TORRENSSmrm QJnrnpll ICaui ^rlynol ICtbtaty KFI1327.Y37™" """""^ ""'''' ^"ffiiiiffl&iuiii'ifaiil'""'''' and trans 3 1924 024 669 404 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://archive.org/details/cu31924024669404 ^^^,/^' *^^^ jy.-^^y. J^^aHttMMBB F-^k^ M ■ few '"' ^ H^^m'^ij*' -^ ^1 K ■f j^^H P ^m BkjJpi H^ I j*^B ^m ^ - ■"^ 1 ^< 7 il^-r^^^ __ , THE TORRENS SYSTEM IN TWO PARTS. PART I. LAW OF THE STATE OF ILLINOIS APPROVED, JUNE 13, 1895. ESSAY EXPLANATORY OF THE SYSTEM. BY HARVEY B. HURD, LL.D., Constitutionality of the Law Maintained BY JURISTS. PART H. REGISTRATION AND TRANSFER OF THE TITLE TO REAL ESTATE. its principles explained and its methods skt forth. Edited by M. M. YBAKLB. POBLISHED BY THE TORB-ENS PRESS, No. 79 Fifth Avenue, CHICAGO. 1895. Copyright. Thomas W. Ybaklb. 1S9B INTRODUCTORY. In the following pages the reader will find explanation of the modern methods of convey- ancing — the registering and transferring of the title to real estate. For clearness and certainty, for speed and safety, and for economy of time and expense, the new system commends itself to every thoughtful and unprejudiced mind. It is truly a system conceived and carried out in plain common sense. The present practice of conveyancing scarcely carries the dignity of the name of a system, in view of its liability to errors, lapses from com- pleteness, and its dark pitfalls. Originating in England immediately after the feudal era of possessory titles, that country has pronounced against it by the establishment of the Torrens system; while a large part of the continent of Europe which possessed in practice the root of this system hundreds of years earlier, has, since 1872, adopted the system substantially the same as that recently incorporated into the statutes of Illinois, and, the ablest men of Germany are now engaged in formulating uniform laws for the Empire, in which this system of land registra- tion and transfer is incorporated. This State, the ftrst taadopt the improved sys-' tern, simply leads the way: since Maryland, Massachusetts, California, Ohio, Iowa, Utah and Rhode Island give indications of following at an early date. That this system will be universally adopted in the United States is only a question of a very few years of trial. The Editor. TO THE READER. The impression has gained ground that the Torrens System of Registration of Titles is hard to be under- stood, except by lawyers. This is a mistake. The new system is neither intricate, nor difficult to know; but, is simplicity itself, as compared with the old practice of deed-registration, or recording. For instance: you are ready for title-registration; then, calling at the county registration office, you inform the Registrar thereof — having with you your deeds, and an abstract, perhaps, being the evidences of your claim to the land — farm, vacant lot, or house and lot. You fill out an application blank, and pay such portion of the fee as is required in advance. The registrar will inform you, should he need any additional evidence of your ownership; and also when to cair again. If your proof is satisfactory, the regis- trar will proceed to register your title, and you will receive from him a copy of the register page and folium of your land. This copy is called the duplicate certifi- cate of title. Should you wish at any time to sell, the intending purchaser can ascertain from the register at a glance how the title stands; then you make a deed to him and surrender your certificate. The registrar wUl file away the deed and make the transfer in the register-book, aud issue a new certificate of title to the purchaser; also close the account with you. The registrar will next open, on a fresh page of the register, registration of the land in the name of the new owner. Again, the title of land being in you, and you desire to mortgage it, the mortgage is noted upon the register- book, and also upon your duplicate certificate — as a charge against the land. -The duplicate held by the owner is of special conse- quence, as without it, you can do nothing. But, should it be lost, a re-issue is obtainable upon affidavit of the fact duly made. POPULARITY OF THE TORRENS LAW. The new statute providing for the registration of titles early encountered groundless opposition — just as was the case with every other valuable innovation upon established custom. But the almost unanimous affirmative vote that the law received in the late General Assembly of the State of Illinois, and its prompt approval by the Executive, were the best indications of the popular sentiment. Yet these early expressions of favor are but the prelude to the popu- lar greeting the law is destined to receive at the polls. The Torrens Law commends itself to every think- ing citizen, as expressly suited to supersede the present practice, which is totally unadapted to the common sense methods in" other things at the pre- sent day. The thoughtful business and judicial mind had long wished for some gafer and better, sim- pler and speedier way of transferring the title to real estate; these are all happily found in the law in question. It is almost surprising that the favoring flood-tide, that will surelyisweep over the country, has been kept back so long; but the explanation lies in the fact of the almost entire want of information upon the new system. It has been predicted, that the latent intelligence of the people would find out sooner or later what they were missing, and when found, it would be hailed with general acclamation; that it was as certain to receive the public favor as that common sense freely abounded, and that the average citizen, when he has once reached the point of asserting his intelligence upon the worth of the Torrens System, could but wonder that he had never himself invented registration of titles. At such time he will find, that the registering of deeds, including their appendency of "abstracts," often invite and carry both danger and damage to the title which they propose to illustrate and verify. THE PUBLIC ATTENTION CONCENTRATED UPON THE TORRENS SYSTEM. The Torrens land law of Illinois, while constructed upon the strict lines of the system of its astute English author, is modified and made to suit American institu- tions and constitutional law, and every feature of the Act is in harmony therewith. There is so much improvement in the new system over the old, that admiration yields only to thankful- ness at the result of the work of the Illinois commis- sion. Now, the holding of land need no longer be sub- ■ ject to onerous burdens, and harassing law suits: since rest and security are found in a registered title — run- ning swiftly onward to indefeasibility. Accordingly, a more rapid appreciation of salable and holding values will follow upon- title registration. Titles held under deed registration do not possess as favorable conditions to invite an equal measure of active appreciation. The new law invites the home-seeker and capitalist toward land investments, and improvements thereon; for, under it, there can not be any uncertainty of title. Under deeds of record, all questions affecting the title to* real estate remain open, and are rarely if ever con- clusively settled. While at every transfer, a fresh examination and extension of abstract are called for by the transferee — no matter how short the period between transfers. This onerous usage — in daily practice — is not in keeping with the wisdom and advanced general intelligence of our day. But, now that the choice of a better way is before the people, shall they not choose it? THE SPECIAL ADVANTAGES OF TITLE REGISTRATION. The new statute providing for registration of titles in the State o'f Illinois, cannot fail to influence the adop- tion of a similar law in other States. But wherever and whenever it goes into practice, it will exercise a direct influence in opposition to all forms of deception in land dealings, but will encourage fairness therein: the system being so straightforward, and its methods so transpar- ently honest, that reciprocity must have a place in men's minds. The status of title can be so readily and completely ascertained that dealings will be begun and carried out to completion within a few hours, instead of weeks or months — as under the old practice of lengthy searches for validity of title. Some of the advantages of the new system — un- known to the old — may be mentioned: 1. A Short, but an Absolute and Indisputable Title. 2. A Registered Certificate of Title carrying its own proofs. 3. Available for Transfer within an hour. 4. Saves Time and Money misspent. 5. Makes Land a Quick Asset. 6. Increases the number of Transfers. 7. Swells Income from Investments. 8. Adds Flexibility and Strength to Holdings. q. Increases Individual and General Wealth. The system being rigidly simple, it takes fast hold of common sense; it allows no lapses in registered proof of ownership, which, if once allowed, develops into snares and pitfalls. The wisdom in legislation in providing this better law makes it one of the most valuable of all the later law reforms of the last one hundred years. Its bene- ficence in practice will grow and broaden the more it is used, but it cannot be received at its full worth until it is studied and generally introduced throughout the whole country. CONTENTS. PAGE. The Simple Process of Title Registration, . . A The Popularity of the Torrens Law B The Public Attention Concentrated upon the Torrens System C The Special Advantages of Title Registration. D Pre-eminent Value of a Registered Title The Superiority of the New Land System . . . Of the new Land Act — State of Illinois The Illinois Act Invites Study The "Act Concerning Land Titles," Approved June 13, 1895 . . : 9 The Legal Profession and the New Law 50 An Essay: Exposition of the Torrens System as Modified and Recommended by the Illinois Commission, By Harvey B. Hurd, LL.D... 51 The Torrens System, By Its Author 74 The Constitutionality of the New Law — Maintained By Jurists 75 No Sufficient Grounds for Opposition to the Torrens System 83 What is gained through the New System 84 The Difference in the Mode of Transfer 85 The New System When in Practice 86 Forms — Application to Register, etc 88 THE PRE-EMINENT VALUE OF A REGISTERED TITLE. In the great centres of population and throughout the country at large, there is almost an universal opinion, that there ought to be a better, less expensive, more expeditious and secure way of transferring titles to real estate than the method now in use in this country. Knowledge gained through the experience of other countries has demonstrated the fact, that there is a better way and truer system, namely: that of the ofificial registration of the title, but not of deeds of conveyance. Under registration of title, all questions that do now, or may affect the title at any subsequent time, are settled once for all time-^at the hour of registration and transfer of ownership. The status. of the title, is then presented in the ofificial register-book, in a clear, safe and short registry of every matter pertaining to, or affecting it. After the registration 6i title, there can be no need, or call for going back again over the past transfers; since every matter affecting the title had been exhaustively inquired into, its merits and demerits sifted, and disposed of forever! Accordingly, after the first registration, "abstracts" are not necessary; delay is obviated, and extra expenses are avoided. But much more still is gained: doubt and anxiety are con- clusively laid at rest. THE SUPERIORITY OF THE NEW LAND SYSTEM. In short, consider such features in the prac- tice and policy of the Torrens System of con- veyancing — not found in the old practice — and which are justly considered the very acme of advantage, namely: REST OF title, an official REGISTRY OF THE TITLE — Up to date, and com- plete for to-day, to-morrow and forever, — the registry being duly continued, as tf would be, and the lim,itation period of five years passed, as provided in the Illinois Act: you then possess a title indefeasible, and ever ready to hold, sell or mortgage ; or bor- row upon without mortgage. Such prompt convertibility and easy transfer upon the offi- cial registry, suggests continuous appreciation, in value; while thie old practice, of deed-regis- tering, tends directly to depreciation. But, still more, your registered title will sell for more, and borrow more money ; it will hold you in placidity of mind ; and, in an emergen- cy, will speedily get you out of trouble. BECOMES INDEFEASIBLE AT END OF FIVE YEARS. The Act makes provision, in a new statute of limitation, for a starting point, beginning" at the date of the initial or first registration, of a parcel of land, and ending five years thereafter ; at the expiration of which term all claimants who have not established rights o£ property in said land, or given notice thereof by- caveat filed within the same time, are barred and cut off. THE TORRENS LAND LAW STATE OF ILLINOIS. This law was adopted by the General Assembly of the State of Illinois, June 13, 1895, and is entitled, "An Act Concerning Land Titles." The Act embodies the princi- ples and methods of the Torrens System of registration and transfer of the title to real property. The vote on its adoption expresses the favor with which the measure was held. In the Senate, it received 31 ayes and 3 nays, and in the House, 105 ayes and 20 nays. In the Act provision is made for its submission to the decision of the ballot. A majority vote — about which there is no question — will make the law operative, without any delay, in Cook county and City of Chicago. THE ILLINOIS ACT INVITES STUDY. This Act embodies the results of the first effort to adjust the Torrens System to the Constitution and Laws of this country, and will, no doubt, on account of its clearness of statement, its brevity, and the evident skill with which it is drawn, serve as a help for the framing of similar "Acts" in other States of the United States. It is possible, that while this "Act" may be improved by experience, still, the principles upon which it proceeds: — to require conclusive settlement of all matters of form and substance at each transfer of ownership, and without a "pit- fall" in the title — are, beyond question, the true principles to be pursued in all dealings with real property. THD TORRBNS SYSTEM OF REGIS- TRATION AND TRANSFER OF THE TITLE TO REAL ESTATE. THE ACT OF THE STATE OF ILLINOIS. "AN ACT CONCERNING LAND TITLES." APPROVED JUNE 13, 1895. RECORDERS EX-OFPICIO REGIS'TSARS. Section L Recorders and ex-officio record- ers of deeds in the several counties in this State shall be registrars of titles in their re- spective counties. Their deputies shall be 10 TORRENS ACT OP ILLINOIS. deputy registrars. All laws relative to re- corders and their deputies, including their compensation, clerk hire and expenses, shall extend to registrars and their deputies so far as the same may be applicable. Sec. 2. Every recorder and ex-officio recor- der shall, before entering upon his duties as registrar, give a bond, with sufficient security, to be approved by the judge of the county court, payable to the People of the State of Illinois, in the penal sum of $50,000 (except that in counties having a population of .more than 100,000 inhabitants, the penalty of the bond shall be $200,000), conditioned for the faithful discharge of his duties, and to deliver up all papers, books, records and other prop- erty belonging to the county or appertaining to his office as registrar of titles, whole, safe and undefaced, when lawfully required so to do; which bond shall be filed in the office of the Secretary of State and a copy thereof en- tered upon the records of the county court. Sec. 3. Deputies may perform any and all duties of the registrar in the name of the reg- istrar, and the acts of such deputies shall be held to be the acts of the registrar, and in case of the death of the reg- istrar or his removal from office, the chief deputy shall thereupon become the acting reg- istrar until such vacancy shall be filled accord- ing to law, and he shall file a like bond and be vested with the same powers and subject to the same responsibilities and entitled to the same compensation as in the case of the regis- trar. ' TORRENS ACT OF ILLINOIS. 11 Sec. 4. No registrar or deputy registrar shall practice as attorney or counselor-at-law, nor be in partnership, while in office, with any attorney or counselor-at-law so practicing. Sec. 5. The registrar may appoint, in his county, two or more competent attorneys, to be examiners of titles and legal advisers of the registrar. Their compensation shall be fixed in the same manner as that of deputy regis- trars. ^ Sec. 6. The registrar shall be liable for any neglect or omission of the duties of his office, when occasioned by a deputy or exam- iner of titles, in the same manner as for his own personal neglect or omission. BRINGING LAND UNDER THE ACT. Sec. 7. The owner of any estate or inter- est in land, whether .legal or equitable, and whoever has the power of appointing, or of dis- posing of the entire legal-estate in fee simple, may apply to the registrar of the county in which the land is situated, to have his title registered. He may apply in person, or by an attorney in fact authorized so to do. A cor- poration may apply by its authorized agent, and any other person under disability by his legal guardian, or an infant by his jiatural or le- gal gustrdian. The person in whose behalf the application is made shall be named as ap- plicant. Sec. 8. No mortgage, lien, charge or lesser estate than a fee simplfe shall be registered un- less the fee simple to the same land is first registered. 12 TORRENS ACT OF ILLINOIS. Sec. 9. It shall not be an objection to bringing land under this act, that the estate or interest of the applicant is subject to any- outstanding lesser estate, mortgage, lien or charge, but every such lesser estate, mortgage, lien or charge shall be noted upon the certifi- cate of title and the duplicate thereof, herein after provided for, and the title or interest certified shall be subject only to such estates, mortgages, liens and charges as are so noted, except as herein provided. Sec. 10. No title derived through sale for any tax or assessment shall be entitled to be first registered, unless it shall be made to ap- pear to the registrar that the applicant or he and those through whom he claims title have been in actual and undisputed possession of the land under such title at least ten years, and shall have paid all taxes and assessments le- gally levied thereon for seven successive years of that time. Sec. 11. The application shall be in writ- ing, signed and sworn to by the applicant or the peijson acting in his behalf. It shall set forth substantially: a. The name and place of residence of the applicant^ and if the application is by one act- ing in behalf of another, the name and place of residence and capacity of the person so act- ing. b. Whether the applicant (except in case of a corporation), is married or not, and, if married, the name and residence of the hus- band or wife. c. The description of the land. TORRENS ACT OF ILLINOIS. 13 d. The applicant's estate or interest in the same, and whether the same is subject to an estate of homestead. e. Whether the land is occupied or unoccu- pied, and, if occupied, the name and post-office address of each occupant, and what estate or interest he has or claims in the land. f. Whether the land is subject to any lien or incumbrance, and, if any, give the name and post-office address of each holder thereof and the nature and amount of the same, and, if recorded, the book and page of the record. g. Whether any other person has any estate or claims any interest in the land, in law or equity, in possessioji, remainder, reversion or expectancy, and if any, set forth the name and post-office address of every such person and the nature of his estate or claim. h. If the applicant is a male, that he is of the full age of twenty-one years; if a female, that she is of the full age of eightieen years. If the application is on behalf of a minor, the age of such minor shall be stated. If the ap- plication is by a husband or wife, the other shall by indorsement thereon acknowledged, as in the case of deeds, signify his or her assent to the registration as prayed. Sec. 12. Any number of pieces of land in the same county, and owned by the same person, and in the same right, may be includ- ed in one application. Sec. 13. The application may be amended only by supplemental statement in writing, signed and sworn to as in the case of the original. 14 ■ TORRENS SYSTEM. WHEN APPLICATION IS FILED. THE DUTY OF REGISTER. Sec. 14. [1] Upon such application being filed with the registrar, he shall cause examin- ation to be made into the applicant's title to the land and as to the truth of the matters set forth in the application, [2] and particularly whether the land is occupied; the nature of the occupation if occupied, and by wiiat right; and shall notify all persons who shall appear by the application or otherwise to have an inter- est in, or .ien or claim upon the land, of such application, [3] a copy of which notice shall be posted upon the premises, in a conspicuous place, at ^east ten days before the granting of the certificate of title. [4] No applicant for the registration of anyi nterest in land under this act shall be required to furnish with his ap- plication an abstract of title, or other evidence, except of instruments which are not then of rec- ord in the office of the recorder of the county in which the land is situated ; but it shall be the duty of the examiners to examine, as the basis of their opinion, the full records of all instruments which are then of public record in said office, together with the original in- struments, or abstracts thereof, of which the records have been destroyed by fire or other- wise. If any defects are found in the title which he thinks may be removed, he shall no- tify the applicant of the same and give him a reasonable time to remove such defects before finally passing upon his application. TORRENS ACT OF ILLINOIS. 15 Sec. 15. If it shall be made to appear to the registrar that the facts stated in the application are true, and that the applicant is the owner of the land, or interested therein as set forth in the application, he shall issue a certificate of title, and proceed to bring the land under the operation of this act as herein- after provided. Otherwise he shall dismiss the application without ' prejudice and return the papers to the applicant. Sec. 16. Any applicant may, upon payment of all fees due, withdraw his application for registration at any time prior to the issuing of a certificate of title, and the registrar shall in such case, upon request in writing signed by such applicant, return to him all abstracts of title, deeds and other instruments deposited by him for the purpose of supporting his ap- plication. Sec. 17. No certificate of title shall be issued in any case until the written opinion of at least two examiners shall be filed with the registrar to the effect that the applicant has a good title to the estate, or interest in the land as stated in the application, and if the same is subject to any lesser estate, mortgage, lien, or charge, particularly specifying the same. The estate of homestead shall be included in the term lesser estate. Sec. 18. In case the applicant shall die be- tween the application and the completion of the registration^ the same may be completed in the name of the applicant, and the title to the land shall devolve in like manner as if the registration had been completed prior to the death of such applicant. 16 TORRENS SYSTEM. Sec. 19. The registrar shall as often as once in each week make out and publish in a newspaper published in his county a list of all first registrations effected during the preced- ing w6ek. The notice must contain a short description of the land, the name of registered owner and date of registration. Letters and figures may be used. As fast as such lists are published the registrar shall post a copy of the same in his office, and keep the same so posted for the space of six months. He shall also immediately upon the registration of any land make an entry thereof upon the tract index, with a reference to the book and folium of the register where the same is registered. CERTIFICATE OF TITLE. Sec. 20. Certificates of title shall be num- bered consecutively. Every first and subse- quent certificate of title shall be in duplicate and bear date the day and year of its is- sue, and be under the hand and official seal of the registrar, one copy of which shall be retained by the registrar and be known as the original, and the other, to be known as the duplicate, shall be delivered to the owner. It shall state whether the owner, except in the case of a corporation, is married or not married, and if married the name of the hus- band or wife. If the owner is a minor it shall state his age,~ if under any other disability the nature of the disability. The registrar shall note at the end of each certificate, original and duplicate, in such manner as to show and preserve their priorities, the particulars of all estates, mortgages, incumbrances, liens and charges, to which the owner's title is subject. TORRENS ACT OF ILLINOIS. 17 Sec. 21. The certificate of title may, sub- ject to sxich changes as the case may require, be substantially in the following form: FORM OF APPLICATION TO REGISTER. STATE OF ILLINOIS, ^ CO'JNTY, of {residence, and if a mi- nor give his age, if under other disability , state the nature of the disability), married to {name of husband or wife, or if not marri- ed, say not married), is the owner of an es- tate in fee simple {or as the case may be) in the following land {here describe the premi- ses) subject to the estates, easements, incum- brances and charges hereunder noted. {In case of trust, condition, or limitation, say ''in trust" or "upon condition" or "with limita- tion" as the case m^ay be). Witness my hand and official seal this {date). Registrar. [seal.] Sec. 22. In all cases where two or more per- sons are entitled as tenants in common to an estate in registered land, such persons may receive one certificate for the entirety, or each may receive a separate certificate for his un- divided share. Sec. 23. Upon the application of any regis- IS TORRENS SYSTEM. tered owner of land held under separate certificates of title, or under one certificate, and delivering up of such certificate or certifi- cates of title, the registrar may issue to such owner a single certificate of title for the whole of such land, or several certificates, each containing a portion of such land in accordance with such application, and as far as the same may be done consistently with any regulations at the time being in force, respecting the parcels of land that may be included in, one certificate of title, and upon issuing any such certificate of title, said registrar shall endorse on the last previous certificate of title of such land so delivered up, a memorial setting forth the occasion of such cancellation, and referring to the volume and folium of the new certificate or certificates of title so issued. Sec. 24. In the event of a duplicate certifi- cate of title being lost, mislaid or destroyed, the owner, together with other persons, if any, having knowledge of the circumstances, may make affidavit before the registrar, or before any officer authorized to administer oaths, stating the facts of the case, the names and description of the registered owners, and the particulars of all mortgages, encumbrances or other matters affecting such land and the title thereto to the best of applicants knowledge and belief, and the registrar, if satisfied as to the truth of such affidavit, and the bona fides ■ of the transaction, shall issue to the owner a certified copy of the original certificate with the memorials and notations appearing upon the register, and shall note upon the register TORRENS ACT OF ILLINOIS. 19 the fact, cause and date of such issue, and shall also mark upon such certified copy: "Owner's certified copy issued in place of lost", {mis- layed or destroyed, as the case may be,) "certificate," and such certified copy shall stand in the place of and have like effect as the missing duplicate certificate. THE REGISTER BOOK. Sec. 25. The registrar shall keep a book to be known as the "Register of Titles," wherein he shall enter all original certificates of title by binding or writing them .therein, in the order of their numbers, with appropriate blanks for the entry of memorials and notations allowed by this act. Each certificate, with such blanks, shall constitute a separate folium of such book. All memorials and notations that may be entered upon the' register under the terms of this act shall be entered upon the folium, con- stituted by the last certificate of title of the land to which they relate. Sec. 26. Before the delivery of anv dupli- cate certificate of title, a receipt for it in the handwriting of the owner may be required by the registrar to be signed by him when pract- icable, so as to prevent, as far as may be per- sonation or forgery. Where such receipt is signed or acknowledged in the presence of the registrar or a deputy, it may be witnessed by such officer. If signed elsewhere it may be acknowledged before any officer authorized to take acknowledgments of deeds. Sec. 27. In every case of first registration of land or an estate or interest therein, the 20 TORRENS SYSTEM. same shall be deemed to be registered under this act, when the registrar shall have marked upon the certificate of title, in duplicate, the volume and folium of the register in which the original may be found. ■ Sec. 28. Every transfer of registered land shall be deemed to be registered under this act, when the new certificate to the trans- ferree shall have been marked, as in the case of first registration; and all other dealings shall be considered as registered when the memorial or notation thereof shall have been entered in the register upon the folium constituted by the existing certificate of title of the land. But, for the protection of the transf erree or person claiming through any transfer or deal- ing, the registration shall relate back to the time of filing in the register's office the deed, instrument or notice, pursuant to which the transfer memorial or notation is" made. EFFECT OF REGISTRATION. Sec. 29. The registered owner of any estate or interest in land brought under this act, shall, except in case of fraud to which he is a party, or of the person through whom he claims without valuable consideration paid in good faith, hold the same subject only to such estates, mortgages, liens, charges and interests as may be noted in the last certificate . of title in the registrar's ofiice and free from all others except: 1. Any subsisting lease or agreement for a lease for a period not exceeding five years where there is actual occupation of the land TORRENS ACT OF ILLINOIS. 21 under lease. The term lease shall include a verbal letting. 2. All public highways embraced in the description of the lands included in the certifi- cate shall be deemed to be excluded from the certificate. 3. Any subsisting right of way or other easement, however created, upon, over or in respect of the land. 4. Any tax or special assessment for which a sale of the land has not been had at the date of the certificate of title. 5. Such right of action or counter-claim as is allowed by this act. 6. The right of any p erson in possession of, and rightfully entitled to the land or any part thereof, or any interest therein adverse to the title of the registered owner at the time when the land is first bought under this act, and continuing in said possession until the issu- ance of such last certificate of title. Sec. 30. After land has been " registered no title thereto adverse or in derogation to the title of the registered owner shall be acquired by any length of possession merely. Sec. 31. Dxcept in case of fraud, and ex- cept as herein otherwise provided, no person taking from the registered owner a transfer of registered land or any estate or interest therein, or of any charge upon the same shall be held to enquire into the circum- stances under which or the consideration for which the estate or interest of such owner or any previous registered owner was regis- tered, or be efEected with notice actual or constructive of any unregistered trust, lien, 22 TORRENS SYSTEM. claim, demand or interest in the land and the knowledge that any unregistered trust, lien, claim, demand or interest is in existence shall not of itself be imputed as fraud. Sec. 32- In any suit for specific perfor- mance brought by a registered owner of any land under the provisions of this act, against a person who may have contracted to purchase such land, not having notice of any fraud or other circumstances which, according to the provisions of this act, would affect the right of the vendor, the certificate of title of such registered owner shall be held in every court to be conclusive evidence that such registered owner has a good and valid title to the land, and for the estate or interest therein mentioned or described. Sec. 33. In any action or proceeding brought for ejectment, partition or possession of land; the certificate of title of a registered owner shall be held in every court to be con- clusive evidence, except as herein otherwise provided, that such registered owner has a good and valid title to the land, and for the estate or interest therein mentioned or des- cribed; and that such registered • owner is entitled to the possession of said land, except as against any person rightfully claiming pos- session under some estate, mortgage, lien or charge noted on the certificate. , Sec. 34. The register of any land and duly certified copies thereof shall, except as herein otherwise provided, be received in law and in equity as evidence of the facts therein stated, and as conclusive evidence that the person TOKREXS ACT OF ILLINOIS. 23 named therein as owner is entitled to the land for the estate or interests therein specified. The word "heirs and assigns" shall not be necessary to create a fee simple estate of in- heritance. Sec. 35. Whenever a memorial has been entered as permitted by this act, the registrar shall carry the same forward upon all certifi- cates of title until the same is cancelled in some manner authorized by this act. Sec. 36. All dealings with land or any estate or interest therein, after the same has been brought under this act, and all liens, in- cumbrances and charges upon the same sub- sequent to the first registration thereof, shall be deemed to be subject to the terms of this act, and to such amendments and alterations as may hereafter be made. The bringing of land under this act shall imply an agreement, which shall run with the land, that the same shall be subject to the terms of the act and all amendm,ents and alterations thereof. Sec. 37. With the exceptions mentioned in Sec. 29, no person shall commence any action at law or in equity for the recovery of land, or assert any interest, right in or lien or dema~hd upon the same or make entry thereon adversely to the title or interest certified in the first certificate bringing the land under the opera- tion of this act, unless within five years after the first registration. It shall not be an excep- tion to this rule that the person entitled to bring the action or make the entry is an infant, lunatic or is under any disability, but action may be brought by such person by his next 24 TORRENS SYSTEM. friend or guardian. It shall be the duty of the guardian, if there is any, to bring action in the name of his ward, whenever it is necessary to preserve or enforce the ward's rights in registered land. Sec. 38. Any person having any interest, right, title, lien or demand, whether vested,*" contingent or inchoate, in, to or upon register- ed land, which existed at the time the land is first registered, and upon or for which no cause of action shall have accrued at the date of the registration of the land, may, prior to the expiration of said five years after such regis- tration, file in the registrar's office a notice, under oath, setting forth his interest, right, title, lien or demand, and how and under whom derived, and the character and nature thereof, and if such notice or counter-claim is so filed an action may be brought to assert or recover or en- f orce the same at any time within one year after i lie right of action shall have accrued thereon, or at anv time within the period of five years after said first registration and not afterwards. It shall be the. duty of a life tenant or trustee to file such counter-claim on behalf of any re- mainderman or reversioner, whether the re- mainder or reversion be at the time vested or contingent, and of a guardian to file such counter-claim on behalf of his ward. TRANSFER. Sec. 39. A registered owner of land desir- ing to transfer his whole estate or interest therein, or some distinct part or parcel thereof, or some undivided interest therein, or to grant TORRENS ACT OF ILLINOIS. 