f '"'•«»,<. " 
 
 
 f-m^^ 
 
 '^^ 
 
 
 bt^J^. 
 
 i''^^ 
 
 m 
 
 s.*-**ft 
 
 \ 
 
 g y '^ 
 
 
 »ii^M« 
 
 ■ -:.:.f ^ 
 
 ,--}«^ 
 
 •■ -T -r^^^jii^fl 
 
Cornell University Library 
 HD 1208.H79 
 
 A sketch of the Torrens system of land t 
 
 3 1924 013 940 113 
 
The original of this bool< is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924013940113 
 
A SKETCH 
 
 OF THE 
 
 TORRENS SYSTEM 
 
 OF 
 
 LAND TITLE REGISTRATION 
 
 and its Application in Other Countries 
 
 and Especially in the State 
 
 of New York 
 
 BY 
 
 JOHN J. HOPPER 
 
 Register of the County of New York 
 
 WALTER FAIRCHILD 
 
 Special Deputy Register and Official Examiner of 
 Titles of New York County 
 
 THIRD EDITION 
 
 With Supplement 
 1917 
 
TO 
 
 THE HONOR OF 
 
 SIR ROBERT TORRENS 
 
 FOUNDER OF THE 
 
 TORRENS SYSTEM OF LAND TITLE REGISTRATION 
 
 Whose clear vision of principle and faithful adherence to it 
 
 has made land title reform a realized fact in a 
 
 large part of the world, these pages are 
 
 ASCRIBED 
 
 2187-17-{E) 
 
CONTENTS 
 
 PREFACE TO SECOND EDITION. 
 
 Foreword. 
 
 PART ONE. 
 HISTORICAL REVIEW. 
 
 I. 
 
 Essay by Sir Robert Torrens, a Tribute. 
 
 II. 
 
 Origin of the Torrens System. 
 
 Principle of the Ship Registry. 
 The old system, its cause and its wastefulness. 
 
 III. 
 
 Spread of System in Other Countries. 
 
 Mistakes made in England and Ireland. 
 Opposition of professional conveyancers. 
 
 IV. 
 
 Early Set Back in United States. 
 
 A new difficulty overcome. 
 
 V. 
 Essential Features of the Torrens System. 
 Model Act of the American Bar Association. 
 
 VI. 
 
 Why the New York Law Has Failed. 
 
 Essential features violated. 
 
 VII. 
 
 Official Examination of Titles. 
 
 Function of the public office. 
 
 3 
 
VIII. 
 
 Assurance Fund. 
 
 A public asset and an equitable safeguard. 
 
 IX. 
 
 Permanent Registrations. 
 Withdrawal feature condemned. 
 
 X. 
 
 Simple Court Proceedings. 
 
 PART TWO. 
 
 LEGISLATION PENDING BEFORE THE NEW YORK 
 LEGISLATURE OF 1916. 
 
 XI. 
 
 Legislative Amendments Pending. 
 Simpson-Cotillo bill. 
 
 XII. 
 
 Constitutional Amendment. 
 
 Restores original procedure. 
 
 SUPPLEMENT. 
 
PREFACE TO SECOND EDITION. 
 
 The general demand for correct information on the subject of title registra- 
 tion is evidenced by the requests which have come from all parts of the United 
 States for copies of the "Sketch of the Torrens System," published early in 1916. 
 The exhaustion of the first edition and the continued requests for copies have 
 made it necessary to reprint the pamphlet. 
 
 No change has been made in the text of the pamphlet as originally printed, 
 but a Supplement has been added which sets forth the experiences had before the 
 1916 Legislature. The eflfect of the amendments passed in 1916 has been analyzed 
 and the additional amendments necessary to make the present law successful are 
 indicated. Amendments embodying these changes have been prepared for pres- 
 entation to the 1917 session of the Legislature. 
 
 Registrar. 
 Octobei, 1916. 
 
FOREWORD. 
 
 To THE Public : 
 
 The increasing interest taken in the Torrens system and the insistent 
 demand for its adoption are facts apparent to all. So much has been said and 
 written, however, intended to complicate and confuse, and so many com- 
 promises have been put forward, some by weak-kneed advocates of the 
 system and some by its selfishly interested enemies, that there exists in the 
 public mind a feeling of doubt and perplexity as to just what is meant by the 
 Torrens system and what is needed to put it into practice. The failure of 
 the New York law has increased this feeling. 
 
 To clear away in some degree the false issues that have been raised to 
 cloud the Torrens principle, and to show how simple the system really is 
 and how easily and certainly it can be put into successful use in New York, 
 is the purpose of this pamphlet. 
 
 The immediate object in view is to amend the present New York law, to 
 make the system official, provide an assurance fund, make registrations per- 
 manent and simplify the proceedings so that the public generally may register 
 titles quickly and cheaply and at the same time repay to the county in 
 revenue the half million dollars or more which has been spent in perfecting 
 the title examining plant in the Register's office. 
 
 Respectfully submitted. 
 
 ^^^^^^^V^ 
 
 Registrar. 
 February, 1916. 
 
PART ONE. 
 
 HISTORICAL REVIEW. 
 
ESSAY BY SIR ROBERT TORRENS. 
 A Tribute. 
 
 In 1882 Sir Robert Torrens, the founder of the Torrens system, wrote his 
 justly famous essay on the subject of the transfer of land by registration. 
 At that time Mr. Torrens had had about twenty-five years' experience in the 
 practical operation of his system. His essay explains the system, states its 
 principle and rules, and gives an account of the opposition encountered when 
 it was attempted to introduce the system into England, Scotland and Ireland. 
 The opposition in Great Britain was similar to that now being put forward 
 in New York and in other states in this country. 
 
 It is a remarkable fact that wherever there has been adherence to the 
 principle and to the detail of rules set forth by Mr. Torrens in his essay, 
 the system has been successful, but wherever there has been deviation from 
 the principle, or it has been marred by compromises or by innovations, the 
 law has failed in a degree corresponding to the importance of the change. 
 
 In the following pages no new principle is stated nor is any argument or 
 recommendation made that is novel or original. All that is attempted is to 
 explain concisely the Torrens principle in its essential features and to analyze 
 the conditions in New York State. The recommendations made for changes 
 in the present New York law simply restore the true Torrens principle and 
 will enable New York to enjoy the benefits of a successful Torrens law. 
 
 The practical success attained in Massachusetts, Illinois and other 
 American states, is due to the faithfulness with which their laws adhere to 
 the true Torrens principle. 
 
 II. 
 ORIGIN OF THE TORRENS SYSTEM. 
 
 » 
 
 Principle of the Ship Registry. 
 The Old System, Its Causes and Wastefulness. 
 
 From time out of mind, until Sir Robert Torrens became Land Com- 
 missioner in Australia in 1858, title searching and examination was done by 
 private parties, by individuals, generally lawyers. There was no co-ordina- 
 tion in the work done, each individual working by and for himself. 
 
 Titles to land have their origin in feudal days when land was not a thing 
 of commerce. The tendency in the early centuries was to tie up land and 
 prevent its being bought and sold. Transfers were made with difficulty, due 
 to various prohibitions, and conveyancing was accomplished by roundabout 
 methods. The result was that there grew up around land titles a mass of 
 technical legal rules that were preserved in practice long after the occasion 
 of the rules disappeared. Personal property was always the subject of barter 
 and the laws governing the sale of personal property were largely the natural 
 rules, developed by merchants in actual business. The effect -of business 
 
 8 
 
custom on what afterwards became statutory law is shown in the negotiable, 
 instrument law which is merely a statement of the "law merchant" estab- 
 lished by business custom. No business man needs to consult a lawyer on 
 the ordinary rules for transferring a note or bill of exchange. They are the 
 natural rules in common use among men for centuries. 
 
 Land, on the other hand, became the subject of commerce in compara- 
 tively recent times. It is only for a century or less that business men have 
 dealt in land commercially. If land had always been a thing of commerce, no 
 doubt the same business rules would have grown up about it as did grow up- 
 about bills and notes. When business men finally began to deal in land com- 
 mercially, they found conveyancing in the hands of lawyers, and encumbered 
 with such a mass of technicality that it often took months of time to make a 
 transfer or effect a loan. The history of land title reform largely represents 
 the effort of business men to cut loose the legal technicalities restricting trans- 
 fers and to substitute simple business rules. This effort, which in the main ha& 
 been and still is opposed by the legal fraternity, found its best expression in 
 the rules embodied by Sir Robert Torrens in his Registration Law which 
 has become known the world over as the Torrens System. 
 
 Sir Robert Torrens became Registrar-General of South 
 Torrens was a Australia in 1852. Before that time he was Collector of 
 business man. Customs in charge of shipping. Under the English Mer- 
 The ship chants' Shipping law a page in the registry was given to 
 
 registry. each ship registered and on it appeared the name and de- 
 
 scription of the ship, the name of the owner and any liens or 
 encumbrances. A duplicate of this page in the form of a certificate was given 
 to the owner which was his evidence of ownership no matter where he might be. 
 If there were several owners' — and it was quite customary to have ships divided 
 into shares of halves, quarters, eighths, etc. — each owner received a certificate for 
 his share. Any lien or claim against a ship was required to be noted on the 
 registry page, so that it was possible for any interested person at a glance to 
 see exactly the condition of the title. To make a transfer it was necessary to- 
 assign the certificate and take it to the registry office whereupon the old 
 certificate was cancelled, the old registry page closed, and a new page was 
 opened. A duplicate certificate or copy of the new registry page was given 
 to the new owner. At no time was more than one certificate of the same 
 interest outstanding, and it was not necessary to go back of the face of the 
 outstanding certificate. There was no need to examine prior certificates, nor to- 
 scrutinize the legality of prior transactions. No lawyer was required. 
 
 The principle of the ship certificate in its effectiveness 
 Ship certificate and simplicity was applied by Sir Robert Torrens to land 
 applied to land, transfers. The various shipping laws had been revised and 
 consolidated in 1854 in a single act known as the Merchants 
 Shipping Act and in 1857, Mr. Torrens introduced a bill on similar lines pro- 
 viding for the registration of land titles, which became a law January 27, 1858,. 
 and went into effect July 1, 1858. There were three Land Title Commis- 
 sioners under the Act, one of whom was the Registrar-General. Mr. Torrens- 
 was the first Registrar-General to serve under the new law. 
 
The new system became instantly successful, although 
 New System registrations were not rnade compulsory, except as to subse- 
 
 Successful. quent grants by the Crown. Its success was due entirely to 
 
 the inherent superiority of the new system over the old. 
 
 In ancient days land was transferred by some outward 
 The Old System, act, such as going upon the land and handing to the new 
 Chimney Comer owner a bit of earth or a twig or doing some other sym- 
 Titles. bolical act of that kind. Later written deeds came into use. 
 
 The owner took his deed and kept it in possession with 
 the land. Each new owner in turn was given as muniments or proofs of his 
 title, the deeds of his predecessor. There were in early days no recording 
 laws. Each owner guarded his own deeds. So it came about that when a 
 man wished to sell his land, he went to his title box in the chimney corner 
 and drew out his deeds for the inspection of the purchaser. If he wished to 
 borrow money, the owner took his deeds and deposited them with the 
 money lender. This method had the advantage of simplicity and secrecy. 
 In those days borrowing money on the strength of the homestead was not 
 considered a commercial transaction, but rather a thing to be concealed if 
 possible. A man went to the money lender with his deeds with much the 
 same feeling that a householder today might go into the side door of a 
 pawn shop to raise money on his watch or on the family silver. 
 
 There was one advantage in the chimney corner method 
 The Recording of proving titles, in that all deeds of the same property were 
 system. Its kept in one place and often right on the property itself. It 
 
 Origin. was a "locality" system in the simplest possible form. The 
 
 disadvantages, however, were many and obvious. Deeds. 
 became lost by fire or other causes and the coveted secrecy in borrowing led to 
 many frauds. Business men began to demand that deeds be made a matter of 
 public record. This demand was fought by a certain class of professionals, just 
 as bitterly as the registration of titles is fought today by a corresponding class. 
 It took a generation or more for the demand for public recording of deeds to 
 find expression in statute law. There were some recording laws passed in New 
 York prior to 1800, but were defective in principle. It was not until the 
 register's office was established in 1812 that the modern recording idea came 
 into full effect in New York County and made it imperative for an owner to 
 record his deeds under penalty of otherwise losing his title in favor of another 
 person who might buy or lend money on the property in good faith. 
 
 The recording acts served to preserve the evidences 
 Cumulative of title and to give public information as to the contents 
 
 defects of of deeds, but it was not a change in principle from the chim- 
 
 recording system. ney corner method of proving titles. It simply required that 
 the records of all deeds be kept in one place in the county 
 instead of each owner keeping his own deeds as records. The register's office 
 became a sort of public "chimney corner" in which all deeds were piled up 
 together. No provision, however, was made for keeping the deeds of each piece 
 of land separate from the others. When transfers were few this plan worked 
 well enough. By looking in the index of names it was possible to find the deeds 
 
 10 
 
required. But as the community grew, transfers increased rapidly in volume and 
 the difficulty of merely finding the deeds affecting a lot became enormous. 
 People in this day have little conception of the enormous wastes of the old system. 
 Months were often spent in "searching" among perhaps a million instruments 
 for a dozen or more that were wanted. The difficulty increased each year and 
 created a new industry called title "searching." The "search" for instruments 
 cost more than the examination of them for their legal effect after they were 
 "turned up." The recording act did not change the principle that each buyer 
 buys at his own risk and that he gets no better title than his prdecessor had. 
 Although there were statutes of limitation presumed to limit the time to twenty 
 years within which claims could be enforced against land, there were so many 
 deviations from the rule that people were educated to the belief that it was 
 necessary to examine a title from the very earliest records. Each searcher, as 
 a rule, worked for himself and each buyer had a different attorney, so that the 
 same title was searched over and over again. Searchers sometimes saved their 
 previous searches for their own use and sometimes a group of searchers would 
 pool their data, for use in subsequent searches, but the benefit of this saving was 
 reserved for the searcher and the public was required to pay for each search 
 as though made from the beginning. 
 
 The professional class of searchers invariably fought 
 Improvements every attempt to improve the conditions. This opposition 
 opposed by found expression against the so-called Printed Index made in 
 
 professionals. 1856, which was a good work, done at large expense by public 
 
 money, but was slandered by professional searchers to such 
 an extent that it came into little use. Again in 1885 a determined public effort 
 was made to arrange instruments in New York County according to lots. The 
 lot system, or locality system as it is usually called, means that the deeds affecting 
 a single lot are distinguished by numbers and separated into individual accounts. 
 This in a way is a restoration of the chimney corner idea of keeping deeds 
 separate, and at the same time preserves the benefits of the public recording 
 system. A Commission was appointed by the Legislature in 1884 and four out 
 of five members reported in favor of a lot system. One of these four who was 
 and still is a sincere advocate of the lot system afterwards became one of the 
 organizers of one of the leading title companies in this city. He has stated that 
 if the lot system advocated in 1885 had been adopted, there would never have 
 been any occasion for building any of the private title company locality index 
 plants in this city. About the same year, 1885, a group of business men who 
 organized the Title Guarantee and Trust Company, engaged a force of abstractors 
 and searchers and arranged the deeds and mortgages in the register's office 
 according to a lot system. At the same time the public effort to establish a 
 similar lot system was bitterly fought in the Legislature, and was defeated in 
 spite of the fact that the majority report of the commission favored it. The 
 opposition of the private interests which defeated the lot system was not wholly 
 successful, but resulted in a compromise measure known as the block system, 
 which to a degree was an improvement upon the old system, but did not solve 
 the problem. Instead of putting all the instruments in the county in one big 
 heap, the block system after 1891 estabUshed 2,263 smaller heaps. Nothing, 
 
 11 
 
however, was done with the million or more instruments recorded before 1891. 
 In this fact lies the secret of the growth of the title companies in the years 
 following 1890. Three title companies went to the huge expense of abstracting 
 all of the instruments in the register's office ^nd arranging them according to 
 lots. Within the past five years New York County has done the same work 
 on its own account, so that .there are now four locality plants in the county 
 arranged according to lots. 
 
 During the decade from 1880 to 1890, the Torrens 
 Torrens principle system was coming into attention throughout the world. 
 attracts The New York Commission of 1885 did not report in 
 
 attention. favor of the Torrens system, but merely for a lot system 
 
 of indexing. They were not prepared for the radical 
 departure in principle from the old recording system to the new registration 
 system. The private title companies, however, adopted for their own use one 
 of the principles of the Torrens idea, which is that a title having been once 
 examined should never be examined again. This is for their benefit, however, 
 and not for the public benefit, as, while they do not examine over and over again, 
 they charge over and over again. Mr. Torrens started his system in Australia 
 before searching had become organized by corporations. There were no title 
 companies and he was able to pass directly from the old system to the new 
 although he was opposed by many individuals. In this country the title companies 
 were able to intervene and have postponed the adoption of the Torrens system 
 for a generation. A title company plant is simply a clumsy and inadequate 
 adaptation of the Torrens idea, adopted by private interests for their own 
 profit. 
 
 The title company methods, although far inferior to 
 Title Companies the Torrens system, undoubtedly were a great improvement 
 were opposed over those of the old fashioned individual searchers, who 
 
 by old time were rapidly driven out of business — but not without a 
 
 searchers. fight. For a few years after 1890, the professional 
 
 searchers in the register's office fought vigorously against 
 the usurpation of their privileges by the new corporate searchers, using much the 
 same arguments and tactics against them as the title companies now use against 
 the Torrens system which threatens to displace them just as they in their turn 
 displaced the old searchers. 
 
