordinary cases is a simple printed blank form, giving the name of the owner, description of the property and other facts concerning the condition of the title.
"All persons interested in the land and all persons in possession or occupancy must be made parties defendant. Summons is issued to all defendants. Such as reside or are to be found within the State will be served by the proper sheriff. Non-residents will be served by publication. Due opportunity to contest the matter must be afforded to all interested.
“The court refers the application to an examiner of titles, who proceeds with an independent investigation of the title. To him is submitted the abstracts of title and any oral testimony tending to determine the rights of all parties. Ile approves no title unless satisfied that all persons interested are before the court.
If, in his opinion, the applicant is entitled to registration, he so reports to the court. To the report of the examiner any party may file objections, which are heard and disposed of by the court. Upon the confirmation of the report a decree is entered confirming the applicant's title and directing the registrar to issue to him the first certificate of title. This is done by entry in a book called the 'Register of Titles.' This book is composed of a large number of certificates of title (one on a page), bound together, numbered in the order of their issue, and each with ample space at its foot for the entry of subsequent notations affecting the title. Every certificate of title is in duplicate, signed by the registrar, and recites the condition of the title. One of these is kept by the regis
. trar, bound in the 'Register of Titles,' and the other is delivered to the owner. This completes the initial registration.
“The certificate of title immediately upon its issue is conclusive proof of ownership in all courts as against all parties before the court in the proceeding for initial registration, and all persons dealing with the land after registration. After the expiration of two years from the first registration, no suit attacking the title of the registered owner can be brought. No exception is made in favor of infants or persons under disability, but such persons are given recourse upon the indemnity fund. It is thus seen that all persons are bound by the first certificate of title, except those overlooked, and not made parties to the suit for registration. If the court proceeding is properly conducted there should be no persons not bound by the first certificate of title.”
In all dealings with the land after registration the bona fide purchaser or incumbrancer has a like security to that given to the purchaser of negotiable paper. The title of such purchaser or incumbrancer can not be upset.
Transfers of registered land are made in the following manner: The owner executes the usual deed and submits it, together with his certificate of title, to the buyer. In every transaction the owner must produce his duplicate certificate of title. He can do absolutely nothing without it. If lost or destroyed, upon proper showing the owner receives a certified copy marked "Owner's certified
copy, issued in place of duplicate lost.” This, after entry of the transaction upon the original certificate of title, answers the same purpose as the lost certificate. No new forms of conveyance are required. The buyer, after inspection of the original certificates of title in the register, and finding thereon no incumbrance or lien, safely pays over the purchase money and receives the deed and duplicate certificate of title. He then delivers them both to the registrar, who, when satisfied as to the identity of the parties and that the transfer should be made, notes the transfer upon the register. This operates to transfer the title. No title passes by the delivery of the deed. The deed, after delivery and before the registration of the transfer, is a mere contract between the parties. Its sole object is to authorize the registrar to register the transfer. The transfer is registered when the registrar cancels the old certificate of title and issues a new one in duplicate as before, one, called the original, being retained in the register and the other, called the duplicate, after proper receipt therefor filed with the registrar, delivered to the buyer, now the new owner. The deed is kept by the registrar.
A mortgage of registered land is effected in somewhat the same manner. The owner executes the mortgage in duplicate and delivers it, with the note or bond and his certificate of title, to the lender. The latter, after inspection of the proper folium in the register and finding thereon no incumbrance or lien, safely pays over the money to the borrower, and receives the mortgage securities with the certificate of title. The note or bond and duplicate mortgages are presented to the registrar, who identifies the note or bond and notes the transaction upon the register, as well as upon the owner's certificate of title. The latter, with the note or bond, is thereupon returned to the borrower, who may use the same in affecting a second or third or more mortgages. One of the duplicate mortgages is retained by the registrar. The other, with the date of its registration endorsed thereon by the registrar, and the note or bond, is delivered to the lender. When the mortgage is paid a release of the same is filed with the registrar, who, when satisfied that the note or bond is duly paid, thereupon notes the release upon the register book, as well as upon the duplicate certificate of title. The latter is then returned to the owner, or he may surrender it to the registrar for cancellation and receive a new duplicate certificate, containing no mention of the mortgage.
Registered owners, by deed or other instrument filed with the registrar, may create such trusts as may be desired. The terms of the trust are not set forth in the certificate of title, but after the name of the trustee is inserted the words "in trust," "upon condition,” or “with limitation,” as the case may be, and no subsequent transfer or dealing can be had thereafter, except upon the order of a court of proper jurisdiction or upon the written opinion of at least two of the examiners of title that the proposed transfer or dealing is in accordance with the terms of the trust, condition or limitation.
JUDGMENTS AND OTHER LIENS.
No judgment, decree, attachment, lis pendens, mechanic's lien or other statutory legal or equitable lien, except taxes and special assessments, for which a sale has not been had, is a lien upon registered land until a certified copy of the judicial proceeding, or a copy of the instrument upon which the lien is based is filed with the registrar and a brief note thereof is entered by him upon the certificate of title in the register. This abolishes all general liens, and one dealing with a registered title can safely ignore any lien not entered upon the certificate of title in the register. The area of search is enormously reduced.
Provision is made for all who wish to give notice of a lien upon or claim against registered land. All such notices are entered by the registrar upon the proper certificate of title in the register book, and are thus brought directly to the attention of any one proposing to deal with the registered land. Until such claims are removed, as they may be by proper proceedings provided in the act, the registrar will enter them upon all succeeding certificates of title. Notice is thus given of mechanic's lien, foreclosure, attachment, or other suits affecting the land, unregistered mortgages or other legal or equitable liens, trusts of any kind, sales for taxes and special assessments and any other nature of claim now permitted to be ascertained in any manner.
DOWER AND HOMESTEAD.
Dower is preserved in registered land, and in its first registration, as well as in all subsequent dealings, the right of dower in husband or wife of the registered owner is recognized and protected. The same is true of the statutory right of homestead.
Upon the death of a registered owner, for the purpose of distribution of his estate his registered lands are treated as personal property, and as such pass not to the heirs or devisees, but to the executor or administrator. Before transferring or otherwise dealing with the land, the executor or administrator must file with the registrar, as authority for such transfer or dealing, a certified copy of an order of the court administering upon the estate of the deceased owner. In the case of ordinary distribution among devisees or heirs, the executor or administrator, upon proper authority from the court appointing him, will apply to the registrar to have the land transferred to the devisee or heir. The sale of land for the payment of debts will be conducted as heretofore. On filing in the registrar's office the deed and order of confirmation of the sale directing him so to do, the registrar will transfer the land to the purchaser at such sale.
The great advantages in this change in administering upon land of a deceased owner are manifest. All questions concerning heirship, dower and rights of creditors are thus conclusively settled