25 out of his estate an estate for life or for a term of not less than ten years, may execute to the intended transferee a deed or instrument of conveyance^ in any form authorized by law for that purpose. And upon filing such deed or other instrument in the registrar's office and surrendering to the registrar the duplicate certificate of title, and upon its being made to appear to the registrar that the transferer has the title or interest proposed to be trans- ferred and is entitled to make the conveyance, aiid that the transferee has the right to have such estate or interest transferred to him, he shall issue in duplicate and register as herein- before provided a new certificate certifying the title to the estate or interest in the land desired to be conveyed to be in the transferee, and shall note upon the original and duplicate certificate the date of the transfer, the name of the transferee and the volume and folium in which the new certificate is registered, and shall stamp across the original and surrendered duplicate certificate the word "cancelled" in whole or part, as the case may be. Sec. 40. When only a part of the land described in a certificate is transferred, or some estate or interest in the land is to remain in the transferrer, a new certificate shall be issued to him for the part, estate or interest remaining in him. FILING OF INSTRUMENTS. Sec. 41. The registrar shall mark as filed every deed, mortgage, lease and other instru- ment which may be filed in his office in the or- 26 TORRENS SYSTEM. der of its receipt, and shall note thereon at the date of filing the minute, hour, day and year it is received. When the date of filing any in- strument is required to be entered upon the register it shall be the same as that endorsed upon such instrument. Sec. 42- All instruments, notices and pa^ pers required or permitted by this act to be filed in the office of the registrar shall be re- tained and kept in such office. Sec. 43. L written opinion of two examiners that such transfer charge or dealing is in accordance with the true intent and meaning of the trust, condition or limitation. Sec. 58. If the registrar is satisfied that the proposed transfer, charge or other dealing is in accordance with the true intent and meaning of the trust, condition or limitation, he shall proceed to register the same, and such 32 TORRENS SYSTEM. registration shall be conclusive evidence in fa- vor of the person taking such transfer, charge or other right, and those claiming under him, in good faith and for a valuable consideration, that such transfer, charge' or other dealing is in accordance with the true intent and mean- ing of the trust, condition or limitation. TRANSMISSION. Sec. 59. Lands, and any estate or interest therein, registered pursuant to this act, shall, upon the death of the owner, go to the person- al representatives of the deceased in like man- ner .as personal estate, whether the owner dies testate or intestate, and shall be subject to the same rules of administration as if the same were' personalty , except as otherwise provided in this act, and except that the rule of division shall be the same as in the descent of real property. Sec. 60. Before the personal representa- tive of a deceased owner of registered land or any estate, or interest therein, shall deal with the same, he shall file in the registrar's ofi&ce a certified copy of his letters of administra- tion, or if there is a will, a certified copy of the same and of the letters testamentary, or of administration, with the will annexed as the case may be, and shall produce the duplicate certificate of title, and thereupon the registrar shall enter upon the register and the duplicate certificate a memorial 'thereof , with a refer- ence to the letters, or will and letters, by their file number, and the date of filing the same. Sec. 61. Except in the case of a will devis- TORRKNS ACT OF ILLINOIS. 33 ing the lands to an executor to his own use, or upon some 'trust, or giving to the executor power to sell, no sale or transfer of registered land shall be made by the executor or by an administrator in the course of administration, for the payment of debts or otherwise, except in pursuance of an order of a competent court obtained as provided by law. 62- But a memorial of the will and letters testamentary or of letters of administration being first entered upon the register, as herein provided, the executor or administrator may deal with mortgages, leases and other personal interests in or upon registered land, as if he were the registered owner thereof. Sec. 63. Where it appears by the will, a certified copy of which, with the letters testa- mentary, is filed, as provided in this act, that registered land is devised to the executor to his own use or upon some trust, the executor may have the land transferred to himself upon the register in like manner and subject to like terms and conditions and with like rights, as in the case of a transfer pursuant to deed filed in the registrar's ofi&ce. Sec. 64. When the will of a deceased owner of registered land or any estate, or interest therein, empowers the executor to sell, convey, incumber, charge or otherwise deal with the land, it shall not be necessary for such executor to be registered as the owner, but a certified copy of the will and the letters testa- mentary being filed as provided in this act, such executor may sell, convey, incumber, charge or otherwise deal with the land pursuant to the 34 TORRKNS SYSTEM. power in like manner, as if he were the regis- tered owner, subject to the like conditions as to the trusts, limitations and conditions ex- pressed in the will, as in case of trusts, limita- tions and conditions expressed in a deed. Sec. 65. Before making distribution of undevised registered land the executor or administrator shall file in the registrar's office a certified copy of the proof of heirship, made in the probate or county court, as the case may be, which shall be conclusive evidence in favor of all persons thereafter dealing with the land that the persons therein named as the only heirs-at-law of the deceased owner are such heirs. Sec. 66. The court of probate may, for the purpose of distribution of the estate, order registered land, or any estate, or interest therein, to be sold by the executor or adminis- trator, and upon the filing of a certified copy of the order of sale and order of confirmation of the sale, and the deeds, in pursuance of the same, in the registrar's office, a transfer of the land, estate or interest to the purchaser may be made upon the register, as, in the case of other sales, by deed. Sec. 67. Whenever, after the expiration of the time fixed for the adjustment of claims against the estate of the deceased, and after proof of heirship, it shall be made to appear to the court of probate that the estate will justifiy it, the court may direct the executor or administrator to make over and transfer to the devisees or heirs, or some of them, in anticipation of the final distribution, a portion TOERENS ACT OF ILLINOIS. 35 of the whole of the registered lands to which they might be entitled on final distribution. And upon the filing of a certified copy of such order in the registrar's office, the executor or administrator may cause such transfer to be made upon the register in like manner as in case of a sale. The land so transferred shall be held free from all liens or claims against the estate. In the proceedings to procure such direction such notice shall be given as the court of probate may direct. Sec. 68. For the purpose of final distribu- tion the court of probate may determine the right of all persons in registered lands, or any estate or interest therein of the deceased, declare and enforce the rights of devisees, heirs, persons entitled to dower and home- stead, and others, assign dower and home- stead, and make partition and distribution according to the rights of the parties. The court may give direction to the executor or administrator as to the transfer of registered land, and any estate or interest therein to the devisees or heirs and may direct the transfer to be to several devisees or heirs, or tenants in common, or otherwise, as shall appear to the court to be most convenient, consistently with the rights of the parties, or as the parties in- terested may agree. DEALINGS OF ASSIGNEES, RECEIVERS, MASTERS, ETC. Sec. 69. Before an assignee for the benefit of creditors, receiver, master in chancery, special commissioner, or other person appointed ■36 TORREXS SYSTEM. by court shall deal with or transfer registered land or any estate or interest therein, he shall file in the registrar's office a certified copy af an order of the court showing that such assignee, receiver, master in chancery, special commissioner, or other person, is authorized to deal with or transfer such land, estate or in- terest, and if it is in the povs^'er of such person he shall present to the register the duplicate certificate of title; and thereupon the registrar shall enter upon the register, and the duplicate certificate, if presented, a memorial thereof, with a reference to such order by its file number. In the case of a deed of the land to the assignee or receiver, the same shall be filed in the registrar's office as in other cases. Sec. 70. Such memorial having been entered, the assignee, receiver, master in chancery, special commissioner, or other per- son, may, subject to the direction of the court, deal with or transfer such land as if he were the registered owner. TAX SALES. Sec. 71, The holder of any certificate of sale of registered land or any estate, or interest therein for any tax, assessment or imposition, shall within three months after date of sale, present the same to the registrar, who shall thereupon enter on the register of the land a memorial thereof, stating the day of sale and the date of presentation and shall also note upon the certificate of sale the date of presenta- tion and the book and page of the register where the memorial is entered. The holder of TORRE.NS ACT OF ILLINOIS. 37 such certificate shall also within the same time, mail to each of the persons who appear by the register to' have any interest in the land, a notice of the registration of such certificate. Unless such certificate is presented and regis- tered, and notice given as herein provided with- in the time above mentioned, the land shall be forever released from the effect of such s?le, and no deed shall be issued in pursuance of such certificate. When it shall appear by the affidavit of the holder of the certificate filed with the registrar that the place of residence of any person interested in the land cannot upon diligent inquiry be ascertained, the re- quirement of this section as to mailing notice shall not apply to such person. Sec. 72. A tax deed of registered land, or an estate or interest therein issued in pursu- ance of any sale for tax or assessment made after the taking effect of this act, shall have only the effect of an agreement for the trans- fer of the title upon the register, and may be filed in the registrar's office, and a transfer ef- fected as in case of other deeds of conveyance. But no certificate of title shall be issued there- on, until after the expiration of two years af- ter the date of filing such deed, nor unless the deed is so filed within sixty day^ of its date, nor unless it shall be made to appear to the registrar that the time for redemption allow- ed by law to any minor heir, idiot or insane person interested in the land has expired, nor unless it shall appear to the registrar that all persons appearing upon the register to be in- terested in the land whose places of residence 38 TORRENS SYSTEM. can, upon diligent inquiry, be ascertained, and the person who appears by the collector's books to have paid the tax last paid before the sale on which the deed is issued, and every person in occupation of the land has had at least ninety days' notice of the application for such certificate of title; and that the terms of this act have been complied with. The notice required may be given, upon persons residing in the county by personal service, and upon persons living out of the county by mail. Any person interested in the land may show as cause why such certificate of title shall not is- sue, any fact that might be shown on a bill in equity on his behalf to set aside such deed. Lis PENDENS NOTICE. Sec. 73. No suit, bill or proceeding at law or in equity for any purpose whatever affect- ing registered land or any estate or interest therein .or any charge upon the same, shall be deemed to be Us pendens or notice to any per- son dealing with the same, until a certificate of the pendency of such suit, bill or proceed- ing, under the hand and official seal of the clerk of the court in which it is pending, shall be filed with the registrar and a memorial thereof entered by him upon the register of the last certificate of the title to be affected. This section shall not apply to attachment proceedings when the officer making the levy shall file his certificate of levy as herein provided. Sec. 74. No judgment or decree or order of any court shall be a lien upon or affect registered land or any estate or interest there- TORRENS ACT OF ILLINOIS. 39 in, until a certificate, under the hand and official seal of the clerk of the court in which the same is of record, stating the date and purport of the judgment, decree or order, or a certified copy of such judgment, decree or order, is filed in the office of the registrar and a memorial of the same is entered upon the register of the last certificate of the title to be afiected. ATTACHMENT, EXECUTION, ETC., LIENS. Sec. 75. Whenever registered land is levied upon by virtue of any writ of attachment, execution or other process, it shall be the duty of the officer making such levy to file with the registrar a certificate of the fact of such levy, a memorial of which shall be entered upon the register, and no lien shall arise by reason of such levy until the filing of such certificate and the entry in the register of such memorial any notice thereof actual or constructive, to the contrary notwithstanding. Sec. 76. The claim authorized by "an act to revise the law in relation to liens" may, in the case of registered land, be filed in the registrar's office instead of with the clerk of the circuit court; and being so filed, a memorial thereof shall be entered by the registrar, as in the case of other charges, and proceedings to enforce the lien may be had, as provided in said act. Until it is so filed and registered, no such lien shall be deemed to have been created. Sec. 77. Any person making any claim to or asserting any lien upon registered land not shown upon the register, or adverse to the 40 TORRENS SYSTEM. title of the registered owner, and no other provision is herein made for asserting the same in the registrar's office, may make affidavit thereof setting forth his interest, right, title, lien or demand, and how and under whom derived and the character and nature thereof. The affidavit shall state his place of residence and also his place of business, if he has one, and designate a place at which all notices relating thereto may be served. Upon the filing of such affidavit in the office of the regis- trar, the latter shall enter a memorial thereof, as in the case of a charge. Sec. 78. No statutory or other lien shall be deemed to affect the title to registered land until after a memorial thereof is entered upon the register, as herein provided. Sec. 79. The certificate of the clerk of the court in which any suit, bill or proceeding shall have been pending, or any judgment or decree is of record, that such suit, bill or pro- ceeding has been dismissed or otherwise dis- posed of, or the judgment, decree or order has been satisfied, released, reversed or overruled, or of any sheriff or other officer that the levy of any execution, attachment or other process certified by him, has been released, discharged or otherwise disposed of, being filed in the registrar's office and noted upon the register, shall be sufficient to authorize the registrar to cancel or otherwise treat the memorial of such suit, bill, proceeding, judgment, decree or levy, according to the purport of such certificate. TORRENS ACT OF ILLINOIS. 41 PROCEEDINGS IN CHANCERY. Sec. 80. Whenever any person interested in registered land or any estate or interest therein or charge upon the same, shall be entitled to have any certificate of title, memorial or other entry upon the register cancelled re- tnoved or modified, and the registrar or person whose duty it shall be to cancel, remove or modify the same or do any act towards the same, shall, upon request, fail or refuse so to do, or is absent from the county, or cannot be found, or for any reasoh such request cannot be made upon him, a court of equity may, upon bill or petition by the person interested, make such order as may be according to equity in the premises and upon a certified copy of such order being filed in the registrar's office, the registrar shall make such cancelation, removal or modification as shall be decreed in such order. Sec 81. Any person feeling himself ag- grieved by the action of the registrar or by his refusal to act in any manner pertaining to the first registration of land or any estate or interest therein,' or any subsequent transfer of or charge upon the same, the filing or neglect or refusal to file any instrument, or to enter or cancel any memorial or notation, or to do any other thing required of him by this act, or on ac- count of any mistake or omission of the regis- trar may file his bill or petition in equity in any court of competent j urisdiction,making the reg- istrar and other persons, whose interest may be affected, parties defendant, and the court may proceed therein as in other cases in equity, and 42 TORRENS SYSTEM. make such order or decree as shall be accord- ing to equity in the premises and the purport of this act. When it shall appear by the alle- gations of the bill or petition to be appropri- ate to the relief required, the court may hear and determine all matters affecting the title or interest of the petitioner or complainant, and for the quieting of the title and removing of clouds therefrom. The provisions of the act entitled "An Act to Regulate the Practice of Courts of Chancery," so far as they may be ap- plicable, shall apply to cases brought under this act. Sec. 82. The court may, in any case con- templated in sections 80 and 81, in addition to the costs, award such damages, including rea- sonable attorney's fees, as it shall deem just in the premises. INDICES. Sec. 83. The registrar shall keep tract indices, in which shall be entered the lands registered in the numerical order of the town- ships, ranges, sections, and in cases of sub- divisions, the blocks and lots therein, and the names of the owners, with a reference to the volume and folium of the register in which the lands are registered. Sec. 84. He shall also keep alphabetical indices, in which shall be entered in alpha- betical order the names of all registered owners and all other persons interested in or holding charges upon registered land, a short description of the land and nature of the deal- ing, with a reference to the volume and folium TORRENS ACT OF ILLINOIS. 43 PENALTIES. Sec. 85. Whoever fraudulently procures, assists in fraudulently procuring, or is privy to the fraudulent procurement of any certifi- cate of title or other instrument, or of any entry in the register or other book kept in the registrar's office, or of any erasure or altera- tion in any entry in any, said book, or of any instrument authorized by this act, or know- ingly defrauds or is privy to defrauding any person by means of a false or fraudulent in- strument, certificate, statement or affidavit, affecting registered land, shall be guilty of a misdemeanor and fined not exceeding five thousand dollars, and imprisoned not exceed- ing five years, or either, or both, in the discre- tion of the court. Sec. 86. (1.) Whoever forges, or procures to be forged, or assists in forging the seal of the registrar, or the name, signature, or hand- writing of any officer of the registry office, in cases where such officer is expressly or im- pliedly authorized to affix his signature; or (2.) Fraudulently stamps, or procures to be stamp- ed, or assists iri stamping any document with any forged seal of said registrar, or (3.) Forges, or procures to be forged, or assists in forging the name, signature, or handwriting of any person whomsoever to any instrument which is expressly or impliedly authorized to be signed by such person; or (4.) Uses any document upon which ajjy impression, or part of the impression, of any seal of said registrar has been forged, knowing the same to have 44 TORRENS SYSTEM. • been forged, or any document the signature to which has been forged, knowing the' same to have been forged, or swears falsely concerning any matter or procedure made and done in pursuance of this act, shall be imprisoned in the penitentiary not exceeding ten years, or fined not exceeding one thousand dollars, or both fined and imprisoned, in the discretion of the court. Sec. 87. No proceeding or conviction for any act hereby declared to be a misdemeanor or a felony shall affect any remedy which any person aggrieved or injured by such act may be entitled to at law or in equity against the person who has committed such act or against his estate. FEES. Sec. 88. The fees of the registrar shall be as follows: On the filing of any application for first registration the applicant shall advance the sum of $15, which shall be in full of all services of the registrar and examiners up to the granting of the certificate of title. When the application includes titles derived from more than one source, an additional sum of $5 for each source shall be advanced. For granting certificate of title upon each application and registering the same . . $2 00 For registering each transfer, including the filing of all instruments connected therewith, and the 'issue and registra- tion of the new certificate of title 3 00 TORRENS ACT OF ILLINOIS. 45 When the land transferred is held upon any trust, condition or limitation an additional fee of 5 00 For entry of each memorial on the regis- ter, including the filing of all instru- ments and papers connected therewith and endorsements upon duplicate certificates 3 00 For filing copy of will with letters testa- mentary, or filing copy of letter of administration and entering memorial thereof 5 00 For the cancellation of each memorial or charge 1 00 For each certificate showing, condition of the register 1 00 For any certified copy of register or any instrument or writing on file in his office, the same fees now allowed by law to recorders of deeds for like services. All fees collected by the registrar or other of- ficer, under this act, shall be paid into the county treasury once every thirty (30) days. Sec. 89. This act shall be construed liber- ally so far as may be necessary for the purpose of effecting its general intent. INDEMNITY FUND. Sec. 90. Upon the first bringing of land un- der the operation of this act consequent upon the application of the owner, as hereinbefore pro- vided, and upon the issuance of a certificate of ti- tle pursuant to section seventy-two (72), and al- so upon the entry of a new certificate showing some one, either by devise or by descent, as registered owner, there shall be paid to the registrar one-tenth of one i3er cent, of the val- 46 TORRENS SYSTEM. ue of such land. Such value shall be ascer- tained by the registrar. Sec. 91, All sums of money received as aforesaid shall be paid by the registrar to the county treasurer of the county in which the land is situated, for the purpose of an indem- nity fund under the terms of this act. It shall be the duty of the treasurer to invest all of said fund, principal and income, in his hands from time to time, if not immediately required for payments of indemnities, in the manner herein provided, and report annually to the county court the condition and income thereof. All investments of the fund, or any part there- of, shall be made with the approval of said court, by order entered of record. The said fund shall be invested only in the bonds and securities of the United States, or of this State or counties, or other municipalities of this State. PROCEEDINGS TO RECOVER COMPENSATION FOR LOSS OR DAMAGE. Sec. 92. Any person sustaining loss or dam- age through any omission, mistake or misfea- sance of the registrar, or of any examiner of titles, or of any deputy or clerk of the regis- trar in the performance of their respective duties under the provisions of this act, and any person wrongfully deprived of any land or any interest therein, through the bringing of the same under the provisions of this act ; or by the registration of any other person or owner of such land; or by any mistake, omis- sion or misdescription in any certificate, or in TORRENS ACT OF ILLINOIS. 47 any entry or memorandum in the registry book, and who by the provisions of this act is barred or in any way precluded, from bring- ing an action for the recovery of such land or interest therein, or claim upon the same, may bring an action at law against the treasurer of the county in which such land is situated" for the recovery, of damages to be paid out of the indemnity fund. If such action be for the recovery of loss or damage arising only through any omission, mistake or misfeasance of the registrar, or of any examiner of titles, or any deputy or clerk of the registrar in the performance of their respective duties under the provisions of this act, then the county treasurer shall be the sole defendant for such action. But if such action be brought for loss or damage arising only from the fraud or wrongful act of some person or persons other than the registrar, his examiners of titles, deputies and clerks ; or arising jointly through the fraud or wrong- ful act of such other person or persons, and the omission, mistake or misfeasance of the registrar, his examiners of title, deputies or clerk, then such action shall be brought against both the county treasurer and such person or persons aforesaid. In all such actions where there are defendants other than the county treasurer, and damages shall have been recovered, no final judgment shall be en- tered against the county treasurer until exe- cution against the other defendants shall be returned unsatisfied in whole or in part ; and the officer returning the execution shall certi- 48 TORRENS SYSTEM. fy that the amount still due upon the execu- tion can not be collected except by application to the indemnity fund. The court being sat- isfied of the truth of such return made upon proper showing, may order the amount of the execution and cost, or such part as shall re- main unpaid, to be paid by the county treas- urer out of the indemnity fund. It shall be the duty of the state's attorney of the county, or the county attorney, if there be one, to ap- pear and defend all suits that may affect such fund. TIME OF PROCEEDINGS LIMITED. Sec. 93. No action or proceeding for com- pensation for, or by reason of any deprivation, loss or damage occasioned or sustained as pro- vided in this act, shall be made, brought or ta- ken, except within the period of ten (10) years from the time when the right to bring or take such action first accrued; except that if at the time when such right of action first accrued the person entitled to bring such action or take such proceeding is within the age of twenty-one (21) years, or if a female, of the age of eighteen (18) years, or insane, impris- oned, or absent from the United States in the service of the United States, or of this State; such person or any one claiming from, by or under him or her, may bring the action or take the proceeding at any time within two (2) years after such disability is removed, not- withstanding the time before limited in that behalf has expired. , TORRENS ACT OF ILLINOIS. 49 SUBMISSION TO VOTE OF COUNTY. Sec. 94. The provisions of this act shall not apply to land in any county until this act shall have been adopted by a vote of the peo- ple of the county at an election to be held on the Tuesday next after the €rst Monday in November of the year in which the question is submitted. The question may be submitted in the fol- lowing manner: In any county of the first or second class, as the same are classified in the act "concerning fees and salaries," on the pe- tition of not less than one-half of the legal vo- ters, to be ascertained by the vote cast at the last preceding election for county officers, or in any county of the third class upon petition of not less than twenty-five hundred (2,500) le- gal voters praying the submission of the ques- tion of the adoption of this Act, the clerk shall give notice that such question will be submitted at such election and shall cause to be printed on the ballots to be used for said election : FOR THE TORRENS LAND TITLE SYSTEM. AGAINST THE TORRENS LAND'tITLE SYSTEM. The votes cast upon that question shall be counted, canvassed and returned as in the case of the election of county ofl&cers. If the ma- jority of the votes cast on that subject shall be for the Torrens land title system this act shall thereafter be in force and apply to lands in that county. THE NEW SYSTEM WOULD NOT DISADVANTAGE THE LAWYERS. It is objected, tliat it takes, from the legal profession a portion of their business. It is true that one of the advantages claimed for the Torrens System is, that under it, no in- vestigation or legal opinion as to the validity of titles is necessary, and that the forms of transfer are so simple that for ordinary trans- actions no professional skill is required in us- ing them. It is believed, however, and many members of the profession share in the opinion, that the increase in the number of transactions aflEecting land, will eventually largely make up for any loss in this respect. Were the Torrens System in force, many transactions would still have to be carried out under professional advice. And as far as the present generation of lawyers is concerned, there can be no doubt, that the professional services necessary to bring existing titles to land into such a shape as will warrant the issue of an absolute certif- icate under the new system, will fully equal any loss that may arise from diminution in conveyancing charges for many years to come. There can be no question but what the new system will very early popularize itself and receive the general approval. And it can be reasonably looked for that the legal profess- ion will afford only a v^ery rare opponent, but be found its loyal friends and advocates — without regard to considerations of personal . — ^ — i.- THE TORRENS SYSTEM REGISTRATION AND TRANSFER OK THE Title to Real Estate Exposition of the System as Modified and Recommended by the Illinois Torrens Commission. AN ESSAY: BY HARVEY B. HURD, L.I/.D., OK THB CHICAGO BAR. The Commission referred to was appointed in 1891, and made its report to the Governor, December 10, 1892. It recommends the adop- tion of the Torrens System, with some modi- fications , and was accom-panied by a bill em,bodying the views of the Commission^ The bill was laid before the legislature and *Judge Hurd, v^ry willing fhat his conclusions (after a most careful study of the merits of the Torrens System), should be spread abroad, obligingly placed his admirable paper at our disposal. Clear and logical in statement, it is an invaluable contribution to the cause of title registration. EDITOR. 52 TORRENS SYSTEM. passed the Senate by a vote of 28 to 4, but failed to pass the House of Representatives, it lacking seven votes of the necessary majority. The policy of the commission was to make as few changes in the law of real pfoperty, as it now exists in Illinois, as possible, but to '' sifnply substitute registration of titles for the record, of deeds and other title. papers. To suit the bill to Illinois law, and to Is Suited Qi3yja.te the constitutional questions to Illinois that might arise under the Torrens La^, act as adopted in other countries, required a number of important modifications — not in principle, but in the way of accomplishing the purpose. To be able to appreciate the modifications made by the Commission, it will be important to state in as few words as possible the lead- ing principles upon which the Tdrrens System proceeds. Land ought -^r- Torrens, who was the author of be Basil ^^ original of the acts embodying the system, himself says, he started '"^"*° out with the idea that one ought to ferred. i^g sh\^ to deal with land — to buy and sell it — as, safely so far as title is con- cerned, and with as little expense, trouble and delay, as with other property: As for in- stance, shares of stock in a corporation, vessels, public funds, etc., the transfers of which are made upon some record. The difficulty with the old system is that no one can be absolutely certain whether he is buying a good title or a bad one. The , law has hedged about the transfer of real property ESSAY BY HARVEY B. HUED. 53 with many formalities and technicalities, a failure to observe any one of which may defeat the title. And as there is no one authorized to determine conclusively at the time of a transfer, whether these formalities and tech- nicalities have been observed or not, the pur- chaser must buy at his peril, and as a necessary precaution he must employ experts to look up the title, running it back to its source or to some indefinite time far in the past. It is not that titles thus carefully looked up often turn out to be bad, but it is the expense and delay which one is subjected to because of the possibility that it may so turn out, and because no amount of looking up will get rid of that possibility. It still hangs like a millstone about the neck of the title. Great i^jje great purpose of the Torrens Purpose System is to rid land titles of this of the peril, for with its disappearance, dis- „ appears all the expense, trouble and delay that attend running the title System. i,^(.]^ through previous transfers. The first step, therefore, is to provide an Mode of officer or set of oi&CGrs— experts, who can make an examination of title. Register- once for all, down to a given ti-me, ing Title, that is, down to thetime of the appli- cation to have the title registered, and the title being found to be in the applicant, to certify that fact, entering the certificate in a book called the Register, and delivering a copy to the owner, which certificate is con- clusive as to the ownership. This is called registering the title, and as 54 TORRBNS SYSTEM. you will see, is quite a difEerent thing from recording the instruments of conveyance or keeping an abstract of them. The title being thus registered, the next thing is to provide for subsequent dealings, and the act proceeds upon the theory that at each transfer of the title, all questions of form and substance must be conclusively settled, so that the purchaser will get just what he buys. If he buys a fee-simple clear of incumbrances, he will get a fee-simple clear of incumbrances; if he buys subject to incumbrances or any less interest than the fee, it will so appear upon the register and in the certificate that will be delivered to him, and there is no going back of the cet'tificate. It is a matter of no con- sequence to him, who qwned the land before him, or how many owners there may have been, or vi^hat nice questions of law have been or might have been raised upon the various con- veyances through which it has come down to him; they have all been settled and dropped into oblivion. _. ,. .. All this is made practicable and Simplicity -• 1 t, i.1 -1 comparatively easy by the simple of the manner in which the register is kept. System. The first certificate of title is the first thing that will appear in the registry, this being a new root of title back of which it is not necessary to go, all that need be attended nortzaze ^^ ^^ subsequent dealings. If the registered owner mortgages it, the mortgage will be filed in the office of the Registrar, and a memorial of the mortgage will be entered immediately under the certifi- ESSAY BY HARVEY B. HURD. 55 cate of title. When the mortgage is released, the notation will be canceled. If an execution or attachment is levied upon the land, the fact is certified to the Registrar, and he enters at the same place a memorial of the fact. When that is disposed of the memorial is disposed of, and so on as to everything that may affect the title up to the time of the next transfer. Transfer- When the owner wishes to transfer . _. . the land, he surrenders his certificate of title and it is canceled. A new one is issued to the transferree and registered up- on a new page. The dealings under the old certificate are closed and thereafter will pro- ceed under the new. Every successive certifi- cate constitutes a new root of title. If the transfer is subject to incumbrances or out- standing interests of any kind, the notation of them under the former certificate will be brought forward by entry under the new. When only a part of the land described in a certificate of title is transferred, a new certifi- cate is issued to the transferree for what he gets and another to the owner for the balance. "Clouds" "'" ^^^^ ^*^^ attempted to go into ex- ceptions as in case of fraud, etc., or on the iji-f-Q particulars beyond sufficient tO' Title give an understanding of the leading Cleared up, principles upon which the system pro- ceeds, which may be summed up in a as you go. . , ' . „, -' .f Single line: Clear up everything as you go along and have no after-claps. Short accounts and frequent settlements avoid difficulties. 