 The establishment of lot systems has greatly reduced 
 Lot system the cost of searching. By using the locality plant now in 
 
 greatly improves, the register's office, the chain of title to a lot may be dis- 
 but does not closed from the earliest records down to date in a very 
 
 cure. few minutes. This fact has developed a new phase of the 
 
 title question. In the old days the cost of the "search" 
 was predominant and the importance of searching was greatly exaggerated. The 
 examination of instruments was a secondary matter. Today a "search" is very 
 cheaply made, but as a rule attorneys in the present generation have not been 
 educated in the business of examining real property instruments and the public 
 generally have been encouraged in the belief that it is unsafe to rely upon the 
 
 12 
 
opinion of an individual attorney as to the legal effect of instruments, but that 
 the title must be guaranteed in order to be safe. Instances such as the recent 
 Tracy claim for dower and the claim of the Striker heirs give a basis for the 
 uneasiness of an owner whose title is not guaranteed. So today the importance 
 of a mere search is minimized and the necessity of a guaranteed examination is 
 exaggerated by the professional interests whose living is derived from it. Not- 
 withstanding the cheapening of processes by the great improvement in the public 
 plant and in the building up of the private title company plants, probably more 
 money is drawn from the public today for title fees than ever before. Title 
 companies examine a title to a given date but once only and rely upon the previous 
 policy for subsequent transactions. The actual cost of continuing a title is very 
 slight but the benefit of the saving of course goes to the title company in profit 
 and not to the public. The community bears the burden of maintaining four 
 completely equipped title plants, any one of which is adequate to perform the 
 services for the entire county. One of these is the plant in the register's 
 office of New York County. 
 
 Contrary to general popular belief, the losses resulting 
 Title losses from defects in titles are comparatively small. Although fees 
 
 are slight. paid into title company treasuries in the past twenty-five years 
 
 probably aggregate $100,000,000, and the gross amount of 
 policies issued by them runs into the thousands of millions, it is, nevertheless, a 
 fact that perhaps $10,000 a year would pay the losses of all the title companies 
 in the City of New York since they have been in business. The title companies 
 insure only what they believe to be good titles; they do not insure against a 
 known defect. This fact, however, does not mean that the insurance principle 
 is wrong. Just as in fire insurance an owner does not insure because he expects 
 his house to be burned, but by a small contribution to a common fund, he is 
 insured against the risk. The insurance principle takes the burden of a loss 
 from individuals and spreads it over the entire class insured. A particular 
 loss may be very small compared to total values insured, yet it may be the ruin 
 of an individual owner. This same principle is applicable to titles, and the 
 unknown risk is insured against, but the extent of the risk has been greatly 
 exaggerated, and larger premiums have been exacted than the service or the risk 
 warrants. 
 
 None of the improvements in the arrangement of instru- 
 Torrens system ments has done away with the fundamental fault of the old 
 eliminates system, which is that the title of a present owner is subject 
 
 searching and to all of the mistakes, actual and imaginary, contained in all 
 examinations. the transactions affecting the property since the earliest records. 
 There are about 100,000 lots in New York County and the 
 register's office is in just about the same condition that a bank would be in that 
 had been in business for a hundred years with 100,000 customers and simply kept 
 journal entries of transactions with no ledgers upon which to balance the account 
 of any one of its customers. Imagine the confusion and the wastefulness if 
 every time a bank depositor wished to draw money, it were necessary to engage 
 expert searchers to go back over the journal entries of 100 years, to find not 
 only all the previous transactions of the depositor, but also those of all his 
 
 13 
 
ancestors, in order to determine what his present balance might be. This is 
 just what occurs, however, in transactions in real property. Mr. Torrens' idea 
 was to open an account for each piece of ground registered and, as it were, 
 permit an owner to apply to have his account balanced. At the first application 
 Mr. Torrens required, in his rules, that all previous transactions should be fully 
 examined and that notice of the application should be given to all persons inter- 
 ested and also to the world by publication. Having balanced the account, that 
 is, having determined the status of the title, the registry page of the title was 
 opened like a ledger page and all of the facts of the title were stated on it. If 
 there were any minor dealings in the land, such as mortgage loans or creditors' 
 liens, they were posted upon this ledger page. Whenever the property was sold 
 to a new owner, the account was balanced; that is, the old page account was 
 closed and a new page was opened and there were carried over upon the new 
 page only the matters which were alive and which actually affected the title. In 
 this way the account with each lot was automatically kept up to date and was 
 separate from the accounts of other lots. There was never more than one 
 registry page for any one parcel open at the same time. All searching and all 
 examinations of records were actually and completely done away with. This 
 is the great fundamental principle of the Torrens system, with the added fact, 
 that the certificate coming from the state makes the title, as declared by it, unim- 
 peachable. 
 
 The state is the source of every title to real property. A Torrens certificate 
 is simply a further expression of the sovereignty of the state, repeated at each 
 transaction, declaring that the title originally derived from the state now rests 
 in a particular individual. 
 
 III. 
 
 SPREAD OF SYSTEM IN OTHER COUNTRIES. 
 
 Mistakes Made in England and Ireland. 
 
 Opposition of Professional Conveyancers. 
 
 The quick success of the registration law in South Australia resulted in 
 similar laws being passed in other English colonies. Queensland adopted the 
 system in 1861 ; Tasmania in 1862; New South Wales in 1862; Victoria in 1862; 
 New Zealand in 1870; Western Australia in 1874; Fiji in 1876; British New 
 Guinea in 1889; and in succeeding years the system was established in British 
 Honduras, British Guiana, Leeward Islands, Jamaica, Trinidad and other colonies. 
 In all of these laws the original Torrens model was closely followed and a 
 uniform success attended their operation. 
 
 In 1862 a Land Registry Act, providing for registration 
 Mistakes made of titles in England was passed which was known as the 
 in England. Lord Westbury Act. This law was a dismal failure. The 
 
 Lord Westbury Act did not follow the original Torrens law, 
 but was a hybrid measure with many innovations, compromises and changes, 
 which, as Mr. Torrens himself said, "were antagonistic to the principle of regis- 
 tration of titles." Mr. Torrens in his Essay of 1882 tells a most interesting and 
 
 14 
 
instructive story of the experiences and adventures encountered by the registra- 
 tion system in England. The struggle between the new method and its profes- 
 sional opponents continued for nearly a generation and put England far behind 
 its colonies in respect to its registration laws. 
 
 It is not necessary to go into a detailed analysis of the Lord Westbury Act, 
 but it is of interest to note the main dififerences between it and the original 
 Torrens Act because several of the mistakes made by Lord Westbury have been 
 paralleled by the New York Commission which drafted the even more unsuccessful 
 New York Law of 1908. The procedure and the mechanical arrangements for 
 keeping records were more complicated in the Lord Westbury Act than in the 
 Torrens system; titles were not made indefeasible in all cases; title passed by 
 the delivery of the deed and not by the registration certificate; registration was 
 not permanent, but titles could be withdrawn at any time by the owner; and 
 there was no assurance fund. 
 
 The complete failure of the Lord Westbury Act resulted in its repeal in 
 1875. The repealing Act of 1875 was known as the Lord Cairns Act and pro- 
 vided a new registration procedure that corrected many of the mistakes made 
 by Lord Westbury. The official mechanism was simplified, and notices could be 
 served personally or by registered letter. The objectionable withdrawal feature 
 was elminated and registration was made permanent. The Lord Cairns Act, 
 however, failed to provide an assurance fund, and there was no assurance fund 
 in England until 1897 when the law was amended making the Torrens system 
 compulsory in the County of London and providing an assurance fund. By the 
 amendment of 1897 any deficiency in the assurance fund was made good from 
 the national treasury. 
 
 Only 411 titles were registered in the whole of England in thirteen years 
 under the Lord Westbury Act. From 1875 to December 31, 1895, under the 
 Lord Cairns Act, 3,825 titles were registered in England and Wales. In the ten 
 years from 1895 to January 1, 1906, 91,284 titles were registered in London 
 alone with 109,260 subsequent transactions. 
 
 A registration system was first introduced in Ireland in 
 Progress in 1865. As told by Mr. Torrens in his Essay, an association 
 
 Ireland. was formed in Dublin in 1863 to procure the passage of a 
 
 Mistakes made, law similar to that of Australia. Sir Robert Torrens assisted 
 in preparing a bill for that purpose. This bill, which was 
 modeled upon the Australian Act, was first read in the House of Commons in 
 1863, but failed of passage. 
 
 The story of the experiences of the Irish measure is told by Mr. Torrens 
 in his Essay (pp. 43, 44) : 
 
 "Unfortunately, the legal gentlemen who undertook to revise my Bill of 1863, 
 preparatory to its reintroduction in the following session, deemed it politic, in 
 order to propitiate Lord Westbury and induce him to undertake the carriage of it 
 through the House of Lords, to import into it certain provisions of his own 
 measure, which were antagonistic to the principle of registration of titles, and 
 my remonstrances were ignored. The result may be learned by reference to the 
 evidence of Mr. Denny Urlin, an English barrister, formerly examiner in the 
 Estates Court, Ireland, and for ten years in charge of the Record of Title Depart- 
 ment. Mr. Urlin, examined before the Committee of 1879, in reply to Queries 
 1986 and' subsequent, informs us that 'the Irish Act embodies all the mistakes of 
 
 15 
 
Lord Westbury's which Lord Cairns's Act proposed to remedy. It is an imperfect 
 system following rather closely Lord Westbury's system. /* is permissive, so 
 that any one by signing a simple requisition could exclude the operation of the 
 Act as regards his land on its passing through the Estates Court.' Section 32 
 enables persons whose properties were upon the register to withdraw them at any 
 period. 'A gentleman applied to me to remove his land from the register, and 
 assigned as his reason for so doing that he wished to effect a loan, and the solicitors 
 through whom he was to obtain the loan required him to remove his title from 
 the record. I think when a title is once on the register it should, in the public 
 interest, always stay there, otherwise owners are exposed to unfair pressure.' " 
 
 The italics are mine. This Irish act proved a complete failure and deprived 
 Ireland of any real registration law until a new act was passed in 1891, which 
 became effective January 1, 1892, prohibiting registrations under the 1865 act 
 and correcting the mistake made in that act. 
 
 The experience of Ireland is instructive because of the singular way in 
 which the mistakes made there in 1865 have been duplicated by the drafters of 
 the New York law in 1908. Lord Westbury seems to have been the evil genius 
 of the Torrens system in England and Ireland and the progenitor of the ideas 
 and logic — or lack of logic — displayed by the gentlemen who composed the 
 Torrens Commission responsible for the unsuccessful, badly drawn statute that 
 for the past eight years has been made to masquerade as a Torrens law in 
 New York State. 
 
 The use of the Torrens system is practically universal in 
 Canadian Canada today. The first Canadian law is said to have been 
 
 systems passed in Vancouver Island as early as 1860, but the laws in 
 
 successful. the principal provinces were enacted mainly during the decade 
 
 following 1885. While the Canadian laws have in the main 
 closely followed the original Torrens model and have achieved large success, 
 yet some of the pitfalls that beset the Torrens path in England and Ireland crept 
 into one or two of the early Canadian statutes to their detriment. 
 
 British Columbia, the first of the more important provinces to adopt the 
 Torrens system, passed its first law in 18^0. This law, like the Lord Westbury 
 Act in England, was a mixture of the old title by deed idea and the new Torrens 
 registration idea. It was permissive ; titles passed by deed and not by the act of 
 registration. It took seven years to get a conclusive title. There was no assur- 
 ance fund. The law was a poor success and several amendments were passed 
 in the years following 1888 which corrected many of the original faults. An 
 assurance fund was later provided and the true registration principle was 
 restored. The system is now successful. 
 
 The rest of the Canadian provinces seemed to have profited by the 
 experiences of England, Ireland and British Columbia. At any rate, the 
 Canadian laws have generally adhered closely to the original Torrens idea, and 
 have been uniformly successful. 
 
 The situation in Canada and the public sentiment in favor of title regis- 
 trations are indicated by the following extract taken from the admirable paper 
 prepared by Mr. Henry Pegram, a member of the New York State Torrens 
 Commission in 1908: 
 
 16 
 
Upwards of ninety per cent of the land in the Winnipeg district is registered. 
 The receipts at the Winnipeg office for the last few years have very largely ex- 
 ceeded the expenses. It is stated that as registration is voluntary, the only com- 
 pelling force IS the merit of the system itself and that, on account of the recog- 
 nition of Its merits, no purchaser wishes to take any but a registered title and 
 capitalists are unwilling to lend money on unregistered land." 
 
 Winnipeg district is in Manitoba,, and its success has been duplicated gener- 
 ally throughout Canada. A New York lawyer, in commenting upon conditions 
 existing in Canada, said there is but one fault to be found with the Canadian 
 registry systems — a lawyer could make no money there out of titles. It is the 
 custom to pass title by the use of the certificate, in a few minutes time and at 
 a cost of two or three dollars. 
 
 IV. 
 EARLY SETBACK OF THE SYSTEM IN THE UNITED STATES. 
 
 A new difficulty overcome. 
 
 The agitation for a Torrens system in the United States may be said to 
 have begun about the year 1885. The Commission already referred to, appointed 
 in 1884 to inquire into conditions in New York City, mentioned but did not 
 recommend the Torrens system, although their majority report did recommend 
 a lot system that would have done much to relieve the situation if it had been 
 adopted. 
 
 In 1891, Governor William E. Russell, of Massachusetts, in his inaugural 
 address referred to the Torrens system and on February 17, 1891, sent a special 
 message to the Senate and House of Representatives in which he said: 
 
 "I believe that the Australian system of land registration and transfer, more 
 commonly referred to, from the name of its originator, as the Torrens system, 
 is the longest step that has yet been taken anywhere toward that freedom, 
 security and cheapness of land transfer which is conceded to be so desirable in the 
 interest of the people. Our citizens demand the enactment of the best legislation 
 that can be devised, whether originated here or elsewhere, and while another 
 country, whose conditions are similar to our own, has gained the credit of first 
 adopting the admirable and simple plan of land transfer which I now call to your 
 attention, we can yet be the first among the States of the Union to place this 
 legislation upon our statute , book and to lead the way in its adoption by the 
 American people, as we have already done in the case of the Australian ballot. 
 The universal favor with which this latter system has been received by our 
 people should at least remove any prejudice against following the legislation of 
 the same country in another respect." 
 
 Drafts of laws proposed were presented to the successive legislatures of 
 Massachusetts during the years from 1892 to 1897, but failed of passage. 
 Massachusetts passed its first law in 1898 which went into effect October 1, 
 1898. 
 
 In the meantime the Illinois legislature in 1895 passed the first Torrens law 
 enacted in the United States. 
 
 2 17 
 
The drafting of the Illinois measure was in the hands 
 The Constitution of men who were sincerely in favor of a genuine Torrens 
 —a new weapon law and the 1895 statute was modeled closely upon the 
 against laws in successful use in Australia and elsewhere. None 
 
 registration. of the mistakes made in England were repeated. A clean- 
 
 cut, straightforward method of registration was provided 
 — a thing much desired especially in Chicago because the destruction of the 
 public records by the great fire had given the Chicago Title and Trust Company 
 which possessed the only set of abstracts extant, a practical monopoly of the title 
 business and owners were largely at the mercy of the title company. 
 
 The triumph of the title reformers, however, was short lived. Faced with 
 a law, the success of which meant destruction of their business, the private 
 title company interests made a direct attack upon the new law, invoking the 
 constitution — a misuse of that instrument too often resorted to by selfish people 
 who find a profit to themselves in the keeping of things as they are. An action 
 was started to oust the recorder of deeds from his office as registrar claiming 
 that the duties conferred upon him by law were judicial in their nature and were, 
 therefore, contrary to the provisions of the State Constitution. The court 
 upheld this viewpoint and declared the act to be unconstitutional. 
 
 This was a serious setback but the friends of the law continued the fight 
 with the result that Illinois in 1897 passed a new act very similar to the 1895 
 act, but providing that the initial application should be presented to and decided 
 by the court instead of the registrar. The court proceedings were made very 
 simple and the duties of the registrar in all matters subsequent to the initial 
 registration remained as before. 
 
 The enemies of registration returned to the attack using exactly the same 
 tactics that had been so successful before. Another suit was started to oust 
 the registrar from office on the ground that the act was unconstitutional because 
 it conferred judicial powers on the registrar. This time the court took an opposite 
 view and upheld the law. 
 
 While this was going on in Illinois, a registration law 
 Defeat in was passed in 1896 by Ohio which preserved the Australian 
 
 Ohio. registration principles. A suit was immediately started to 
 
 declare the law unconstitutional. The suit was in the nature 
 of a mandamus to compel the state auditor to furnish books, etc., which he had 
 refused to supply to the registrar. The Ohio court followed the example set 
 by Illinois and declared the law unconstitutional and void. The law was repealed 
 in 1898. 
 
 It is to be observed that in all of these suits, the arguments and decisions 
 were based on academic and problematical grounds invoked solely in the interest 
 of personal and corporate selfishness. In none of the cases did any person come 
 forward who had himself been injured or who had even been threatened with 
 an injury. Nevertheless the Illinois decisions established a precedent that has 
 been followed throughout the United States. The result is that upon every 
 American law there has been impressed the provision that the application pro- 
 ceedings for the initial registration must be conducted by the court, but all pro- 
 ceedings in transfers subsequent to the initial registration may be conducted by 
 the registrar. 
 
 18 
 
This distinction between proceedings before and pro- 
 Before and ceedings after initial registration, calling one judicial and the 
 
 after initial other ministerial is a pure Americanism introduced by the, 
 
 registration. courts through a strained application of the state constitu- 
 
 tion. The framers of our Constitution never dreamed that 
 the provisions inserted by them to prevent the taking of property without due 
 process of law would ever be used to prevent the establishment of a simple com- 
 mon sense procedure like the registration of land titles. 
 
 The courts in the decisions referred to made the mistake 
 True distinction of thinking of the registration of a title as done by the fiat 
 between of the registrar, when in fact the registration is really the 
 
 ministerial establishment of title by a very short statute of limitation. 
 
 and judicial. The registrar merely registers the fact of title after it has been 
 
 publicly proclaimed and remains uncontested. Under the Tor- 
 erns plan, after a title was fully examined, it had to be publicly advertised and 
 notices had to be given to all persons interested and to all abutting owners. Any 
 one could file an objection. If no objections were filed within a stated period 
 (from one to three months) the registrar registered the title — a purely ministerial 
 operation. But if an objection was filed, the registration was halted automatically; 
 the registrar lost his jurisdiction and the case was transferred to the court for 
 a settlement of the dispute. In this method we find the true distinction between 
 judicial and ministerial acts. The registrar registered titles as long as they were 
 uncontested. The court settled the contested cases. This is what courts are for 
 — to settle judicially disputes which arise between men over rights which conflict 
 or which are claimed to be conflicting. The American distinction made on a 
 basis of time between matters which arise before and those which arise after 
 initial registration is false and arbitrary. In the long run just as many legal 
 questions arise after registration as before. The true distinction should be be- 
 tween titles which are uncontested and those which are contested. The registrar 
 should handle the former and the courts the latter. 
 
 Although the early court decisions were based on a mis- 
 Constitutional taken premise, nevertheless, the precedent established has be- 
 change needed. come so thoroughly fixed that it is doubtful whether any court 
 
 would now make a contrary ruling without a constitutional 
 change expressly authorizing registrars to register uncontested titles. To make 
 such a change is the logical thing to do, but it is not easy to make amendments 
 to constitutions and in the meanwhile, friends of registration in other states have 
 altered the statutory provisions just enough to get around these decisions of the 
 court. A constitutional amendment is recommended and this phase of the subject 
 will be taken up in a later chapter. 
 
 As has been stated, Illinois in 1897 largely overcame the 
 Success in difficulty interposed by the decision of the court by providing 
 
 Illipois. that the initial registration be conducted before the court. 
 
 This act was amended in certain respects in 1903 and again 
 in 1907. The adoption of the law was made optidnal on the part of the various 
 counties. By a vote of the people of Chicago, the system went into operation 
 in Cook County on January 1, 1899. In spite of the bitterest opposition on the 
 
 19 
 
part of the title company interests manifested both commercially and legally, the 
 system took hold at once and its success was assured from the start. 
 
 The steady advance is shown by the following table of figures furnished 
 by Hon. Joseph F. Connery, the able and energetic Recorder of Cork County: 
 
 Transfers 
 
 Incumbrances 
 
 Year 
 
 1899 
 
 1900 
 
 1901 
 
 1902 
 
 1903 
 
 1904 
 
 1905 
 
 1906 
 
 1907 
 
 1908 
 
 1909 
 
 1910 
 
 1911 
 
 1912 
 
 1913 
 
 1914 
 
 1915 
 
 Year 
 
 1899 
 
 1900 
 
 1901 
 
 1902 
 
 1903 
 
 1904 
 
 1905 
 
 1906 
 
 Number 
 
 20 
 
 48 
 
 55 
 
 165 
 
 309 
 
 445 
 
 748 
 
 988 
 
 1076 
 
 1006 
 
 1253 
 
 1725 
 
 2014 
 
 2243 
 
 3333 
 
 3840 
 
 4202 
 
 Consideration 
 
 31,125.00 
 
 98,860.00 
 
 198,170.00 
 
 384,850.00 
 
 741,030.00 
 
 1,142,410.00 
 
 1,254,049.00 
 
 1,607,189.00 
 
 1,414,131.00 
 
 1,683,337.00 
 
 2,186,587.00 
 
 3,295,850.00 
 
 3,235,138.00 
 
 3,352,230.00 
 
 5,367,548.74 
 
 4,581,814.41 
 
 5,257,490.00 
 
 Year 
 
 1899 
 
 1900 
 
 1901 
 
 1902 
 
 1903 
 
 1904 
 
 1905 
 
 1906 
 
 1907 
 
 1908 
 
 1909 
 
 1910 
 
 1911 
 
 1912 
 
 1913 
 
 1914 
 
 1915 
 
 Number 
 
 21 
 
 30 
 
 41 
 
 93 
 
 173 
 
 268 
 
 . 435 
 
 621 
 
 701 
 
 682 
 
 1085 
 
 1268 
 
 1502 
 
 1882 
 
 2543 
 
 3189 
 
 3604 
 
 Applications for Initial Registr.wion 
 
 Number 
 126 
 113 
 115 
 252 
 281 
 349 
 391 
 350 
 
 Year 
 
 1907 
 
 1908 
 
 1909 
 
 1910 
 
 1911 
 
 1912 
 
 1913 
 
 1914 
 
 1915 
 
 Number 
 257 
 394 
 545 
 618 
 649 
 784 
 916 
 916 
 781 
 
 Consideration 
 
 67,750.00 
 
 30,300.00 
 
 80,430.00 
 
 172,275.00 
 
 242,620.00 
 
 510,730.00 
 
 1,023,734.00 
 
 1,163,777.00 
 
 1,158,771.00 
 
 1,510,067.00 
 
 2,205,041.00 
 
 2,450,260.00 
 
 2,828,333.00 
 
 4,045,379.00 
 
 5,506,214.16 
 
 7,626,162.49 
 
 8,237,383.00 
 
 Value 
 OF Property 
 786,500.00 
 1,037,688.00 
 2,076,875.00 
 1,629,225.00 
 2,809,425.00 
 2,985,500.00 
 4,167,707.00 
 3,743,247.00 
 2,898,495.00 
 
 Cook County 
 backs the 
 assurance fund, 
 
 One of the elements that makes for success in Chicago 
 ,is the fact that Cook County is financially responsible for all 
 registered titles. If any mistakes aie made resulting in loss, 
 the county is liable and may be sued for the loss the same as 
 for any other claim. The county is recompensed by the 
 premiums of one dollar a thousand on the value of the land which must be paid 
 in every case at the time of initial registration. Every piece of land registered 
 must contribute — payment is not optional as it is in New York. Up to 1915 over 
 $40,000 has been paid into the assurance fund and ctoly one loss of $300 has been 
 paid out of it. 
 
 Another advantage Chicago has is in the fact that the title 
 Title Examiner examiner is employed by the registrar. A small fee ($15) 
 is official. is charged which is paid into the office. The examiner is con- 
 
 sidered as a master in chancery and handles all the proceedings 
 in uncontested cases. He does not act as attorney for applicants in cases in which 
 there are contests or disputes. By this method the cost of the initial registration 
 
 20 
 
is kept very low and at the same time a considerable revenue is received by the 
 office. In 1915 the office received $59,568 in revenue from fees as appears from 
 a statement issued by Mr. Connery, the Recorder. 
 
 Illinois did not make the mistake of permitting titles to 
 Registration is be withdrawn, and every title registered adds to the momen- 
 permanent. tum of the Torrens system and takes away frpm the portion 
 
 that is available to the title company. Each year shows a 
 greater increase both actually and proportionately. Recorder Connery in a recent 
 letter to Register Hopper says on this point : 
 
 "The system is working very satisfactorily in this county and is increasing 
 every year, as you will note by the statement above mentioned, and we expect 
 an increase of about 40 per cent this year in the system in every particular. The 
 Torrens system in this county has developed from a small beginning into a very 
 formidable competitor of the Title Company in this county. Of course, you 
 realize the Title Company in this county has an absolute monopoly and no com- 
 petition except ourselves; consequently they are now and have always been 
 opposed to the Torrens System. However, we have thrived under their opposition 
 and it is only a question of time until the balance of favor will be the other way. 
 There is registered under the Torrens System about $60,000,000 worth of prop- 
 erty, which, as I said before, is rapidly increasing. The Title Company has 
 absolutely nothing to do with the Torrens System as the Torrens' is a public office 
 and run by the registrar for the benefit of the public. Every person who has 
 property registered under the system or who ever had property so registered will 
 not accept any other kind of title, and our greatest support comes from these 
 people who have had their property registered under the Torrens System and who, 
 realizing its vast benefit, become our earnest advocates." 
 
 "There is a disposition on the part of the real estate men, lawyers^ and others 
 who are interested directly or indirectly in the private company to reject loans 
 upon registered property, but, as stated above, there are so many others to take 
 their places that this, as a matter of business, is on the decline." 
 
 It is apparent that the day is not far distant when under the free competi- 
 tion between the two systems Chicago will have entirely freed herself from the 
 burdens of the old system of proving titles by private searchers with expensive 
 title company guarantees. 
 
 Between 1892 and 1898 several unsuccessful attempts 
 Success in were made in Massachusetts to pass Torren acts. Finally Mr. 
 
 Massachusetts. Alfred Hemingway of the Boston Bar was appointed as a one 
 man commission to draft a law. The result of his work is the 
 Massachusetts registration law, passed in 1898, which has become in many re- 
 spects the model law in America. A special land court was provided, in charge 
 of two judges and having a clerk who is called the recorder and who acts as 
 registrar. The authority of the court and of the recorder extends over the en- 
 tire state. County recording officers are made assistants to the recorder and are 
 under his orders. The title examiners are appointed by the court. The appli- 
 cant pays $5, plus one-tenth of one per cent of the value of the property, for 
 the services of the examiner. 
 
 Notices are published and sent out by the recorder under the order of the 
 court. Notices are sent by registered mail. Notices are published once only. 
 A return day is named in the notice, and if no objections appear, the title is at 
 once registered and becomes conclusive after 30 days. If objections are filed 
 
 21 
 
the case is set down for trial, but objections must be specifically set forth as well 
 as the interest which the objector claims to have. Indefinite and general objec- 
 tions to title made simply to delay the proceedings are not allowed. The result is 
 that the initial proceeding in uncontested titles (which are in the vast majority) 
 are conducted very cheaply and speedily. Under the able administration of Judge 
 Charles T. Davis, the Land Court has become one of the strongest in the Com- 
 monwealth and its decisions and procedure have been followed throughout fhe 
 country. 
 
 Payment into the Massachusetts assurance fund is 
 Massachusetts is compulsory for all land registered. A premium of one- 
 behind its tenth of one per cent of the value of the land is paid into 
 
 assurance fund. the assurance fund at the time of initial registration. The 
 treasury of the Commonwealth is liable for any deficiency 
 in the assurance fund. This fact adds much to the confidence of the public in 
 the system, but the assurance fund has always been ample to pay all losses. On 
 January 1, 1915, the Massachusetts assurance fund amounted to $248,857.45. 
 One loss only has been paid and that was $1,200 which was equitably allowed 
 to a poor widow whose lien had been overlooked by the mistake of the title 
 examiner in the proceedings for the initial registration. 
 
 Massachusetts does not allow withdrawals and is steadily 
 
 Registration is progressing toward the goal which is the aim of every true 
 
 permanent. Torrens law — the registration of all the land in the entire 
 
 community. When this goal is reached the full fruits of the 
 
 Torrens system will be realized. 
 
 Although at first conservative, the savings banks of 
 Registration Massachusetts and other institutions that loan money on bond 
 
 favored by and mortgage have long since ceased to question titles that 
 
 money lending have been registered. On the contrary many institutions 
 institutions. insist on titles being registered before they will loan on them. 
 
 The following statement by Clarence C. Smith, Recorder of 
 the Land Court, Boston, Massachusetts, in a letter written to Register Hopper, 
 dated January 6, 1916, is of interest: 
 
 "In Massachusetts savings banks and other loaning institutions and individuals 
 have long since passed the psychological stage of development in the popular mind 
 where people hesitate and look askance at making loans on the evidence of title 
 disclosed by a registration certificate. The hard, common-sense proposition has 
 made its way to the front in this state that an official certificate of the condition 
 of the title to a given piece of land issued by a state court under authority of 
 law is rather more substantial to fall back on in time of trouble than the mere 
 opinion of a lawyer however conscientious and learned, or even a title insurance 
 policy issued by a company of undoubted solvency." 
 
 The amount of business done in Massachusetts under the Torrens system 
 is shown by the following extract taken from a report issued by the Recorder's 
 office in Boston : 
 
 "Up to the first of January, 1916, 5,747 petitions for registration of land had 
 been filed in the Land Court from about 285 of the 363 towns and cities of the 
 Commonwealth. The assessed value of these properties at the time of filing the 
 
 22 
 
petitions amounted to $56,682,216. In the four largest Registries of the state 
 18,689 certificates of title have been issued and 47,851 documents registered. As 
 operations have begun in all of the twenty-one registries of the state, it is estimated 
 that about 22,000 certificates altogether have been issued." 
 
 California was the third state to pass a Torrens law. Its 
 Experience in first law, however, passed in 1897, failed to provide an assur- 
 other American ance fund, and titles did not become absolute until five years 
 states. had elapsed. These mistakes resulted in the failure of the 
 
 law and it remained practically a dead letter until 1914. By 
 a referendum vote of the people on November 3, 1914, a new law was adopted 
 which amended the 1897 law and provided a compulsory insurance fund; titles 
 were conclusive after one year and withdrawals were not allowed. Much interest 
 is shown in the new law and indications are that it will be successful. 
 
 A Torrens law was passed in Minnesota in 1901 ; Oregon in 1901 ; Philippine 
 Islands in 1902; Hawaii in 1903; Colorado in 1903; Washington in 1907; New 
 York in 1908; North Carolina in 1913; Mississippi in 1914; Nebraska in 1915; 
 Virginia in 1916; South Carolina in 1916. Altogether fourteen states (besides 
 Philippine Islands and Hawaii) have adopted the system. These various state 
 laws vary somewhat in detail but all follow the Torrens principle in the main, 
 except California (in its first law), Oregon and New York. California corrected 
 its mistakes in its 1914 law. Oregon allows titles to be withdrawn — a mistake 
 it has not corrected and the law has not succeeded. The mistakes made in the 
 New York law which caused its failure will be taken up in a subsequent chapter. 
 
 V. 
 
 ESSENTIAL FEATURES OF THE TORRENS SYSTEM. 
 
 Model Act of the American Bar Association. 
 
 It is evident that there are certain features or elements that enter into every 
 true Torrens law, the absence of any one of which militates against the success 
 of the law. These elements may be enumerated as follows — a true Torrens 
 system : 
 
 (1) Must be official — there is no room for private profits; 
 
 (2) Must be conclusive — titles must be indefeasible; 
 
 (3) Must be permanent — there can be no privilege of withdrawal; 
 
 (4) Must have an adequate assurance fund ; 
 
 (5) Must have a simple, cheap and speedy procedure. 
 
 These elements will be found in every successful Torrens law. 
 
 In 1914 the Torrens Committee of the American Bar Association, in response 
 to the widespread demand for uniform legislation on the Torrens subject 
 throughout the United States, prepared a model act which was presented to the 
 Conference of Commissioners on Uniform State Laws held at Washington, D. C, 
 in October, 1914. The model act was accompanied by a report which very ably 
 presents the subject and disposes of many of the fictitious legal objections that 
 have been raised against the Torrens system by selfish opponents. The model 
 act is such in fact as well as name and embodies all of the essential features of 
 
 23 
 
a true Torrens law. The title examiner is an officer of the court, his fees are 
 fixed, titles are conclusive after three months, there is no withdrawal clause, 
 there is a compulsory assurance fund and the proceedings are direct and simple, 
 following in many respects the Massachusetts law. Both the model act and the 
 report are in print and are well worth a careful study. 
 
 It is not the purpose of this pamphlet to go into the refine- 
 United States ments of legal questions, but as there is a present tendency 
 Supreme Court on the part of interested enemies of the Torrens system to 
 in accord. question the attitude which the United States Supreme Court 
 
 might take on constitutional questions involved, a quotation 
 from the report of the American Bar Association may not be out of place. 
 Referring to the case of the American Land Company vs. Zeiss (219 U. S. 44 ; 
 Dec. 19, 1910), the report says (p. 18) : 
 
 "Mr. Chief Justice White delivered the undivided opinion of the court, in 
 the course of which he discussed: (1) The power of the state to control land 
 titles under statutory proceedings. (2) The sufficiency of the safeguards pro- 
 vided in the statute in question. (3) The adequacy of the proceedings had in 
 the particular cause. In the course of his opinion, he said: 
 
 'As it is indisputable that the general welfare of society is involved in the 
 security of the titles to real estate and in the public registry of such titles, it 
 is obvious that the power to legislate as to such subjects inheres in the very nature 
 of government. . . .' " 
 
 Continuing: "The court likewise had no difficulty in determining that the safe- 
 guards provided by the statute were sufficient, and on this point, the chief justice 
 said: 
 
 'To argue that the provisions of the statute are repugnant to the due process 
 clause because a case may be conceived where rights in and to property would be 
 adversely affected without notice being actually conveyed by the proceedings, is 
 in effect to deny the power of the state to deal with the subject. The criterion 
 is not the possibility of conceivable injury, but the just and reasonable character 
 of the requirements, have reference to the subject with which the statute deals.'" 
 
 Referring to the words of the Chief Justice, the Com- 
 Mists and fogs mittee makes this comment : "This clear expression eflEectually 
 dispelled. dispels the mists and fogs and vague suggestions of ghostly 
 
 dread with which the opponents of land registration have 
 endeavored to overwhelm the proponents of the system, and should hereafter 
 confine to undisturbed graves the spooks with which it has been so persistently 
 attempted to terrorize a sensitive public. In point of fact, in the practical 
 operation of land registration, none of the terrible predictions of its opponents 
 has been verified. If called upon to file as an exhibit with their complaint a 
 single 'true owner' who has been robbed of his land by any of the land registra- 
 tion acts in the United States, these complainants would be compelled to confess 
 the difficulty or impossibility of the task." 
 