56 TORRENS SYSTEM. Registra- j^ ^g optional whether one shall bring tion his land under the operation of the Optional. Act or not. Having given you an outline of the Where the system as it has been in use in South ' Torrens Australia since 1858, in Queensland System since 1861, in Victoria and New South Wales since 1862, in Tasmania since 1863, in New Zealand and British Columbia since 1870, in Western Australia since 1875, in England since 1875, in Ontario since 1884, and in Manitoba since 1883, I will D"ff' itres pro<^^^d to give you some account of the difficulties which we encountered encoun> jjj ^j^jg State, and which will apply to tered and all the States in the Union, and the modifications the commissioners have " embodied in the bill they recommended to the Legislature of Illinois. It will be seen by what I have said that the first certificate of title bringing the land under the Act, and each subsequent certificate or transfer of the same, are made conclusive im'mediately that _ . . they are issued and registered. It is Conformed -' . , . , i • i i.- clearly withm the legislative power *"* * of the countries named to do this. Constitu= yIq have, however, in the several tions of State constitutions, and in the 14th Illinois and Amendment to the Constitution of the that of the United States a restriction upon the „ _ legislative functions tAa^ puts it out of the power of any legislature to give this immediate and conclusive effect to the first certificate of title — that bringing the land under the Act. To give it such an ESSAY BY HARVEY B. HURD. 57 immediate effect would be to cut off vested rights in a manner to which the possessor has I d mnit "°^ given his consent, and without giving him a day in court, a thing that Fund cannot be done. This fact has been Waived, urged as an insurmountable obstacle to the adoption of the system in this country; but instead of its being such, it led the Commissioners to recommend what they considered a much better way than to cut off at once all adverse claims and turn the adverse claimants over to an indeninity fund as is done in some of the countries mentioned, but not in all, as for instance, not in England. When such a fund is raised, it is by requiring the owner upon first registration to pay into the public treasury a small per cent of the value of his land. This is a burden upon the land that it was thought it would be very desirable to avoid if possible. The Commissioners found . that both the constitutional objection and the indemnity fund might be statute of avoided by the introduction of a short Limita- statute of limitations^ whose effect tions would be to cut off all claims adverse to the title certified, which are not 'brought forward within a certain time after the registration of the certificate of title. . Under the bill recommended by them, the first certificate of title Title first would be obtained and registered the Registered. same as Under the Torrens acts, and as to all persons dealing with the land thereafter, it would be binding, but as to 58 TORRENS SYSTEM. persons who may have some adverse interest in or claim upon the land at the time of such first registration, it would have no effect except to start the running of the statute of limitations, so that any person having a claim adverse to the certified title may within the time limited, and not thereafter, bring forward his claim and enforce it vv^ithout prejudice thereto on account of the certificate. The Tim for time suggested was five years. The registration of the certificate of title running of starts the running of statute of limi- statutes of tations, and nothing will arrest its run- Limita^ ning except the interposition of some .. adverse claim which must be made to appear upon the register; therefore, when the five years, or whatever the time limited may be, has expired, and nothing ap- pears upon the register to the contrary, the conclusion is inevitable that nothing can ever be brought forward to disturb the title. The advantage of the limitation proposed over any existing statutory or common law limitation is that it is based wholly upon, matters of record, viz: the registration of the certificate of title. As it is started by matter of record, so, if it is arrested at all, it will be arrested by a matter that will appear upon the same record; thus, whether all adverse claims have become barred or not can be told by looking at the record. All existing limitations rest for their effect upon facts, some or all of which do not appear of record and which mtist be proved wjienever the title is attacked, the evidence of which may or may not be ESSAY BY HARVEY B. HURD. 59 obtainable. The existing statutes of limita- tions may as a matter of fact correct every defect in a title and yet, as that does not appear of record, it is of little or no value in marketing the title. It will be observed from what has been said, that the conclusive effect which the bill as re- commended gives to the registration of the title does not reside in the certificate itself, nor does it depend upon the ability of the legis- lature to vest in the registrar judicial powers. p It is freely admitted that the legisla- ture cannot vest in him the power to of the make a conclusive finding as to the Legislature title, except the matter is submitted d Eff t ^^ ^^"^ ^y ^^^ consent of the person to be bound, or by those under whom of statute ijg claims. The conclusive effect is of Limita- derived wholly from the Statute of .. . lyimitations, the facts upon which its operation depends having occurred. The registration of the certificate is one of these facts. After the statute has run the time limited, it becomes an all important fact like the fact of adverse possession or payment of taxes under some one of our present statutes of limitation. The limitation proposed does not run against any one in possession of the land at the time of registration, and continuing in such posses- what the ^^0"^ ^^' ^^^ time of a subsequent _ . transfer. The Torrens act gives to the certifi- "cuts off." ^^^g ^f ^-^jg ^jjg ggg^^ ^f cutting off the claims of all persons, those under disability 60 TOERENS SYSTEM. as well as of those not under disaoiuty, except when they allow, as in England, possessory titles to be registered without examination, in which case the certificate is not conclusive. The reason why it is desirable to cut off every possible adverse claim is that if there may possibly be such a claim in any case, it must, be looked for in every case, for there is no telling that it does not exist in the title in hand without having first made the necessary search for it. For the same reason it is im- portant that the Statute of Limitations recom- mended should bar every sort of adverse claim, those of persons under disability, as well as of others. It was no doubt due to the fact that Of I f nt ^^^ ^^^^ ^^^ ^^^ except infants and lunatics from the operation of the *"<* limitation that it was defeated in Lunatics, the final vote in the Assembly of 1893. Our sympathies are easily aroused in behalf of those who are supposed not to be able to look out for themselves, and ■ the opponents of the bill by their impassioned appeals in favor of this class, were able to in- duce many to vote against the bill who would otherwise have voted for it.* Fortunately it is not vital to the Saving system that this class of persons be Conai=- included in the limitation. If they are not included, however, any person dealing with the title will still have to do so at his peril so far as their rights are concerned, and consequently will wish to pos- sess an abstract of title down to the time of first registration that he may see to it that no ■Mntfi * In TnH*»mnifir Fund nrnvirtpH inr in thp Act nnrirnvprt IliriA r9_ ESSAY BY HARVEY B. HUED. 61 such rights have been overlooked by the E)x- Bxaminer ^^i^^^rsJ Of course, none yviW exist if the Examiners have done their duty. to bean -^q ^j^jg (,^jj ^^ registered until it has Expert. been subjected to the examination of two or more expert examiners, and they have united in a written report to the Registrar that the applicant has a good title to the estate or interest in the land, as stated in his application. If there is any outstanding Riehts of ^'^^^^'^^'t i'l 3,n infant or lunatic, or for that, matter, in any one else than the Infants and applicant, the certificate of title must Lunatics be refused until it is removed by a r. * 4. ^ Court of competent -jurisdiction. All Protected. j i- ^-.i •' i , . our dealings with real estate are upon the understanding that an examination of the title by an attorney qualified to do that busi- ness Aivill disclose the fact of an outstanding interest if one exists; and I think it is safe to say that not one time in a million does it turn out otherwise. It is a question of public policy whether the great majority must suffer delay and expense for fear that one man in many thousands may suffer loss; especially when we consider that what he gains some one else must lose. . . ^ There is not a little inconsistency in the law with reference to persons tency of the„ji(jer disability. Though the Statutes Law as to of Limitation except such persons infantsand from their Operation, the courts have invented a maxim which takes many cases out of their exception. The maxim is, that when a statute once begins to 62 TORRENS SYSTEM. run it will keep on running notwithstanding the intervention of the rights of infants or lunatics. I will illustrate this by quoting from an eminent author on the subject: "If the right or title be in an infant, the case is within the saving of the statute, but if in an adult, who soon after dies and the title des- cends to an infant heir, it will not save the lapse of time, for the limitation began to run before the title was acquired by the infant heir." This distinction is taken for the sake of repose, and is favored by the Courts. '•Burnt ^ notable example of the applica- tion of the policy for which we con- Record ^eji(j is found in the legislation of this Act" as it State. The ninth section of the „ ^ "Burnt Record Acf [for benefit of the county of Cook] provided that Infants and certain abstracts, copies, minutes, etc., Lunatics, showing deeds, etc., to have been executed, should be received in evi- dence, and when so received it should be pre- sumed that the deeds so shown were executed except as against infants, persons of unsound mind, married women, etc. Jn 1887, the legis- lature amended that section by leaving out the saving as to infants, persons of unsound mind, and married women. So far as I know, the amendment has proved satisfactory. Another set of objections to the Torrens System pertain to the method of transferring and dealing with property after it is registered. ESSAY BY HARVEY B. HURD. 63 Efficiency ^^ before stated, the system rests for its efficiency upon the idea that all of tlie questions of form and of substance Torrens which may be involved in a transfer System ^-^ ^^^^^ should and can be legally and safely settled- once for all at the time of the transfer. For example, if A proposes to transfer to B a fee simple clear of all in- cumbrances to a certain piece of land: several questions will arise, viz. (1st) Has A a fee simple title to that land? (2nd) Is it clear of all incumbrances,? (3rd) Are the instru- ments of transfer in the form required by law? These questions arise in every case of transfer. inefficiency^"*^^.^ ^"^ present system they are submitted to the purchaser's lawyer, ** t**^ and he gives his opinion upon them. Present and upon that opinion the purchaser s stem buys, but that opinion settles nothing: The purchaser buys at his peril and every subsequent purchaser buys at his peril, not simply as to the title of his im- .j,^^ mediate grantor, but of every previous grantor. Necessary jf these questions are to be settled Grant of at the time of each conveyance there p^^^^ must be some person authorized to then settle them, and this person is to the the Registrar, who is the Keeper of Registrar the Records, and has official know- . .. ledge of all the facts necessary to enable him to do so; for it must be Legislature i.ejjigm]-,ej.e^ that after land is once is Consti- registered everything that can effect tutional ^^ ^^^^^ *^^ ^^ registered owner must appear on the register, which is so 64 TORRENS SYSTEM. kept that it can be discovered at a glance. It will usually all appear upon one page. The Registrar has the legal advice of two or more Examiners learned in the law, land there are many things he cannot do except upon their advice. Wherever the Torrens System has been adopted, there is no question raised as to the ability of the legislature to vest this power in the Registrar, and in no instance has there been any complaint against the exercise of the power of that officer. . - . „ ^ In this country, the same constitu- tional question is raised against the stitutionai bestowment of that power upon the Objections Registrar, as in the case of first reg- netand istration, viz: that his findings, if they ...... are to be held to be conclusive, may have the effect to divest one of his title and vest it in another; and he not being a judicial officer and the proceeding not being in court with all the parties before it, such a thing cannot be done. The question is a most important one and the Commissioners did not overlook it, but they thought they could see a clear way of meeting the objection without violating the constitution, and that was by deriving the power through the agreement of the owner implied in the act of bringing his land under the operation of the law. So they put into their bill the following section: "All dealings with land or any estate or interest therein after the same has been brought under the act, and all liens, incumbrances and charges upon the same subsequent to the first registra- ESSAY BY HARVEY B. HURD. 65 tion thereof shall be deemed to be subject to the terms of the act and to such amende ments and alterations as may hereafter be made." By bringing his land under the Act^the owner, with the consent of the legislature, makes an Powers agreement which runs with the land, that the Registrar may supervise the of the transfers of the title that shall there- Registrar after take place and decide all ques- Settled fiotis of form and substance that may arise in any such transfers and give conclusive certificates of title upon such trans- fers, thereby constituting the Registrar an arbitrator in the premises. There is noth- ing novel in the creation of an arbitrator by agreement and giving to his finding conclusive eflEect. Nor is there anything new in making agreements that run with the land. Nor, is there any reason why the legislature cannot determine beforehand that a certain agreement may be made by the owner and that it shall run with the land and what its effect shall be. I <.» »„ »„^ It is a common practice in leases Leases, and . . ^ and especially in long leases — say for Effect of ninety-nine years — to insert a clause Agreement.that in case a dispute shall arise between the lessor and the lessee or their assigns, the same shall be submitted to the decision of one or more arbitrators either designated in the lease or to be chosen in a way set forth. These agreements are good in law and the finding of such arbitrators within the terms of the submission are binding upon the parties and their assigns. 66 TORRENS SYSTEM. Doubt as to But, conceding that this objection the Com- is met, the opponents of the Torrens petency of .System raise still another against the Registrars Registrar, viz.: that the office being Unreas n= ^^^'^^i^^' ^^^ person elected will most likely not be competent to discharge * ^' the important duties imposed upon him. Who knows that such will be the case? There are many elective officers who are dis- charging quite as delicate and important functions as are required of the Registrar, such as governors, judges, clerks of courts, comp- trollers, treasurers, etc.; still, we keep on N lack of fi^^^^S these offices by election. The fact is, there is no want of competent Competent material and the people are pretty apt Men. to pick out their officers with reference to the duties to be performed by them. As a rule, a mean office gets an inferior man and a responsible office gets a competent man. When the people cease to elect men equal to the duties of the office to which they are elected, the elective system will have to be abandoned. Comnet- ^^ ^ similar nature is the objection that the Examiners, the legal advisers ancyof ^f the Registrar, "will be selected Registrars from among political favorites^ and and Legal therefore may not, and most likely will not, be competent." This class Advisers ^f q]-, j ections is altogether con j ectural. is ample. The best light we have upon the mat- ter is our own experience in similar cases, which is to the effect that such offices have been fairly well filled; and the experience ESSAY BY HARVEY B. HURD. 67 of those countries where the Torrens System has been in operation, shows that there has been no lack of ability and fidelity in these ofiicers. The duties are of such a nature that the officer soon becomes an expert vjhat- ever may have been his previous trainings and there is every reason why he should per- form them well for his own sake. He is m^ade pecuniarily responsible for any failure to do so resulting in a loss. In nine hundred and ninety-nine transfers in every thousand, there will be nothing intricate in the duties; they will be merely clerical. They are not more difficult nor do they involve larger interests than the transfer of stock in a corporation, which is attended to by its secretary or most likely by some clerk. Among the very serious defects in the present system is, that there are the Present gQ many facts affecting titles that System, never appear of record. Among them . are the facts attending the transmis- sion of title by descent. The fact of by the death of the owner, who are the next Torrens of kin, whether there is a widow or surviving husband, etc., are all facts which the la,w makes no provision for getting upon the record so far as real estate is concerned, and which have to be looked up again and again as often as the property is dealt with. The Torrens 'acts furnish a complete remedy for this defect. Under them registered lands instead of descending directly to the next of kin, go to the executor or ad- ministrator substantially the same as person 68 TORRENS SYSTEM. alty. Proof of heirship is made before the Probate Court, and that court finds the re- spective shares of the heirs, and orders the executor or administrator to make conveyances to them accordingly. This order being filed with the Registrar and the certificate of title of the decedent being delivered up, the trans- fers are made and the several heirs receive certificates of title to their respective shares. But here again we are met with an objection that this imposes new duties upon the Probate Court as if there were something terrible in that. We are constantly imposing new duties upon that court for the convenience of the people. One of these new duties is the sale of real estate for the payment of debts, and no- body ha^ been hurt by it. The county courts in this State except in two counties are also Probate Courts, and do the probate business. When some years ago it was proposed to raise the jurisdiction of these county courts, as was done, it was most vigorously objected, that "that would never do; the judges were not competent to be instrusted with such import- ant duties";" but the people very soon remedied this fault by electing men equal to the responsibilities. N er Safe '^^ ^^^ ^^^ ^°^ stands, it is never safe to bay on the faith of the record; to Buy that does not necessarily show where under pres=the legal title is, or if it does show in ent Land whom the legal title is, there may be System some one else who has an equitable title that will wrest it from him or his grantee. I have in my mind a case that ESSAY BY HARVEY B. HURD. 69 will illustrate this. A, being the owner of Pertinent ^'^^^ ^^'^ wishing to conceal the fact of his ownership, conveyed it to B, iilustra= ^iio conveyed to C, and C to D, and tions. D to E, — all of whom recorded their deeds. The title thus remained out of A some eight years. B sold it to an inno- cent purchaser. The purchaser before closing his purchase had procured an abstract which showed the title in D. He went upon the land to see if there was any adverse possession; he found there an old fence that had been put there by A when the title was in him, and that some one had used the land for pasture bjit no one living upon it, he naturally attributed all he saw to E's ownerslfip and concluded his purchase; but A now came forward, and upon showing that it was he that had built the fence and pastured the land, the Court gave him the land on the ground that those acts were sufficient to establish adverse possession, and that therefore the purchaser had con- structive notice of his equities and bought subject to- them. So the purchaser lost his money. In another case, a non-resident own- ing a large tract of land for over twenty years and paying all taxes upon it during that peri- od, coming to sell it, he found a person upon a part of the land who had entered without right — a mere trespasser, but as he had been there for twenty years, the real owner had lost his title and the trespasser had gained title by his adverse possession. One other typical case. A person died leaving a valua- ble piece of land and two children — half broth- 70 TORRENS SYSTEM. ers; one was of age and the other was a minor. There was no administration of the estate, and there needed to be none as there were no debts. The elder of the half brothers assumed to be the only heir and sold the land. The other not being informed of his rights until after the statute of limitations had run against him, lost his share of the land. g These are instances of hardship — downright wrong, growing out of under the rules that were invented to prevent Torrens still greater wrong. Under the g Torrens System, as embodied in the bill proposed by the Commission, neither of these cases of wrong could have occurred: the first' wrong could not have occurred, because the record is conclusive evidence of title; the second, because no title can be obtained except by a transfer upon the record; and the third for the same reasons, and because the land of the deceased father could not have been dealt with except after proof of heirship, and in pursuance of an order of court finding the rights of the two heirs. g The objection is sometimes urged, that "if we had an easier way of versus transferring land, a great many per- Difficuit sons would dispose of their land who Means of should not and would not if the opera- tion were more difficult." We might Land answer, there would for the same Transfer, reason be quite as many others who would buy land as they ought to do, who will not do it now because of the doubt, delay and expense of getting a good title. ESSAY BY HARVEY B. HURD. 71 For it must be remembered, that a considerable portion of this expense and all the risk falls upon the person who wishes to buy. This Obsolete objection is a relic of the old feudal „. . . days, when one could not alienate his ' ' 'lands at all; but now the progress of civilization, the growth of individual indepen- dence and reliance, and the liberalizing in- fluences of trade, have been sweeping away those old notions one after another, until the demand is upon us to do away with this last remnant of that dead and decayed prop of autocracy. Under the Torrens System there will be no less formality in conveyances than now; the same instruments of conveyance will be used, but to which will be added the surrender of the certificate of title and taking out a new one. The difference will be, that the transfer will be supervised in such a way that when it is done it will be rightly and conclusively done, and there will be no going back of it. Vain ■'■ have not the time to mention all the objections that were made to the Objec= adoption of the Torrens System in tions to this State. They were as various as Torrens ^^ fancies of the objectors. With the exception of the two constitution- System. ^ questions I have mentioned, they had all been urged in each of the countries that have adopted it as a reason why the sys- tem would not answer. We thought that we were making a knock-down argument by show- ing them that it had worked well in all those countries, and by insisting, that the proof of 72 TORRENS SYSTEM. the pudding was in eating it. But we found that would not do. When we mentioned South Australia and showed the official reports to the effect that none of the evils that were predicted had occurred there in the thir- ty-five years it had been in operation, they answered, "O, it may do very well in such a new country, but Illinois is too old to adopt a new system." And, when we mentioned Prussia, where the improved Torrens System has been in use since 1872, and .in England, where it had been in use since 1875, and sug- gested that these countries were quite a match for Illinois in point of age, they replied: "But, O, those are slow coach countries compared with this enterprising State; and there are ten transfers in Chicago to one in London or Ber- lin." We replied to this weak objection, that the more frequent the transfers, the greater the necessity for a' safe, expeditious and in- expensive way of making them. Source of '^^e Opposition in England came theODDo= f*"^*^ conveyancers; their objections were cogent and most forcibly put, sition. 2irLA have been frequently quoted in this country. They were most deeply inter- ested against it. It was a question of bread and butter with them, and their opposition did not cease on the adoption of the Torrens System into law. As it was permissive and not compulsory, it rested with the owner whether he would bring his land under it or not, they were able to keep a great many from registering their titles, and caused it to move slowly. As the registrar or his examiner made ESSAY BY HARVEY B, HURD. 73 all the examinations of title, there was noth- ing forsooth in it for the profession in general! Some writer, in a very dignified article pub- lished in a leading lyondon magazine, suggest- ed that "the act be so amended as to give the solicitors something in it." And, it was amended, so that- the registrar might adopt the examination of title and opinions of any reputable lawyer. Since that time, registra- tion has moved forward more rapidly in Eng- land, and now the question is being agitated to make the registration of titles compulsory . Shall the ^\^^ question is no longer, " Will ^gjj.gjjjg^the Torrens System work and prove satisfactory if adopted?" Its value revai , or j^^^ been demonstrated by its use in the Great ^11 countries where it has been adopt- Pubiic be ed. The question rather is, whether Advant= the great pecuniary interests which aged? have grown up and draw their living from the faults of the present system, are going to continue or end their opposition to so wise and beneficent a reform in the in- terests of the people? Note. — An Indemnity Fund is provided for in the Act, as adopted June 13, 1895, for the payment of any claims which might duly arise under the Act. See Sections 131 to 134. — Editor. THD TORRBNS SYSTEM, BY ITS AUTHOR. Sir Robert Torrens, speaking in behalf of his system of transfer of the title to real property, says, "It is not necessary to exaniine abstracts of title — these no longer exist, they having been delivered up to the Regis- trar, and that officer, vp-henever he grants a Certificate of Title, cancels all previous evi- dences of title. Accordingly, an investor runs no risk of a blunder or any incompetency of the conveyancer or examining solicitor. Every transaction has its complete security and finality. In fine, the benefits which have attended this measure, wherever adopted in its integrity, may be summed up: ist. 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 exchanged brevity and clearness for obscurity and verbiage. 4th. It has so simplified ordinary dealings, that he who has mastered the "three R's" can transact his own conveyancing. 5th. It affords protection against fraud. bth. It has restored to their just value many estates, held under good holding titles, but de- preciated in consequence of some blur or tech- nical defect; and has barred the re-occurrence of any similar fault. 7th. It has largely diminished the number of Chancery Suits, by removing those conditions thai" affnt-H crmnnrlc fr.r tVipm '' THE CONSTITUTIONALITY OF THE Torrens Land Law Maintained BY JURISTS. EXTRACTS FROM ESSAYS I. By HEMAN W. ChaP|Iand the new system^ of the law m^ak- ing powers. *Mr. Thomas Cochran, banker, of St. Paul. THE TORRENS SYSTEM OF Registration and Transfer OP THK TITLE TO REAL ESTATE ITS PRINCIPLES EXPLAINED AND ITS METHODS SET FORTH. M. M. YBAKLE, EDITOR. CHICAGO: The Torrens Press, Sales Office, Rdfus Blanchard, i6g Randolph St. 1894. "To Inuite and Facilitate ttiat Line of Proceeding which the Times Call for. " — i. Hookee. "The Reasons are both Good and Weighty. " "The mistress whom I Serve Quickens what's Dead. " "Wilt Thou, after the Expense of so Much Money, be now a Gainer?" "Deliuer Him to safety. 'I Save You that Trouble, Sir." — Shakespeare. "Speed: To Describe whose Swiftness Numbers Fail. ' — Milton. The Reader is Referred to Page 110, COPYRIGHT, 1894. BY THOMAS W. TEAKLK. ALL EIGHTS EESBEVED. RECOMMENDATION. THE CHICAGO REAL ESTATE BOARD. CHICAGO, February 14, 1894. Dear Sir: I am pleased to learn that you are about to issue a book, setting forth the mode and manner of the Tor- rens System of Registration and Trans- fer of Title to Real Estate. From reports made to me by compe- tent gentlemen, who are themselves critically familiar with the subject, and who have examined the manuscript of your book, I believe it will be the most complete work in reference to the Torrens System published in this country. The Chicago Real Estate Board is greatly interested in this subject, and any knowledge that you are able to give the public will be welcomed by it, and by all citizens who are anxious for relief from the present system, that is continually growing more expensive and cumbersome. Very truly yours, EUGENE H. FISHBURN, President, Chicago Real Estate Board. To Mr. M. M. YEAKLE, Chicago, 111. TO THB RBADBR FROM THE PUBLISHERS. Extensive popular disccussion of the Torrens System stirred up inquiry for information upon the subject, and led to the production of this book. Competent critics, themselves familiar with this system, and to whom the manuscript of the book was submitted, have freely re- commended this work. It goes out with modest pretentions as to merit, but in the belief that it will be found suitably instructive, and the hope that it will be favorably received. Literature upon the Torrens System is rather meagre, and is mostly confined to the "Legislative Acts" of the countries where the system has been introduced; to a small work by Sir Robert Torrens, published in England; a number of pamphlets and essays in law journals — emanating mostly from England, Canada and Australia; and some such in this country. Also, the report of the Torrens Commission of Illinois, and the "Bill for an Act," submit- ted to the last legislature of the State of Illinois; also, a "Bill for an Act" now under consideration by the General Assembly of the State of Massachusetts. For meeting the special want of such a book, great pains were taken to make a very thoiough presentation of the new system of title registration and transfer; to which end the authorities upon the subject in England and the different British Colonies and Pro- vinces were diligently consulted by the Editor. The special nature and value of the subject called for a good quality of makeup, such as will be found in this book, while the price is suited to assist a wide circulation. Chicago, May i, i8g^. The Torrens System of Registration and Transfer of Title to Real Estate. CONTENTS. PAGE. Recommendation of the Book by Chicago Real Estate Board Ill By the Publishers IV Contents V Preface IX Introduction XIV PART I. Chicago's Efforts on Behalf of the Modern System 21 Sketch of the Life of Sir Robert Richard Torrens 24 Origin of the Torrens System ->.•] The Difference: Transfer by Deed and by Registration of Title 29 The Certificate of Title— Torrens System . . 31 The Torrens System by Its Author 32 Whence Comes Opposition to the Torrens System? 34 VI. CONTENTS. PART II. PAGB. The System Approved by Eminent Jurists and Political Economists 35 The Practical Operation of the New System . 36 The Torrens System Invites and Facilitates Sales and Loans 38 The New System Would not Disadvantage the Lawyers 39 Who are Friends and Advocates of the New System? 40 The People Would be Benefited by the Torrens System 41 PART III. The Importance of Land Transfer Reform ... 43 What are the Prospects of Early Adoption of THE Torrens System? 53 Change from the Old to the New System — Easy and Inexpensive . . . 54 PART lY. Defects of the Present System — Shown by Examples in Canadian Experience .... 55 Enormous Waste of Time and Money Under the Present System 60 The Old and New System Reviewed. By Mr. J. Herbert Mason, of Toronto 62 Testimony on Behalf of the Torrens Sys'^'em, FROM the British Colonies 69 CONTENTS. VII. PART V. PAGB. Advocacy of the Toreens System in the World's Real Estate Congress: Speeches by President C.C. BoNNEY, of Chicago 73 Doctor Arthur Renwick, of Australia ... 77 Mr. Frank Miller, of California 78 Mr. J. Herbert Mason, OF Canada 80 Canadian Experience of the Old and New Systems 83 No Sufficient Ground for Opposition to the Torrens System 86 PART YI. Essay, on Behalf of the Torrens System, by Hon. Harvey B. Hurd, of Chicago 87 PART VII. Report of the Illinois Commission — An Investiga- tion of the Prevailing System of Transfer- ring Land Titles. And an Inquiry into the Practical Working of the Tokrens System of Title Registration of Real Property . . i u PART YIII. A Bill for an Act — Concerning the Registration of Land Titles; Suited to the Constitution OF the State of Illinois, and of the United States • PART IX, 131 Some Objections Preferred against the Torrens Transfer Bill, Answered by Hon. H. B. Hurd, OF Chicago. And, also by Mr. Theodore Sheldon, of the Chicago Bar 167 VIII. CONTENTS. PART X. FAGB Strictures upon the Torrens System, Mentioned AND Answered 185 American Critics and British Lawyers 191 The Torrens System, When Adopted in its Integ- rity, IS A Great Public Benefit 195 NEW System Makes Real Estate a Quick Asset . . 197 The Passing Plan 198 Recent End of Fedual Landlordism IN Hungary . 200 PART XI. The Prussian Land System, Adopted in 1872 — upon the Torrens lines 201 Expected Extension of that System Throughout the German Empire, in 1894 206 Title Tenure in i8th Century — Frederick the Great and the Miller 207 Best Results of the System in Prussia 207 PART XII. The Torrens System in England 209 Land Transfer Reform— Current Views: By Charles F. Libby, Portland, Maine 213 Heman W. Chaplin, Boston, Mass 222 James W. Car bet, Boston, Mass 225 W. A. Pickens, Indianapolis, Ind 227 Greater Excellence of a Registered, as Compared WITH A Guaranteed Title 233 Fictions and Frauds — Affecting Titles— Admitted TO Record-Book 238 In England— few Boundary Surveys and Plats; Custody of Title Documents 243 Progress made in Different States towards the Adoption of the Torrens System 245 Addresses of Commissioners in Different States tending towards the Torrens System . . . 