 In conclusion the Committee calls attention to the bitterness with which the 
 Torrens reform measures have been fought: 
 
 "It is evident from this review of the cases that every conceivable line of 
 attack which could commend itself to the critic? and enemies of land registration, 
 
 24 
 
has been followed and pressed to a conclusion both in the state and federal courts.. 
 In reviewing the decisions one is struck by the ingenuity no less than the persist- 
 ency of counsel in raising every objection likely to command the action of the 
 courts. Nor have these attacks been confined to the courts, but no effort has been 
 spared to convince every legislature which has taken up the subject, of the dangers 
 of such legislation not only from a constitutional but from a practical point of 
 view. Every act passed in the United States bears on its face the scars of 
 desperate conflict. It is doubtful whether any legislation has ever been assailed 
 with more bitterness or greater persistency than this; and unfortunately its 
 antagonists have generally succeeded in marring the act even when they have been 
 unable to defeat it." 
 
 The italics are mine. Warrant for this statement is found in New York, 
 where the title company interests, while unable to prevent the passage of a 
 Torrens law yet were influential enough to procure the introduction into it of 
 so many "jokers" that the law was a failure from the start. The New York 
 Torrens law was stillborn. 
 
 VI. 
 
 WHY THE NEW YORK LAW HAS FAILED. 
 
 Essential features violated. 
 
 One would think that, having before them the good examples of Australia,. 
 Canada, Massachusetts, Illinois and other communities with their successful laws 
 for patterns and, on the other hand, with the failures of England, Ireland and 
 other places that experimented with defective laws to warn them, the New York 
 Torrens Commission of 1908 would have profited by the experience of others 
 and drawn a law according to correct principles. But they did no such thing. It 
 would seem as though every mistake that could be made was made. , As a 
 prominent lawyer and title man in this city has said, "The New York registration 
 law is the worst in the world." 
 
 The commission did not lack proper counsel for Judge Davis himself came 
 down from Boston on January 25, 1908, and addressed the New York State Bar 
 Association on the subject of the Torrens system which at that time was under 
 consideration by the New York commission. The able and delightful presenta- 
 tion by Judge Davis may be found in Volume 31 of the Reports of the New 
 York State Bar Association. Judge Davis appeared keenly alive to the peculiar 
 conditions existing in New York because of the strongly entrenched position of 
 the title companies and threw out a warning word against the danger of spoil- 
 ing the law by compromises. He remarked: 
 
 "It is perfectly possible, as has been demonstrated, to draft an act that will' 
 neither work in practice, nor even begin." 
 
 Judge Davis' warning was disregarded. The law that was drawn and enacted 
 in 1908 did not "even begin." 
 
 The reasons for this failure are perfectly obvious to any student of the law. 
 
 The law of 1908 was bad enough in that it placed the practical operation 
 of the law completely in the hands of the title companies, but apparently in order 
 to make the failure doubly sure an amendment Was passed in 1910 permitting^ 
 titles to be withdrawn from registration — a club made right to the hand of the 
 
 25 
 
title companies and openly used by them to coerce owners who had registered 
 their titles compelling them to withdraw against their will. 
 
 In addition to verbal defects due to poor mechanical 
 Four funda- arrangement and to a verbose and involved style of expression, 
 
 mental mistakes, the 1908 law as amended in 1910 violated many of the essen- 
 tial features of a true Torrens system. These mistakes may^ 
 be enumerated under four headings : 
 
 First. Title Examiners. The act styles them "official examiners of titles" 
 but they are in fact privately employed by the applicant just as one employs an 
 attorney or a title company. Their fees go into their own pockets instead of into 
 the public treasury. 
 
 Second. Assurance Fund. Payment is made optional on the part of the 
 applicant, with the expected result that there is no fund. (New York County 
 has $18.30.) 
 
 Third. Withdrawal Feature. This unfair and ancient device, born of an 
 evil design, although many times exposed, has again been brought forward to 
 injure and retard the growth of the Torrens system. 
 
 Fourth. Initial Court Proceedings. Every application to register a title is 
 made a double law suit even though the title is uncontested. Ordinary law suits 
 are bad enough. Instead, however, of simplifying procedure extra motions and 
 technical requirements are added like hurdles for the applicant to jump, making 
 the proceedings unlike anything ever before invented "either in the heavens above 
 or in the earth beneath or in the waters under the earth." The act is a legal 
 monstrosity. 
 
 Each of these four matters, with the remedy necessary to make the law 
 workable and successful, will be separately considered. 
 
 VII. 
 
 OFFICIAL EXAMINATION OP TITLES. 
 
 Function of the public office. 
 
 Under the original Torrens plan before a title was registered it was referred 
 to a title examiner who was employed by the registrar. Mr. Torrens in his Essay 
 (pp. 18, 19) describes the duties of the title examiner as follows: 
 
 "These applications, together with the deeds and other evidences and ab- 
 stracts of title, accompanied by plans of the lands, furnished by licensed sur- 
 veyors and certified correct by statutory declaration, are submitted for examina- 
 tion to a barrister and to a conveyancer, who are styled "examiners of titles." 
 These gentlemen examine the titles precisely as they would do on behalf of an 
 intending purchaser under the old law. They report to the 'Registrar,' or 
 'Recorder of Titles,' as he is styled in some colonies — 1st. Whether the descrip- 
 tion of the parcels of land is definite and clear ; and in this they are assisted by 
 a land surveyor and draughtsman. 2nd. Is the applicant in undisputed posses- 
 sion of the property? 3rd. Does he appear in equity and justice rightfully 
 entitled thereto ? 4th. Does he produce such evidence of title as leads to the 
 conclusion that no other person is in a position to succeed against him in an 
 action for ejectment? Should the applicant fail to satisfy the examiners in these 
 
 26 
 
particulars the application is at once rejected, without putting him to any further 
 expense." 
 
 The title examiner, therefore, was not retained by the applicant, was under 
 no financial obligations to him nor did he have any dealings with him. His duty 
 was solely to the registrar to whom he made his report. 
 
 Because of the court decisions on the constitutional questions already dis- 
 cussed, the American statutes have changed the procedure as to the title examiners 
 in one respect ; that is, instead of reporting to the registrar as in Australia, the 
 examiner reports to the court. In the law of every state, however, except New 
 York, the examiner is a public officer appointed either by the court or by the 
 registrar. In Massachusetts he is appointed by the court, in Illinois by the 
 registrar, under the Model Act by the court. In all cases he reports to the court 
 and has the status of a referee or master in chancery. He is never privately 
 retained. 
 
 Under the present New York law the title examiner is 
 New York title employed by the applicant under a private retainer. The ap- 
 examiners plicant becomes his personal client. It is a peculiar fact that 
 
 privately everywhere in the world except in New York the title ex- 
 
 employed, aminer is officially employed by the public office and is styled 
 
 simply "title examiner," whereas in New York where the 
 examiner is privately employed and is not an official in any true sense, he is styled 
 "official title examiner." New York substitutes the word "official" in place of 
 the fact — a sham, which if perpetrated under the pure food law would bring 
 condemnation on the ground of offering goods to the public under a false and 
 misleading label. 
 
 The applicant hires the so-called "official" examiner in 
 His fees are his just the same way that a person hires a lawyer. The fees to 
 private pcofits. be charged are not fixed in the law but are the subject of 
 barter — a thing to be haggled over between the examiner and 
 his applicant client. Indeed in New York the "official" examiner may undertake 
 to cure a doubtful or defective title for a contingent fee — in other words the 
 "official" examiner may have a personal pecuniary interest in the subject of the 
 proceedings and a share in the land the value of which is enhanced by his favor- 
 able report provided the court should sustain it. 
 
 The vice of this arrangement is obvious upon the mere 
 
 He serves statement of it. The examiner's mind is divided between his 
 
 two masters. duty to the court, his duty to his client and his own pecuniary 
 
 interest in the case. The courts of this state have properly 
 
 condemned this outrageous provision of the present New York law. 
 
 The "official" examiner does not make and deliver his 
 His report of title report to the court but to the applicant who attaches it to 
 is not official. his application as an "exhibit." It does not have the dignity 
 
 or force of a referee's report in a foreclosure suit, for 
 example, where the referee acts as a part of the court itself. In practice the 
 courts have given no more weight to the statements contained in the "official" 
 examiner's report than they are accustomed to give to statements in an ordinary 
 attorney's brief or argument presented in advocacy of a client's cause. 
 
 27 
 
Under the present law the official title examiner may be 
 
 Title companies either ( 1 ) individual — an attorney licensed under certain rules 
 
 in control. or (2) corporate — a title company, which must qualify by 
 
 filing certain papers showing due incorporation, etc. This 
 
 plan serves to strengthen the title company grip in several ways. 
 
 First. No public office is provided where the applicant may go to make 
 preliminary arrangements to have his title registered, as is provided in every 
 other state. The applicant must hunt out some lawyer who is also an official 
 examiner — a very hard thing to discover — and go to him privately. The average 
 business man is Very reluctant about going to a strange lawyer's office to start 
 a law-suit about his property especially when his title is perfectly good. Or the 
 applicant must go to a title company to discover that the company disapproves 
 of the law and advises against it. The applicant meets discouragement at the very 
 beginning. 
 
 Second. In practice a private attorney in a metropolitan county like New 
 York which has until recently lacked a public title plant, cannot compete com- 
 mercially with the title companies who have complete locality plants. 
 
 Third. The individual attorney in order to become licensed as official ex- 
 aminer must pass very rigid tests of fitness, must file a bond for $5,000 and be- 
 comes a personal guarantor of his work. Since any individual can handle but 
 very few transactions personally, there is very little inducement for an attorney 
 to qualify. Only five attorneys out of 10,000 or more in New York City have 
 gone to the trouble to qualify as official examiners and none of these have made 
 enough out of the business to pay the premium on their bonds. 
 
 Fourth. The individual examiner has no assurance fund back of him, 
 whereas the corporate examiner must attach its title policy to the report on title. 
 In all other states and counties the public assurance fund is back of the proceed- 
 ings but the New York law makes payment into the state fund optional with 
 the result that there is no fund — New York County has $18.30 — and the appli- 
 cant is driven to the title company for assurance. Furthermore the present law 
 attempts to exclude the public fund — small as it is — from covering losses due to 
 a mistake in an examiner's report. The official examiner may be sued personally 
 but the assurance fund is not liable. 
 
 This is all wrong and the expected result follows that attorneys generally 
 speaking are unwilling to take the risk of acting as official examiners. This leaves 
 the field clear for the title company. 
 
 The fact of turning the official examination business 
 The Commission over to the title companies was not an accident but was the 
 planned it deliberate plan of the 1908 Torrens commission. In the 
 
 that way. report of the commission made to the legislature in 1908 
 
 appears the following explanation of the reasons why their 
 strange innovation as to official examiners was adopted : 
 
 "The provisions ... for 'official examiners of title' are made for three 
 chief purposes : The first of these is to avoid the appointment of a large number 
 of officials by the court, which is required under some systems of registration- 
 
 "The second is to let the payment of fess be made between the examiner 
 and the employer or landowner directly, and not from any public funds; and 
 
 "The third is to utilize the magnificent equipments of some of the title cor- 
 porations xn our large cities in procuring the registration of titles." 
 
 28 
 
The italics are mine. The soHcitude exhibited by the commission in safe- 
 guarding the "public funds" seems naive in view of the fact that to "procure" 
 initial registration of the titles to the land in New York County alone would 
 cost — at the title company prices — not less than thirty millions of dollars. To 
 divert this huge sum into title company coffers is the effect and a "chief pur- 
 pose" of this measure. It is the price offered by the commission to be paid by 
 land holders for the conciliation of the title companies and to gain their per- 
 mission to let the registration law pass. 
 
 The commission had no assurance from the title com- 
 Title companies panics that they would take up the Torrens system and push 
 rejected the it as official examiners. The commissioners seem to have 
 
 beiit. acted as though they were baiting a hook for a simple-minded 
 
 fish to bite and catch himself upon. But title companies are 
 wary game and did not bite. It is plain even to the most simple minded — although 
 the fact apparently did not occur to this commission — that the success of the 
 Torrens system spells death to the private title company business, and the honest 
 acceptance by the title companies of work as official examiners meant the de- 
 struction of their own existence after a few years. As a matter of fact none of 
 the title companies even qualified but on the contrary fought the law both openly 
 and secretly. This is true of all the companies except the Home Title Insurance 
 Company of Brooklyn which has no title plant in New York County. This com- 
 pany qualified — having all to gain and nothing to lose. 
 
 In 1915 and 1916 the farce of 1908 again appeared upon 
 The farce the boards. A so-called Torrens Committee was appointed by 
 
 re-enacted. the Real Estate Board of New York, with Professor Alfred 
 
 G. Reeves, who is commonly reported to be the author of the 
 1908 burlesque, as chairman. Among others, the committee had upon it and 
 directly representing the title companies and under salary from them, Walter 
 Lindner, Solicitor of the Title Guarantee and Trust Company ; Henry R. Chittick, 
 Assistant Solicitor of the Lawyers Title and Trust Company; Cyril H. Burdett, 
 Vice-President of the New York Title Insurance Company, and Harry Percy 
 David, SoUcitor of the Home Title Insurance Company of Brooklyn. These 
 latter named gentlemen, of course, are under duty to the companies by whom 
 they are employed and no personal criticism of their activity against a true 
 Torrens Jaw is intended. 
 
 This committee has fathered a bill introduced in 1916 by Senator Boylan 
 in the Senate and by Assemblyman Ellenbogen in the Assembly, which amends 
 the present law in respect to verbal matters and as to a few minor details. 
 
 The sole effect of the Boylan-Ellenbogen bill, if not its avowed purpose, is 
 to draw attention away from the main issues involved and to keep the present 
 law as it is for the benefit of the title companies. But the title companies do 
 not even yet say that they will go ahead and advocate the Torrens law procedure 
 even though the Boylan-Ellenbogen bill is passed. At the hearing before the Com- 
 mittees of the Legislature in 1915, representatives of the title companies appeared 
 in favor of the Boylan bill, but close attention to all that was said and written 
 reveals the fact that at no time did they say that they would actually register titles 
 under the Torrens system, even though the amendments were passed. At an 
 
 29 
 
informal hearing held on February 8, 1916, before the Committee on General 
 Laws of the Assembly, Professor Reeves, speaking before this committee said 
 that three title companies: the Lawyers Title and Trust Company, the New 
 York Title Insurance Company and the Home Title Insurance Company of 
 Brooklyn, would act as official examiners and would loan money on Torrens cer- 
 tificates. No direct representative of the title companies, however, was present 
 and Professor Reeves was careful to say that he did not represent the title com- 
 panies and that he was giving an impression that he had received from private 
 conversations with representatives of the title companies. 
 
 The title companies, by the method described above, have 
 Greeks bearing placed themselves in the position of being advocates of the 
 gifts. present New York Torrens law — making themselves, as it 
 
 were, the defenders of the faith. Their advocacy, however, 
 is simply that of selfishly interested corporations seeking to keep the system in 
 the form that it now exists, which has proved to be highly profitable to them- 
 selves, but of profit to no one else. It is simply a case of "Greeks bearing gifts." 
 
 The 1908 commission, or at least certain members of 
 Commission acted it, acted in good faith in their attempt to conciliate the title 
 in good faith. companies, no doubt believing, as the public generally 
 
 believed, that the title companies possessed equipment 
 without which it was imp>ossible to examine titles economically. That a mistake 
 was made, however, is shown by the following extract from a letter received 
 by Mr. Hopper from Mr. Gustave W. Thompson, one of the members of the 
 1908 commission : 
 
 "I had a belief that the title companies would show a reasonable amount of 
 wisdom and make use of this law as a part of their general procedure, as being 
 a simple method of clearing titles. My expectation in this respect has not been 
 realized and apparently the title companies are not willing .to do anything to 
 make title registration practicable in this state. I personally was in favor of 
 making a bid for their support. Such a bid was made and it has failed." 
 
 Mr. Thompson has put himself squarely and frankly on record in favor 
 of amending the present New York law and make it conform to the Torrens 
 legislation of other states. 
 
 In the model act of the American Bar Association the 
 Examiners' fees fees for the services ■ of the examiner of titles is' fixed at 
 and public funds. $10 plus one-tenth of one per cent of the value of the prop- 
 erty. If this rate were adopted in New York and the fees 
 made payable into the public treasury a large revenue would be derived from the 
 business. This is especially true in Manhattan where the county has spent 
 about $500,000 for a title examining plant arranged on the lot system that enables 
 one to make a search very quickly and with very little labor. A search that might 
 require weeks under the old system can be made in a few minutes. 
 
 This locality plant is already largely used by the public. 
 
 Title company Many locality searches are made by the register's staff. So 
 
 business declines, efficient is the plant that "Last Owner's Cards" giving a 
 
 diagram of the property, the lot, block and section, the 
 
 30 
 
name and address of the last owner and a reference to the deed by which title 
 was acquired, are produced in a few minutes at a price of twenty-five cents each. 
 The service was started in September, 1915, and during the past five months, 
 since that time over 2,500 "Last Owner's Cards" have been issued. The indexes, 
 of course, are public records and many attorneys continue searches instead of 
 sending them to title companies. It is said that at one time eighty per cent of 
 all instruments recorded in the Register's Office of New York County came 
 through the title companies. A recent tabulation disclosed the fact that this has 
 dwindled until today less than thirty-five per cent of instruments pass through 
 the hands of the title companies. 
 
 It is safe to say that with its present equipment the 
 Register's Office Register's Office could handle the business of official exam- 
 fuUy equipped. inations of titles without increasing budget appropriations. 
 The examination of the titles of Manhattan property alone 
 at the rates suggested would give a total revenue of about six million ($6,000,000) 
 dollars to the city and at the same time save even a greater sum for land owners. 
 As the county plant is already paid for, the new city revenue from this source 
 would be largely profit. The esatblishment of a proper Torrens system in this 
 city would be equivalent — in new revenue and in saving to owners — to taking 
 two or three points from the tax rate. 
 
 VIII. 
 
 ASSURANCE FUND. 
 
 A public asset and an equitable safeguard. 
 
 A public assurance fund was an integral part of the original Torrens act and 
 has been provided for in every successful Torrens law. The few attempts made 
 to establish a registration system without an assurance fund have all resulted 
 in failure as has already been shown. 
 
 The Torrens system grants an indefeasible title after a very short statute 
 of limitation. (In Massachusetts and Ohio after 30 days. Model Act ninety 
 days, New York six months, Simpson-Cotillo proposed amendements three 
 months.) As a necessary result of making the certificate final and indefeasible, 
 any interest not specified in the certificate is cut off and lost to its owner. This 
 may result in actual injustice to a person who has a bona fide claim but who, 
 because of some mistake, was not notified of the proceedings. 
 
 The land or the interest in it which is cut off cannot be 
 An equitable returned to the former owner, and the assurance fund is sub- 
 
 principle, stituted in place of the land. 
 
 Sir Robert Torrens in his Essay (page 22) says on this 
 
 point : 
 
 "Indefeasibility is indispensable if the dependent or derivative character of 
 titles, out of which, as has already been demonstrated, all the evils of the English 
 system of conveyancing originate, is to be got rid of; and as, despite every pre- 
 caution, a mistake may be made in granting indefeasible title, it becomes necessary 
 to provide compensation for persons who may possibly thereby be deprived of 
 land. For this purpose a fund is created . . ." 
 
 31 
 
He continues: 
 
 "This principle of compensating a rightful owner by a money payment instead 
 of allowing him to recover the land, commends itself to our sense of natural 
 justice, as contrasted with the principle of English law, which in such case would 
 place the rightful owner in possession, not only of his inheritance in the land itself, 
 but also of the capital of parties who, innocent of all fraudulent intent, may have 
 invested their fortunes in buildings and other improvements thereon. If it be 
 borne in mind that at the time of granting the indefeasible title, possession must 
 have been in the applicant, the case of the rightful he;r will' be seen in its true 
 light, as one of exclusion, not of extrusion, and capable of being compensated by 
 a money payment, without inflicting hardship. On the other hand, a great economic 
 principle is subserved by a system which gives the encouragement of security to 
 the employment of capital in improving land, the practical result of which has been 
 already to add largely to the wealth of the community, by restoring to their in- 
 trinsic value as building sites, many blocks of land deprived of that special value 
 by technical defects and uncertainties attaching to the title." 
 
 It is apparent that the holder of the certificate is the 
 Certificate chief beneficiary of the registration system. He holds his 
 
 holders chief title free and clear of everything not stated in his certificate, 
 beneficiaries. The assurance fund should be supported by those who benefit 
 
 by it. This is accomplished by requiring the applicant to pay 
 a premium into the assurance fund at the time the property is registered. 
 
 While the experience of sixty years has shown that 
 Mistakes are few. mistakes are few and far between in the working of Torrens 
 laws, still errors are made and provision should be made 
 through an assurance fund — not in the first instance for the benefit of the title 
 holder, for his title is beyond question — but to reimburse those who have been 
 unintentionally injured by the granting of indefeasibility of title or because of 
 errors made in the administration of the law. 
 
 Torrens himself fixed one-fifth of one per cent of the value of the property 
 as a proper premium to pay into the assurance fund but experience has shown 
 that one-tenth of one per cent is ample. All the states where the Torrens law 
 is working have adopted one-tenth of one per cent as a proper rate. The American 
 Bar Association in its model act has accepted one-tenth of one per cent. 
 
 In Australia, England and Canada the public treasury 
 
 Pundisa is back of the assurance fund. This is true also of Massa- 
 
 public asset. chusetts and Illinois. In every case, however, the fund is an 
 
 asset rather than a liability. There is no case on record where 
 
 the fund has not been ample to pay all losses. 
 
 Massachusetts in its eighteen years of experience and with one-tenth of 
 one per cent as a rate has accumulated a fund of $250,000 and has paid just 
 ■one loss. By a liberal interpretation of their law the Judge of the Land Court 
 and the Attorney General paid this loss of $1,200 to a widow who had been 
 injured in the registering of a title. 
 
 Chicago (Cook County) in its fund has about $50,000 and has paid one loss 
 of $300 after eighteen years of experience. 
 
 32 
 
Of course in every insurance association, fire, accident, 
 New York's marine, etc., every one who joins must pay a premium.. It 
 
 mistake. would be laughable to let the payment of the premium be 
 
 optional even for a day to one wishing to enjoy the privileges 
 of the association. Yet that is what the present New York law does — makes the 
 payment of the assurance premium optional. Result— New York County has 
 $18.30 in its assurance fund. 
 
 Of all the countries in the world and of the fourteen states in the Union 
 that have adopted the Torrens system, to New York alone belongs the credit 
 of conceiving this brilliant business proposition of letting a man enter into an 
 association, receive its benefits and then leave it optional with him to pay his 
 share into an assurance fund or not. It is a marvel that New York County has 
 as much as $18.30 in its fund. New York is the only place that has this optional 
 contribution in its law. 
 
 The 1908 commission evidently failed to grasp the prin- 
 NewYork ciple upon which a Torrens assurance fund is founded for 
 
 commission they confused it with title company insurance with which 
 
 confused. they were familiar. A title company policy insures the holder 
 
 only. The Torrens system insures every one injured. Again, 
 the title company exacts a new premium at each transaction. The Torrens 
 premium is paid once only and insures forever. 
 
 Because of this confusion of ideas the 1908 commission made payment into 
 the public fund optional but at the same time required the applicant employing 
 a corporate examiner to purchase a title policy to be attached to his application. 
 This title policy however is good for ten years only, thus making it possible for 
 title companies to exact a new premium for a new title policy every ten years. 
 
 In addition to providing compensation for bona fide 
 Public fund' claimants cut off by the initial registration, as well as assur- 
 
 protects future ing the holder of the certificate, the public assurance fund 
 dealing. protects all future dealings in the land. By the provisions of 
 
 the law no mortgage, judgment, or any other lien becomes 
 efl^ective against the land unless it is entered upon the certificate. If by the 
 mistake of the registrar or of his clerks a memorial of a lien is not properly 
 entered upon the certificate, the lien is lost and the land goes free from it. This 
 would be a hardship were it not for the fact that there is an adequate fund 
 which may be applied to the payment of a lien so overlooked by the mistake of 
 the registrar's office. This protection to all persons who, in the future, may deal 
 in the land, or loan money upon it, or obtain judgments or other Hens against it, 
 is something which no title company policy affords and is one of the reasons why 
 Torrens systems which are backed by proper assurance funds have been so 
 uniformly successful throughout the world. 
 
 The assessed value of real property in New York County 
 New York fund is estimated at about $5,000,000,000. On the basis of one- 
 would be tenth of one per cent, this fund, when all titles have been 
 $5,000,000. registered, would aggregate about $5,000,000. This money 
 should be paid directly into the city's treasury the same as 
 any other money and the city (or the county) should be made responsible for 
 
 3 33 
 
the compensation of any loss or injury brought about through the working of 
 the system. That this fund would be an asset, there is no doubt. It has been 
 said that in spite of the fact that the title companies of this city have insured 
 titles aggregating thousands of millions of dollars, there is so little risk in the 
 business , that $10,000 per year would pay all of their losses. Under the Torrens 
 system the risk is even less because the certificates are founded upon a court 
 proceeding which would protect the county from "strike suits" instituted by 
 people whose claims are not bona fide, but who intend to exact a payment through, 
 the threat of causing a title to become unmarketable. This could not be done 
 under the Torrens system. 
 
 Also, frauds which are quite common under our present 
 Protection recording system are made almost impossible of accomplish- 
 
 against frauds. ment under the Torrens system. The press recently con- 
 tained an account of frauds alleged to have been committed 
 by a mortgage loan broker through the use of forged mortgage papers. The 
 fraud was successful in that the forgery was not detected until after the money 
 had been paid over. In such a case the person who took the bogus papers and 
 paid out money on the strength of them, stands to lose the amount advanced. 
 
 In the case reported a forgery was made not only of the signature of the 
 parties, but also the register's certificate of record as well. This is not a dif-. 
 ricult thing to do under the present recording system because there is but one 
 mortgage, paper made out that contains original signatures and that is in the 
 possession of the person presumably entitled to hold it. The register's office 
 record does not contain original signatures, but only a typewritten copy, and so 
 it is not possible to make a comparison of signatures. Furthermore, it is not 
 necessary to go to the register's office to make a transfer. The papers are sent 
 to the register's office only after the transaction is completed. This is a weak- 
 ness of the present system of recording. 
 
 Such a forgery could not be accomplished under the 
 Torrens Torrens system, under which the title to property or the 
 
 certificates are ownership of a mortgage is shown on the certificate of title 
 in duplicate. issued by the registrar. Each certificate is made in duplicate. 
 
 The original certificate is kept on file in the registrar's office. 
 A duplicate original, known as the "owner's duplicate" is given to the owner. 
 No mortgage or assignment of it is valid unless it is entered on the original 
 certificate in the registrar's office. The transfer is made by the certificate of the 
 registrar who compares the owner's duplicate with the office original and is 
 therefore able to detect not only a forged signature, but any wrongful entry that 
 might be made on the owner's certificate. To determine whether a mortgage is 
 a valid lien, it is only necessary to compare the owner's duplicate certificate 
 with the original on file in the registrar's office. It would not be possible 
 for an outsider to gain access to the office and forge the registrar's signature 
 to a memorial entered on the official certificate. 
 
 In the two years that I have been register, my attention has been called 
 to several forgeries of recorded instruments, but in every case the matter was 
 not brought to my attention until after the deal had been consummated. On the 
 other hand I have never heard of a successful forgery of a Torrens certificate of 
 
 34 
 
title. After the wide use for over fifty years in Australia and for lesser periods 
 elsewhere, this proves that the registration system is a complete safeguard against 
 the risks of loss through forgery. 
 
 IX. 
 
 PERMANENT REGISTRATION. 
 
 Withdrawal feature condemned. 
 
 It must be remembered that the Torrens system of land title registration does 
 not reach its full fruition until every piece of land in its geographical unit 
 (county or state) has come under its shield. 
 
 Then and only then does the system of recording instruments and title 
 searching cease and the Torrens system reach its goal. Records of instruments 
 then become of no practical use and are simply of historical value. 
 
 Anything that impedes the system in its progress to this end, is necessarily 
 foreign to the system. The withdrawal feature which prevents this desideratum 
 is therefore a foreign feature and is out of place in a Torrens system. 
 
 A real property owner looking for security in the posses- 
 Choice of sion of his land has today a choice between the prevailing 
 systems — when method of title guaranty by a private corporation and the 
 made. (to us) new method of Torrens title registration. 
 
 It must be taken for granted that all the advantages of 
 each system have been canvassed — for no one is more timid than a landowner 
 where the title to his land is concerned — and that the choice is made deliberately 
 and in good faith. 
 
 On the title companies' side he has a successful local business record of 
 twenty-five years with whatever reputation for fairness, usefulness, security and 
 cost that has been garnered in that term of years. 
 
 On the Torrens side he has a system which while new in this state, yet has 
 a record of sixty years all over the world. This record is so well attested that 
 a city like London, in a country celebrated for its conservatism in matters relat- 
 ing to land, has made the system compulsory. 
 
 On the Torrens side too the tentative chooser has the successful operation 
 of the law for many years in Massachusetts and Illinois and in other states for 
 shorter periods. 
 
 Again on the Torrens side are the advantages of indefeasible title; cheap- 
 ness, ease and speed of transfer ; the use of the certificate as collateral for loans ; 
 insurance which is paid but once and is good for all time ; freedom from fraudu- 
 lent practices ; all of which necessarily enhance the value of the land. 
 
 With these records of the two systems before him the landowner makes his 
 choice and so far as the Torrens system is concerned it should be irrevocable. 
 Under the title company guarantee it cannot be irrevocable because in order to 
 increase profits which is the sole object of a title company, the land is forced 
 out of the title company system at each transaction in order that a new fee may 
 be exacted. 
 
 As I have said the choice having been made it must be taken for granted 
 that all things considered, the choice is made deliberately and in good faith. 
 
 35 
 
It would not be good faith for an owner to come into the Torrens system 
 in order to take advantage of some of its features which the title company can- 
 not confer and then withdraw to the apparent discredit of the Torrens system in 
 the eyes of the public, and to the actual injury of the system by preventing to that 
 extent its full consummation. For its own protection the Torrens system should 
 not allow withdrawals. 
 
 When the feeble efforts of the first railroad (Torrens system) were made 
 in competition with the stage (title companies) how foolish the railroad com- 
 pany woyld have been to allow a passenger to withdraw from a car and walk on 
 the track ahead of the train and thus prevent the arrival at the terminal (the 
 complete covering of the county by the Torrens system) as soon as possible and 
 thus discredit the railroad (Torrens)' system. , 
 
 The truth of the matter is that no withdrawals are ever 
 Cause of made by the owners because of dissatisfaction with the Tor- 
 
 withdrawal, rens system. Withdrawals have been made because the owner 
 
 has been either cajoled or forced to withdraw by the opponents 
 of the Torrens system and the club used to force withdrawals has been the refusal 
 of the title companies (or the old conveyancers and abstract companies) who have 
 always been associated with money lending, to lend money on land under the 
 Torrens system. This is the only use to which the withdrawal feature of the 
 Torrens system has ever been put — as a means to injure the system. 
 
 The history of Torrens law in England, Ireland, New York and Oregon gives 
 evidence of the universal use of the withdrawal feature as a door to enter the 
 home of the Torrens law for an evil purpose and money lending has been the 
 jimmy used. 
 
 I need not say what part in this play the title companies, abstract companies 
 and old conveyancers acted. 
 
 That the withdrawal feature is inimical to a Torerns law 
 Failures where has been shown over and over again. In whatever state or 
 withdrawal country it has been retained in the Torrens law, the law has 
 
 features have been a failure. The objections to the withdrawal feature are 
 
 been retained. not theoretical alone for we have had many instances where 
 this provision has been inserted in the law at the instance of 
 men prominent in real estate law and yet this feature had to be eliminated before 
 the law succeeded. 
 
 Sir Robert Torrens himself objected most emphatically to the withdrawal 
 feature. 
 
 England and Ireland tried it and failed. New York and Oregon are trying 
 it with no better success. 
 
 No more practical proof of the fact that the withdrawal 
 Success where privilege has no place in a true Torrens system and is in fact 
 withdrawals are an absolute detriment to it, are needed than that all successful 
 not allowed. laAvs are without it. 
 
 After a most careful study of all the Torrens laws of 
 different countries, the American Bar Association in its Model Act omitted the 
 withdrawal feature. 
 
 36 
 
X. 
 
 SIMPLE COURT PROCEEDINGS. 
 
 The great bulk of titles are good titles to which no one finds objection and 
 the original design of the Torrens system was to provide a means whereby the 
 owner of a good title might, by application to the public office, obtain a certificate 
 of his title. The Torrens proceedings do not attempt to change the fundamental 
 rights of persons but only to provide a simple method of declaring those rights. 
 In the Essay by Sir Robert Torrens (page 36) may be found the following clear 
 statement on this point: 
 
 "We have no plan in contemplation for turning a bad into a good title. What 
 we propose is, that those who have a good title should be entitled to procure a 
 declaration of it. I believe in point of fact there are few titles which are not 
 good." 
 
 In spite of the constitutional differences the fundamental character of titles 
 and the principle of registering them are the same in this country as in Australia. 
 The only difference is that the initial application is made to the court instead of 
 to the registrar. In principle the proceedings are not and never were in the nature 
 of a law-suit. If a title was contested, the registrar under the original Torrens 
 law referred the case to the court for settlement. In New York enemies of the 
 registration system — conveyancing attorneys, abstract companies and title com- 
 panies — have succeeded in impressing upon the Torrens registration proceedings 
 the procedure of a law-suit. To fully correct this mistake and restore the pro- 
 ceedings to the registrar where they belong will require an amendment to the 
 constitution, but in the absence of a constitutional amendment, the difficulty 
 may be remedied to a great extent by providing a special proceeding, which is 
 simple and speedy. The Massachusetts law is a model in this respect, providing 
 not only a special court, but also a special proceeding. Massachusetts did this 
 without any constitutional change. Illinois has also provided changes from 
 their ordinary law-suit procedure, which make the proceedings easy. Illinois 
 does not provide a special court. New York does not provide a special court 
 but a special "title part" has been provided that closely approaches the Massa- 
 chusetts idea. A special proceeding, however, has not been provided. 
 
 Much complaint is made agamst the present New York 
 New York law rules governing law-suits even in ordinary litigation, because 
 cumbersome. of the many delays and burdens that they impose upon litigants. 
 
 The demand for a reform in this direction was voiced by 
 Hon. Elihu Root, Chairman of the late Constitutional Convention. As if to 
 make the registration of titles as hard and expensive as possible, the drafters 
 of the present Torrens law not only make an applicant jump every hurdle that 
 is placed in the path of all other litigants, but in addition require the applicant 
 to go to court twice. Before he begins his law-suit, he must get an order per- 
 mitting him to serve his summons and complaint (Section 385). In order to get 
 this preliminary order, the applicant must have his title fully examined by 
 the official examiner of title, and the court must determine "whether or not 
 the plaintiff appears to have a title that should be registered" (Section 385). 
 If the court decides in favor of the applicant, he then gets permission to begin 
 
 37 
 
his action. In other words, the applicant in New York must do almost as 
 much in order 'to obtain permission to begin his action, as in Massachusetts 
 he does to complete the whole transaction. In addition to the summons there 
 must be a notice of object of action which must be approved by the court. The 
 expense of the official examiner's report under the title company and private 
 employment system, together with the unnecessarily burdensome and expensive 
 court proceeding, make the cost of the initial registration of titles so high as to 
 practically prohibit the business. This fact is apparently the reason why the 
 title companies who are back of the Boylan bill favor the provisions of the 
 present law. 
 