247 Forms: Torrens System — Title Registration and Transfer 248 Forms: Land Transfer Refcrm League— Pro- spectus and Constitution 253 PREFACE. The editor undertook to compile and com- pose a book upon the Torrens System of regis- tration, and transfer of the title to real property. He was not too familiar with the principle, but investigated and studied it. He found it a system, and in no manner a contrivance, but the work of a genius of common sense. The present and prevaling contrivance of recording a deed of conveyance in a book, kept in the office of the "recorder" of the county in which the land is situated, is the plan prevalent in.all the States and Territories of this country. Formerly it was the most usual plan in all English speaking countries. It was brought to the American colonies about two hundred years ago. It is still in use in Scotland and Ireland, but in England only in the counties of Middlesex and York. Deeds are not recorded in the rest of England, but are deposited by the proprietors with their solicitor and con- veyancer. But Great Britian has adopted the Torrens System — by successive acts of the parliament. After all the pre-eminent aptitude of Americans in invention, it vj^as left to a Briton to discover that system, which the States of this country will adopt. Active discussion in England developed a "Royal Commisson", in 1854, to investigate the prevailing systems of dealings in land. The X. PREFACE. testimony of the best legal minds and of experts, was very liberally elicited. The evidence of a member of one of the most eminent conveyancing firms, taken before that commission, was — in his own language: '"'' That title by deed could not be demon- strated as an ascertained fact, but only be presented as an inference more or less prob- able, and deducible from the documentary evidence accessible at the time being." It was near this time that Robert Torrens first published in E^ngland a pamphlet in which he outlined his system. Sound thinking men in that country agreed with him, and after several years had elapsed — in the endeavor to compass the plan of Mr. Torrens — the Parliament passed the "Lord Westbury Act." Although the years follow- ing, up to 1875, as much as six millions of pounds sterling, ($30,000,000.00) in stated value of real estate^ was registered under it, the act through substantial variation from the Tor- rens plan failed of complete success. While this act purported to be upon the lines set forth by Mr. Torrens, it did not follow them^ in their integrity, and that gentleman pre- dicted its partial failure. In 1875, the "Lord Cairnes Act" was passed, and is still in force — having been twice since amended. It is upon the lines of the Torrens System. England approves it so well, that from only a voluntary use of the statute, a majority in parliament urge a new act — com,- pulsory throughout the realm. In 1893, the House of Lords passed a compulsory bill almost PREFACE. XI. unanimously, but it was arrested in the House of Commons by members — solicitors and con- veyancers — who thrive upon their great fees acquired by repetative title examinations. All the British Colonies and the chiefest of the Provinces have adopted the Torrens System, which will secure titles absolutely indefeasible, safe beyond any question of doubt, and which the present system utterly fails to accomplish. Brevity and simplicity are among its prom- inent features; and, accordingly, the system is speedy and not costly. It resembles the book- keeping of banks, which sets forth every thing relating to a personal account upon a single page — showing its status as in a mirror. In a similar manner, the Register Book of the Torrens System presents the status of title - to real estate written upon a single folio — seen at a glance. This entry, called the original (of the Certificate of Title issued to the owner), is, in the language of Mr. Torrens, "the pivot upon which the whole mechanism of the sys- tem turns." And it must be borne in mind, that it is one of the cardinal features of the system to settle — at the moment of each transfer — every ques- tion that m^ay affect the title, to say nothing of its far greater facilities for verifying titles and savings of time and costs. RADICAL REFORM ABSOLUTELY NECESSARY. In the ancient period of the feudal system in Europe, the art of writing was known to but few. Lands were transferred by corporeal investiture, and by open and public delivery in Xli. PREFACE. the presence of other vassals of the lord of the manor to which the transferred premises per- tained. The method of transfer in vogue in the United States is inferior to that just mention- ed. It is not only less secure and less certain, but it opens a wide door to fraud upon the title, and to technical errors. It wraps the title in a bundle of entanglement and obscurity; it en- tails litigation of almost endless duration, resulting often in loss of the land by equitable owners, and it inflicts great and needless suffer- ing and expense. Our time is so far in advance of the feudal days, that all men may, and multitudes do own land, bought by their industry and toils. But the true and valuable importance of the Torrens plan of transfer of title to real estate remained to be concieved until our advanced civilization should make it necessary: as the result of the rise and development of traffic and mercantile pursuits, and of great agricultural and manu- facturing increase and extension. The Torrens certificate of transfer possesses such simplicity and directness of purpose, such complete fitness and perfection of method — suited to our time — that every mind of ordinary perceptions must admit, that in a populous nation like ours, when transactions — not only in chattels but also in lands, are carried on to an almost fabulous extent, such a system of registering the evidence of ownership in real estate must be almost invaluable. But especi- ally when that evidence is contained and defin- itely expressed — not in voluminous abstracts PREFACE. X111. of matters of record — but in a single short paper, termed A CERTIFICATE OF TITLE, which is as readily marketable, and can be bought and sold with equal ease as that of a certificate of stock or a bond. That such a system should encourage mutual dealings between parties as to purchase and sale of real estate; that it should lessen litiga- tion and provide general security in matters pertaining to land, amounts to nothing short of a moral certainty. INTRODUCTION. The Torrens System of Registration and Transfer of Title to real estate is a new sub- ject comparatively in this country, but has begun to command a large measure of atten- tion from thoughtful citizens of different States. Knowledge of the system has spread very ' gradually. The first sight of the system to an inquirer is usually a novel surprise, and he is drawn toward it favorably by its common sense methods; but the investigator can hardly resist calling for its adoption. The more radical admirers of the Torrens System denounce the present contrivance of recording deeds, and demand a radical change. They insist, that the present plan is not up to, but behind our time. They liken it to the old mail coach with its four miles an hour, ten cents fare per mile, and twenty-five cents post- age for five hundred miles. They recall that, beginning fifty years ago, the lightning's flash sent language speeding a thousand miles each moment, and the steam locomotive — supersed- ing the mail coach — made forty miles per hour to its four; and that to-day the telephone responds to thought, while the subtile element of electricity is harnessed for the cheap and convenient uses of mankind. And, with these and similar views, it is demanded that, in dealings with land — in all real estate — the method should be expeditious INTRODUCTION. XV. simple and economical; and that these essential factors of progress and success should be observed in land as in other things. THE SYSTEM POSSESSES WINNING FEATURES. Wherever a knowledge of the Torrens System has been received, favor has attended it. Almost to a man, ow^ners and their agents, sellers and buyers of land, and lenders and borrowers of money on real estate security, are in favor of its adoption. The value of the new system is quickly appreciated by all who will examine and compare it with the present contrivance, which is unsuited to the public needs of the nineteenth century. The editor fully realized, that the informa- tion needed was the practical details of the Torrens System; that, whatever could be supplied, should be thorough and positively accurate in statement and description; to these ends he labored and leaves others, who are masters of the system, to speak of the measure of his success. This work necessarily is largely a compila- tion. The lengthier essays and shorter addresses, the able report of the Illinois Com- mission, and the "Bill for an Act," are valuable both for testimony upon the merits of the new system, but for instruction as to the rationale of its cardinal principle. These documents well deserve the attention of all inquirers, lawyers and legislators, and dealers in real estate, and money as well. The Torrens System, as set forth in the Illinois bill, may suit other States as well with XVI, INTRODUCTION. perhaps very slight alteration. It is possible that while the particulars of the proposed "Bill for an Act" may be improved by experi- ence, the principles upon which it proceeds, are the true principles of dealings in real property. The Torrens System invites the most rigid investigation. It can withstand all criticism. Repetition of certain facts and phrases could not be wholly avoided, but can well be over- looked in view of the partial necessity, but certain advantages. And, whatever imper- fections critics may see in this work, may well be excused, in consideration of the exceeding value of the subject, and the probability that it may help the earlier incorporation of the new system into the statutes of the different States. THE TORRENS SYSTEM BEFORE THE PEOPLE. As a measure of reform, the Torrens Sys- tem is well and favorably entered for contest. Its opponents are few in number, while in monied capital — in incorporated companies, in a few places, — they are powerful. The ancient lawyers' proverb, that "cor- porations have no souls, and, accordingly can neither be saved nor damned," is a very pass- able witticism. But it is not true, that incor- porated companies cannot be arraigned at the bar of public opinion, when manifestly oppos- ing the passage of a just and salutary statute. The board of management of such corporations have equal right with other citizens to their private opinion, but there is no uprightness in rising up in opposition to a wise law through INTRODUCTION. xvil. a fear of curtailment of their revenues. Cor- porations have received their right to transact their business from the people, who make the State: should they not then rather do, as says the great dramatist, " Return their duty back, as is right fit." We cannot believe, that the managers of the Guaranty of Titles companies vs^ill be too great- ly biased in their action, and be led to adhere in opposition to a measure of reform that would so greatly promote the public welfare, and even their own incidental advantage when critically examined. It cannot be denied, that a method of regis- tration and transfer — ^should not be deemed a great public benefit which — after registration — dispenses with a prolonged and oft repeated search through probable wagon loads of deed records — to find verity and value in a titi'i to real property. LAWYERS AND LAYMAN. The layman editor of this work, is apt to believe, that to edit it, the special mind of a LAWYER was not essential, but that one may do this work who can enter into practical questions of business occurring in every day lif e^ and whose practical training was not con- fined to a single line of thought and occupation. But, the keen logic of lawyers' minds is seen in much of the able matter of which this work is composed. Sir Robert Torrens, the author of the sys- XVUl. INTRODUCTION. tem bearing his name, was a layman — as lawyers term one who has not passed the curriculum of a law course of study — but he was in fact a maritime lawyer, made such by his long experience in such affairs. In the beginning, Torrens was tabooed by lawyers — inclined to resent his advice upon questions of reform in the land system. They would not recognize the fact, that he had been educated in the university of practical business life. Subsequently, nevertheless, the lawyers, in- cluding the Lord Chief Justice of England, took him cordially by the hand, and publicly acknowledged his practical wisdom displayed in his system of land transfer, which Lord Coleridge declared, was so greatly superior to the old methods that he advised and aided the task of the incorporation of the Torrens Sys- tem into the statutes of England. REFERENCE TO SOME PARTS OP THE BOOK. With slight exception, every paragraph of this work is in full concord with the leading topic, — the Torrens System. We insert as much of the able and persuasive arguments heard in the World's Real Estate Congress, as suits the scope and design of this book. In giving a portion of the Prussian "land law," of 1872, our purpose is to show, that reform in the methods of dealing with the subject of real property is not confined to English speak- ing countries. The "forms" inserted herein illustrate the exceeding brevity and simplicity of the Torrens System. INTRODUCTION. XIX. Diligent research has enabled us to give only a very brief sketch of the life and work of Sir Robert R. Torrens. But while we pre- sent his system to the inquirer, we also give some of his terse definitions and claims on be- half of its utility in what it has accomplished where it has been adopted. The faults and evils of the present system are ably set forth in the essay of Mr. J. Herbert Mason, of Toronto We insert in full the following valuable papers: First, The able report of the Com- mission, appointed by" the Governor of the State of Illinois, for the special value of its conclusions and recommendations. Second, The "bill" drawn for the State of Illinois, by the same competent commission. This bill is the first effort to adjust the Torrens System to the constitution and laws of this country; and will, no doubt, — on account of its clearness and brevity, and the evident skill with which it is drawn, — serve as a model for other States. Third, The reader will find special profit in the perusal of the Kssay by the Hon. Harvey B. Hurd (of Chicago), whose eminence as a lawyer should insure for it a careful study. While making a lucid presentation of the Torrens System, the essayist illustrates, advocates and enforces its merits; and, at the same time, ably sets at naught the objections of the few prejudiced opponents. Mr. Hurd's zealous advocacy can be received in proof of the great value of that system, but his high standing as a lawyer and citizen, together with XX. INTRODUCTION, his experience iru writing laws, may be taken for assurance of the worth of his opinions.* Chicago, March 1, 1894. *Judfie Hurd was the official revisor ol the General Statutes of Illinois 1874, and has compiled and edited several editions of the statutes since that time. CHICAGO'S EFFORTS ON BFHALF OF THF MODERN SYSTEM. The earliest public presentation of the sub- ject of the Transfer of Land by Registration of Title, as distinguished from merely record- ing deeds of title, was in January, 1883, in a pamphlet by Mr. Theodore Sheldon, the prominent lawyer of Chicago. It was intended, the author stated, more particularly for the information of "the members of the legal pro- fession who may be unfamiliar with the system" presented in the discussion which was "chiefly prepared from an essay by Sir Robert Torrens." The pamphlet invited special dis- cussion. At the 33rd session of the State Legislature of Illinois, 1885, a bill was introduced entitled an "Act for the Rest of Titles," (two sec- tions of which have been substantially incor- porated into the Illinois bill.) The bill was the product of the careful work of the Chicago Bar Association. It failed of enact- ment. Notwithstanding, members of that Association continued to hold up the question as one of too great importance to be abandoned. In 1889, the same subject was revived and received a considerable degree of attention by several associations and clubs. The Citizens Association — ever alert to notice and advocate whatever will promote the public welfare — took an active interest on behalf of the Torrens 22 TORRENS SYSTEM. System. About the same time, the Chicago Real Estate Board, led by Mr. Willis G. Jackson, began to take active steps to encour- age discussion, and to extend the limited area of information relative to that system. So enthusiastically, even joyously, was the knowl- edge of the improved system received by mem- bers of the Board, that they resolved to devote their energies to the task of promoting it, until it should be incorporated into the statutes. In 1891 the Real Estate Board invited Mr. Sheldon to address them and explain the Torrens System, which he did at one of the meetings of that body. Soon afterwards the State Bar Association aided by the Citizen's Association of Chicago, (the R. E. Board sympathizing) procured the adoption of a joint resolution by the 37th General Assembly, then in session, authorizing a "Com- mission to make investigation," and report,etc. The Governor appointed as that Commis- sion, Messrs. James K. Edsall, Theodore Sheldon and Willis G. Jackson, of Chicago; George W. Prince, of Galesburg, and Prank H. Jones, of Springfield. Mr. Edsall dying, the Governor appointed instead, Hon. H. B. Hurd, to fill the vacancy. The report of the Com- mission is dated Chicago, December 10, 1892, addressed to the Governor. The Commission recommended the Torrens System, some what modified, and accompanied their report with a " Bill for an Act," em- bodying that system. This bill, laid before the Ivegislature in 1893, passed the Senate by 28 CHICAGO'S EFFORTS. 23 yeas and 4 nays; but failed to pass the House of Representatives, lacking but 7 votes of the necessary majority. It was on the last day of the session, which prevented a reconsideration that might have resulted in the success of the bill. The Real Estate Board, to whose constitu- ency the provisions of the bill is particularly important, is continuing to use every legitimate effort to secure the enactment of such a statute. It will be again tried at the biennial session, which will be convened in January, 1895, in the full confidence that it shall then be adopted. Real Estate is defined, in the Revised Statutes of the State of New York, to be "co- extensive with land, tenements^ and heredita- ments of the common law." The registration op title is not only much less 'costly, but a much more efficient method than that of the recording of deeds. The former resembles the system of book- keeping used in banks: all transactions relating to a certain title are written upon the same folio; and accordingly, it is not necessary to search elsewhere. Lord CairnES, when advocating the Torrens System in the British House of Com- mons, declared that the evil results of con- veyancing by deeds of record could not be corrected, except by a radical change. SKETCH OF' THD LIFE OF SIR ROBERT RICHARD TORRDNS. Mr. Torrens devised the system of "Land Title Transfer," known as the Torrens Sys- tem. A gentlemen of this city informs us, that he was introduced to the noted man in lyondon, in 1883, and describes him as a person especially modest in demeanor, and of retiring manners. Little is known in this country of the per- sonal history of Mr. Torrens. After some research, we are enabled to present the in- quirer with the following brief sketch of the life of this useful man: Born in England, in the year 1814, he was sent out to Adelaide, South Australia, in 1841, by the British Government — in the employ of the Admiralty Office. He served his country, with such ability and usefulness that, upon his return to England, to remain in 1874^ — after thirty-three years of faithful service, he was Knighted by Queen Victoria. Sir Robert R. Torrens died at his residence, near London, in 1884 or '85. It is conjectured, that he acquired a fortune, begun in the palmy days of the gold finds in Australia. After a struggle with the lawyers, Mr. Torrens was successful in seeing his system introduced, in 1858, into South Australia. From that colony, the system was gradually adopted, and by legislative enactment became a statute in all the British Colonies of the SIR ROBERT R. TORRENS. 25 South Pacific ocean; and within the last ten years of the provinces of Ontario, Columbia, Manitoba, etc. , which also adopted it. Th rough the active exertions and influence of Mr. Torrens, England adopted his system. Mr. Torrens regarded the old land system as out of harmony with the progress of the age, resembling the impractical ideas of the Middle Ages— retained as a venerated old custom without sense or reason. While Eng- land still clung to the old methods, he knew that in Germany there was a better system, that in the "Free," or Hanseatic cities, and used by them for hundreds of years. From this German custom of registering land titles , and his own of registering ships, he formulated his admirable system of land titles transfer, with its accompanying assurance of indefeas- ibility of title. Still he was not an imitator, but drew his ideas partly from his facile and ready process of transferring the ownership of sea- going vessels; he himself thought out his methods, and rejoiced to find that a part of his ideas had been self-suggested to the thoughtful Germans at an earlier period. While stating that the principle of Sir Robert Torrens System was not original with him, we do not mean to detract an atom from the honor due him for his wisdom and practical business talent. He formulated and adapted his system with special skill and ability to the needs of the modern business world, very much as a skillful inventor of a machine adds his new principle, and combines it with the 26 TORRENS SYSTEM. old principle of the wedg-e or screw. Most deservedly, his system should continue to bear his honored name. ORIGIN OF THE TORRKNS SYSTEM. To have been the devisor of the Torrens System is an honor any man might covet. However simple and self-evident, when ex- plained and understood, the original bright thought was an effort of genius. Near forty years ago, it occurred to Mr. Torrens while residing in Adelaide, South Australia, that there was no good reason why land should not be conveyed by registration, in the same simple way that ships are transferred. The system then in operation there, and in the other Australian colonies, was one of conveyance by deed and recording substantially the same as that now in force in the United States. Upon promulgating his theory, he was met with opposition and derision. Lawyers shook their heads, and said in effect: "What can this man know?" For this bold innovator did not belong to the legal profession, but was simply an official in the British Customs. Lawyers are naturally, and very properly, slow to adopt untried experiments in the laws affecting real property, more especially when suggested by laymen. Perhaps there is no subject upon which lawyers are more conservative than the tenure and transfer of land. These laws had become venerable and venerated by mature age, and the labors of the most eminent legal minds. Their ramifications affected in numerous ways the civil relations of a large proportion of the 28 TORRENS SYSTEM. community. But with the spirit of a true re- former Mr. Torrens resolutely persevered. Opposition rather stimulated than daunted him. Following up his original idea he elaborated what is known as the Torrens System. His arguments were unanswerable, and he soon convinced a majority of the people and the Legislature, that he was right. In 1858 the first crude measure to give eflEect to his ideas was passed by both Houses of the Legislature of South Australia, and became law. In 1861 it was repealed to make way for an improved measure which time and experience had shown to be necessary. In 1878 further amendments were made, but since that date no further changes have been found necessary. Just imagine what would be the present solid position of land titles in Illinois, and the vast amount of time and useless expenditure, that would have been saved if the Torrens System had been adopted here years ago. Thousands of properties, including all those since conveyed, would now be in the enjoyment of the new system^ and tens of thousands of complications might have been avoided. Al- though, it will be better late than never. What- ever difficulties may now have to be met in making the change, they will be increased by time, and, therefore, the sooner it is made the better. Fortunately the system is not now an untried experiment. Many of the leading lawyers of this and other States have declared themselves in favor of its immediate introduc- tion. THE DIFFERKNCE) BETWEEN TRANS- FER BY DEED AND TRANSFER BY REGISTRATION OF TITLE. It will materially assist the consideration of the question of Land Title Transfer to have a clear understanding of the difference between "transfer by deed," and "transfer by registra- tion;" and of the meaning of the terms "regis- tration of deeds," and "registration of title." We therefore quote the following lucid ex- planation by Mr. Dwight H. Olmstead, Presi- dent of the Land Transfer Reform Associa- tion, of New York. He says: "Registration with reference to real estate has been divided into registration of deeds or assurances, and registration of titles. The essential features of these two methods I will now explain: "In the system of the Registration of Deeds or assurances, the title passes upon and by vir- tue of the execution and delivery to the grantee of the deed or other instrument of transfer. Under the statute making the recording of an instrument constructive notice, the deed or other papers, by which the transfer is effected, are recorded or filed in the registry office, and the condition of the title at any time is ascertained by a search for, andOthe care- ful examination of those records by lawyers skilled in the business, upon whose opinion the 30 TORRENS SYSTEM. client must rely. Under the method pursued in this State, these examinations are repeated upon every sale (or mortgage) of a parcel of land at a repeated cost both for searches and professsional services. "In the system of Registration of Titles, hovi^ever, there can be no actual transfer of a title until such transfer is entered on the re- gister book in the Registrar's office. In this case the deed or mortgage becomes a mere power of attorney to authorize the transfer to be made, upon the principle of an ordinary stock transfer, or of the registration of a United States bond. "This mode of transfer is indicated by the phrase, 'No transfer except upon the books,' the actual transfer and public notice of it being simultaneous. "Under the method of the registration of deeds, the validity of the title depends upon an extra judicial opinion determined from the rec- ords; but under the plan of the registration of titles, the register speaks for itself, each transfer being indefeasible." THE CERTIFICATE OF TITI.E— TORRFNS SYSTEM.* The Torrens System of Transfer by Regis- tration of Title evidenced by a Registrar's Certificate held by the land owner, meets all reasonable requirements. It is simple, speedy, inexpensive, and secures indefeasibility of title. No search into past transactions is necessary. Everything relating to the title, up to the time of its issue, is shown upon the certificate. When buying stock in a bank or company, the purchaser is not called upon to enquire into previous ownership or the validity of previous transfers. The bank or company is respons- ible for all that. The seller being the regis- tered owner, signs a form of transfer which practically instructs the institution to remove the name of the seller from the books as far as the stock sold is concerned, and to substitute therefor the name of the buyer. A certificate is handed to the transferee which assures him the ownership of the stock. Under the Tor- rens System the Registrar holds the same re- lation to the land owner that the company or bank does to the shareholder; and, being re- sponsible for the title, the Examiner of Titles must be satisfied at the time that the transfer is regular, that it is correctly drawn, contains a correct description of the boundaries of the * See Model of Certificate— last pages. 32 TORRENS SYSTEM. property and is regularly executed by the proper parties. These questions are thus settled at once and for all time. Under the old system they are never settled, bttt have to be enquired into every time a transfer takes place. At first, the announcement that' such an im- provement was possible seemed almost beyond belief. Those learned in the law, ridiculed the idea, but some, whose experience had convinced them of the hardships attendant upon the old system, feared that the tidings were too good to be true. THD TORRENS SYSTEM, BY ITS AUTHOR. Sir Robert TorrENS, speaking in behalf of his system of transfer of the title to real property, says, "It is not necessary to examine abstracts of title — these no longer exist, they having been delivered up to the Regis- trar, and that officer, whenever he grants a Certificate of Title, cancels all previous evi- dences of title. Accordingly, an investor runs no risk of a blunder or any incompetency of the conveyancer or examining solicitor. Every transaction has its complete security and finality. > In fine, the benefits which have attended this measure, wherever adopted in its integrity, may be summed up: THE SYSTEM BY ITS AUTHOR. 33 1st. It has substituted security for in- security. 2nd. It has reduced the cost of conveyanc- ing from pounds to shillings, and the time occupied from months to days. 3rd. It has exchanged brevity and clearness for obscurity and verbiage. 4th. It has so simplified ordinary dealings, that he who has mastered the "three R's" can transact his own conveyancing. 5th. It affords protection against fraud. 6th. It has restored to their just value many estates, held under good holding titles, but depreciated in consequence of some blur or technical defect; and has barred the re-occur- rence of any similar fault. 7th. It has largely diminished the number of Chancery Suits, by removing those conditions that afford grounds for them." The early settlers m the United States received the system of the recording of deeds of conveyance of real estate from England, early in the last century. The custom came from an Act of Parliament, in 1704, for the Kast Riding of the county of York, This antiquated method is fully ready to drop of its own dull weight. That — at the present day — a chain of title can only be traced by means of an uncertain alphabetical index of names, is simply ridiculous! WHENCE COMES OPPOSITION TO THE TORRENS SYSTEM? Opposition proceeds almost wholly from incorporated companies, of large capital, en- gaged in the business of guaranteeing titles; and from individuals who have an investment of money and knowledge in books of abstracts of title. But, not all the capitalized compan- ies, nor all the abstractors are opposed; all do not fear loss of income should the Torrens System become law. Abstractor's know, that wherever and whenever that system is estab- lished, they will flourish until all titles have passed the ordeal of the Torrens System. That period is indefinite. And, it is a fair opinion, that the Guaranty of Titles and Trust companies, have only small grounds to fear an early reduction of their in- come — as guarantors on the basis of the capital invested. As the years roll onward, and in- creasing population demands more improved real estate, their trust department, it is very reasonable to predict, will alone be sufficient to occupy their energies. Under the present system, the delay attend- ing a thorough investigation of a title of rec- ord, is often fatal to an otherwise ready sale. Z'e/a;*^ suggests doubt oi indefeasibility of title to a would-be purchaser, while the owner or seller is thereby harassed and frequently greatly disadvantaged. PART II. THB NEW SYSTEJM APPROVED BY EMINENT JURISTS AND POIvITICAL ECONOMISTS. In a pamphlet published by Mr. Torrens, he stated: "The aforegoing pages have been written with a two fold object. First: That there is no exaggeration in the [favorable] estimate of my system by the Royal Com- mission, of 1858, backed by that of John Stuart Mill, and others of experience and authority upon such subjects: that, the application to land in this country [England] of a safe, cheap, simple and expeditious method of transfer, such as that adopted for property in shipping, would have the effect of adding five years pur- chases, some will say ten, to all the land in the in the country." Evidently, Mr. Torrens means, that his sys- tem would increase the number of yearly transactions from five to ten times more. Continuing, Mr. Torrens averred, "Second: That no insurmountable obstacle, or even seri- ous difficulty, existed to prevent the application of his system — by the method of a certificate in duplicate — to estates in England." 36 TORRENS SYSTEM. LORD COLERIDGE'S OPINION OP THE TORRENS SYSTEM.* "I have never been able to perceive the obsta- cle to applying to land, the system v\^hich an- swers so vi^ell when applied to shipping; but, as my learned brethren, one and all, have declared that to be impossible, I had become impressed with the belief that there must be something wrong in my intellect, as I failed to perceive the impossibility. The remarkably clear and logical paper which has been read by Sir Rob- ert Torrens, relieves me from that painful im- pression, and the statistics of the successful working of his system in Australia amounts to demonstration; so that the man who denies the practicability of applying it might as well deny that two and two make four." THE PRACTICAI, OPERATION OF THE NEW SYSTEM. What argument in favor of the Torrens System could be of weightier force than the fact, that it has been thoroughly successful in all countries where it has been adopted, and given such entire satisfaction that, it is considered as a gift of priceless value? No individual has been discovered, who^once having placed his property under that sys- tem — has repented of the act. With leave to •Extract from a speech" delivered by Lord Coleridge, (now Lord Chief Justice of England), presiding at the Congress ot the Law Amendment Society at Cheltenham, England, in 1872. THE PRACTICAL OPERATION. 37 withdraw from it and return to the old sys- tem, he would as soon think of giving up his freedom of choice. In a British province, where the Torrens Sys- tem has been in force a length of time, the Reg- ister General states the efficiency and value of the system found by experience to be as follows: 1st. The title to real property has been greatly simplified, without radical changes in the general law. 2nd. Stability of title, with safety to pur- chasers and mortgagees, has been secured. 3rd. The ownership of property, either in town or country, is shown by the register at a glance, and w^hether incumbered or ijot. 4th. It increases the saleable value of property. 5th. It enables both vendors and purchasers to accurately ascertain the expenses of carry- ing out any sale or transfer. 6th. It protects trust estates, and bene- ficiaries. 7th. It prevents f rauds,and protects purchas- ers and mortgagees from misrepresentations. 8th. It has secured the chief advantages of the old system of recording of deeds (of which notice is the most important principle), and has operated so as to almost entirely dispense with the investigation of prior title. Loans on mortgage are effected, and trans- fers of the fee are made, with as much ease as the transfer of bank stock is m-ade in England, a search of from, five to ten minutes being all that is necessary to disclose the state of any registered title. THD TORRENS SYSTEM BOTH INVITES AND FACILITATES SALES AND LOANS. A CERTIFICATE of Title under the Torrens System, carrying a clear and iron-clad charac- ter, is as readily convertible into cash, in London, Toronto or Melbourne, as a certificate of stock or a bond. An eloquent speaker* at the "World's Real Estate Congress," a delegate, averred that, "Under the Torrens System of registration of title, he could sell and convey his property with special ease and speed, at its fullest value, and undepreciated by any vexatious delay in title examination. And, if he should wish to borrow money, he could obtain a loan upon it as readily as he could on his certificate of stor- age of wheat." As yet only a great minority of the active business men in this country have any acquaint- ance with the Torrens System, and of the ad- vantages it would afford them. It is a clear opinion, that as soon as a knowledge of it shall be received and appreciated at its just value the people en masse throughout the country will dem^and the new system, of the law m,ak- ing powers. "Mr. Thomas Cochran, banker, of St. Paul. THE) NE)W SYSTEM WOULD NOT DISADVANTAGE THE LAWYERS. It is objected, that it takes from the legal profession a portion of their business. It is true that one of the advantages claimed for the Torrens System is, that under it, no in- vestigation or legal opinion as to the validity of titles is necessary, and that the forms of transfer are so simple that for ordinary trans- actions no professional skill is required in us- ing them. It is believed, however, and many members of the profession share in the opinion, that the increase in the number of transactions affecting land, will eventually largely make up for any loss in this respect. Were the Torrens System in force, many transactions would still have to be carried out under professional advice. And as far as the present generation of lawyers is concerned, there can be no doubt that the professional services necessary to bring existing titles to land into such a shape as will warrant the issue of an absolute certif- icate under the new system, will fully equal any loss that may arise from diminution in conveyancing charges for many years to come. We feel assured^ that if the new system justi- fies itself on the whole as a good one, and the public are determined to give it a trial, the great majority of the legal profession will loyally assist in carrying on that trial, without regard to considerations of personal interest or professional prejudice. 40 ' TORRENS SYSTEM. But the men who shall make land as safely and easily dealt with as registered stock or bonds, will not only be entitled to the thanks of the present generation of his countrymen, but merit the gratitude of millions yet unborn. WHO ARE) THB FRIENDS AND ADVOCATES OF THB NEW SYSTEM? The Torrens System is approved and advo- cated, wherever known in this country, by jurists and lawyers; by owners and buyers and by sellers and agents of real property; by the mortgage loan bank and agent — both borrow- ers and lenders; and by every person who desires to transact his business with the great- est security and celerity, and with the least expense. The opponents of this system — but few com- paratively — are greatly outnumbered by its friends, whose number is rapidly increasing, and whose influence is growing and spreading. Several of the larger cities are just now taking a strong and active interest in promoting the Torrefls System. Their interests involved in this question are a thousand to one greater than those of their opponents. In legislation of, by, and for the people, no man will admit that the interests of the few should be advanced to the neglect of the interests of the many. WHO ARE ITS FRIENDS? 