 Cost of initial 
 
 After titles, are registered, transfers cost very little — ■ 
 $2 for each new certificate is the fee fixed by the present 
 
 registration must law. The economic cause preventing title registrations is 
 be reduced. the relatively tremendous cost of the initial registration. 
 
 This cost is both in time and money. 
 
 In time the present proceedings require under the most favorable circum- 
 stances at least sixty days, and from that up to six months or more to get a 
 judgment. After that six months must elapse before title becomes conclusive, so 
 that a man must wait upward of eight months to fully perfect his title. This 
 delay alone is enough to condemn the system for the average buyer who usually 
 wants to close under a thirty-day contract. 
 
 In money the present proceedings cost at least twice what a full rate title 
 company policy would cost. 
 
 Take a $3,000 fee purchase transaction for example: 
 
 Title company policy according to locality $45.00 to $65.00 
 
 Recording one deed l.SO " 1.50 
 
 Total, $46.50 " $66.50 
 
 Initial Torrens certificate under present law: 
 
 Official examiner's report and certificate of title (the fee 
 is not fixed in the law, but a title company policy must be 
 attached by the corporate examiner so it cannot be. less 
 and will probably be more than a title policy) $45.00 
 
 Publication, four times (according to paper) 
 
 Filing application 
 
 Registration certificate 
 
 Assurance fund premium (optional) 
 
 Lawyer's fees — title must be proved timce 
 
 to 
 
 30.00 
 1.00 
 5.00 
 0.00 
 
 50.00 
 
 $65.00 
 
 60.00. 
 
 1.00 
 
 5.00 
 
 3.00 
 
 100.00 
 
 Simpson-Cotillo 
 bill cuts cost 
 more than one- 
 half. 
 
 Total, $131.00 " $234.00 
 
 In time following the Massachusetts procedure the average 
 uncontested title can be completed in less than thirty days. 
 Title becomes conclusive after three months, but in the mean- 
 while the owner is fully protected by the public assurance 
 fund (a protection which the present law does not" give) so 
 that a purchaser may safely close on a thirty-day contract. 
 
 38 
 
In money the saving is even greater: 
 
 Official examiner's report and certificate of title (the fee 
 
 is fixed in the law) $13.00 to $13.00 
 
 Publication once only 7 50 •■ IS 00 
 
 Filing application 1 00 " 1 00 
 
 Registration certificate 5 00 " 5 00 
 
 State assurance premium 3 00 " 3 00 
 
 Lawyer's fees— one simple direct proceeding 2S.00 " 50.00 
 
 Total, $54.50 " $87.00 
 
 Saving over present law, from $76.50 " $147.00 
 
 On a $10,000 fee purchase the figures would be: 
 
 Title company policy $80.00 to $100.00 
 
 Recording one deed 1 . 50 " 1 . So 
 
 Total, $81.50 " $101.50 
 Present law, initial registration : 
 
 Official examiner $80.00 to $100.00 
 
 Publication '. 30. 00 " 60.00 
 
 Filing application 1 .00 " 1 .00 
 
 Registration certificate 5.00 " 5.00 
 
 Assurance fund premium (optional) 0.00 " 10.00 
 
 Lawyer's fees 50.00 " 100.00 
 
 Total, $166.00 " $276.00 
 Simpson-Qotillo bill, initial registration : 
 
 Official examiner $20.00 to $20.00 
 
 Publication 7.50 " 15.00 
 
 Filing application 1 .00 " 1 .00 
 
 Registration certificate 5.00 " S.OO 
 
 State assurance premiums 10.00 " 10.00 
 
 Lawyer's fees 25.00 " 50.00 
 
 Total, $68.50 " $^01.00 
 
 It is believed under the simple proceedings provided that the smaller allow- 
 ance for the attorney will suffice, showing a saving of an amount up to $33 
 over a title company policy and from $97.50 to $175 over the cost under the 
 present law on a $10,000 transaction. 
 
 ^Jnder the Massachusetts procedure the larger part of 
 Low cost under thr technical work is done by the title examiner and other 
 Massachusetts officials connected with the recorder's office, who act under 
 procedure. the direct supervision of the court. This method is very 
 
 similar to that pursued by Mr. Torrens himself under the 
 original Australian Act. In a letter dated February 26, 1916, from Hon. Clarence 
 C. Smith, Recorder of the Land Court in Boston, the Recorder states that his 
 office is "responsible for all proceedings necessary to make the process of regis- 
 tration complete and legal under our registration law and in so doing we in- 
 cidentally have to attend to matters which would ordinarily fall upon the parties 
 themselves in other courts, especially in the matter of seeing that all services 
 under orders of notice are completed, drafting decrees and the like." The 
 Recorder cites two typical cases illustrating the fees charged by the recorder's 
 office for the service which it renders. ■ 
 
 39 
 
(1) 
 
 Case No. 5035— August 18, 1914. Assessed Value, $3,400. 
 
 To filling application $3 . 00 
 
 To filing plan -75 
 
 To examination of title 8.40 
 
 To six notices by mail at 25 cents 1-50 
 
 To three notices by publication -75 
 
 To cost of publication 7.65 
 
 To services of Deputy Sheriff , 3.25 
 
 To entry of decree and sending memo, to Asst. Recorder, County 1.00 
 
 To copy of decree 1-00 
 
 To 1-10 of 1 per cent of assessed value of real estate chargeable under 
 
 Section 93 (assurance premium) 3.40 
 
 Total, $30.70 
 
 (2) 
 Case No. 5026— August 6, 1914. Assessed Value, $10,100. 
 
 To filing application $3.00 
 
 To filing plan .75 
 
 To examination of title 15.10 
 
 To thirteen notices by mail at 25 cents 3.25 
 
 To three notices by publication .75 
 
 To cost of publication 8.00 
 
 To services of Deputy Sheriff „ 3.35 
 
 To entry of decree and sending memo, to Asst. Recorder, County 1.00 
 
 To copy of decree 1.00 
 
 To 1-10 of 1 per cent of assessed value of real estate chargeable under 
 
 Section 93 (assurance premium) 10.10 
 
 Total, $46.30 
 
 In addition to the above official fees, the applicant has no expense except 
 that which he may pay his attorney. It is not necessary, however, to employ an 
 attorney although applicants often do employ attorneys. But the work is made 
 so simple that any attorney can afford to do it for a very small sum.* Mr. Smith 
 on this point says : 
 
 "In many cases there are no attorneys for the petitioner. In others where 
 there is nothing to do but draw the petition and file it five to ten dollars would 
 be ample. On others where the record title is defective and considerable work 
 must be performed in producing the necessary evidence by way of affidavits, copies 
 of records outside the Registries of Deeds, and otherwise, the charge would de- 
 pend on the actual time spent I assume. This would be likewise true in respect of 
 the lawyers' charge in a contested case. The simple case, however, presenting no 
 difficulties is one where an ordinary intelligent layman may represent himself 
 with reasonable safety." 
 
 The Massachusetts procedure seems to be very nearly ideal and in substance 
 has been adopted by several American states, also by Hawaii and the Philippine 
 Islands, where, by the way, the system is very successful. The adoption of 
 Massachusetts' reasonable provisions would without question make the law just 
 as successful in New York as it is in Massachusetts. 
 
 40 
 
The demand of the business world today is that land shall 
 
 Land a liquid become a liquid asset, with evidence of ownership in certificate 
 
 asset. form like bank stock. This business demand has been voiced 
 
 b)- the Wall Street Journal in a series of able articles prepared 
 
 by Professor A. Guyot Cameron, which appeared early in 1915, and which later 
 
 in the year were published in book form. Under the Torrens system, as Professor 
 
 Cameron says: "Titles are short. They carry their own proof. Land becomes 
 
 a quick asset. Transfers of land increase by reason of this. Torrens registration 
 
 adds flexibility and strength to holdings of real estate. And as a result of these 
 
 factors there is a large increase of individual and of general wealth." 
 
 41 
 
PART TWO. 
 
 LEGISLATION PENDING BEFORE THE NEW YORK 
 LEGISLATURE OF 1916. 
 
 42 
 
FOUR Vital Issues 
 
 mnivm m im lojkmm mmmmis 
 
 As Amekoed to March 8.1916 
 
 
 
 I55UES 
 
 Present 
 Law 
 
 Simpson- 
 Cot illo" 
 Bill 
 
 BOYLAM- 
 ELLCntOGEK 
 
 Bill 
 
 Hmiltoh- 
 fertk; 
 Bill 
 
 Gilchrist- 
 
 PERLMAN 
 
 Bill 
 
 DECI5I0H 
 Of 
 
 Committee 
 
 I AssuRAMCc Fund 
 
 
 
 
 
 
 
 a Is payment- eompu\*ertj% 
 
 NO 
 
 VE« 
 
 NO 
 
 Yes 
 
 no 
 
 
 bAa State (County) back of it? 
 
 NO 
 
 res 
 
 HO 
 
 YH 
 
 t^o 
 
 
 c Doc* it cover all loescs? 
 
 MO 
 
 vee 
 
 HO 
 
 YES 
 
 NO 
 
 
 II Permanent Reoistration 
 
 
 
 
 
 
 
 o. Is withdrawal prehibil«d1 
 
 HO 
 
 fCS 
 
 NO 
 
 Yes 
 
 Yts 
 
 
 1 Official Examimatiom 
 
 
 
 
 
 
 
 o Arccxatniicrs County orficials? 
 
 MO 
 
 Yes 
 
 KO 
 
 yes 
 
 NO 
 
 
 b Are Title Companies eliminated? 
 
 MO 
 
 Yts 
 
 NO 
 
 Yes 
 
 NO 
 
 
 e Arefees fixed in the low? 
 
 NO 
 
 TtS 
 
 NO 
 
 ves 
 
 MO 
 
 
 d Arefizes paid into Coonhj treoturij? 
 
 NO 
 
 res 
 
 •no 
 
 YIS 
 
 •NO 
 
 
 IT Court Proceedings 
 
 
 
 
 
 
 
 o Are proceedings simplified? 
 
 NO 
 
 YtS 
 
 KO 
 
 MO 
 
 N» 
 
 
 * >•*«'» /A« officiol tjtominar 13 Depuhy R^^isfvr ftts art paid to Me 
 
 County, 6uf out-sidu official Kjiominars art a/loff<ulto ktep their ftts. 
 
 43 
 
FOUR Vital Issues 
 
 iNVOLj/iP; IjNj THl TQRMWS AMiMiMinTS 
 
 NEW York Compared with Other 6tate:5 
 
 issvts 
 
 Present 
 
 MEW York 
 
 Uw 
 
 SlMPSOf< 
 COTlLLO 
 AMfNDMEMTS 
 
 Law 
 
 Illinois 
 Law 
 
 MODEL 
 
 Act 
 
 I. Assurance Fumd 
 
 
 
 
 
 o. Is poymvtt compuUer^ ? 
 
 NO 
 
 VE* 
 
 YES 
 
 YES 
 
 YES 
 
 b 1» StoN.(Coi/f.i^)baclt of it? 
 
 HO 
 
 XCS 
 
 YES 
 
 YES 
 
 NO 
 
 c Oeta itcbvir oil losses? 
 
 NO 
 
 XES 
 
 "ES 
 
 rES 
 
 YES 
 
 tt PtRMANEM-t RE6ISTHATION 
 
 
 
 
 
 
 Iswithdrawol prohibi+ad? 
 
 "*o 
 
 YES 
 
 YES 
 
 YES 
 
 Yes 
 
 HI Official C» ami nation 
 
 
 
 
 
 
 O Arauominars County officio's? 
 
 NO 
 
 VES 
 
 ires 
 
 YES 
 
 YCS 
 
 b ArcTiflcCowpomfts »liminot«d? 
 
 MO 
 
 vts 
 
 YES 
 
 YES 
 
 YES 
 
 = Artfccs fii«d in ■Hw low? 
 
 NO 
 
 YES 
 
 YES 
 
 YES 
 
 YE* 
 
 d Ap» ft»s poid i»»» County fr«asury< 
 
 NO 
 
 YES 
 
 YES 
 
 YES 
 
 •yxs 
 
 17 Court Proceedings 
 
 
 
 
 
 
 a. Arc pracccdinji simplifcd? 
 
 MO 
 
 ves 
 
 YES 
 
 Y«S 
 
 Yt» 
 
 * Dtptndtnf upon /oca/ Stof-tJatvs 
 
 44 
 
XL 
 
 LEGISLATIVE AMENDMENTS PENDING. 
 
 Simpson-Cotillo bill. 
 
 The Simpson-Cotillo bill mentioned in the preceding chapter was introduced 
 with the approval of Register Hopper by Senator Simpson in the Senate on 
 January 10, 1916, under No. 89, and by Assemblyman Cotillo in the Assembly 
 on January 17, 1916, under No. 200. These amendments correct the fundamental 
 mistakes of the present law and are substantially the same as the amendments 
 advocated by Mr. Hopper in 1915 in the Bennett-Bourke bill. 
 
 In opposition to 'the Simpson-Cotillo bill is the Boylan- 
 Title companies EUenbogen bill which is favored by the title companies and 
 oppose it. which keeps the present unworkable law substantially the 
 
 same as at present. In addition two other bills have been 
 presented to the 1916 legislature that deal with the Torrens law, making altogether 
 four different sets of bills that are pending. One of the other two bills is known 
 as the Hamilton-Fertig bill (Senate Printed No. 69, Int. 69; Assembly Printed 
 No. 21, Int. 21). The fourth bill is known as the Gilchrist-Perlman bill (Senate 
 Printed No. 394, Int. 385; Assembly Printed No. 162, Int. 162). These two 
 latter bills attempt to correct some of the faults in the present law, but deal 
 with the subject in an incomplete and inconclusive way and neither of them afford 
 adequate relief. The latter named bill is objectionable in that it attempts to intro- 
 duce a compulsory feature into the law which is foreign to the Torrens principle. 
 The adoption of the Torrens system has always been optional on the part of 
 landowners and there is no need to make it compulsory. 
 
 The Simpson-Cotillo bill is the only one of the four bills that fully corrects 
 the fundamental faults of the present New York law. 
 
 Examiners are made true officials of the court and registrar's office. Fees 
 are fixed at one-fifth what title companies charge. The fees go into the county 
 treasury. 
 
 The assurance fund is made adequate, being built up by pro rata contribu- 
 tions from every applicant, and backed by the City (or County; treasury. 
 
 Registration is made permanent. The coercive and unfair withdrawal clause 
 is eliminated. 
 
 The initial proceedings are made direct and simple. The Massachusetts 
 law which has been wonderfully successful has been closely followed. The cost 
 of the initial registration is cut down more than one-half and the time required 
 is cut down at least two-thirds. 
 
 Mr. Charles Bradshaw, Assistant Corporation Counsel 
 Opinion of Asst. of the City of New York, at the request of the Assessment 
 Corporation Coun- Committee ,of the Board of Estimate and Apportionment 
 sel Bradshaw. of which Hon. Douglas Mathewson is Chairman, made an 
 investigation and a report of the present Torrens law and 
 the four sets of amendments relating to them which are pending before the 1916 
 Legislature. In this report Mr. Bradshaw says, among other things, that the 
 present registration law of New York is "cumbersome, defective, and practically 
 
 45 
 
unworkable." On the subject of proceedings for the initial registration, he 
 
 says: 
 
 "In the matter of the court procedure, the present Torrens law jumbles 
 and confuses in one statute procedure or adjective law with substantive law of 
 real property. Besides, the law has many absurd and unnecessary features such 
 as requiring a preliminary order of court directing the service of the summons 
 and requiring the court to approve of the form of the notice of object of action. 
 It is immaterial from a legal point of view whether the proceedings in court to 
 be terminated by an order or judgment directing the registration of the title 
 be a special proceeding or an action. But in any case the regulations of procedure 
 should be special rules and should properly be contained in the Code of Civil 
 Procedure and not in the real property law. 
 
 "The Simpson-Cotillo bill changes the procedure from an action id a special 
 proceeding based on a petition called an application and a notice with a return 
 day stated in it. The notice is served by publication, by registered mail and by 
 posting on the land, through the agency of the registrar acting under the order 
 of the court. There is no doubt that these changes will greatly reduce the time 
 and expense of prosecuting the initial proceedings and are to be approved in 
 principle." 
 
 Mr. Bradshaw points out that a still further simplification might be attained 
 by placing the special rules for the court proceeding in the Code, and leaving 
 the general regulations governing registered land in the real property law. He 
 concludes, however, that the "faults, if any, in technical detail of the Simpson- 
 Cotillo bill are not such as to preclude our approval of it, although a still further 
 simplification might be attained along the lines suggested. This technical revision 
 might well be deferred, however, to a later session of the Legislature. With these 
 reservations, therefore the Simpson-Cotillo bill is approved and its passage 
 recommended." 
 
 The Bureau of Municipal Research has recently com- 
 Bureau of Munic- pleted a careful study of the Torrens subject, together with 
 ipal Research an examination of the title examining plant in the register's 
 
 favors amend- office, with the special view of determining the fitness of 
 ments. the register's office for conducting the work of title exam- 
 
 inations for Torrens registrations. As a result of this 
 study the Bureau has issued a report approving the amendments proposed in 
 the Simpson-Cotillo bill and containing the following: 
 
 RECOMMENDATIONS. 
 
 That those sections of the real property law constituting what is known as 
 the Torrens system of title registration be amended in the following respects: 
 
 1 — The provisions requiring an appUcation to the supreme court for permis- 
 sion to bring an action to register a title should be repealed and, in 
 place thereof, should be substituted a procedure whereby the question 
 of registration can be settled upon one application to the court at 
 special term. 
 
 2— Official examiners should be made public officials under the direction and 
 control of the registrar and of the court. The provisions permitting 
 a title company or private individuals to be official examiners should 
 be repealed. 
 
 40 
 
3— Fees for searching and examining titles should be made payable to the 
 office of the county clerk or register, where there is a register, 
 and should be for definite amounts based upon the work involved 
 and the value of the property. The provision of law permitting 
 fees to be based upon contract between the applicant and the official 
 examiner should be repealed. 
 
 4 — The provisions permitting an owner of registered property to contribute 
 to the assurance fund or not at his own option should be repealed 
 and contribution to the assurance fund should be made compulsory 
 with all who register titles to property and such contributions paid 
 into the county treasury. 
 
 5 — The period of limitation for questioning a final order for registration or 
 approving the examiner's report of title should be reduced from six 
 months to three months. 
 
 6 — Section 420 should be amended to provide that officers conducting judicial 
 sales of registered property shall report to the justice assigned to 
 the "title part," who shall appoint an official examiner to examine 
 the regularity of the proceedings and report to the court and to 
 such officer, and that only when such report shall have been filed 
 and the court approved the deed, may the officer issue a deed of 
 the property sold. 
 
 7 — Indemnity for injury sustained by reason of registration of a title should 
 be paid first out of the assurance fund, and, if this proves to be 
 inadequate at the time, then from the treasury of the county. 
 
 8 — The withdrawal clause should be repealed, especially if the legislature 
 adopts the other amendments recommended. 
 
 XII. 
 
 CONSTITUTIONAL AMENDMENT. 
 
 Restores original procedure. 
 
 It has been shown that the chief obstacle in the way of the commercial 
 registration of titles is the high cost of the initial registration which is largely 
 due to the court proceedings made necessary by constitutional limitations. It 
 has also been shown that the successful laws like those of Massachusetts and 
 Illinois follow very closely the Australian procedure, simply substituting the 
 court in place of the registrar in the first registration. The work of registering 
 titles is largely administrative. The registrar with all title records and — as New 
 York County has it — a complete title examining plant right in his office has a 
 great advantage over any outside judge or court in determining the status of 
 a title. 
 
 Under the original Torrens plaa, the registrar did not 
 Registrar is not act as a judge nor did he perform any judicial function 
 a judge. using that term in a broad sense. He simply registered un- 
 
 contested titles after they had been properly examined and 
 
 47 
 
after the application to register had been advertised and notices of it sent to all 
 persons interested. If a title was contested, which was done by filing what was 
 known as a "caveat," the registrar lost his jurisdiction and was stopped by the 
 statute from proceeding. The case was transferred to the Supreme Court for 
 settlement the same as any other litigated matter. It has already been shown 
 how, under the Illinois decisions, this registration of an uncontested title fol- 
 lowing exactly the same plan that Torrens pursued was deemed to be judicial, 
 although there is nothing of a true judicial character about it. 
 
 Ohio in 1912 adopted a constitutional amendment author- 
 Ohio and Penn- izing the legislature to confer judicial powers upon registrars, 
 sylvaniahave The clause relating to this point reads "and judicial powers 
 
 amended their with right of appeal may by law be conferred upon county 
 constitutions. recorders or other officers in matters arising under the opera- 
 
 tion of such system." 
 In Pennsylvania, after the matter had been favorably considered by two 
 legislatures, an amendment providing that in matters arising in and under the 
 operation of the land title registration system, "judicial powers, with right of 
 appeal, may be conferred by the Legislature upon county recorders and upon other 
 officers by it designated" was submitted to popular vote and was adopted by an 
 overwhelming vote at the election of November, 1915. 
 
 At the Constitutional Convention of New York held 
 New York Con- in 1915, Hon. Franklin A. Coles, Delegate from Nassau 
 stitutional Con- County, introduced an amendment relating to Torrens regis- 
 vention of 1915 tration and providing that "judicial powers may be con- 
 rejects the idea. ferred on recording officers as registrars of titles to register 
 titles in uncontested cases." The distinction drawn by Mr. 
 Coles between contested and uncontested cases is clearly the proper distinction 
 to be drawn between judicial and non-judicial powers, but to overcome any pos- 
 sible technical objection based upon the earlier court decisions, this proposed 
 amendment uses the express words "judicial powers" in regulating the acts of 
 recording officers in registering uncontested cases. The Judiciary Committee of 
 the Convention did not seem to grasp the fundamental distinction raised by Mr. 
 Coles and refused to approve this provision, but they did approve a form of an 
 amendment relating to land title registration which omitted this feature, which 
 is the only feature in dispute on a constitutional question. It was stated, in re- 
 sponse to a question as to what good a constitutional amendment would be which 
 did not extend the present powers of the registrar, that the purpose of the amend- 
 ment, which was finally put into the proposed constitution, was merely to give a 
 "badge of respectability to the present law." This sentiment seems to have 
 been fostered by the Torrens Committee of the Real Estate Board, whose view- 
 point is colored by the business desires of the title company interests of New York 
 City. This committee strenuously opposed any amendment which would tend 
 to broaden the powersi of the registrar and make the Torrens law successful. 
 The following question and answer which may be found on page 2,760 of the 
 record of the discussion in the Committee of the Whole upon the floor of the 
 Convention bears out this fact : 
 
 48 
 
"Mr. Stimson : Does this amendment propose to do anything more than to 
 authorize the State of New York to introduce a system which has worked very 
 well in other states, notably Massachusetts, and I think, Illinois." 
 
 "Mr. Reeves : That is all, Mr. Stimson, that it is proposed to do." 
 
 While the defeat of the proposed Constitution of New York State by an over- 
 whelming vote may not have been entirely caused by dissatisfaction over the 
 failure to provide for a workable Torrens system, it is a fact that the people 
 refused to accept this imperfect proposition in relation to the matter. 
 
 The so-called Torrens Committee of the Real Estate 
 The Registrar Board, headed by Professor Reeves and having upon it the 
 need not be a representatives of the various title companies of New York 
 
 lawyer. City, issued a printed brief opposing the introduction of a 
 
 true Torrens amendment in the Constitution. This brief 
 was circulated among the delegates to the Constitutional Convention and in it 
 appears a statement about John J. Hopper, the present register of New York 
 County, that "although he is a capable and efficient register he is not a lawyer, 
 and should not be given any judicial authority." This idea has been often 
 reiterated and appears to have had much weight among the delegates of the 
 Constitutional Convention, but nevertheless it is amusing in view of the facts 
 in the case, remembering that the chairman of the Torrens Commission ap- 
 pointed by Governor Hughes in 1907 was "not a lawyer"; remembering also 
 that the difficulties of the title business in the past arose from the red tape 
 invented find perpetuated by lawyers; remembering also that they were "mere 
 laymen and not lawyers" who came up from Philadelphia twenty-five years 
 ago, formed the Title Guarantee and Trust Company, and not only put the 
 lawyers out of the title business, but made millions of dollars for themselves 
 and for their stockholders. 
 
 The crowning fact to be remembered is that Sir Robert 
 Sir Robert Tor- Torrens, the founder of the registration system, was "not a 
 renswasan lawyer." When Mr. Torrens, after twenty-five years of 
 
 executive. success in Australia, went over to England to explain his 
 
 system, the "lawyers" there proved that it could not be 
 successful, because the chief exponent of the system was "not a lawyer." 
 In the preface to his Essay of 1882, Mr. Torrens said: "In bringing forward 
 a measure which has been grappled with in vain by three Lord Chancellors, 
 I am aware that I render myself obnoxious to the charge of presumption. 
 My defense is that the question as here treated is not one of law, but rather 
 of official mechanism . . . ; and for that work my official employment in 
 connection with the transfer of property in shipping, and subsequently in 
 registration of assurances, afforded an experience of a special character which 
 neither the study nor the practice of the law are calculated to impart." 
 
 From the foregoing it may be suspected that the fact that the register 
 of New York County is "not a lawyer" may have something to do with the 
 other and more important fact that "he is a capable and efficient register." 
 
 49 
 
Sir Robert Torrens did not disregard lawyers under 
 The Register is the Torrens plan. The applications for registration were 
 an executive who "submitted for examination to a barrister and to a con- 
 manages lawyers, veyancer, who are styled 'examiners of titles.' These 
 gentlemen examine the titles precisely as they would 
 do on behalf of an intending purchaser under the old law. They report 
 to the registrar." (See Essay by Sir Robert Torrens, p. 18.) This plan of 
 having titles examined by skilled examiners who are lawyers in the employ 
 of the public registrar's office, is preserved in the amendment which the register 
 of New York County is advocating. The Committee of the Real Estate Board 
 would have us abandon the examination of titles by examiners who are lawyers, 
 and have it done by "corporate examiners." On this point the title company 
 brief, prepared by this committee, says (p. -3) : 
 
 "The former individual examiner of title has almost entirely disappeared from 
 among practitioners, and his work is now done by the title and abstract companies. 
 This is because these companies brought into the field new and more scientific 
 methods, and guaranty of their results. No adverse criticism of their work should 
 be made in so far as they have thus benefited real property interests. But the 
 effect has been to cause fewer and fewer lawyers to become proficient in dealing 
 with real property problems ..." 
 
 This statement is not written with any idea of dis- 
 The Register paraging lawyers, for the skilled lawyer has a proper and 
 
 employs many honorable place in the title business, but rather it is to 
 lawyers. show the insincerity and the shallowness of the argument 
 
 advanced in behalf of the corporate title interests. As a 
 matter of fact, the register's office of New York County, at the present time, 
 has in its employ over forty (40) duly admitted and licensed attorneys at law, 
 whose salaries range from $1,200 to $5,000 per year. It perhaps may be that 
 some of this legal talent is underpaid, but nevertheless there is enough of it, 
 from the business man's point of view, to sink the proverbial ship. 
 
 The history of Torrens title registration proves that at the head of the 
 business, just as at the head of a title company, there must be a business man 
 with executive ability to wholesomely temper the sometimes narrow profes- 
 sionalism of the lawyers. The registrar may or may not be a lawyer. 
 
 Constitutional °" January 17, 1916, Senator Simpson introduced 
 
 amendment in- '" ^^^ ^^"^^^ (^°- ^^'^'^ ^"^ «" January 18, 1916, Assem- 
 troducedin blyman Cotillo introduced in the Assembly (No. 203) a 
 
 legislature. concurrent resolution proposing an amendment to Article 
 
 Six of the Constitution, to read as follows : 
 
 Laws may be passed to provide for a system of registration and guaranty 
 by the state, or by any county thereof, of titles to real property, the determination 
 of adverse claims to and interests therein and the establishment by means of fees 
 or otherwise of assurance funds to make such system operative. Judicial powers 
 may be conferred on recording officers as registrars of title; and they may register 
 titles in uncontested cases without order of the court, and, in other cases, as directed 
 by the court. 
 
 50 
 
Much of the power to hear and determine ques- 
 Not a radical tions affecting the property of the citizens, which has 
 
 innovation. usually been held to be judicial, is already given to 
 
 administrative officers. It was said in the Illinois case 
 of People vs. Simon (176 111. 165) that the powers exercised by the registrar 
 under the statute were analogous to those performed by the Commissioner of 
 Patents; also in a measure, like the duties performed by officers of the land 
 office. 
 
 It is only necessary to allude to the Public Service Commission, Boards 
 of Assessors, Tax Commissioners, Board of Health, and many other state 
 and local offices, as possessing power to consider and determine matters affecting 
 property interests. As Chief Justice CuUen has said: 
 
 191 N. Y. 134 — "There never has been in this state that sharp line of demarca- 
 tion between functions of the three branches of government which obtains in some 
 other jurisdictions." 
 
 Not only can testimony be heard but in many cases administrative officers 
 and commissions render decisions which affect property and which can only 
 be disturbed on a limited review by the Supreme Court. The determination 
 of the tax appraisers and many other officers are in this class. 
 
 58 Misc. 10 — "A tax levy," it is said, "made by public officers, if regular in 
 form and within their jurisdictions, has as much the power and force of a judg- 
 ment as if made by the confirmatory order of a court." 
 
 The judicial power is given to the Board of Health of New York City by Sec- 
 tion 1173 of the Greater New York Charter which provides: 
 
 "The actions, proceedings, authority and orders of said board of health shall at 
 all times be regarded as in their nature judicial, and be treated as prima facie just 
 and legal." 
 
 One of the Judges of the Court of Appeals has said: 
 
 185 N. Y. 104 — "I agree that there is nothing sacred or inflexible in the mean- 
 ing of the terms 'judicial' or 'quasi-judicial' functions as applied to proceedings 
 of this character. In their generally understood and accepted meaning they do not 
 ascribe to lay public officers and bodies the judicial functions of courts of justice, 
 but for want of more accurate terms they simply distinguish acts which are pre- 
 sumed to be the product of judgment based upon evidence; either oral or visual 
 or both, as distinguished from those purely ministerial duties which can only be 
 performed in one particular way." 
 
 The granting of judicial powers to a county clerk or register in the limited 
 sphere of passing upon titles of property the undisputed owners of which 
 desire to have their titles registered is therefore not a radical innovation. 
 
 Although, as it has been proved in Massachusetts, 
 Fruition of Illinois and elsewhere, a successful Torrens law may be 
 
 Torrens System, established under the present interpretations of the Con- 
 stitution, a change in this respect is much to be desired 
 and there is no doubt that this common-sense declaration of principle would 
 be endorsed by the people if submitted to a popular vote. The advantages 
 
 51 
 
of a true Torrens system are just as attainable and are even more desirable 
 today than they were a generation ago when Sir Robert Torrens wrote his 
 memorable .Essay. Mr. Torrens says : "The benefits which have attended this 
 measure, wherever it has been adopted in its integrity, as proved on foregoing 
 evidence, may thus be summed up: 
 
 1st. It has substituted security for insecurity. 
 
 2nd. It has reduced the cost of conveyancing from pounds to shillings, 
 and the time occupied from months to days. 
 
 3rd. It has substituted clearness and brevity for obscurity and verbiage. 
 
 4th. It has so simplified ordinary dealings that any person who has 
 mastered the "three R's" can transact his own conveyancing. 
 
 Sth. It affords protection against the largest class of frauds, such as 
 those practiced by the notorious Down, and recently by J. F. Cooper. 
 
 6th. It has restored to their natural value many estates held under good 
 holding titles, but depreciated in consequence of some blot or tech- 
 nical defect, and has barred the recurrence of any such defect. 
 
 7th. It has largely diminished the number of Chancery suits, by removing 
 the conditions which afford grounds for them." 
 
 End. 
 
 52 
 
SUPPLEMENT 
 
 TO THE 
 
 SECOND EDITION 
 
 Indicating necessary Amendments prepared for 
 
 presentation to the 1917 Session of 
 
 the Legislature 
 
 THIRD EDITION 
 
 The amendments proposed have been embodied in 
 
 the bill known as the Burlingame-Fertig bill 
 
 which has been introduced in the Senate 
 
 by Senator Alvah W- Burlingame, Jr., 
 
 (No. 558, Int. 460), and in the Assembly 
 
 by Assemblyman M. Maid win Fertig 
 
 (No. 342, Int. 9), and is now 
 
 pending in the Legislature. 
 
 MARCH, 1917 
 
ACTION OF THE 1915 LEGISLATURE 
 
 ON 
 
 AMENDMENTS TO THE TORRENS LAW. 
 
 At the opening of the 1916 session of the Legislature we again presented 
 our amendments to the Torrens law. 
 
 The amendments, which were introduced in the Senate by Senator Simpson 
 and in the Assembly by Assemblyman Cotillo, embraced changes in four funda- 
 mental points : 
 
 First: Elimination of the withdrawal feature, making registrations permanent. 
 
 Second: Making payment into the assurance fund compulsory instead of 
 optional and place the state (county) back of the fund to establish confidence. 
 
 Third: Making searching and examination of titles exclusively official. 
 
 Fourth: Simplifying the court procedure. 
 
 Besides these four important matters a great many minor changes and 
 corrections were made. 
 
 The bill containing these amendments, known as the 
 Endorsed by Simpson-Cotillo bill, was endorsed by the Bar Association of 
 
 public. the City of New York, the New York County Lawyers' Asso- 
 
 ciation, the Chamber of Commerce, the State League of Build- 
 ing and Loan Associations, numerous local building and loan societies, the Bureau 
 of Municipal Research, the Harlem Board of Commerce, the Citizens' Union, 
 and by a great many individuals, law firms, real estate firms and corporations. 
 
 No association or public society appeared in opposition 
 
 Title companies to these reforms except the so-called Torrens Committee of 
 
 oppose. the Real Estate Board of New York, which had upon it 
 
 solicitors and officers of the four leading title companies of 
 
 New York City. 
 
 This committee was in the field with a bill introduced by Senator Boylan 
 and Assemblyman Ellenbogen, containing amendments which proposed no funda- 
 mental improvement but contained merely verbal and minor changes. This bill 
 was the same as the one proposed by the committee in 1915 which was defeated 
 in the Assembly and the effect and purpose of which were to divert public thought 
 away from the main issues involved and to perpetuate the mistakes and defects 
 which made the existing law unworkable. 
 