41 The question of the early introduction by statutory provision of an improved system of land title registration, has become a vital one for popular consideration and determination. Dvery man, whether he possesses the most or least money invested in real property, should not delay to "invite and facilitate the line of proceeding which the times call for." "The reasons are both good and weighty", for the abandonment of the present system, and the adoption- of the better and improved one. THE PEOPIvE WOULD BB BENEFITED THROUGH THE TORRENS SYSTEM. With ample proof of the successful work- ing of the new system in other countries, vari- ous States of this country have undertaken — through commissions of able lawyers and lay- men — to frame statutes on the model of the Torrens System — in view of its adoption into statutory law. The importance of the question commends itself to Real Estate Boards, Boards of Trade, Bankers, Farmers' Institutes, and other Agri- cultural Bodies, and of every man who owns or desires to own his home, or who is, or ever expects to be, the buyer or seller of landed property. These classes constitute the heart and soul, as well as the bone and sinew, of the country, and they are all directly concerned in the removal of a system which hampers business, impedes progress, and imposes unnecessary burdens. 42 TORRENS SYSTEM. The chief obstacle to the cause of Land Transfer Reform, here and elsewhere, lies in the technical and intricate character of the subject and in the want of general information respecting it. It is not a party or a class question, but affects the whole people, and when the general public become aware of its importance, and the possibilities within their reach, there will not be much doubt or delay as to how and when it will be settled. It is im- possible that the old system can go on for- ever. A change must be made sooner or later, and can be made now better than at any futare time. Deeds, wills, mortgages, and other in- struments are daily forging additional links to the chains of title, subdivisions of original lots are taking place, each adding its quota of cost and difficulty in proving title. The most cautious legislators must now be convinced that the new system is not a doubtful theory. If then, being so convinced, should they longer hesitate to mould it into a statute? It is a fact of great significance that the Tor- rens System has aided and facilitated the rapid growth of every country and city where it has been adopted. This alone is a sufficient reason why every possible help should be extended to relieve the community of the old, uncertain and expensive system. There is little or no diffi- culty in introducing the new system. What- ever expense has to be incurred, or obstructions overcome, are the result of the old defective system, the difficulty of getting rid of which, and its cumbersome machinery, increases from day to day. PART III. THE) IMPORTANCE OF LAND TRANSFER REFORM. A CHANGE and reformation of the method of transferring the title to real property, and to put it in a shape and position where it shall be easily and promptly marketed — with a clear and indisputable title — is a subject which in- vites free and intelligent discussion — both privately and publicly. The time is at hand when it will be,din6. as few other subjects as well deserve to be, widely and seriously considered and discussed. In the United States, the ownership of the soil is so largely distributed, that every man is more or less interested in real estate, and nearly every man is, has been, or may expect to be, an owner of real estate. Let the reader imagine himself in the com- pany of a land owner, his attorney and con- veyancer, while they have under consideration the subject of the title and tenure of a parcel of real property, which it is desired to convey to a would be purchaser, who demands a per- fect and indefeasible title. Let him observe their perplexity — midst trouble, annoyance and expense — ^while trying to find validity of title. 44 TORRENS SYSTEM. such as the buyer will accept. The reader will be led to pause and inquire: Is there not a safer, simpler, and cheaper way, one by which annoyance, trouble and large expense can be avoided? He will be apt to ask further: Why is it that real estate is burdened with a mode of transfer so costly and dilatory, so cumbersome and insecure, as compared with the mode applied to other kinds of property? That question was earnestly asked in England, and in every British colony and province; and it will shortly be asked in every State of the United States, in fact wherever English law prevails. A satisfactory answer has not been, nor can it be, made to the question. Why is it so? In default of an answer, and in view of the defects of the prevailing method, and the immense amount of learned labor bestowed upon it, the conclusion generally accepted has been, that it must be one of the natural and unavoidable evils of human life, that has to be patiently endured — as surely as the payment of nature's penalty of death, or the government's tax bills. But modern inquiry and research, (which have irreverently exposed many time-honored errors and delusions,) refuses to accept this theory, and claims that the existing land sys- tem is a poor invention, and relic of a long past period, and unsuited to our day. High legal authorities now admit, that its mode and method cannot be defended. As well might we imitate the social habits of centuries ago, instead of rejoicing in the superior culture and refinement of the present day. It might be THE IMPORTANCE OF REFORM. 45 interesting to the reader to review the subject on historical lines and trace how the prevalent system of land transfer and tenure grew out of the old feudal system of Europe, under which land was generally held during the life- time of the occupant, and subject to military or other service performed in behalf of the lord of the manor. That, however, is not necessary to our purpose, which is to take our system as we find it, and compare it briefly with the modern or Torrens System, which it is proposed to incorporate into our laws. THE PRESENT SYSTEM. As the law now stands — speaking gener- ally — no man can be sure that he is the owner of land, unless he can show that he has paid for it, and has it in possession under a deed of record; but also, that his deed is the last link in an unbroken chain of properly drawn, executed and recorded conveyances back — in the Western States — to the original patent from the government. To do the work of title examination effectu- ally under the present system, the lawyer and abstractor may have to go through scores or hundreds of documents with critical careful- ness. This is required in every large com- munity — rural or urban — many of the docu- ments examined may not affect the property in question. And it may be found after an extended search, that their confiding client may or may not have a good title, being unable to determine the question with certainty. If 46 TORRENS SYSTEM. a single link is defective or missing, the title will fail of completeness — as far as the records are concerned. Then, the title requires to be sustained by outside proof, which after the lapse of years, it is often difficult and some- times impossible to obtain. A link may be missing in the record office owing to the title having been acquired by heirship, by devisee, or a failure to record some instrument! Would such a method be endured if it ap- plied to personal property, which can be transfered to another in a few minutes, and at slight expense, or none whatever? Let it be supposed, that every purchaser of registered municipal, or government bonds; bank, rail- way or mining stocks; or any corporate inter- ests whatever, was required to examine the chain of title — -from the first issue to the present proposed seller — in order to find that every one of the previous transfers had been properly made, properly executed, and by the proper parties of that particular bond, stock or interest, what would be the effect on the market value of such securities? Unquestion- ably, they would — as a rule — be unsaleable. Only ready convertibility and certainty of ownership invite buyers of any commodity, or of any corporate security; and these are the necessary conditions, which are equally — even more — applicable to real estate; and if these are uncertain or doubtful — their value is reduced, or kept in suspense. Under the present system, at every intended transfer of real estate, or wish to encumber it by a mortgage loan, all the time-consuming THE IMPORTANCE OF REFORM. 47 details of the process of title examination must be gone through with, in the endeavor to make the result satisfactory. A few years ago, the faults of the present, system impeded transactions in real estate tO' such a degree as to invite the formation of incorporated companies with large capital to; engage in the business of insuring or guar- anteeing titles to real estate. Such companies. are found in the larger cities. They possess, books of abstracts of titles, and employ talented assistants — lawyers and conveyancers.. These companies rarely insure the markef value of property, and their premium rates are proportioned to their own estimate of the risk incurred. To give the reader some idea of the burden entailed by the present system, we draw from the report of the committee on law reform of the "Illinois State Bar Association," for the year 1891, pages 28 and 29. The committee quotes from a prospectus of one of the Guar- anty of Titles and Abstract companies of Cook county (Illinois), within whose limits stands the city of Chicago. AVERAGE DAILY ORDERS FOR ABSTRACTS. "1885 the average daily orders received was 42 "1886 " " " " 50 "1887 " " " " 59 "1888 " " " " 62 "1889 " " " " -90 "1890, business not closed, an increase over 1889 "The orders average a cost of $9.68 each. "The above figures are guaranteed by us." 48 TORRENS SYSTEM. Comment. Counting no more than 90, would make the daily orders for 1890, received by that company, amount to $871.20, and for the year $272,687.00. If the other two companies, and to add the Recorder of Cook county, each do an equal amount of business, then a grand total of $1,090,748.00 is found to be the cost of making abstracts for this county in a single year If what is said in one of the circulars of a Guaranty of Titles company be true, that it costs an average of $15.00 attorney's fee for each examination of the abstract, (and it must go through such an examination every time it is "brought down to date,") there is an ad- ditional expense of $1,774,100.00, making a total outlay for those two purposes of .$2,864,848.00 per annum for Cook county. The Title Guarantee company above referred to, has issued a number of other circulars advertising its business. The committee quotes from one of these to show the company's esti- mate of the value of an abstract to the purchas- er. This circular is addressed particularly to "Home Buyers," and opens with the following pertinent questions in bold letters: "•What security have you that your title is good? "If it is attacked, who will defend it? 'If it fails, who pays your loss?" The circular then proceeds to answer these questions. We quote from it the following: "These abstracts may show a good title free from all incumbrances, liens and defects, and they may not. To find whether your title THE IMPORTANCE OP REFORM. 49 is good and free from all incumbrances, you must submit your abstract to a lawyer for his opinion; this will cost you a fee of from $15.00 to $25.00, or more, according to the length and character of your abstract, and the reputation of your attorney for ability. This is a heavy burden upon a poor man. Your lawyer does not examine the record of the title^ but only examines the items of the abstract, and should there be errors in it, he could not be aware of them, nor of its defects of title." The circular adds: "Under the abstract system, [without a guaranty] you purchase your homes with- out security, and wholly upon faith; faith that your abstract gives you assurance of title; and faith that your lawyer who examines it can be relied upon." In another circular the same company, says: " When a man buys a lot on which he in- tends to establish his home, he buys not the land, but the title to the land." Comment: is not this free admission a splendid argument on behalf of the torrens System? In still another circular, the company says of the possession of an abstract, m,erely, that, "While the abstract paper usually pa,sses current with the land, the opinion of your attorney is not commonly accepted by sub- sequent purchasers and mortgagees. But, it is required, that for each subsequent convey- ance, or for a mortgage, another attorney be employed to exam-ine and pass his opinion upon the title — as shown by the abstract — which had been previously examined and 50 TORRENS SYSTEM. passed upon by several, or perhaps a dozen other attorneys. The circular continues: "This process involves repeated expense and delay, while the difficulty and annoyance are such, that to effect a transfer of real estate is like the task of conducting a law suit. But more, NO SECURITY is gained, because there is no guarantee for the sufficiency of the abstract, nor for the worth of the opinion of the at- torney. Quite naturally, under these circum- stances, real property owners, and brokers in real estate, have long wished for a more SIMPLE AND satisfactory SYSTEM." COM- MENT: The italics and heavy letters are ours. It should be remembered, that the gen- tlemen conducting this guarantee company are the same who have been longest engaged in the abstract business in Cook county, and are most competent to speak upon this important subject. But they had not observed the dawn of the Torrens System. great annual expense to the owners OF real property in the state OF ILLINOIS FOR ABSTRACTS OF TITLE AND FEES FOR THEIR EXAMINATION. We have shown in the aforgoing table of figures, that the cost, in 1890, to the owners of real property in the single county of Cook, was the great sum of nearly three millions of dollars for abstract of title, including the fees paid to lawyers who examined them; from which an estimate could be drawn of the prob- able cost to the people of the entire State of Illinois. THE IMPORTANCE OP REFORM. 51 But, the president of the Real Kstate Board of Chicago, in his annual report, January, 1894, when speaking of the yearly saving, were the Torrens System of land transfer incorporated into a statute in this State — says: The adop- tion of that system would save (80) eighty per cent out 0/ {10) ten millions of dollars, now paid annually by the owners of real property in the State of Illinois for abstracts of titles and fees paid for their examination." Throughout the Union, and especially in all the larger cities, examinations of the records of land titles are often most tedious and ex- pensive. In the original colonial States, the records necessary to be searched, run back- ward often much more than a hundred years. And in the western and southern States — where lands were surveyed and sectionized by the National Government — the title record requires searching backward often fifty years and more, to the starting "patent" issued by the United States. Practical and thoughtful minds are most apt to receive the knowledge of the Torrens System for the first time as a revelation of light breaking the darkness of centuries, but to hail it with great admiration. WHAT ARE THD PROSPECTS OF EARIvY ADOPTION OF THE TORRENS SYSTEM? Since "knowledge is power," it is very safe to predict the success of the Torrens System. Both knowledge and observation teach and illustrate the fact, that reforms of any and every sort — are rarely ever accomplished otherwise than by gradual steps. Proof of betterment must preceed; then prejudice is to be met and removed; next conflicting interests must be quieted, either by reason, or overborne with power. In the case of the Torrens System, the majority of the people are its friends, and possess both the reason and the power. We say justly, the majority: for no reform in law or ethics could properly be a reform, unless the majority were, or were to be benefited through the proposed change. Reforms always begin with a constituency of the wisest and l)est people, through whom success can only be assured. The masses are most apt to follow the leadership of the wise and good of whom they take knowledge intuitively. The beginning of the knowledge of the Torrens System, came as a cheering ray of light followed by more light and knowledge. This knowledge has now taken root, and this light is evidently spreading. The majority is PROSPECTS OF EARLY ADOPTION. 53 fast becoming convinced of the great value of the new system, their candor admits it, and their influence is being exerted in its behalf. An enlightened public sentiment is forming and constantly gaining ground; the common sense and practical wisdom of the people is manifesting itself, and soon favorable legisla- tion will be demanded on behalf of the Torrens System — every where in this country. The delegates from Canada and the United States, gathered at the World's Real Dstate Congress, October, 1893, before final adjourn- ment, adopted resolutions unanimously pledg- ing their influence and labors in the work of the adoption of the Torrens System by statute in their several States and Provinces. And, when that large body of intelligent and influential men of the National Real Estate Association, undertook the champion- ship of the Torrens System, they meant to carry the question of its adoption into the legislative halls of every State. Not only Great Britain, and her Colonies and Provinces have introduced the Torrens System, but Germany, Austro-Hungary and Switzerland have improved their land laws, which are practically almost identical in principle with that system. But, this country — foremost in so many improvements and inven- tions — lags behind in the reformation of the "land" question — relating to an easy and inex- pensive system of transferring titles. CHANGE) FROM THE) OLD TO THE) NE)W SYSTEM EASY AND INE)XPE)NSIVE). The adoption of the new, or Torrens Sys- tem in most States of this country, could be accomplished at only a slight expense to counties or cities, such as the register book, and blank forms, etc. The official Recorder would also possess the office of Registrar and perform its duties; his deputies would be his assistants. The Examiner would be the only new offic- ial. The fees — moderate, but adequate — -would provide a fund for every expense. And, ac- cordingly, little delay need occur to begin the work of land title registration, and title trans- fer on the lines of the Torrens System. Mr. FrEshfiEld, a member of one of the most eminent conveyancing firms in England, in giving his evidence before a Royal Commis- sion, deposed: " That title by deed could not be demonstrable as an ascertained fact, but only presented as an inference — more or less probable — and deducible from the documentary evidence accessible at the time being!" PART lY. DEFECTS OF THF PRESENT SYSTEM. SHOWN BY EXAMPLES IN CANADIAN EXPERIENCE. On examining an official abstract of title to a certain piece of land, it appeared that one of the deeds had been executed, not by the owner in person, but for him, under a power of attorney, which was produced, and was in proper form. The proceeding seemed to be quite regular; but the careful solicitor who was investigating the title, asked for proof that the power of attorney was in force at the time the deed under it was m,ade. This was regarded as an unnecessary particularity on his part; but being insisted upon, search was made, and at length a tombstone was found in a churchyard, the inscription on which showed that the person who gave the power of attorney had been dead two years when the deed in question was executed. As the power had thus lapsed, the title was still in the heirs of the deceased, and they were not aware of the disposition that had been made of their property, and were not bound by it. The person who appeared on record as the 56 TORRENS SYSTEM. owner, and had paid for, and was in possession of the land, had no title to it! A man in the county of claimed to be the owner of a farm, and applied for a loan upon it, producing as evidence of his title the patent to his father, and his father's will, duly recorded, devising the property to him. This appeared on record to be a very clean title. The property being of sufficient value, the application was accepted, the mortgage prepared and recorded, and the money was about to be paid over, when the man was asked incidentally, how long his father had been dead. "Dead!" he said; "my father is not dead." "How, then, can you claim title under his will?" he was asked. "Oh," he replied, "he has made his will, and I thought by re- cording it my title would be all right," — not being aware, it appeared, that his father might revoke his will at pleasure. ThE MONEY WAS NOT ADVANCED. Some fifty years ago a man (say Doe), sold a farm in the county of to another man (say Roe), who paid for it and took possession. Upon this farm a thriving town had sprung up. Upon an investigation of the title to one of the town lots, the solicitor asked for the old deeds of the farm, one of which was the deed from Doe to Roe. On examina- tion, it appeared that the land was duly "given, granted, bargained, sold, aliened, transferred, released, conveyed and confirmed" by Doe to Roe — words which would be more than sufficient to change the ownership absolutely of any other kind of property — but that the DEFECTS OF THE PRESENT SYSTEM. 57 words "his heirs and assigns" having been omitted, Doe only conveyed an estate /or life, and upon Roe's death the land reverted to Doe and his heirs. Here was an unexpected condi- tion of things, which involved the title to prop- erty of hundreds of innocent holders. What was to be done? Doe had been dead some years, leaving an only son, who, fortunately, did not insist upon the rights which the law gave him. He was approached and reminded of the sale of the land by his father, and for a small con- sideration he consented to execute a quit claim deed. His father having been paid for the prop- erty, as an honest man he could not do other- wise. But many a man, under such circumstan- ces, would have had serious doubts as to whether his father might not have intentional- ly made the deed as it was, and would have considered that he was entitled to the benefit of the doubt, and to whatever the law gave him. A similar case occurred in the town of , where the claimant went so far as to bring twenty-eight actions of ejectment against a number of people, many of whom were able to show forty-nine years' quiet possession, and had never dreamt that their titles would ever be questioned, or could be questionable. This claimant had to be paid a large sum of money. In both these cases, the titles had been ex- amined and passed upon many times, and by men of high standing in the legal profession. Back in the forties a shiftless individual (say Blank), deserted his wife and child and a small farm of little value, in the county of 58 TORRENS SYSTEM. -, and left for parts unknown. After some time, it was reported that lie was killed in California. His wife then married again — a man (say Johnson), by whom she had a large family of children. Twenty-seven years after the disappearance of Blank, his daughter, as his heiress, together with Johnson and his wife, conveyed the property. Robinson, the purchaser, went into possession and made im- provements; but, after a time, was disturbed by sinister rumors that Blank was still alive. After an absence of thirty-three years, he actually re-appeared and claimed the farm, which had now become valuable. It does not appear that he set up any claim to the w^ife. In fact there is little doubt that he came back with the connivance, if not at the instigation of the Johnsons. He brought an action in ejectment against the man in possession, whose legal advisers defended him upon, among other grounds, that he had a good title against Blank by possession. But, after a long and expens- ive law suit, it was decided by the Court of Appeal, that Mrs. Johnson was still Mrs. Blank, that through her he had been in posses- sion during all the long years of his absence, and quite ignoring the fact that Johnson had held possession of the land and wife also. The innocent purchaser was dispossessed! The wretched confederates divided, and quarrelled over their gain. Then the man Blank disap- peared into the darkness from which he had so unexpectedly emerged. Similar examples to the above might easily be multiplied. Knough has been said to illus- DEFECTS OF THE PRESENT SYSTEM. 59 trate the necessity lor a systematic examina- tion of every title. As it is impossible to say where a defect may lurk, and therefore every link in the chain, — whether there be five or five hundred, — must be caref ull}- scrutinized. In the older States where lands have passed through several hands, and especially in cities, towns, and villages; in very few cases, even with all the information attainable, will the examining lawyer incur the responsibility of giving an unqualified certificate that a title is good. The purchaser or mortgagee, must accept some risk. Under the Torrens System a title once quieted, is quieted forever. But under the present system, transfers multiply, difficulties and dangers proportionately in- crease, which involve a corresponding increase in the uncertainty, expense and delay attendant upon every transaction. No improvement of the present system can afford any effectual remedy. A radical change is necessary. ENORMOUS WASTE) OF TIME AND MONEY UNDER THE PRESENT SYSTEM.* THE JUMEL ESTATE. Lately the Jumel property was cut up in- to 1,383 parcels of real estate and sold at partition sale. There appears to have been about 300 purchasers at that sale, and no doubt each buyer, before he paid his money, carefully employed a good lawyer to examine the title to the lots he bought. So that 300 lawyers carefully examined and went through the same work, of examining the old deeds and mortgages and records affecting the whole property. Each searched the same index lists of names, picked out from the 3,500 volumes of deeds and mortgages in the New York city recorder's office the same big dusty volumes, lifted them down and looked them through — in all ^oo times, the very same labor. Evi- dently, 299 times that labor was thrown away — done over and over again uselessly. And the clients — the buyers — together paid 300 fees to those lawyers, who each earned his money, but 299 of these fees were for repetitions of the same work. By and by, twenty years from now, instead of 300 owners of these Jumel plats, the whole 1,383 lots will have been sold *From the New York Herald. WASTE UNDER THE PRESENT SYSTEM. 61 and built upon. And, time and again, when these 1,383 lots are sold 1,383 new purchasers will again pay 1,383 lawyers 1,383 fees for examining the same Jumel title; only, the fees will be larger, for there will — by that time at the present rate of growth — be fully 10,000 big folio volumes. Not only that, but in ex- amining the title for a purchaser his lawyer carefully puts in official researches: he makes a requistion on the the recorder for all deeds, conveyances, mortgages and instruments in writing on record in his office affecting the parcel whose title he is examining. And, of course, the recorder carefully enumerates all the old deeds, etc., affecting the whole prop- erty. He charges and gets by law, five cents for each name searched against for deeds, and five cents per year per name for mortgages. Altogether, say $20 is paid by each purchaser to the -recorder for these searches. And, as there were 300 purchasers who put in 300 searches, the recorder gets joo times $20 for the same work. A REMEDY is often applied at a late stage of a disease — coming by accurate diagnosis or accidental discovery; but however it comes, both wisdom and experience call for its im- mediate application. A certain and efficacious remedy for the poor plan of the present law, is found in the modern system of Registration of Title. It has been well tried and found replete with advantages — combining simplicity with certainty, and cheapness with celerity. THE OLD AND NEW SYSTEMS REVIEWED. BY MR. J. HERBERT MASON, OP TORONTO. THE OLD SYSTEM OF RECORD, AND THE NEW OF TITLE REGISTRATION. In order to understand the subject and be able to give an intelligent opinion, it is neces- sary for you clearly to understand in what respect the Torrens System of registration differs from the system of recording of deeds. People who look at the matter superficially may leap to the conclusion that there is no great difference between the two systems, but as a matter of fact, they are radically different. It is quite true, that under the recording sys- tem, we talk of having '^a recorded title," meaning thereby that all the documents con- stituting the chain of title are recorded. But, if the Torrens System accomplished nothing more than that, no one would think it worth the trouble of making the change. Let us con- sider for a moment what the system of record- ing is intended to do. It is simply this: to provide a public ofl&ce in which all instruments affecting the title to land may be recorded. It does not pretend to provide any means whatever for determining the legal effect of instruments which are so recorded; and as a A REVIEW. 63 mattei of fact instruments which are so re- corded against a parcel of land, which, though purporting to affect the title, have in reality no more legal effect on the title than a blank sheet of paper. A VISIT TO A recorder's OFFICE. I^et us, in imagination, go for a moment to one of our recording offices. We want to ascertain the title to a parcel of land. We are shown what is called an "Abstract Index," in which is set forth a list of all the instruments affecting the land we are inquiring about. From this it may appear that there is a per- fect chain of title; but no one is safe in relying on this Index alone; he must examine each in- strument indexed, and carefully consider whether it is made by proper parties, in proper form, and is duly executed. This he must do at his own risk. He must determine for him- self the legal effect of each instrument at the risk that if he, or his legal adviser make a mistake, he may lose the land. And the great trouble is that after exercising all the care and caution possible, and procuring the best legal assistance, some unexpected flaw may be dis- covered. Let me give you a few practical in- stances of the way in which our present re- cording system works. A RECORDED WILL THAT WAS NO WILL. There was a case of Nex vs. Seddon before Mr. Justice Robertson lately. The action was brought to enforce a contract for the sale of a parcel of land. In this action it appeared that 64 TORRENS SYSTEM. the vendor had a good recorded title— no links in the chain were wanting, no flaws were ap- parent. It appeared that the vendor claimed as devisee under his uncle's will and had effected loans on the property. Now very few persons, I venture to think, would guess what was the objection to this title. The will — under which the vendor claimed — was in due form, duly executed, duly recorded, a^jd yet it was of no more value than a piece of waste paper. The difficulty was that after the testator had made his will, he married, which had the effect of revoking the will (See R. S. O., chap. 109, sec. 20), so that it was absolutely null and void; and yet, as you have seen, it was nevertheless recorded. HOW A FARMER LOST HIS FARM AFTER TWENTY YEARS' POSSESSION. There was another case not long ago before the courts of Munsie vs. Lindsay (1 Ont. Repts., 164; 11 Ont. Repts., 520), in which the facts were as follows: In 1854 a man named Munsie died, leaving a will whereby he devised his farm to his widow for her life, and then after her death to his son Robert. The will was duly recorded. Robert shortly afterwards purchased his mother's life-interest, and then thinking himself owner of the lot absolutely, he sold it to his brother James, who sub- sequently sold it to the defendant Lindsay, who bought on the faith of his vendor having a good recorded title. Lindsay lived on the lot and worked and improved it for a good many years, thinking, no doubt, to leave it as A REVIEW. 65 a provision for his family at his death. In 1874, however, the widow of the testator died, and within ten years afterwards the heirs at law instituted a suit against Lindsay and re- covered the land from him, on the ground that the devise to Robert was void, he happening to have been a witness to the will. All the hard-earned fruits of Lindsay's labor were thus taken from him without any compensa- tion; except a lien for the value of the per- manent improvements he had made, against which an occupation rent for the premises since the widow's death was set off. It must be confessed, that a recording system which leads to such results is an inefficient system. A MORTGAGE DISCHARGED, YET WASN'T DISCHARGED. We give another instance of its inefficiency. Some little time ago a case was before the courts, Beaty vs. Shaw (14 Ont. Appeal Re- ports^ 600), in which the following state of facts appeared: There were two persons, executors and trustees of an estate. One of the trustees owed a sum of money to the estate, and executed a mortgage on a parcel of land to his co-trustee to secure its payment- The co-trustee died, and the other who owed the mone3' survived him, and he then (without paying the debt to the trust estate) as surviv- ing trustee and executor, dishonestly executed a discharge of his mortgage, which was duly recorded. He then sold the land to the defend- ants in the action, who bought it in good faith, relying on the mortgage having been dis- 66 TORRENS SYSTEM. charged. The purchasers worked it and made valuable improvements on it, and were some- what astonished after the lapse of two years to learn that THE DISCHARGE OP THE MORT- GAGE WAS UTTERLY WORTHLESS. The result of a suit was to take the land away from them, with all their improvements, without any compensation whatever; and yet you will be careful to observe that the dis- charge, or what purported to be a discharge, was duly recorded. ONE CHAIN OP TITLE OP 600 DEEDS. I remember another case where a man had laid out a farm into village lots of small size and sold them. These lots passed through different hands, and some were sold for taxes. Unfortunately, the village never grew beyond the paper stage; and, after some years, all these lots passed to a single owner, and were together used as a farm lot. The owner wished to sell, but the land was practically unsaleable. In order to investigate the title to this farm lot there had to be examined and considered no less than 600 different deeds of conveyances, and it cost the owner over $1,000 to quiet his title. HOW A queen's counsel CAME TO GRIEP. I will mention yet one other instance. A learned Q. C, of Toronto, a shrewd business man, bought a parcel of land; he carefully searched the title and found it all right, the A REVIEW. 67 record office disclosed no incumbrances. He paid his purchase money and was somewhat surprised afterwards, on being called on to pay $1,500 on a mortgage. This mortgage, it ap- peared, had been made on the land the Q. C. had purchased, and other lands besides, and duly recorded; but the recorder had omitted to index it against the lot the Q. C. had pur- chased. The only redress the Q. C. had, was a right of action against his vendor and the recorder, but as both were worthless, he had to lose his money. (See I^awrie vs. Rathbun, 38 U. C. Q. B. 255, a similar case). 144 OBJECTIONS TO ONE TITLE. I will mention only one more illustration of the hazards which people have to run under the present recording system. Owing to the ne- cessity that each link in a chain should be per- fect: it is easy to see, that the more transactions there are recorded, the greater is the number of defects likely to be found in the title. The result is that the investigation of titles extends sometimes over months and even years. Some time ago there was a case before the courts in which no less than 144 objections and requisi- tions had been made on the title in question, and the investigation had been in progress for four months, at a great expense. WHAT THE TORRENS SYSTEM IS LIKE. Now let us see what the Torrens System is intended to do — but first I should tell you what it does not. do. It does not pretend merely to record the fact that a deed or instrument has 68 TORRENS SYSTEM. been made; and does not permit instruments to be recorded as affecting the title, which are, in fact, of no more legal effect than mere waste paper, as our present system of recording does. What the Torrens System aims to do and actually does, is to register the title to the land. In order to bring property under this system, it is necessary that the title of the person claiming to have been the first recorded as owner, should be investigated by a public officer. The title having been shown to his satisfaction, is then registered; not the string of deeds under which the owner claims, but the fact that the person who has thus estab- lished his title is the owner of the property. And if his title is subject to any qualifications, mortgages, or otherwise, these are also specially stated in the register book. A VISIT TO A TORRENS REGISTRY OFFICE. Do you wish to ascertain the status of a title re gistered under the Torrens System? Then go to the office, and instead of having to search through a long list of deeds, as under the re- cording system, you are shown a register book, on one page of which is set out distinctly who is the present owner; what charges, if any, affect his title; and find all the information in a narrow compass necessary for you to know, to deal safely with the person claiming to be the owner, without the necessity of going into any far back researches as to who owned the property thirty or forty years ago, and how it has descended from owner to owner ever since. Moreover, in dealing with property registered A REVIEW. 69 UNDER THE TORRENS SYSTEM, YOU RUN NO RISKS, as to the title; the responsibility of determin- ing the legal effect of instruments affecting the title, is taken off your shoulders by the regis- trar, because no devolution of the title can be registered until he is first satisfied of the lawful validity and sufficiency of the instru- ments by which it is effected. TESTIMONY ON BKHALF OF THl) TORRDNS SYSTDM. FROM THE BRITISH COLONIES. The Torrens System has been sufficiently tested in different countries during the last thirty-five years to demonstrate itself. From a British colony comes the following testimony. "To the extent to which The Land Title Transfer Act purports to secure in- defeasibility of title, there is no reason to doubt that the object has, from a legal point of view, been effectually attained. There are few ques- tions ordinarily incident to conveyancing, with which the Land Transfer Department is not called upon to deal in bringing land, under the Act. Titles complicated by wills, settle- ments, etc., are not infrequent, and but few have been rejected. The system of caveat is found sufficient for the conservation of 70 TORRENS SYSTEM. trusts, while life estates, and estates in reversion or remainder , are fully capable of definition on the register. In fact the system has so far been found equal to all purposes of conveyancing. "I am not aware that any title registered under the Act has been upset, or that there has been any litigation affecting the principles of the Act. "The facilities for carrying out mortgages, and for paying them ofE under the Act are very great, and thoroughly appreciated by the pub- lic. The expense of either transaction is com- paratively trifling." "The Registrar-General says: "While on the subject oifees, I may, perhaps be permitted to mention, that the I^and Titles' Office is en- tirely self-supporting: as sufficient revenue now passes through the office to meet all expenses. "Although the Act has been in operation for nearly eighteen years, no compensation has been made for the deprivation of property, nor has any claim been sustained against the Assur- ance fund, which, at the present time amounts to ^38,060. "The progress of the Act has been steady, and I may say highly satisfactory, and, so far as the transactions under it are concerned, very rapid. "The measure, which was at first received with some degree of suspicion as to its prac- ticability, particularly with regard to trust estates, has won its way with the legal, as well as the lay element of the community. "The popularity of the Act is so well secured, TESTIMONY FOR THE SYSTEM. 71 and the public generally has become so accus- tomed to our certificates, and have acquired such faith in their undoubted value, as in many instances to decline accepting a property ex- cept the title is registered under what is universally styled " Tor r ens System." "The working men of New South Wales are almost all becoming landed proprietors; but hardly one of them would ever attend a sale of land if it were not announced in the adver- tisement that the title was that of the Tor r ens Act." NEW CERTIFICATES. "A registered proprietor, who desires to have a certificate of title free from memorials disclosing past liabilities or transactions, no longer affecting the land — may surrender his certificate, and obtain another — a clean one — on payment of a moderate fee. Similarly, a registered proprietor may surrender two or more certificates for contiguous lands, and take out one certificate for the whole; or, if he so desires, he may surrender a single certificate, and take out as many new certificates as he chooses there shall be subdivisions of his land, paying the prescribed fees in either case." "Such is the system which, in the Australian Colonies, has, in a great measure, superseded the cumbrous, tedious, uncertain, and costly system of conveyancing, and vv^hich Sir R. R. Torrens states 'has been tested by an ex- perience of over twenty years, during which upwards of 539,000 transactions of various 72 TORRENS SYSTEM. kinds have been completed at a reduction in cost from pounds to shillings^ and in time from months to days.' " The present system of placing on record conveyances of title to real estate in the ofl&ce of the of&cial recorder, and at the same moment tacitly agreeing to accept and abide by the subsequent disadvantages in trying to obtain from such continuous record — spreading over years of time — a verification of indisputable title of indefeasible value, however good and unblemished the title in the beginning, is to lean upon a slender and deceitful staff that proves a costly dependence. The present system supports not the dignity of a system, but is nothing more than a poor plan/ PART Y. ADVOCACY OF THK TORRENS SYSTEM IN THE WORIyD'S REAIy ESTATE CONGRESS, HELD IN CHICAGO, OCTOBER 23, 24, 25, 1893. THE CONGRESS WAS HELD UNDER THE AUSPICES OF THE WORLD'S CONGRESS AUXILIARY OF THE WORLD'S COLUMBIAN EXPOSITION AND THE NATIONAL REAL ESTATE ASSOCIATION. Every topic spoken upon in the Congress other than that of the Torrens System, or a collateral subject, has been eliminated from this record. PRESIDENT BONNEY'S SPEECH. President C. C. Bonney, of the World's Congress Auxiliary, called the congress to order and delivered the following address of welcome: The most powerful tendency of the age is association for the promotion of the common interests and friendly regard. When the spirit of fraternity reaches the land of the worlds 74 TORRENS SYSTEM. then we may realize that it has at last come to the point where it will abide upon a permanent foundation. The ownership of land represents the permanence of human institutions. With- out land to occupy, no home can be built, no schoolhouse can be erected, no church estab- lished, no government building constructed. Closely related to the ownership of land is the virtue of patriotism. He who owns a part of the soil of his country can most truly say "my country," and will most readily defend it. If, by permission of some other person, he can only occupy any portion of the land which is embraced within the jurisdiction of his country, he is not, whatever else he may be, a sovereign as to the piece upon which he can live and pursue his vocation or find his final abode. Public policy therefore requires that home ownership be promoted by friendly legislation and by all adjuncts to that legisla- tion which the goverment might control. Heretofore the idea has prevailed that as land is local, there is no general interest between people of different States and nations leading them to common modes of dealing with, acquiring and transferring real estate. The results that have followed this idea have been most pernicious. Among them are such multi- form systems of transfer, with such technical details that even lawyers most cultivated have extreme difficulty in balancing the ever vary- ing technical decisions of the courts and acts of the legislatures of the different governments. The new age of travel and intercourse has made all peoples interested in all countries; world's real estate congress. 75 especially here in America, where all the peoples of the world have their colonies and their kin. Following the new movement of travel and international intercourse, it is the most natural thing in the world that there should come to be an idea that wheresoever the citizen of one country may journey or acquire,ifor tempory or permanent use, a portion of the soil of the country, he should also find a simple, plain and easy method of such acquisition, or of disposition if he so desired. Ivong before human history was written the prevailing English doctrine that a man's house is his castle which even the king may not enter unbidden, had its root and held a position in the habits and customs of our ancestors. In seeking a reform and improvement we must consider, among other things, convey- ances; that they may be simple, easily under- stood, easily executed, and as free from technicalities as possible; so that a man shall be able to make a will in simple form and trans- mit property to those whom he desires to succeed to it withoiat any more than the mini- mum of possibility of peril from the violation of technical rules; that in case one dies, leaving property undisposed of, it shall descend in a certain fixed and simple way, by operation of law, to those who naturally ought to be suc- cessors to its ownership. -» * * * The ends which this congress is meant to 76 TORRENS SYSTEM. promote are of an extremely practical char- acter. We want to save the people of our own and other countries as far as possible from the enormous losses suffered every year from mis- takes made in the conveying and devising of all land. We want to facilitate transactions in real estate in the manner which has already been specified. We want as far as we may, to promote international intercourse and friendly relations among the peoples of all lands. * * * * This is the last of the regular congresses of the World's Congress Auxiliary of the World's Columbian Exposition. It seems to me pecu- liarly fitting that this congress should be the last, because it represents the solid earth on which, as the ultimate foundation, these in- tellectual and moral institutions must rest. With these observations I give you, gentlemen, a most cordial and hearty welcome to this con- gress of the world's real estate men. Mr. Bonney, at the close of his address, introduced as the presiding officer, Thomas B. Bryan, of Chicago, who made a brief address in which he set forth as things desirable in connection with real estate interests "perman- ence and uniformity of legislation, and that simplicity in the conveyance of real property which obtains in the conveyance of bonds and negotiable paper." world's real estate congress. 77 dr. arthur renwick, of australia, upon the torrens system. The Torrens System was first originated in South Australia, but nearly all the colonies in Australia have adopted it for the purpose of avoiding the tedious and expensive delays occasioned by the Dnglish system, based on the ancient feudal laws. The New South Wales act was passed in 1862, and its provisions have been largely availed of since that time. In 1873 the Torrens act was slightly amended, and in 1878 a further amendment was made. In this latter amendment an important clause was inserted wnereby the registered owners of land are protected from the statute of limi- tation, and consequently the land is not likely to be taken from them by any length of adverse possession. The chief advantage gained by those bringing properties under the act is, from the moment the land is registered and a certificate granted, the title of the per- son holding the certificate becomes indef eas i ble unless it has been fraudulently obtained. Pro- vision is made, however, for error in transfer, by which persons might be deprived of their rightful property. The approximate area of land in New South Wales brought under the act up to Dec. 30, 1892, was 17,191,500 acres, valued at $172,880,590. I can say, that from personal experience, as the owner of property, and as one who has had varied experience with the old and present system of transfer of land in New South Wales, I consider the Torrens act one of the 78 TORRENS SYSTEM. greatest boons conferred on the people of our country. And although at first the members of the legal profession were opposed to it, the general feeling of lawyers and of conveyancers is now decidedly and unanimously in favor of the provisions of the Torrens act. I cannot, of course, express an opinion of its value to the people of the United States, as I am not sufficiently familiar with the practice of land transfer adopted, but I am of opinion that the system is worthy of serious consideration. FRANK MILLER, OF CALIFORNIA, UPON THE TORRENS SYSTEM. Frank Miller, of Sacramento, Cal., a national bank officer and member of a commission ap- pointed by the governor of his State to report on the merits of the Torrens System of trans- ferring titles, read a brief paper entitled "Bankers and Land Transfers," warmly advo- cating the Torrens System. He said: I am convinced that the Torrens System (which has been in successful operation in Australia, and which was so strongly advo- cated in Illinois, Wisconsin and other States) is a plan which should be adopted in every part of the United States. Most bankers do not understand the plan. They mi-ss many short time loans on realty because of the ex- pense and dangers in abstracts and titles. They do not know that these impediments can world's heal estate congress. 79 be reduced to a very small item. They do not know that a perfect certificate of title can be granted by every county recorder and that it can be transferred in one hour as easily and safely as a registered bond of the United States. Therefore I appear before you to ask that you will, each and all, talk to your bankers in your own towns and make them acquainted with the merits of the Torrens System, which is to be fully discussed in this congress. The national bankers cannot lend money on realty. Two or three thousand of the smaller national banks should ask congress to permit that some loans be made on real estate to a limit not ex- ceeding one-third of the assessed value. These loans could be collected very easily, because sayings banks and other lenders usually ad- vance more than one-third, and would be glad to take them. Remove the absurd and costly obstacles which are kept in the path of those who go to deal in land and the national banks will wish to enter this field of business. Now you must prove that the man who owned your land fifty years ago was not married at the time when he deeded it to you. This proof must be examined and criticised afresh every time the land changes hands. This is intolerable, and the present generation will do away with such a state of things. Wheat is no longer sold in Chicago by the wagon load. Certificates of title to wheat are sold at auction in your great ex- changes to agents who represent buyers in Europe. Has not the result been that the 80 TORRENS SYSTEM. farmer who raises the wheat now gets a higher average of prices than if the old system had remained . unchanged? Does not facility of transfer increase the seller's profit? If the government should guarantee every man's title to his land would not millions of dollars be added to the land values of this great nation? Under the Torrens System this can be done, and I predict it will be done, and that a revolution and such improvement in real estate will occur as to be of vast import- ance. Tracts of 30,000 acres and 100,000 acres in my State, which are now used by a few families, will be broken up into smaller ranches of 160 acres, each one supporting a man and' his family. MR. J. HERBERT MASON, UPON THE ADVANTAGES OF THE TORRENS SYSTEM. This gentleman, president Canada Perma- nent Loan and Savings Company, Toronto, was the next speaker. He spoke on "The Torrens System as Used in Ontario." He said in part: For nearly forty years I have been intimate- ly associated with an institution in Toronto whose function it is to supply capital to own- ers of real estate. The legal proceedings nec- essary to insure the company's title as a mort- gagee to the securities ofEered are to me a matter of daily observation. The difficulties, vexatious delays, expense and uncertainty at- tending the old method of transfer have made world's real estate congress. 81 a deep impression upon me. Many a time have I asked the question, why is all this circumlocu- tion required in every transaction in land no matter how small its value, while stock and bonds to any amount may be transferred in a few minutes, with perfect safety to the buyer and with little or no expense? For a long time I was led to believe that there was no remedy; that there was something inherent in land which prevented its being dealt with as other kinds of property; that, like taxes and death, the evil was inevitable, and must be endured. The scheme devised and elaborated by Sir Robert Torrens, and now for more than thirty years in successful operation in the Australian colonies of Great Britian, has demonstrated that this belief is fallacious. Having become convinced that there was no good reason why land could not be dealt with as easily as other ^ kinds of property, a few gentlemen whose at- tention had been called to the subject met in Toronto in 1883 and formed the Canada Land Law Amendment Association. They im- mediately began a vigorous agitation for secur- ing necessary legislation. Notwithstanding much opposition, in 1884 the Torrens System was adopted by the legis- lature of Ontario for the city of Toronto and the adjoining county of York; by also the legisla- ture of Manitoba for that province. And it was adopted by the Dominion parliament after long and patient discussion in two of its sessions in 82 TORRENS SYSTEM. 1885 and 1886 for the territories lying between Manitoba aad the Rocky mountains. The use of the Torrens System has been extended by the Ontario legislature to certain new and outlying districts of that province. The prov- ince of British Columbia adopted the Torrens idea of transfer by registration instead of by deed in 1861 when it was a crown colony, and therefore unable to give the necessary guaran- tee of indefeasibility, which is an important feature of the Torrens System. This system of transfer is simple. Under it the registrar's certificates are generally accepted by purchas- ers and m.ortgagees, and have never been suc- cessfully attacked. It will be seen, therefore, that we have the essential element of the Tor- rens System, transfer by registration, in force in the greater part of Canada. Accompanying the Torrens System and necessary to its satisfactory working, other changes advocated by the Land Law Amend- ment Association have been adopted, such as ' abolishing the distinction between real and personal property in devolution, by the states Ontario and Manitoba; and by the northwest territories; also in these territories all trouble over the question of dower has been disposed of by simply abolishing the estate of dower. Where the new system is in force, all lands alienated from the crown, after the passage of the act, are placed under it, but with respect to lands previously alienated, it is optional with the holders. The aggregate number of instruments registered under the Torrens System in the first seven and one-half years of world's real estate congress. 83 its operation in Ontario were 18,740. Proper- ties, whose present value is estimated at $12,- 000,000, are now under it. The new system is universally admitted to be a vast improvement on the old system. People would as soon think of giving it up and going back to the old sys- tem as of replacing the electric lights with tallow candles. CANADIAN EXPERIENCE) OF THE OI.D AND NEW SYSTEM. COMMUNICATED BY MR GEORGE S. HOLMSTED, INSPECTOR AND REFEREE OF LAND TITLES, HIGH COURT OF JUSTICE, TORONTO, IN A LETTER ADDRESSED TO THE WORLD'S REAL ESTATE CONGRESS. "Of all the questions, which shall engage the attention of the Congress, none perhaps will equal in importance that of the Torrens System of Title Registration. All the English speaking provinces of Canada inherited the English law of real estate, with its methods of deducing title and making transfers. Notvvrithstanding that we had surmounted some of the evils of that sys- tem by adopting a system of recording deeds in full, coupled with a careful and elaborate system of indexing, it was still felt that, hav- 84 TORRENS SYSTEM. ing to examine a long chain of titles [coupled] with the possibility of defects in title or to find proof that had been lying dormant for years, [and that] would break out unexpectedly — when it was extremely difficult and often im- possible to remedy them — was a fruitful source of delay, injury and expense [that] we then looked toward our Australian cousins for help, since we were informed that they, through the Torrens System, of registration of title had solved the difficulty. The result has been, that that system has been successfully adopted in Canada, and there cannot be a doubt that it is a great improvement. The Torrens Sys- tem, as you may be aware, aims at giving finality to every transaction as it takes place, and the register-book is so devised as to exhibit clearly who is the present owner, and the charges which affect his title, without the necessity of investigating the claim of prior ownership. Were I able to be present at the congress, I should be prepared to advocate the following as desirable reforms respecting real estate: 1. The assimilation of the law of succession to real and personal estate. 2. The abolition of the estates of dower and courtesy. 3. Ivands to vest in the personal represent- ative of a deceased owner to the same extent as his personal estate. 4. The appointment of local officials as public administrators of deceased personal estates, in whom the legal title thereto should vest and who should have power to act for and world's real estate congress. 85 represent the estate for all purposes — until probate or administration should be granted to some other person. 5. The introduction of the Torrens Sys- tem of registration of title to land^ optional at first, compulsory after the lapse of ten years from its introduction. The demand which the public make — the attainment of which would be d^ great increase in the national wealth — is very briefly stated: It is, that when the owner of land brings it into the market for sale of mortgage, he should find as little difficulty, and — within certain necessary limits — as little expense in effecting his object, as the owner of stock or bonds in an incorporated company, or of any personal property. That this can be done by suitable legislation, is no longer disputed by any candid investigator. At present — under the old plan — no claim against a parcel of land — however unsub- stantial it may be — can. be barred and dis- posed of, until after a thorough and exhaustive investigation. Up to the 15th day of March, 1894, begin- ning from the era of the "Great Fire," (1871), which destroyed the official records of the county of Cook, there were filed in the Record- er's office, city of Chicago, two millions, nine thousand, six hundred and thirty-four convey- ances of record. THERE ARE NO SUFFICIENT GROUNDS FOR OPPOSITION TO THE TORRENS SYSTEM. We cannot imagine the man, who after in- vestigation of the Torrens System, could ob- ject to it for any good reason. Those who do not investigate are apt to say, "the old system is good enough." These could aptly be likened to the thoughtless farmer's boy, who when going on horseback to the primitive grist mill, put the corn in one end of his sack and balanced its weight with stones in the other end! These opponents bear resemblance to the dullards of the Middle Ages, since to some of them the Torrens renaissance is a measure too far in advance of their time; and, there- fore, it appalls them! It is but just to say, that had they lived in Guttenberg's day, they would have stuck to stylus and parchment, and rejected printing as too expeditious and cheap. They shut their eyes to the fact, that their fathers necessarily expended a month on the journey from Vermont to Illinois, and they are apt to prefer the old time wagon to the rail- road coach, by which the journey is now made within two days. Money invested in land having an indefeas- ible title is the most secure and steadfast de- pository. PART YI. EXPOSITION OF THE TORRDNS SYSTEM OF RFGISTRATION OF TITLF, AN FSSAY. BY HON. HARVEY B. HURD, OF CHICAGO.* THE TORRENS SYSTEM OF REGISTRATION OF TITLES, AS MODIFIED AND RECOMMENDED BY THE ILLINOIS STATE COMMISSION. The Commission referred to was appointed in 1891, and made its report to the Governor, December 10, 1892. It recommends the adop- tion of the Torrens System with some modi- fications, and was accom,panied by a bill em,bodying the views of the Com,mission. The bill was laid before the legislature and *Judge Hurd, very willing that his conclusions (after the most careful study of the merits of the Torrens System), should be spread abroad, obligingly placed his admirable paper ar our disposal: clear and logical in statement, it is an invaluable contribution to the cause of title registration. Editor. 88 TORRENS SYSTEM. passed the Senate by a vote of 28 to 4, but failed to pass the House of Representatives, it lacking seven votes of the necessary majority. The policy of the commission was to make as few changes in the law of real property, as it now exists in Illinois, as possible, but to simply substitute registration of titles for the record of deeds and other title papers. , To suit the bill to Illinois law, and to Is Suited Q^yiate the constitutional questions to Illinois that might arise under the Torrens La^, act as adopted in other countries, required a number of important modifications — not in principle, but in the way of accomplishing the purpose. To be able to appreciate the modifications made by the Commission, it will be important to state in as few wordsas possible the lead- ing principles upon which the Torrens System proceeds. Land ought ^J"- Torrens, who was the author of . g .. the original of the acts embodying the system, himself says, he started ''*"*° out with the idea that one ought to ferred. ^g ^hXo. to deal with land — to buy and sell it — as safely so far as title is con- cerned, and with as little expense, trouble and delay, as with other property: As, for in- stance, shares of stock in a corporation, vessels, public funds, etc., the transfers of which are made upon some record. The difficulty with the old system is that no one can be absolutely certain whether he is buying a good title or a bad one. The law has hedged about the transfer of real property ESSAY BY HON. H. B. HURD. 89 with many formalities and technicalities^ a failure to observe any one of which may defeat the title. And as there is no one authorized to determine conclusively at the time of a transfer, whether these formalities and tech- nicalities have been observed or not, the pur- chaser must buy at his peril, and as a necessary precaution he must employ experts to look up the title, running it back to its source or to some indefinite time far in the past. It is not that titles thus carefully looked up often turn out to be bad, but it is the expense and delay which one is subjected to because of the possibility that it may so turn out, and because no amount of looking up will get rid of- that possibility. It still hangs like a millstone about the neck of the title. Great 'pj^g great purpose of the Torrens Purpose System is to rid land titles of this of the peril, for with its disappearance dis- „ appears all the expense, trouble and delay that attend running the title ys em. jj^ck through previous transfers. The first step, therefore, is to provide an j^ J officer or set of officers — experts, who can make an examination of title. Register- once for all, down to a given tim^e, rng Title, that is, down to thetime of the appli- cation to have the title registered, and the title being found to be in the applicant, to certify that fact, entering the certificate in a book called the Register, and delivering a copy to the owner, which certificate is con- clusive as to the ownership. This is called registering the title, and as 90 TORRENS SYSTEM. you will see, is quite a different thing from recording the instruments of conveyance or keeping an abstract of them. The title being thus registered, the next thing is to provide for subsequent dealings, and the act proceeds upon the theory that at each transfer of the title, all questions of form and substance must be conclusively settled, so that the purchaser will get just what he buys. If he buys a fee-simple clear of incumbrances, he will get a fee-simple clear of incumbrances; if he buys subject to incumbrances or any less interest than the fee, it will appear upon the register ..and in the certificate that will be delivered to him, and there is no going back of the certificate. It is a matter of no con- sequence to him, who owned the land before him, or how many owners there may have been, or what nice questions of law have been or might have been raised upon the various con- veyances through which it has come down to him; they have all been settled and dropped into oblivion. All this is made practicable and comparatively easy by the simple of the manner in which the register is kept. System. The first certificate of title is the first thing that will appear in the registry, this being a new root of title back of which it is not necessary to go, all that need be attended „ ^ to is the subsequent dealings. If the nortgage. • - j ^ i. -^ it. registered owner mortgages it, the mortgage will be filed in the office of the Registrar, and a memorial of the mortgage will be entered immediately under the certifi- ESSAY BY HON. H. B. HURD. 91 cate of title. When the mortgage is released, the notation will be canceled. If an execution or attachment is levied npon the land, the fact is certified to the Registrar, and he enters at the same place a memorial of the fact. When that is disposed of the memorial is disposed of, and so on as to everything that may affect the title up to the time of the next transfer. Transfer- When the owner wishes to transfer . _.., the land, he surrenders his certificate ing Title. r 1 • ,^ ■< ■ 1 • 1-1 A ot title and it is canceled. A new one is issued to the transferree and registered up- on a new page. The dealings under the old certificate are closed and thereafter will pro- ceed under the new. Every successive certifi- cate constitutes a new root of title. If the transfer is subject to incumbrances or out- standing interests of any kind, the notation of them under the former certificate will be ■ brought forward by entry under the new. When only a part of the land described in a certificate of title is transferred, a new certifi- cate is issued to the transferree for what he gets and another to the owner for the balance. "CI d " ^ have not attempted to go into ex- ceptions as in case of fraud, etc., or on the into particulars beyond sufficient to Title give an understanding of the leading Cleared up, principles Upon which the system pro- ceeds, which may be summed up in a as you go. . , ' . „, -' .f Single line: Clear up everything as you go along and have no after-claps. Short accounts and frequent settlements avoid difiiculties. 92 TORRENS SYSTEM. Registra- J-]- jg optional whether one shall bring tion his land under the operation of the optional. Act or not. Having given you an outline of the Where the system as it has been in use in South Torrens Australia since 1858, in Queensland System since 1861, in Victoria and New South is used Wales since 1862, in Tasmania since 1863, in New Zealan4 and British Columbia since 1870, in Western Australia since 1874, in England since 1875, in Ontario since 1884, and in Manitoba since 1883, I will Difficulties P^^^^^^d to give you some account of the difficulties which we encountered encoun- in this State, and which will apply to tered and all the States in the Union, and the o r me "modifications the commissioners have ' embodied in the bill they recommended to the Legislature of Illinois. It will be seen by what I have said that the first certificate of title bringing the land under the Act, and each subsequent certificate or transfer of the same, are made conclusive immediately that they are issued and registered. It is clearly within the legislative power **** ® of the countries named to do this. Constitu- ^e have, however, in the several tions of State constitutions, and in the 14th Illinois and Amendment to the Constitution of the that of the United States a restriction upon the legislative functions that puts it out of the 'power of any legislature to give this immediate and conclusive effect to the first certficate of title — that bringing the land under the Act. To ffive it such an ESSAY BY HON. H. B. HURD. 93 immediate effect would be to cut off vested rights in a manner to which the possessor has ., not given his consent, and without giving him a day in court, a thing that Fund cannot be done. This fact has been Waived, urged as an insurmountable obstacle to the adoption of the system in this country; biit instead of its being such, it led the Commissioners to recommend what they considered a much better way than to cut off at once all adverse claims and turn the adverse claimants over to an indemnity fund as is done in some of the countries mentioned, but not in all, as for instance, not in England. When such a fund is raised, it is by requiring the owner upon first registration to pay into the public treasury a small per cent of the value of his land. This is a burden upon the land that it was thought it would be very desirable to avoid if possible. The Commissioners found . that both the constitutional objection and ~ the indemnity fund might 'be statute of avoided by the introduction of a short Limita- statute of limitation's^ whose effect tions would be to cut off all claims adverse to the title certified, which are not 'brought forward within a certain time after the registration of the certificate of title. ' Under the bill recommended by them, the first certificate of title Title first would be obtained and registered the Registered. same as Under the Torrens acts, and as to all persons dealing with the land thereafter, it would be binding, but as to 94 TORRENS SYSTEM. persons who may have some adverse interest in or claim upon the land at the time of such ftrst registration, it would have no effect except to start the running of the statute of limitations, so that any person having a claim adverse to the certified title may within the time limited, and not thereafter, bring forward his claim and enforce it without prejudice thereto on account of the certificate. The for ii'^ne suggested was five years. The registration of the certificate of title running of starts the running of statute of limi- statutesof tations, and nothing will arrest,its run- Limita^ ning except the interposition of some ,. adverse claim which must be made to appear upon the register; therefore, when the five years, or whatever the time limited may be, has expired, and nothing ap- pears upon the register to the contrary, the conclusion is inevitable that nothing can ever be brought forward to disturb the title. The advantage of the limitation proposed over any existing statutory or common law limitation is that it is based wholly upon matters of record, viz: the registration of the certificate of title. As it is started by matter of record, so if it is arrested at all it will be arrested by a matter that will appear upon the same record; thus, whether all adverse claims have become barred or not can be told by looking at the record. All existing limitations rest for their efifect upon facts, some or all of which do not appear of record and which must be proved whenever the title is attacked, the evidence of which may or may not be ESSAY BY HON. H. B. HURD. 95 obtainable. The existing statutes of limita- tions may as a matter of fact correct every defect in a title and yet, as that does not appear of record, it is of little or no value in marketing the title. It will be observed from what has been said, that the conclusive effect which the bill as re- commended gives to the registration of the title does not reside in the certificate itself, nor does it depend upon the ability of the legis- lature to vest in the registrar judicial powers. p It is freely admitted that the legisla- ture cannot vest in him the power to of the make a conclusive finding as to any Legislature title, except the matter is submitted . _^ , to him by the consent of the person to be bound, or by those under whom of statute jjg claims. The conclusive effect is of Limita- derived wholly from the Statute of tions Limitations, the facts upon which its operation depends having occurred. The registration of the certificate is one of these facts. After the statute has run the time limited, it becomes an all important fact like the fact of adverse possession or payment of taxes under some one of our present statutes of limitation. The limitation proposed does not run against any one in possession of the land at the time of registration, and continuing in such posses- What the ^ion at the time of a subsequent „ . transfer. The Torrens act gives to the certifi- "cuts off." ^,^^g ^f ^j^g ^j^g ggg^^ Qf cutting off the claims of all persons, those under disability 96 TORRENS SYSTEM. as well as of those not under disaoiiity, except when they allow, as in England, possessory titles to be registered without examination, in which case the certificate is not conclusive. The reason why it is desirable to cut off any possible adverse claim is that if there may possibly be such a claim in any case, it must be looked for in every case, for there is no telling that it does not exist in the title in hand without having first made the necessary search for it. For the same reason it is im- portant that the Statute of Limitations recom- mended should bar every sort of adverse claim, those of persons under disability as well as of others. It was no doubt due to the fact that Of Infants ^^^ ^^^^ ^^^ "°^ except infants and lunatics from the operation of the *•"* limitation that it was defeated on its Lunatics, final passage in the House of Repre- sentatives. Our