 Two other bills were introduced, one by Senator Gilchrist and Assemblyman 
 Perlman, and the other by Senator Hamilton and Assemblyman Fertig. The 
 Hamilton-Fertig bill, as amended, was practically a counterpart of the Simpson- 
 Cotillo bill as to three of the reforms needed. It failed, however, to propose any 
 improvement in the matter of court procedure. 
 
 55 
 
After one or two hearings had been held. Senator Walters, 
 Joint Legislative Chairman of the Senate Judiciary Committee, appointed the 
 Committee. four Senators and the four Assemblyinen who had introduced 
 
 the four bills a sub-committee of eight to study the proposals 
 made in all the bills and to prepare a bill that could be presented as a committee 
 bill. Assemblyman Brennan, Chairman of the Assembly Committee on General 
 Laws, became Chairman of the joint committee. 
 
 Two hearings were held by the sub-committee at the 
 Committee re- office of the Register of New York County. The first meeting 
 ports a com- was held on Saturday, March 11, 1916. The second meeting 
 
 promise. was held on Saturday, March 18, 1916, at- which there was a 
 
 full attendance of all parties interested. After lengthy dis- 
 cussion the committee decided to report in favor of those propositions on which 
 all or a majority agreed and to omit the propositions on which they could not 
 agree. 
 
 The result was a compromise bill which received the approval of the Judi- 
 ciary and General Laws Committee. The compromise bill, as first reported, con- 
 tained in their entirety two of the four fundamental reforms proposed: (1) The 
 withdrawal feature was eliminated entirely ; (2) Payment into the assurance fund 
 was made compulsory and the state (county) was put back of the fund. 
 
 On the other hand, nothing was done to simplify the court procedure and 
 (on the urgent plea of the title company members of the Torrens Committee of 
 the Real Estate Board, backed by some private "official" title examiners who had 
 formed themselves into a little association) the provision permitting title 
 companies and privately employed attorneys to act as official title examiners was 
 retained in the law. 
 
 « 
 
 A curious thing now happened. The idea of having offi- 
 Insurance pro- cial examiners of title privately employed by the applicant was 
 vision weakened, strenuously opposed by Register Hopper and by many of the 
 committee as against the spirit of the Torrens law and con- 
 trary to the practice in other states and countries. It was due solely to the insist- 
 ence of the Real Estate Board's committee that this provision remained. The 
 representative of the Title Guarantee & Trust Company, which up to that time 
 had remained apparently indifferent to the whole matter (although this repre- 
 sentative was also a member of the committee of the Real Estate Board), 
 appeared before the Legislature and on the ground of solicitude for the public 
 treasury objected to the county backing the assurance fund. 
 
 The objection of the Title Guarantee & Trust Company was made specifically 
 on the ground that searching and examination of titles were not made exclusively 
 official. The argument of the title company was presented in a letter from Mr. 
 Walter Lindner to the Corporation Counsel of New York City, dated March 31, 
 1916, in which it is stated that this provision "affects the public treasury in a 
 dangerous manner." The letter goes on to explain : 
 
 "The danger is that it makes each county liable to pay damages for the acts 
 of irresponsible persons who are admitted to the degree of 'official examiners of 
 title.' " 
 
 56 
 
He continues: 
 
 ". . . the examiner does not represent the public interest but represents his 
 client who has employed him . . ." 
 
 and reiterates: 
 
 "The result of this bill, if passed, would be to make the City of New York 
 guarantor of work done by examiners who are acting solely in the interest of 
 their client and not to protect the public treasury, who may be incompetent and 
 who may even intentionally omit to show interests which an impartial examiner 
 would necessarily disclose." 
 
 This argument carried weight because it had a modicum of truth in it, but 
 its speciousness was apparent because it was not used as it should have been used 
 to correct the initial mistake, but it was used in the last days of the session as 
 a means to delay and if possible to defeat the passage of the bill. 
 
 The obvious remedy would have been to have made all title examinations 
 exclusively official, but this the other title company representatives fought bit- 
 terly. The result was another "compromise" and the state (county) backing of 
 the assurance fund was eliminated, thus weakening the law by taking away that 
 which would have restored public confidence in the assurance fund. 
 
 In other words, after the other title companies, assisted by their friends in 
 the Real Estate Board, had prevented the adoption of our amendment making 
 the searching and examination of titles really and exclusively official, the Title 
 Guarantee & Trust Company interposed and objected to the county backing the 
 fund because searching and examination of titles were not exclusively official. 
 They caught us both "going and coming." 
 
 Experience in other states, under Torrens laws that are 
 Assurance fund real Torrens laws, has shown that the backing of the assur- 
 a public asset. ance fund by the state (county) is not a source of loss but 
 is really an asset. 
 
 In Massachusetts, where the Commonwealth stands back of the fund, the 
 fund now amounts to more than $250,000, while there has been but one loss of 
 $1,200, which was paid to an old widow. If the Judge of the Land Court and 
 the Attorney General of Massachusetts had stood upon the letter of the law, 
 even this one loss might not have been paid. In Chicago (Cook County) the 
 assurance fund amounts to more than $50,000, with one loss of $300 paid. 
 
 Both Massachusetts and Chicago have had over eighteen years' experience 
 with their Torrens laws. 
 
 There appears to be a public misapprehension as to the 
 
 Purpose of the purpose of the assurance fund under the Torrens system — a 
 
 Assurance Fund, misapprehension due undoubtedly to thinking that it is the 
 
 same as the fund which the title companies are supposed to 
 
 have in order to financially guarantee titles. 
 
 The assurance fund of the Torrens law is not to strengthen a title. The 
 title once registered under the Torrens law is declared by the state to be perfect 
 and it cannot be impeached. It needs nothing back of it. Even if an error is 
 made in the examination of the title and the title is registered, no one can ques- 
 
 57 
 
tion that title. The title-holder is absolutely secure. "There is no going back 
 of the certificate." 
 
 On the other hand, if by chance an error should be made and someone has 
 been injured when the title is registered, it would not be just, as the injured party 
 cannot assail the title, to leave him with no redress. It is for this purpose that 
 the assurance fund of the Torrens law is established. If a party is injured in the 
 registering of the title or in subsequent transfers, he can, by proving his claim, 
 recover his damage from the assurance fund. 
 
 The advantage of having the state (county) back of this 
 Establishes pub- fund is that in the early stages of the operation of a Torrens 
 lie confidence. law, before there has been time for a considerably sized fund 
 to accumulate, the fact that the state is behind the fund gives 
 confidence to the early comers into the system, for, as has been said, the general 
 impression is that the fund is needed for the security of the title, whereas it is 
 only needed for those who have been injured through some error, the title-holder 
 being absolutely secure under all circumstances. 
 
 Simple Court Procedure. 
 
 The Torrens system has succeeded because it has met the commercial demand 
 for simplicity, cheapness and speed of transfer. In New York the law has 
 defeated its purpose by an initial court procedure that is more complicated, more 
 expensive and longer than that provided for ordinary law-suits. 
 
 The demand for shorter procedure in ordinary litigation has been voiced 
 by Hon. Elihu Root in many public utterances. Hon. Samuel Seabury, Judge 
 of the New York Court of Appeals, has said: 
 
 "Our law of procedure is a mass of technicalities, a disgrace to a civilized 
 State. Other States are far in advance of New York in this respect. The object 
 of law is the attainment of justice. This end often fails. There should be less 
 delay, greater simplicity, and fewer technicalities. Our code of civil procedure 
 should be done away with and a short practice act supplemented by rules of 
 court should take its plac«." 
 
 This is especially true of a Torrens title registration, which is not litigation 
 in any true sense but is merely an application to the court to register a title which, 
 after examination, has been found to be good and about which there is no dispute. 
 
 Our amendments are not original but follow closely the 
 Massachusetts example of Massachusetts. This point has been fully ex- 
 procedure a plained in Chapter X of the published pamphlet. 
 model. Until a simple procedure has been provided so that the 
 initial registration of the average title can be completed in 
 30 days and at an expense not exceeding the title company charge for a policy 
 of title insurance, it is safe to say that the Torrens law will never succeed. 
 
 Professor Reeves, a leading apologist for the present expensive procedure, 
 in a published article says that to register property worth $40,000 would cost 
 "between $450 and $500." This is more than twice the fee of the title companies 
 for a title policy. At this rate the initial registration of all the titles in Manhattan 
 alone would cost between fifty and sixty millions of dollars— as much or more 
 
 58 
 
than owners can expect to save by the Torrens system for two generations to 
 come — a. sum which if reduced to silver would silver plate in standard style the 
 whole county of New York. No wonder owners do not register titles. 
 
 In the past few months, many owners have applied to the 
 Working of 1916 Register's office for information as to registering their titles. 
 amendments. Two questions are uppermost in their minds : How long does 
 
 it take? How much does it cost? When these two questions 
 are answered, as they must be answered under the present law, the applicant 
 loses interest and goes away disappointed. 
 
 Since the 1916 amendments went into effect no titles have been registered 
 in New York County, and only one examination has been made and that was not 
 for the purpose of registration but to get information for use in a law-suit about 
 the title. 
 
 Two things were accomplished by the 1916 amendments which are good: 
 (1) registrations have been made permanent, and (2) payment into the assur- 
 ance fund has been made compulsory. 
 
 Both of these things, however, affect the operation of the law after a person 
 has entered the system. They do not make it easier for a person to come into the 
 system. The other matters mentioned are obstacles tending to discourage or pre- 
 vent a person from entering the system. 
 
 The Torrens system may be likened to a new race course built alongside an 
 old race course (the title company system). The managers of the old course (the 
 title companies), unable to prevent the building of the new course, yet contrive 
 to gain a foothold of control of the new course, and cause it to fail by placing 
 obstacles in the path of the runners. To be doubly sure they cause a tremen- 
 dously high entrance fee to be charged to those who would enter. 
 
 Friends of the new course succeed in clearing away some of the obstacles 
 placed on the track, but the new course is not patronized because the entrance 
 fee is prohibitive. 
 
 This pictures the present situation as to the Torrens law. The enormous 
 cost (largely unnecessary) of the initial registration prevents owners from enter- 
 ing the system. 
 
 Legislative Program for 1917. 
 
 Three things remain to be done before the New York Torrens law can be- 
 come a commercial success. These are: 
 
 First: Simplify the court procedure after the Massachusetts model, shorten- 
 ing the time and reducing the initial cost. 
 
 Second: MAke searching and examination of titles exclusively official. 
 
 Third: PlaCe the state (county) back of the assurance fund to establish 
 public confidence. 
 
 Amendments embodying these necessary changes will be presented at the 
 opening of the 1917 session of the Legislature. Their passage will put New York 
 alongside Massachusetts and other states and give land owners the inestimable 
 boon of a real Torrens registration law. 
 
 59 
 
INDEX. 
 
 (Numbers refer to pages.) 
 
 A 
 
 American Bar Association 23, 24, 30, 32, 36 
 
 American Land Company vs. Zeiss 24 
 
 Assessment Committee of the Board of Estimate and Apportionment 45 
 
 Assurance Fund ■. ^'■ 
 
 Australia ; 8,9, 15,17, 18,25,27,32,39,49 
 
 B 
 
 Bar Association, New York State 25 
 
 Bennett-Bourke bill 45 
 
 Block System 11-30 
 
 Board of Estimate and Apportionment, New York City 45 
 
 Boston 21, 22, 25 
 
 Boylan, Senator 29 
 
 Boylan-EUenbogen amendments 29, 38, 45 
 
 Bradshaw, Charles ' 45 
 
 British Columbia 16 
 
 British Guiana 14 
 
 British Honduras 14 
 
 British New Guinea 14 
 
 Burdett, Cyril H 29 
 
 Bureau of Municipal Research 46 
 
 Cairns, Lord IS, 16 
 
 California 23 
 
 Cameron, Professor A. Guyot 41 
 
 Canada 16, 25, 32 
 
 Chicago 18, 19, 20, 21, 32 
 
 Chicago Fire ' 18 
 
 Chicago Title and Trust Company 18 
 
 Chimney Corner Titles 10 
 
 Chittick, Henry R 29 
 
 Coles, Franklin A 48 
 
 Colorado 23 
 
 Connery, Joseph F 20, 21 
 
 Constitutional amendment 19, 47 
 
 Constitutional Convention, New York State — 1915 48 
 
 Constitutional objection 18 
 
 Cook County, Illinois 19, 20, 31, 32 
 
 Cost of initial registration 38, 39 
 
 Cost of title company policy 38, 39 
 
 Cotillo, Assemblyman 45, SO 
 
 Court proceedings 37 
 
 Customs, Collector of 9 
 
 David, Harry Percy 29 
 
 Davis, Judge Charles T 22, 25 
 
 Dublin ' IS 
 
E 
 
 EUenbogen, Assemblyman 29 
 
 England 8, 14, 16, 18, 32, 36 
 
 Essay, by Sir Robert Torrens 8, 14, 15, 26, 31, 37, 49, SO, 52 
 
 F 
 
 Fiji 14 
 
 Forgery 34 
 
 Fraud 34 
 
 G 
 
 Gilchrist-Perlman amendments 45 
 
 Great Britain 8 
 
 Greeks bearing gifts 30 
 
 H 
 
 Hamiltdn-Fertig amendments 45 
 
 Hawaii 23, 40 
 
 Hemingway, Alfred 21 
 
 Home Title Insurance Company 29, 30 
 
 Hopper, John J ." 22, 30, 45, 49 
 
 Hughes, Charles E. (Governor) 49 
 
 I 
 
 Illinois 8, 17, 18, 19, 20, 24, 25, 27, 32, 35, 37, 47, 51 
 
 Ireland 8, 14. 15, 16, 36 
 
 Issues compared 44 
 
 J 
 Jamaica 14 
 
 Judicial and ministerial defined 19 
 
 L 
 
 Last Owner Cards 30, 31 
 
 Lawyers Title and Trust Company 29, 30 
 
 Leeward Islands 14 
 
 Lindner, Walter 29 
 
 Locality System 10, 30 
 
 London IS, 35 
 
 Losses 13 
 
 Lot System 11, 12, 30 
 
 M 
 
 Manhattan 30, 31 
 
 Manitoba 17 
 
 Massachusetts 8, 17, 21, 22, 24, 25, 27, 31, 32, 35, 7,1, 38, 39, 40, 47, 51 
 
 Mathewson, Douglas ^^ 
 
 Merchants Shipping Law " 
 
 Ministerial and judicial, defined • 1^ 
 
 Minnesota 23 
 
 Mississippi 23 
 
 Model Act 23, 27, 36 
 
 Municipal Research, Bureau of 
 
 ii 
 
N 
 
 Nebraska 23 
 
 New South Wales 14 
 
 New York 8, 23, 25, 26, 27, 33, 36, 37 
 
 New York Commission, 1885 11, 12, 17 
 
 New York Commission, 1908 IS, 16, 17, 25, 28, 30, 33 
 
 New York County 10, 11, 12, 13, 31, 33, SO 
 
 New York State Bar Association 2S 
 
 New York Title Insurance Company 29, 30 
 
 New Zealand 14 
 
 North Carolina 23 
 
 O 
 
 Official title examiners 26 
 
 Ohio 18, 31, 48 
 
 Opposition of professionals 11, 14, 24 
 
 Oregon 23, 36 
 
 P 
 
 Pegram, Henry 16 
 
 Pennsylvania 48 
 
 Philippine Islands 23, 40 
 
 Plant, Locality 13 
 
 Printed Index of 1856 11 
 
 Professional opposition 11, 14, 24 
 
 Q 
 
 Queensland 14 
 
 R 
 
 Real Estate Board of New York .29, 48, 49, SO 
 
 Recommendations of Bureau of Municipal Research 46 
 
 Recording System 10 
 
 Reeves, Prof. Alfred G 29, 30, 49 
 
 Registrar-General of South Australia 9 
 
 Registrar — need not be a lawyer 49 
 
 Registrar — not a judge 47, 48 
 
 Root, Elihu ] ' 37 
 
 Russell, William E. (Governor) 17 
 
 S 
 
 Scotland g 
 
 Searchers, professional 12 
 
 Searching 8, 11, 12 
 
 Ship registry g 9 
 
 Simple court proceedings 37 
 
 Simpson, Senator 45 50 
 
 Simpson-Cotillo amendments 3I 3g 45 46 
 
 Smith, Clarence C, Recorder 22 39 
 
 South Australia , I4 
 
 South Carolina 23 
 
 Stimson, Mr., Delegate 49 
 
 Striker claim _ I3 
 
 iii 
 
T 
 
 Tasmania 14 
 
 Thompson, Gustave W 30 
 
 Title companies 12, 13, 21, 28, 29, 35, 45 
 
 Title Guarantee and Trust Company 11, 29, 49 
 
 Torrens, Sir Robert 8, 9, IS, 26, 31, 36, 37, 49, 50 
 
 Tracy claim 13 
 
 Trinidad 14 
 
 U 
 
 Uniform State Laws, Commissioners of 23 
 
 United States 17, 18, 23, 24 
 
 United States Supreme Court 24 
 
 Urlin, Denny IS 
 
 V 
 
 Vancouver Island 16 
 
 Victoria 14 
 
 Virginia 23 
 
 Vital issues compared 43, 44 
 
 W 
 
 Wales IS 
 
 Wall Street Journal 41 
 
 Washington 23 
 
 Westbury, Lord 14, IS, 16 
 
 Western Australia 14 
 
 White, Chief Justice 24 
 
 Winnipeg 17 
 
 Withdrawals 16, 26, 35 
 
 Z 
 
 Zeiss — American Land Co. ads. 24 
 
 Supplement 53 
 
BROOKLYN EAGLE PRESS 
 
sfeHi^-^^K 
 
 ^^** v^5^- 
 
 S »t-%,l ~ 
 
 
 ■^ 
 
 
 '■^p' 
 
 
 
 s; 
 
 
 
 
 .^■- 
 
 
 
 Ip^