sympathies are easily aroused in behalf of those who are supposed not to be able to look out for themselves, and the opponents of the bill by their impassioned appeals in favor of this class, were able to in- duce many to vote against the bill who would otherwise have voted for it. Fortunately it is not vital to the Saving system that this class of persons be Condi- included in the limitation. If they are not included, however, any person dealing with the title will still have to do so at his peril so far as their rights are concerned, and consequently will wish to pos-. sess an abstract of title down to the time of first registration that he may see to it that no ESSAY BY HON. H. B. HURD. 97 such rights have been overlooked by the Kx- Bxaminer ^^^^^^^- Of course, none Vi^ill exist if the Examiners have done their duty. to bean j^q ^^^jg ^^^ ^^ registered until it has Expert. been subjected to the examination of two or more expert examiners, and they have united in a written report to the Registrar that the applicant has a good title to the estate or interest in the land, as stated in his application. If there is any outstanding Rishts of iiitsi'^st in an infant or lunatic, or for that matter, in any one else than the Infants and applicant, the certificate of title must Lunatics be refused until it is removed by a Protected ^^^^^ ^^ competent jurisdiction. All our dealings with real estate are upon the understanding that an examination of the title by an attorney qualified to do that busi- ness will disclose the fact of an outstanding interest if one exists; and I think it is safe to say that not one time in a million does it turn out otherwise. It is a question of public policy whether the great majority must suffer delay and expense for fear that one man in many thousands may suffer loss; especially when we consider that what he gains some one else must lose. . . ^ There is not a little inconsistency in the law with reference to persons tency of theun^gj- disability. Though the Statutes Law as to of Limitation except such persons infantsand^'"'^^ their Operation, the courts have invented a maxim which takes many cases out of their exception. The maxim is, that when a statute once begins to 98 TORRENS SYSTEM. run it will keep on running notwithstanding the intervention of the rights of infants or lunatics. I will illustrate this by quoting from an eminent author on the subject: "If the right or title be in an infant, the case is within the saving of the statute, but if in an adult, who soon after dies and the title des- cends to an infant heir, it will not save the lapse of time, for the limitation began to run before the title was acquired by the infant heir." This distinction is taken for the sake of repose, and is favored by the Courts. "Burnt ^ notable example of the applica- tion of the policy for which we con- Record tend is found in the legislation of this Act" as it State. The ninth section of the" aff ct "Burnt Record Act" [for benefit of the city of Chicago] provides that Infants and certain abstracts, copies, minutes, etc.. Lunatics, showing deeds, etc., to have been executed, should be received in evi- dence, and when so received it should be pre- sumed that the deeds so shown were executed except as against infants, persons of unsound mind, married women, etc. In 1887, the legis- lature amended that section by leaving, out the saving as to infants, persons of unsound mind, and married women. So far as I know, the amendment has proved satisfactory. Another set of objections to the Tor r ens Sy stern pertain to the method of transferring and dealing with property after it is registered. ESSAY BY HON. H. B. HURD. 99 Efficienc '^^ before stated, the system rests for its efficiency upon the idea that all of the questions of form and of substance Torrens which may be involved in a transfer System ^^ ^^^^^ should and can be legally and safely settled once for all at the time of the transfer. For example, if A proposes to transfer to B a fee simple clear of all in- cumbrances to a certain piece of land: several questions will arise, viz. (1st) Has A a fee simple title to that land? (2nd) Is it clear of all incumbrances? (3rd) Are the instru- ments of transfer in the form acquired by law? These questions arise in every case of transfer. . „. . Under our present system they are submitted to the purchaser's lawyer, of the a^jjfj jjg gives his opinion upon them, Present and Upon that opinion the purchaser g , buys, but that opinion settles nothing: TAe purchaser buys at his peril and every subsequent purchaser buys at his peril, not simply as to the title of his im- ™ mediate grantor, but of every previous grantor. Necessary jf these questions are to be settled Grant of at the time of each conveyance there p must be some person authorized to then settle them, and this person is to the the Registrar, who is the Keeper of Registrar the Records, and has official know- . . ledge of all the facts necessary to enable him to do so; for it must be Legislature j-gjjigjn^gj-ed that after land -is once is Consti= registered everything that can effect . .. , the title of the registered-Owner must tutional. » . . . appear on the register, which is so 100 TORRENS SYSTEM. kept that it can be discovered at a glance. It will usually all appear upon one page. The Registrar has the legal advice of two or more Examiners learned in the law, and there are many things he cannot do except upon their advice. Wherever the Torrens System has been adopted, there is no question raised as to the ability of the legislature to vest this power in the Registrar, and in no instance has there been any complaint against the exercise of the power of that officer. - . „ ^ In this country, the same constitu- tional question is raised against the stitutionai bestowment of that power- upon the Objections Registrar, as in the case of first reg- netand istration, viz: that his findings, if they _,.,.. are to be held to be conclusive, may have the effect to divest one of his title and vest it in another; and he not being a judicial officer and the proceeding not being in court with all the parties before it, such a thing cannot be done. The question is a most important one and the Commissioners did not overlook it, but they thought they could see a clear way of meeting the objection without violating the constitution, and that was by deriving the power through the agreement of the owner implied in the act of bringing his land under the operation of the law. So they put into their bill the following section: "All dealings with land or any ^estate or interest therein after the same has been brought under the act, and all liens, incumbrances and charges upon the same subsequent to the first registra- ESSAY BY HON. H. B. HURD. 101 tion thereof shall be deemed to be subject to the terms of the act and to such amend- ments and alterations as may hereafter be made." By bringing his land under the Act^the owner, with the consent of the legislature, makes an Powers agreement which runs with the land, that the Registrar may supervise the of the transfers of the title that shall there- Registrar after take place and decide all ques- Settled tions of form and substance that may arise in any such transfers and give conclusive certificates of title upon such trans- fers, thereby constituting the Registrar an arbitrator in the premises. There is noth- ing novel in the creation of an arbitrator by agreement and giving to his finding conclusive effect. Nor is there anything new in making agreements that run with the land. Nor, is there any reason why the legislature cannot determine beforehand that a certain agreement may be made by the owner and that it shall run with the land and what its effect shall be. , It is a common practice in leases and especially in long leases — say for Effect of ninety-nine years — to insert a clause Agreement.that in case a dispute shall arise between the lessor and the lessee or their assigns, the same shall be submitted to the decision of one or more arbitrators either designated in the lease or to be chosen in a way set forth. These agreements are good in law and the finding of such arbitrators within the terms of the submission are binding upon the parties and their assigns. 102 TORRENS SYSTEM. Doubt as to 'Qxxt, conceding that this objection the Com- is met, the opponents of the Torrens petency of System raise still a,nother against the Registrars Registrar, viz.: that' the office being Unreason- ^^^ctive, the person elected will most likely not be competent to discharge * *■ the important duties imposed upon him. Who knows that such will be the case? There are many elective officers who are dis- charging quite as delicate and important functions as are required of the Registrar, such as governors, judges, clerks of courts, comp- trollers, treasurers, etc.; still, we keep on No lack of fill^'ig' these offices by election. The fact is, there is no want of competent Competent material and the people are pretty apt Men. to pick out their officers with reference to the duties to be preformed by them. As a rule, a mean office gets an inferior man and a responsible office gets a competent man. When the people cease, to elect men equal to the duties of the office to which they are elected, the elective system will have to be abandoned. „ .^ Of a similar natute is the objection that the Examiners, the legal advisers ancyof ^f the Registrar, "will be selected Registrars from among political favorites, and d L al therefore may not, and most likely will not, be competent." This class Advisers ^f objections is altogether conjectural. is ample. The best light we have upon the mat- ter is our own experience in similar cases, which is to the effect that such offices have been fairly well filled; and the experience ESSAY BY HON. H. B. HURD. 103 of those countries where the Torrens System has been in operation, shows that there has been no lack of ability and fidelity in these officers. The duties are of such a nature that the officer soon becomes an expert what- ever mdy have been his previous training, and there is every reason why he should per- form them well for his own sake. He is made pecuniarily responsible for any failure to do so resulting- in a loss. In nine hundred and ninety-nine transfers in every thousand, there will be nothing intricate in the duties; they will be merely clerical. They are not more difficult nor do they involve larger interests than the transfer of stock in a corporation, which is attended to by its secretary or most likely by some clerk. jj . . Among the very serious defects in the present system is, that there are the Present go many facts affecting titles that System, never appear of record. Among them n ■ . . are the facts attending the transmis- sion of title by descent. The fact of by the death of the owner, who are the next Torrens of kin, whether there is a widow or ^ ^ surviving: husband, etc., are all facts which the law makes no provision for getting upon the record so far as real estate is concerned, and which have to be looked up again and again as often as the property is dealt with. The Torrens acts furnish a complete retnedy for this defect. Under them registered lands instead of descending directly to the next of kin, go to the executor or ad- ministrator substantially the same as person 104 TORRENS SYSTEM. alty. Proof of heirship is made before the Probate Court, and that court finds the re- spective shares of the heirs, and orders the executor or administrator to make conveyances to them accordingly. This order being filed with the Registrar and the certificate of title of the decedent being delivered up, the trans- fers are made and the several heirs receive certificates of title to their respective shares. But here again we are met with an objection that this imposes new duties upon the Probate Court as if there were something terrible in that. We are constantly imposing new duties upon that court for the convenience of the people. One of these new duties is the sale of real estate for the payment of debts, and no- body has been hurt by it. The county courts in this State except in two counties are also Probate Courts, and do the probate business. When some years ago it was proposed to raise the jurisdiction of these county courts, as was done, it was most vigorously objected, that "that would never do; the judges were not competent to be instrusted with such import- ant duties;" but the people very soon remedied this fault by electing men equal to the responsibilities. g . As the law now stands, it is never safe to buy on the faith of the record; to Buy that does not necessarily show where under pres=the legal title is, or if it does show in ent Land whom the legal title is, there may be some one else who has an equitable title that will wrest it from him or his grantee. I have in my mind a case that ESSAY BY HON. H. B. HURD. 105 will illustrate this. A, being the owner of „ ^. 4 land and wishinsf to conceal the fact Pertinent ^ , . , .° j -j. ^ td or his ownership, conveyed it to rJ, illustra- ^]jo conveyed to C, and C to D, and tions. D to D, — all of whom recorded their deeds. The title thus remained out of A some eight years. E) sold it to an inno- cent purchaser. The purchaser before closing his purchase had procured an abstract which showed the title in E). He went upon the land to see if there was any adverse possession; he found there an old fence that had been put there by A when the title was in him, and that some one had used the land for pasture but no one living upon it, he naturally attributed all he saw to E's ownership and concluded his purchase; but A now came forward, and upon showing that it was he that had built the fence and pastured the land, the Court gave him the land on the ground that those acts were sufficient to establish adverse possession, and that therefore the purchaser had con- structive notice of his equities and bought subject to them. So the purchaser lost his money. In another case, a non-resident own- ing a large tract of land for over twenty years and paying all taxes upon it during that peri- od, coming to sell it, he found a person upon a part of the land who had entered without right — a mere trespasser, but as he had been there for twenty years, the real owner had lost his title and the trespasser had gained title by his adverse possession. One other typical case. A person died leaving a valua- ble piece of land and two children — half broth- 106 TORRENS SYSTEM. ers; one was of age and the other was a minor. There was no administration of the estate, and there needed to be none as there were no debts. The elder of the half brothers assumed to be the only heir and sold the land. The other not being informed of his rights until after the statute of limitations had run against him, lost his share of the land. g , These are instances of hardship — downright wrong, growing out of under the rules that were invented to prevent Torrens still greater wrong. Under the g Torrens System, as embodied in the ■ bill proposed by the Commission, neither of these cases of wrong could have occurred: the first wrong could not have occurred, because the record is conclusive evidence of title; the second, because no title can be obtained except by a transfer upon the record; and the third for the same reasons, and because the land of the deceased father could not have been dealt with except after proof of heirship, and in pursuance of an order of court finding the rights of the two heirs. g The objection is sometimes urged, that "if we had an easier way of versus transferring land, a great many per- Difficuit sons would dispose of their land who „ . should not and would not if the opera- tion were more difficult." We might Land answer, there would for the same Transfer, reason be quite as many others who would buy land as they ought to do, who will not do it now because of the doubt, delay and expense of getting a good title. ESSAY BY HON. H. B. HURD. 107 Por it must be remembered, that a considerable portion of this expense and all the risk falls upon the person who wishes to buy. This Obsolete objection is a relic of the old feudal Ob' f o days, when one could not alienate his 'lands at all; but now the progress of civilization, the growth of individual indepen- dence and reliance, and the liberalizing in- fluences of trade, have been sweeping away those old notions one after another, until the demand is upon us to do away with this last remnant of that dead and decayed prop of autocracy. Under the Torrens System there will be no less formality in conveyances than now; the same instruments of conveyance will be used, but to which, will be added the surrender of the certificate of title and taking out a new one. The difference will be, that the transfer will be supervised in such a way that when it is done it will be rightly and conclusively done, and there will be no going back of it. Ygjj, I have not the time to mention all the objections that were made to the Objec= adoption of the Torrens System in tions to this State. They were as various as Torrens ^^ fancies of the objectors. With the exception of the two constitution- System. ^^ questions I have mentioned, they had all been urged in each of the countries that have adopted it as a reason why the sys- tem would not answer. We thought that we were making a knock-down argument by show- ing them that it had worked well in all those countries, and by insisting, that the proof of 108 TORRENS SYSTEM. the pudding was in eating it. But we found that would not do. When we mentioned South Australia and showed the official reports to the effect that none of the evils that were predicted had occurred there in the thir- ty-five years it had been in operation, they answered, "O, it may do very well in such a new country, but Illinois is too old to adopt a new system." And, when we mentioned Prussia, where the improved Torrens System has been in usfe since 1872, and in England, where it had been in use since 1875, and sug- gested that these countries were quite a match for Illinois in point of age, they replied: "But, O, those are slow coach countries compared with this enterprising State; and there are ten transfers in Chicago to one in London or Ber- lin." We replied to this weak objection, that the more frequent the transfers, the greater the necessity for a safe, expeditious and in- expensive way of making them. Source of '^^^ Opposition in England came ^. _ mostly from lawyers; their obiections theOppo= -' i -^ . r Vi , were cogent and most -lorcibly put, sition. g^jjj have been frequently quoted in this country. They were m^st deeply inter- ested against it. It was a question of bread and butter with them, and their opposition did not cease on the adoption of the Torrens System into law. As it was permissive and not compulsory, it rested with the owner whether he would bring his land under it or not, they were able to keep a great many from registering their titles, and caused it to move slowly. As the registrar or his examiner made ESSAY BY HON. H. B. HURD. 109 all the examinations of title, there was noth- ing forsooth in it for the profession in general ! Some writer, in a very dignified article pub- lished in a leading London magazine, suggest- ed that "the act be so amended as to give the lawyers something in it." And, it was amended, so that the registrar might adopt the examination of title and opinions of any reputable lawyer. Since that time, registra- tion has moved forward more rapidly in Eng- land, and now the question is being agitated to make the registration of titles compulsory. Shall the ^^e question is no longer, '■'■Will Selfish few ^'^^ Torrens System work and prove satisfactory if adopted?" Its value revai , or j^^^^ been demonstrated by its use in the Great ^U" countries where it has been adopt- Publicbe ed. The question rather is, whether Advant- the great pecuniary interests which aged? have grown up and draw their living from the faults of the present system, are going to be too strong for us? THE) OLD AND NEW SYSTEMS. THE WISDOM OF THE PAST USED TO ILLUSTRATE A MODERN REFORM. 1. " To invite and facilitate the line of pro- ceeding which the times call for." Applies to the need of reform in the land system. 2. " The reasons are both good and weighty." This book justly refers to many of such reasons. 3. " The mistress whom I serve quickens what's dead." A dead title may be restored to life by the modern system of title registration. 4. "" Wilt thou, after the expense of so m,uch m>oney,be now a gainer?" Will you not now after long support of the old, costly system — adopt the new, and spare expenditure? 5. "Deliver him, to safety! I save you that trouble, sirf" You'll need no help to verify your title — found upon the Register Book — standing clear as the light. 6.. "Speed: to describe whose swiftness numbers fail!'" So speedily is a title transferred under the new system, that the movement resembles the electric car as opposed to the slow coach. PART YII. REPORT OF THE LAND TRANSFER COMMISSION, STATE OF ILLINOIS. AN INVESTIGATION OF THE PREVAILING SYSTEM OF TRANSFERRING LAND TITLES. AND AN INQUIRY INTO THE PRACTICAL WORKINGJOF THE TORRENS SYSTEM OF REGISTRATION OF REAL PROPERTY. To the Honorable Joseph W. Fifer, Governor of the State of Illinois. In accordance with the terms of a joint resolution adopted by the Thirty-seventh Gen- eral Assembly of the State of Illinois, under which the undersigned were appointed a commission "to make investigation of our present system of transferring land titles, and to consider whether a more simple, expeditious and inexpensive system, and one that will give greater security of title cannot be adopted, and especially to inquire into the practical work- ings of what is knowil as the Australian or Torrens System of registration of titles, and 112 TORRENS SYSTiEM, whether it can be adapted to the constitution and laws of the State," such commission now beg leave to make the following report: In Illinois transfers are made by deed, the seller always being compelled to show that his deed is the last link in an unbroken chain of property drawn^ executed and recorded con- veyances reaching back to the patent from the government, a period usually covering more than fifty years. The record of the prior deeds simply excuses the production of their originals. Each dealing with the land necesitates a careful inspection of this chain of title. The owner must provide an abstract of title, which is a condensed but complete history of the title, consisting of a summary of all conveyances and instrunients affecting the land. p , The mere making of a perfect abstract of title to a piece of land, Abstract with all the incumbrances which affeqt Requires it, involves a great exercise of legal Special learning and careful research, and can ..... be safely done only by skillful persons. This abstract of title, having been acquired by the owner with the land, must be brought down by the abstract-makers to show all matters of record affecting the title which have transpired since. The abstract of title is then submitted to the attorney for the buyer, who gives his client an opinion upon the title as disclosed by the abstract, upon which opinion, if satisfactory, the proposed transfer is effected by the payment of the consideration and the delivery of the deed. The last named act passes the title. . report of illinois commission. 113 This system is found unsatisfactory in the following particulars: 1. The EXPENSE. The cost of the ab- stract, either in whole, or its continuation, is necessary in each transfer of title. To this must be added the cost of its examination by the attorney for the buyer. In Cook county the average outlay for these two items will be probably not far from $25. It is estimated that in Illinois, the annual cost of abstracts of title and their examination by counsel, is up- wards of $10,000,000. 2. The delay. Too long a time inter- venes between the making of the contract of sale and the delivery of the deed. Delays consequent upon procuring abstracts, their examination and hunting up matters that do not appear of record, frequently run into many months. 3. The insecurity. Errors may inter- vene not only in the making of the abstract, but in the opinion of the buyer's attorney. As against all such errors the buyer assumes the risk. If the defects be sufficiently serious, he may lose the land, and then may recover damages from his grantor under covenants of warranty. 4. The always increasing record of instru- ments and matters connected with the title, the accumulation of books and indexes in the recorder's office, and the lengthening of the abstracts of title, steadily inci"ease the cost of transfers and the risks of errors. Sinoe October, 1871, there haue accumulated in the recorder's office in Gooli county more than 4,200 large 114 TORRENS SYSTEM. boohs of records of deeds and mortgages each with about 600 pages. At the present rate of annual increase, within fifty years, these books will be so numerous as to require a large building for their keeping; and the time and expense necessary for their examination will very seriously interfere with transfers. 5. These defects in the present sys- tem OPERATE AS A PERPETUAL, TAX UPON THE HOLDERS OP REAL ESTATE, directly re- duce its ease of convertibility into money, and thus lower its market value. This burden is always increasing. No way is perceived by which the present system can be retained, and these defects removed. The Torrens System. — After careful examination of the different methods of trans- ferring real property now in use in the civilized countries of the world, the commission beg to recommend the introduction in Illinois of a system containing the essential features of what is commonly known as the Torrens Sys- tem of registration of title. Where in OPERATiON.^=-This system has been in operation for over a century in Prussia, Bavaria and other European states, notably in Hamburg, where it has been used for upwards of 600 years. It has been in use since 1858 in South Australia, since 1861 in Queensland, since 1862 in Victoria and also in New South Wales, since 1863 in Tasmania, since 1870 in New Zealand and in British Columbia, since 1874 in Western Australia, since 1884 in Ontario, and since 1885 in Manitoba. REPORT OF ILLINOIS COMMISSION. 115 So far as your commissioners haue been able to learn, the system has given generai satisfaction to the iand- ouuners of every country where it has been tried. One country after another has adopted it, each with uniform success. Wherever it has been tried, it is in actual use today. In 1875, this system was put into operation in England, but a comparatively small part of land owners have as yet availed themselves of its benefits. The Register General in England reports that the number of registered owners is steadily increasing, and that the manifest advantages of a registered title are gradually overcoming the deep-rooted opposition of the English land-owner to having his title a mat- ter of public record. Your commission are of the opinion that the essential features of the Torrens System may be adopted and used in the in the State of Illinois, without amendment to our constitution or material change in our existing laws. To that end, they have prepared the draft of a bill which accompanies this report. Recommended. — The outlines of this bill in brief are as follows : „ . The recorders of deeds are made registrars, and in addition to their made Reg- usual duties as recorders, will con- istrars. duct the registration of titles, and all dealings with registered lands. They are assisted by deputies and such examiners of title (who must be attorneys at law) as may be necessary. It does not seem necessary to create any new offices or officials, and almost all the machinery necessary to transfer land by registration of title, is already to be found in our recorders' offices. 116 TORRENS SYSTEM. Any owner may register his land. No one is required to do 80. The owner files with the registrar his ap- plication in writing for the registration of his title, together with his abstract of title. These are passed upon by the examiners, and if in their opinion the title is in the applicant, the land is registered by its entry in the reg- istry book of the registrar. Such entry is a certificate signed by the registrar certifying the title to the land to be in the applicant. This is called the certificate of title and is made in duplicate. One is kept by the regis- trar and bound in the register; the other is de- livered to the owner. During the first five years after the land is first registered, the certificate of title \.^ prima facie proof receiv- able in all courts that the person named there- in is the owner of the land. After the expiration of jive years from the first regis- tration, no suit attacliing the title of the registered own- er can be brought, and the certificate of title is conclus- ive proof, in all courts, of the ownership of its holder, AiiRi hts Provision is made for the protec- tion- of the rights of all adverse own- Protected, gj-g whose right of action may not have accrued at the time of registra- tion, and proper additional time is given in which to bring such actions. All constitu- tional rights of any owner or claimant adverse to the registered owner are fully protected. Certificates of title as to all adverse rights outstanding at the time of the first registration are absolute and inde- feasible, subject only to the foregoing limitation period. As to all rights adverse to the title of the REPORT OF ILLINOIS COMMISSION. 117 registered owner accruing subsequent to the first registration, all certificates of title, ex- cept as against a fraudulent holder, are abso- lute and indefeasible. If any such right be es- tablished it is enforceable not against the reg- istered land held by one free from fraud, but only against the person fraudulently defeating such right, or against the registrar upon his bond for negligence in improper registration. It is essential to this method of registration that the act of the registrar in dealing with a registered title be held absolute; and a trans- fer of or dealing with the title by him must be taken by all to be as unimpeachable and conclusive as though his act were the final de- cree of a court of last resort, with all parties properly before it. To grant such finality to the act of the registrar is not in violation of any constitutional right, since it is clearly within the power of the legislature to provide that all right, estate or interest in registered land acquired after its first registration shall be acquired and held subject to such power in the registrar. The act becomes a rule of prop- erty governing all subsequent dealings after the first registration, the same as if terms were embodied in the instruments of convey- ance. Indefeasi- ^^ ^^^ terms of the proposed bill indefeasi- bility of title, as against aduerse interests " y^ outstanding at the time of the first registra- Titie at ^jgi^ ^^j ijpg^ which cause of action has ac- End of crued, is not secured until after the expiration five years, of the term of five years allowed for the es- tablishment of such interests. 118 TORRENS SYSTEM. In the very few cases where such outstand- ing interest may be possibly overlooked by the examiners in preparing for the first registra- tion, and the cause of action thereon may not have accrued, and, therefore, be not subject to any statute of limitation, the time when the registered title becomes indefeasible may be somewhat extended. But such cases must necessarily be rare, and, in the vast majority of titles which have been registered for five years the registered owner will hold a prac- tically perfect title, which by lapse of time will ripen into one absolutely indefeasible. No valid objection can be urged against the length of the limitations provided by the act. Our present statute of limitations is in many cases even more stringent, and all rights in property are cut off by such statutes without compensation. The misfortune in the present system is that all stat- utes of limitations are made to run upon matters which do not appear upon record, and therefore are not auailar ble in determining the merchantable character of the title. The striking advantage of the limitations in the proposed act is that the statute begins to run upon the entry of the land upon the reg- ister, which is a matter of public record. Transfers op registered land are made in the following manner: the owner executes the usual deed, (quitclaim, special or general warranty) and submits it, together with his certificate of title, to the buyer. REPORT OF ILLINOIS COMMISSION. 119 In euery transaction, the owner must pro- "^ '* ^ duce his certificate of title. He can do abso- is Trans= lutely nothing without it. ferred. If lost or destroyed, upon propei showing, the owner receives a certified copy marked "owner's certified copy, issued in place of duplicate lost," which answers the same purpose as the lost certificate. A^o new forms of conveyance are required. The buyer, after inspection of the proper folium of title in the register, and find- ing thereon no incumbrance or lien safely pays over the purchase money, and receives the deed and certificate of title. He then delivers them both to the registrar, who notes the transfer upon the register. This act operates to transfer the title. No title passes by the delivery of the deed. The deed after delivery and before the registration of the transfer, is a mere contract between the parties. Its sole object ia to authorize the registrar to register the transfer. When the transfer is registered, the registrar cancels the old certificate of title, and issues a new one in duplicate as before, one called the original, being retained in the register and the other called the duplicate, delivered to the buyer, now the new owner. The deed is kept by the registrar. „ ^ A MORTGAGE OF REGISTERED LAND nortzaze. IS EFFECTED IN SOMEWHAT THE SAME MANNER. The Owner executes the mort- gage in duplicate, and delivers it, with the note or bond and his certificate of title, to the lender. The latter, after inspection of the proper folium in the register, and finding 120 TORRENS SYSTEM. thereon no incumbrance or lien, safely pays over the money to the borrower, and receives the mortgage securities with the certificate of title. He retains the note or bond and deliv- ers the duplicate mortgages to the registrar, who notes the transaction upon the register as well as upon the certificate of title. The lat- ter is thereupon returned to the borrower, who may use the same in effecting a second or third or more mortgages. One of the dupli- cate mortgages is retained by the registrar. The other, with the date of its registration en- dorsed- thereon by the registrar, is delivered to the lender. When the mortgage is paid, a release of the same is filed with the registrar, who thereupon notes the release upon the reg- ister book as well as upon the certificate of title. The latter is then returned to the own- er, or he may surrender it to the registrar for cancellation, and receive a new certificate of title containing no mention of the mortgage. Trusts Registered owners, by deed or OTHER instrument PILED WITH THE REGISTRAR, MAY CREATE SUCH TRUSTS AS MAY BE DESIRED. The terms of the trust are not set forth in the certificate of title, but after the name of the trustee is inserted the words, "in trust", "upon condition", or "with limitation", as the case may be. No subse- quent transfer or dealing can be had thereaf- ter except upon the written opinion of at least two of the examiners of title that the pro- posed transfer or dealing is in accordance with the terms of the trust, condition or limita- tion. REPORT OF ILLINOIS COMMISSION. 121 No judgment, decree, attachment, lis pendens, mechanic's lien, nor oth- er statutory legal or equitable lien except tax- es and special assessments is a lien upon reg- istered land, until a certified copy of the judi- cial proceedings, or a copy of the instrument upon which the lien is based, is filed with the registrar, and a brief note thereof is entered by him upon the certificate of title in the reg- ister. This abolishes all general liens, and one dealing with a registered title can safely ignore any lien not entered upon the certificate of title in the register. Provision is made for all who wish to give notice of a lien upon or claim against registered land. All such notices are entered by the regis- trar upon the proper certificate of title in the register book and are thus brought directly to the attention of one proposing to deal with the registered land. Until such claims are removed, as they may be by proper proceed- ings provided in the act, the registrar will en- ter them upon all succeeding certificates of title. This protection covers every possible claim or lien and includes a mechanic's lien, foreclosure, attachment, or any other suit affecting the land, an unregistered mortgage or other legal or equitable lien, a trust of any kind, sale for taxes or special assessments and any other nature of claim now permitted to be asserted in any manner. Dower is preserved in regis- Dower. i • • , r- , TERED LAND, and in its first regis- tration as well as in all subsequent dealings, the right of dower in the husband or wife of 122 TORRENS SYSTEM. the registered owner is recognized and pro- tected. Tlie same is true of the statutory right of homestead. Upon the death of a registered owner, for the purpose of the distribution of his estate, his registered lands are treated as personal property. Adminis^ Before transferring or otherwise dealing with the land, the executor or tration. administrator must file with the reg- istrar as authority for such transfer or deal- ing, a certified copy of an order of the court administering upon the estate of the deceased owner. In the case of ordinary distribution among devisees or heirs, the executor or ad- ministrator upon proper authority from the court appointing him, will apply to the regis- trar to have the land transferred to the devi- see or heir. The sale of land for the pay- ment of debts will be conducted as heretofore. On filing in the registrar's office the deed and order of confirmation of the sale, the registrar will transfer the land to the purchaser at such sale. The great advantages of this change in administering upon land are manifest. All questions concerning heirship, dower and rights of creditors are thus conclusively settled at the time, and do not continue, as now, to remain for years afterwards as possible de- fects in a title. Responsi= ^^ will no doubt be objected that bilit ofth ^'"^^^ responsibility is placed upon the registrar and his legal advisers — Registrar ^^^ examiners of titles. It is true andExam= that at every transfer they are called iners. upon to pass upon matter of both REPORT OF* ILLINOIS COMMISSION. 123 form and substance. But this has to be done by somebody under any system of transfer. Under our present system it is done by abstract mak- ers and lawyers, more or less competent and trustworthy, whose labors must extend ouer the whole history of the title and whose conclusions bind nobody and protect no- body. If they make a mistake the purchaser may lose his money. Under the proposed system it is done by officials whose business it is to make themselves familiar with all the questions with which they have to deal. Their investigations will extend only to the transaction in hand, as at every previous transfer, all questions that could arise, will have been settled once for all. It will be observed that under the proposed system, there will be fewer questions outside the record, than under the present system, and these will be conclusively settled when the facts are fresh in mind, instead of, as now, left to vex the title at every transfer extending in- to years when the witnesses have long since been dead. The experience of the countries which have adopted this system, is that the responsibility has been intelli- gently and safely exercised. The bill submitted furnishes a ready recourse to a court of equity in all cases of doubt, and for control ouer the acts of the registrar. In nearly all of the countries where the Torrens System is in use, an as- ance Fund, surance fund is provided to make good any losses incurred by rightful owners in being deprived of their land through fraud or accident. This fund is usually raised by 124 TORRENS SYSTEM. charging a small fee, usually one-fifth of one per cent., upon the value of the land when first registered, and each time it afterward passes by descent or devise. Small as such fee is, it has invariably proved to be much larger than necessary. Claims upon these assurance funds have been few and unimportant. In some of the colonies no claim whatsoever has been made upon it, and it is an open question whether such a fund is "necessary. The accompanying bill doss not provide for the crea- tion of any assurance fund as it is doubtful whether such a fund will be necessary. For all injuries sustained by reason of the first registration, an owner may still, as now, resort to the land itself, provided he do so within five years. No fund is needed to make good such losses. As to losses sustained by registered owners through mistake or error of the registrar in effecting subsequent transfers or dealings, they are practically unknown and do not seem to be of sufficient frequency to warrant the accumulation of such a fund. Of Qu ran= '^^^ defects of our present system of transferring land, have brought in- ty or Title -j-q existence in Illinois, four title Insurance guaranty or title insurance compa- „ ^ nies. Each of these is the owner of a set of abstract books. Their meth- nies. Q(jg provide for an examination of any title sought to be guaranteed or insured, and upon those selected as free from risk or doubt, policies of guaranty or insurance, are issued on payment of a premium or rate fixed by the company. This premium or rate in ordinary REPORT OF ILLINOIS COMMISSION. 125 cases, when there are no defects in the title, is one per cent, of the value of the land which may be insured to its full value or less. The policy is a contract on the part of the compa- ny to defend all suits attacking the title brought against the insured, his heirs and de- visees, to the extent of the sum insured. These policies do not protect a subsequent purchaser or mortgagee without being trans- ferred by the issue of a new policy upon the surrender of the old one and payment of addi- tional charges and costs fixed by the company. These policies do not cover any risk by rea- son of liens, conveyances or other instru- ments of writing, not of record at the date of the policy, nor by the rights of persons in pos- session not shown of record. The policies are secured by the capital of the company. The method in use by these guaranty com- panies gives, no doubt, additional security to the title shown of record, but their policies contain many conditions and stipulations greatly limiting the value of the guaranty. This is necessary, as these companies, in effect- ing such guarantees, have not the aid of the statutes of limitations and rules of property contained in a registration of title act, which are so essential to the protection of the title. These guarantee of title companies do not ecessi y gyg^pg^g fQ (j^fjy great degree, any of the de- for a feots or disadvantages hereinbefore shown to change of Bxist in the present system. They do not materially reduce the expense of transferring or dealing System, with the title, nor the necessary time 126 TORRENS SYSTEM. involved therein. While they give the owner a guarantee which he lacked before, yet it is only against matters of record, and is limited to the face of the policy. They do nothing toward lessening the length of volume of public records and guaranteed titles must be still dealt with through the medium of abstracts prepared from these constantly increasing volumes in the recorder's office. The guarantee of a private corporation cannot malie a title conclusive or indefeasible. The issuance of such a policy can effect no adverse rights whatsoever. Neither does such a guaranty in any way rest or quiet a title. In short, the guaranty of title system, as used by these companies, although in one way giv- ing an additional security of title/nevertheless in all other respects is little or no improve- ment upon the old system. Such companies seem better suited for large cities and are not likely to soon be able to aid the land-owner in smaller towns or country districts. These and similar objections to guaranty of title com- panies have been found to exist in other places where such companies have been longer in existence. The very existence of those companies is a strong il. lustration of the necessity for a radical change in our method of dealing with titles to land. Compared with the defects found in our present sys- tem, the proposed method of transfer by registration of title, as demonstrated by its actual workings in other countries, shows the following advantages : 1. l^XPENSE. The cost of the first regis- tration will not exceed, in any event, the cost REPORT OF ILLINOIS COMMISSION. 127 of a single transfer under the present system, and will in most cases be less. The cost of all subsequent transfers is greatly reduced. The ENTIRE COST OP AN ORDINARY TRANSFER OF A PIECE OF REGISTERED LAND UPON A SALE OR MORTGAGE, WILL BE $3. These charges, being fixed, are ascertainable in advance, so both buyer and seller know beforehand the ex- pense of carrying out any sale or transfer. An ordinary transfer or mortgage of registered land is a transaction so simple in its nature that the real estate broker, or even the parties themselves, if of ordinary business intelligence, may easily carry it into effect without the aid of a lawyer. 2. Quickness. Registered land may be sold or mortgaged and the money safely paid over within an hour or two after the making of the contract. The ownership of the property and whether encumbered or not, is shown by the register at a glance. The certificate of ti- tle held by the owner shows the title at its date, and a certificate of search obtainable in a few minutes from the register, will show all subsequent liens. If none appear, the money is paid over, the certificate of title accompa- nied by the deed or mortgage is delivered to the registrar, the proper entry made upon the register, and the transfer is complete. 3. Security. The insecurity of the pres- ent system is largely due to the fact that since upon each transfer the title must be searched back to the government, there can be no rest in such searches, and error in their making is possible. 128 TORRENS SYSTEM. By the Torrens System the title is rested or quieted by law at each transfer, hence upon a proposed transfer no search bacft of the preceding transfer is necessary. This curtailing of the search greatly re- duces risk of error, and all rights of the buyer to recover damages from the seller for any imperfection in the title, if warranted, are fully preserved. If any purchaser, through caution, desires to satisfy himself as to the correctness of any first registration, he is per- mitted to examine, or have his counsel exam- ine, the abstracts and all other evidences of ti- tle upon which the registration was effected. All subsequent transfers or dealings with the registered title are matters of public record, and are also open to examination of the purch- aser if he so desire. While such examinations may perhaps be made with more or less fre- quency during the first five years after regis- tration, yet, as the act of the registrar is final, they will be more and more infrequent un- til they cease altogether. Under the present system, security is dependent upon the examination made by the buyer. Under the proposed system ail such security is retained; and, in addition, the buyer has the benefit of (1) the official examination, made by the registrar before the title is registered, which can be attacked only within the limitation period; and (2) the conclusiveness given by the law to the act of the registrar in registering all subsequent transfers or deal- ings. 4. Shortening op the records. Under the present system all deeds and mortgages are copied at length in the books of the recor- der and the originals returned to the owners. REPORT OF ILLINOIS COMMISSION. 129 There is no copying of any deed or mortgage of a reg- istered title, as the original instruments are retained by the registrar. 5. A SAFE METHOD OF MUCH MORE QUICKLY TRANSFERRING TITLE AT A SMALLER COST INCREASES THE SALEABLE VALUE OF PROPERTY. The accompanying bill is drawn upon the theory that the register book, composed as it is ol the certificates of title issued by the registrar, shall be an authoritative list of the persons entitled to sell, mortgage or deal as owners witJb the registered land situated within the county. /^ is a public record kept by an official under ample bond to ensure its accuracy; and if its authoritativeness be sanctioned by law, no reason is perceived why all cannot safely rely upon such accuracy. It has been most amply demonstrated in other countries that such a list can be both author- itative and accurate. The bill herewith submitted is m,uch shorter than any of the registration acts in use in other countries. Many details, not essential in adapting the principles of those acts to the conditions in this State, have been left out. The commission have endeavored to eliminate everything not nec- essary in effecting the desired change from the present system of recording deeds which perpetuates all defects in transfers, to that of 130 TORRENS SYSTEM. registration of titles in which all questions that may affect the title of the purchaser are conclusively settled at the time of transfer. Chicago, Dec. 10, 1892. Harvey B. Hurd, Theodore Sheldon, Willis G. Jackson, George W. Prince Frank H. Jones, Commission. PART YIII. A BIIvL FOR AN ACT CONCERNING LAND TITLES. [Note by the Editor. The following Bill is the first effort to adjust the Torrens System to the constitution and laws of this country; and will, no doubt, — on account of its clearness ar.d brevity, and the evident skill with which it is drawn, — serve as a model for other States. It is possible, that while the proposed "Bill for an Act" may be improved by experience, the priiicipks upon which it proceeds, are the true principles of dealings in real property.] SUITED TO THE CONSTITUTION OF THE STATE OF ILLINOIS AND THE. CONSTITUTION OF THE UNITED STATES. RECORDERS EX-OFFICIO REGISTRARS. Section 1. Recorders and exofficio record- ers of deeds in the several counties in this State shall be registrars of titles in their re- spective counties. Their deputies shall be 132 TORRENS SYSTEM. deputy registrars. All laws relative to re- corders and their deputies, including their compensation, clerk hire and expenses, shall extend to registrars and their deputies so far as the same may be applicable. Sec. 2. Every recorder and ex-officio recor- der shall, before entering upon his duties as registrar, give a bond, with sufficient security, to be approved by the judge of the county court, payable to the People of the State of Illinois, in the penal sum of $20,000 (except that in counties having a population of more than 100,000 inhabitants, the penalty of the bond shall be $100,000), conditioned for the faithful discharge of his duties, and to deliver up all papers, books, records and other prop- erty belonging to the county or appertaining to his office as registrar of titles, whole, safe and undefaced, when lawfully required so to do; which bond shall be filed in the office of the Secretary of State and a copy thereof en- tered upon the records of the county court. Sec. 3. Deputies ma;y perform any and all duties of the registrar in the name of the reg- istrar, and the acts of such deputies shall be held to be the acts of the registrar, and in case of the death of the reg- istrar or his removal from office, the chief deputy shall thereupon become the acting reg- istrar until such vacancy shall be filled accord- ing to law, and he shall file a like bond and be vested with the same powers and subject to the same responsibilities and entitled to the same compensation as in the case of the regis- trar. A BILL FOR AN ACT. 133 Sec. 4. No registrar or deputy registrar shall practice as attorney or counselor-at-law, nor be in partnership, while in office, with any attorney or counselor-at-law so practicing. Sec. 5. The registrar may appoint, in his county, two or more competent attorneys, to be examiners of titles and legal advisers of the registrar. Their compensation shall be fixed in the same manner as that of deputy regis- trars. Sec. 6. The registrar shall be liable for any. neglect or omission of the duties of his office, when occasioned by a deputy or exam- iner of titles, in the same manner as for his own personal neglect or omission. BRINGING LAND UNDER THE ACT. Sec. 7. The owner of any estate or inter- est in land, whether legal or equitable, may apply to the registrar of the county in which the land is situated to have his title regis- tered. He may apply in person or by an attor- ney in fact authorized so to do. A corpora- tion may apply by its authorized agent; an in- fant by his natural or legal guardian. The person in whose behalf the application is made shall be named as applicant. Sec. 8. No mortgage, ben, charge or lesser estate than a fee simple shall be registered un- less the fee simple to the same land is first registered.' Sec. 9. It shall not be an objection to bringing land under this act, that the estate or interest of the applicant is subject to any outstanding lesser estate, mortgage, lien or 134 TORRENS SYSTEM. charge, but every such lesser estate, mortgage, lien or charge shall be noted upon the certifi- cate of title and the duplicate thereof, and the title or interest certified shall be subject only to such estates, mortgages, liens and charges as are so noted, except as herein provided. Sec. 10. No title derived through sale for any tax or assessment shall be entitled to be first registered, unless it shall be made to ap- pear to the registrar that the applicant or those through whom he claims title ha,ve been in actual and undisputed possession of the land under such title at least ten years, and shall have paid all taxes and assessments le- gally levied thereon for seven successive years of that time. Sec. 11. The application shall be in writ- ing, signed and sworn to by the applicant or the person acting in his behalf. It shall set forth substantially: a. The name and place of residence of the applicant^ and if the application is by one act- ing in behalf of another, the name and place of residence and capacity of the person so act- ing. b. Whether the applicant (except in case of a corporation), is married or not, and, if married, the name and residence of the hus- band or wife. c. The description of the land. Only con- tiguous pieces of land shall be included in one application. a. The applicant's estate or interest in the same, and whether the same is subject to an estate of homestead. A BILL FOR AN ACT. 135 e. Whether the land is occupied or unoccu- pied, and, if occupied, the name and post-office address of each occupant, and what estate or interest he has or claims in the land. f. Whether the land is subject to any lien or incumbrance, and, if any, give the name and post-office address of each holder thereof and the nature and amount of the same, and, if recorded, the book and page of the record. g. Whether any other person has any estate or claims any interest in the land, in law or equity, in possession, remainder, reversion or expectancy, and if any, set forth the name and post-office address of every such person and the nature of his estate or claim. h. The names and post-office addresses of all the owners of the adjoining lands, so far as he is able, upon diligent inquiry, to ascertain the same. i. If the applicant is a male, that he is of the full age of twenty-one years; if a female, that she is of the full age of eighteen years. If the application is on behalf of a minor, the age of such minor shall be stated. If the ap- plication is by a husband or wife, the other shall by indorsement thereon signify his or her assent to the registration as prayed. Sec. 12. Any number of contiguous pieces of land in the same county, and owned by the same person, and in the same right, may be included in one application. Sec. 13. The application may be amended only by supplemental statement in writing, signed and sworn to as in the case of the original. 136 TORRENS SYSTEM. Sec. 14. upon such application being filed with the registrar, he shall cause examination to be made into the applicant's title to the land and as to the truth of the matters set forth in the application, and if any defects are found in the title which he thinks may be removed, he shall notify the applicant of the same and give him a reasonable time to remove such defects before finally passing upon his application. Sec. 15. If it shall be made to appear to the registrar that the facts stated in the application are true, and that the applicant is the owner of the land, or interested therein as set forth in the application, he shall issue a certificate of title, and proceed to bring the land under the operation of this act as herein- after provided. Otherwise he shall dismiss the application and return the papers to the applicant. Sec: 16. Any applicant may, upon payment of all fees due, withdraw his application for registration at any time prior to the issuing of a certificate of title, and the registrar shall in such case, upon request in writing signed by such applicant, return to him all abstracts of title, deeds and other instruments deposited by him for the purpose of supporting his ap- plication. Sec. 17. No certificate of title shall be issued in any case until the written opinion of at least two examiners shall be filed with the registrar to the effect that the applicant has a good title to the estate or interest in the land as stated in the application; and if the same is A BILL FOR AN ACT. 137 subject to any lesser estate, mortgage, lien, or charge, particularlyspecifying the same. The estate of homestead shall be included in the term lesser estate. Sec. 18. In case the applicant shall die be- tween the application and the completion of the registration^ the same shall be completed in the name of the applicant, and the title to the land shall devolve in like manner as if the registration had been completed prior to the death of such applicant. Sec. 19. The registrar shall as often as once in each week make out and publish in a newspaper published in his county a list of all first registrations effected during the preced- ing week. The notice must contain a short description of the land, the name of registered owner and date of registration. Letters and figures may be used. As fast as such lists are published the registrar shall post a copy of the same in his office, and keep the same so posted for the space of six months. He shall also immediately upon the registration of any land make an entry thereof upon the tract index, with a reference to the book and folium of the register where the same is registered. CERTIFICATES OF TITLE. Sec. 20. Every first and subsequent certifi- cate of title shall be in duplicate, and numbered consecutively, and bear date the day and year of its issue, and be under the hand and official seal of the registrar, one copy of which shall be retained by the registrar and be known as the original, and the other, to be known as the 138 TORRENS SYSTEM. duplicate, shall be delivered to the owner. It shall state whether the owner, except in the case of a corporation, is married or not married, and if married the name of the hus- band or wife. If the owner is a minor it shall state his age, if under any other disability the nature of the disability. The registrar shall note at the end of the certificate, original and duplicate, in such manner as to show and preserve their priorities, the particulars of all estates, mortgages, incumbrances and charges, to which the owner's title is subject. Sec. 21. The certificate of title may, sub- ject to such changes as the case may require, be substantially in the following form: ;( State of Illinois -County of {residence, and if a minor give his a^e, if under other disability, state the nature of the disability) married to (name of husband or wife or if not married say not married) is the owner of an estate in fee simple (or as the case may be) in the following land (here describe the premises) subject to the estates, easements, incumbrances and charges hereunder noted. [In case of trust, condition or limitation, say "in trust" or "upon condi- tion" or "with limitation" as the case may be.) Witness my hand and official seal' this (date.) [seal] Registrar. Sec. 22- In all cases where two or more per- sons are entitled as tenants in common to an estate in registered land, such persons may re- ceive one certificate for the entirety, or each may receive a separate certificate for his undi- vided share. Sec. 23. Upon the application of any regis- A BILL FOR AN ACT. 139 tered owner of land held under separate certificates of title, or under one certificate, and delivering up of such certificate or certifi- cates of title, the registrar may issue to such owner a single certificate of title for the whole of such land, or several certificates, each containing a portion of such land in accordance with such application, and as far as the same may be done consistently with any regulations at the time being in force, respecting the parcels of land that may be included in one certificate of title, and upon issuing any such certificate of title, said registrar shall endorse on the last previous certificate of title of such land so delivered up, a memorial setting forth the occasion of such cancellation, and referring to the volume and folium of the new certificate or certificates of title so issued. Sec. 24. In the event of a duplicate certifi- cate of title being lost, mislaid or destroyed, the owner, together with other persons, if any, having knowledge of the circumstances, may make affidavit before the registrar, or before any officer authorized to administer oaths, stating the facts of the case, the names and description of the registered owners, and the particulars of all mortgages, encumbrances or other matters affecting such land and the title thereto to the best of applicants knowledge and belief, and the registrar, if satisfied as to the truth of such affidavit, and the bona fides of the transaction, shall issue to the owner a certified copy of the original certificate with the memorials and notations appearing upon the register, and shall note upon the register 140 TORRENS SYSTEM. the fact, cause and date of such issue, and shall also mark upon such certified copy: "Owner's certified copy issued in place of lost", {mis- layed or destroyed, as the case may be^ "certificate," and such certified copy shall stand in the place of and have like effect as the missing duplicate certificate. THE REGISTER BOOK. Sec. 25. The registrar shall keep a book, to be known as the "Register of Titles," wherein he shall enter all original certificates of title by binding them therein, in the order of their numbers, with appropriate blanks for the entry of memorials and notations allowed by this act. Each certificate, with such blanks, shall constitute a separate folium of such book. All memorials and notations that may be entered upon the register under the terms of this act shall be entered upon the folium con- stituted by the last certificate of title of the land to which they relate. Sec. 26. Before the delivery of any dupli- cate of title, a receipt for it in the handwrit- ing of the owner may be required to be signed by him when practicable, so as to prevent, as far as may be, personation or forgery. Where such receipt is signed or acknowleged in the presence of the registrar or a deputy, it may be witnessed by such officer. If signed else- where, it may be acknowledged before any officer authorized to take acknowledgments of deeds. Sec. 27. In every case of first registration of land or an estate or interest therein, the A BILL FOR AN ACT. 141 same shall be deemed to be registered under this act, when the registrar shall have marked upon the certificate of title, in duplicate, the volume and folium of the register in which the original may be found. Sec. 28. Every transfer of registered land shall be deemed to be registered under this act, when the new certificate to the trans- ferree shall have been marked, as in the case of first registration; and all other dealings shall be considered as registered when the memorial or notation shall have been entered in the register upon the folium constituted by the existing certificate of title of the land. But, for the protection of the transferree or person claiming through any transfer or deal- ing, the registration shall relate back to the time of filing in the register's ofiice the deed, instrument or notice, pursuant to which the transfer memorial or notation is made. EFFECT OF REGISTRATION. Sec. 29. The registered owner of any estate or interest in land brought under this act, shall, except in case of fraud to which he is a party, or of the person through whom he claims without valuable consideration paid in good faith, hold the same subject only to such estates, mortgages, liens, charges and interests as may be noted in the last certificate of title in the registrar's ofiice and free from all others except: 1. Any subsisting lease or agreement for a lease for a period not exceeding five years where there is actual occupation of the land 142 TORRENS SYSTEM. under lease. The term lease shall include a verbal letting. 2. All public highways embraced in the description of the lands included in the certifi- cate shall be deemed to be excluded from the certificate. 3. Any subsisting right of way or other easement, however created, upon, over or in respect of the land. 4. Any tax or special assessment for which a sale of the land has not been had at the date of the certificate of title. 5. Such right of action or counter-claim as is allowed by this act. 6. The right of any p arson in possession of, and rightfully entitled to the land or any part thereof, adversely to the title of the registered owner at the time when the land is first brought under this act, and continuing until the issue of such last certificate of title. Sec. 30. After land has been registered no title thereto adverse or in derogation to the title of the registered owner shall be acquired by any length of possession. Sec. 31. Kxcept in case of fraud, and ex- cept as herein otherwise provided, no person taking a transfer of registered land or any estate or interest therein, or of any charge upon the same from the registered owner shall be held to inquire into the circumstances under which or the consideration for which such owner or any previous registered owner was registered, or be affected with notice actual or constructive of any unregistered trust, lien, claim, demand or interest and the knowledge A BILL FOR AN ACT. 143 that any unregistered trust, lien, claim, de- mand or interest is in existence shall not of itself be imputed as fraud. Sec. 32- In any suit for specific perfor- mance brought by a registered owner of any land under the provisions of this act, against a person who may have contracted to purchase such land, not having notice of any fraud or other circumstances which, according to the provisions of this act, would affect the right of the vendor, the certificate of title of such registered owner shall be held in every court to be conclusive evidence that such registered owner has a good and valid title to the land, and for the estate or interest therein mentioned or described. Sec. 33. In any action or proceeding brought for ejectment, partition or possession of land; the certificate of title of a registered owner shall be held in every court to be con- clusive evidence, except as herein otherwise provided, that such registered owner has a good and valid title to the land, and for the estate or interest therein mentioned or des- cribed; and that such registered owner is entitled to the possession of said land. Sec. 34. The register of any land and duly certified copies thereof shall, except as herein otherwise provided, be received in law and in equity as evidence of the facts therein stated, and as conclusive evidence that the person named therein as owner is entitled to the land for the estate or interests therein specified. The word "heirs and assigns" shall not be necessary to create a fee simple estate of in- heritance. 144 TORRENS SYSTEM. Sec. 35. Whenever a memorial has been entered as permitted by this act, the registrar shall carry the same forward upon all certifi- cates of title until the same is cancelled in some manner authorized by this act. Sec. 36. All dealings with land or any estate or interest therein, after the same has been brought under this act, and all liens, in- cumbrances and charges upon the same sub- sequent to the first registration thereof, shall be deemed to be subject to the terms of this act, and to such amendments and alterations as may hereafter be made. Sec. 37. No person (except as herein before provided in Sec. 29) shall commence any action at law or in equity for the recovery of land, or assert any interest, right in or lien or demand upon the same or make entry thereon adversely to the title or interest certified in the first certificate bringing the land under the opera- tion of this act, unless within five years after the first registration. It shall not be an excep- tion to this rule that the person entitled to bring the action or make the entry is an infant, lunatic or is under any disability, but action may be brought by such person by his next friend or guardian. It shall be the duty of the guardian, if there is any, to bring action in the name of his ward, whenever it is necessary to preserve or enforce the ward's rights in registered land. Sec. 38. Any person having any interest, right, title, lien or demand, whether vested, contingent or inchoate, in, to or upon register- ed land, which existed at the time the land is A BILL FOR AN ACT. 145 first registered, and upon or for which no cause of action shall have accrued at the date of the registration of the land, may, prior to the expiration of said five years after such regis- tration, file in the registrar's office a notice, under oath, setting forth his interest, right, title, lien or demand, and how and under whom derived, and the character and nature thereof, and if such counter-claim is so filed an action may be brought to assert or recover or enforce the same at any time within one year after the right of action shall have accrued thereon, or at any time within the period of five years after said first registration and not afterwards. It shall be the duty of a life tenant or trustee to file such counter-claim on behalf of any re- mainderman or reversioner, whether the re- mainder or reversion be at the time vested or ' contingent, and of a guardian to file such v-ounter-claim on behalf of his ward. TRANSFER. Sec. 39. A registered owner of land desir- ing to transfer his whole estate or interest therein, or some distinct part or parcel thereof, or some undivided interest therein, or to grant out of his estate an estate for life or for a term of not less than ten years, may execute to the intended transferee a deed or instrument of conveyance in any form authorized by law for that purpose. And upon filing such deed or other instrument in the registrar's office and surrendering to the registrar the duplicate certificate of title, and upon its being made to appear to the registrar that the transferer 146 TORRENS SYSTEM. has the title or interest proposed to be trans- ferred and is entitled to make the conveyance, and that the transferee has the right to have such estate or interest transferred to him, he shall issue in duplicate and register as herein- before provided a new certificate certifying the title to the estate or interest in the land desired to be conveyed to be in the transferee, and shall note upon the original and duplicate certificate the date of the transfer, the name of the transferee and the volume and folium in vs^hich the new certificate is registered, and shall stamp across the original and surrendered duplicate the word "canceled," in whole or part, as the case may be. Sec. 40. When only a part of the land described in a certificate is transferred, or some estate or interest in the land is to remain in the transferrer, a new certificate shall be issued to him for the part, estate or interest remaining in him. FILING OF INSTRUMENTS. Sec. 41. The registrar shall mark as filed every deed, mortgage, lease and other instru- ment which may be filed in his office in the or- der of its receipt, and shall note thereon at the date of filing the minute, hour, day and year it is received. When the date of filing any in- strument is required to be entered upon the register it shall be the same as that endorsed upon such instrument. Sec. 42. All instruments, notices and pa- pers required or permitted by this act to be TA BILL FOR AN ACT. 147 filed in the office of the registrar shall be re- tained and kept in such office. Sec. 43. Like forms of deeds, mortgages, leases or other instruments as are now or may hereafter be sufficient in law for the purpose intended, may be used in dealing with regis- tered land and any estate or interest therein. Sec. 44. On all instruments presented to the registrar for registration, shall be en- dorsed the name and address of the person so presenting the same, and all notices by the registrar or other person, relating to the land therein described may be served on such per- son at such address. The address may be changed from time to time by such person filing with the registrar a written notice of such change. Sec. 45. A deed, mortgage, lease or other instrument purporting to convey, transfer, mortgage, lease, charge or otherwise deal with registered land, or any estate or interest therein, or charge upon the same, other than a will or a lease not exceeding five years where the land is in actual possession of the lessee or his assigns, shall take effect only by way of contract between the parties thereto, and as authority to the registrar to register the trans- fer, mortgage, lease, charge or other dealing upon compliance with the terms of this act. On the completion of such registration, the land, estate, interest or charge shall become transferred, mortgaged, leased, charged or dealt with according to the purport and terms of the deed, mortgage, lease or other instru- ment. 148 TORRENS SYSTEM. Sec. 46. No transfer of title to land, or any estate or interest therein, or mortgage, shall be registered until it shall be made to appear to the registrar that the land has not been sold for any tax or assessment upon which a deed has been given, and the title is outstanding or upon which a deed may thereafter be given, and that the dower, right of dower and estate of homestead, if any, havfe been released or ex- tinguished, or that the transfer or mortgage is intended to be subject thereto^ in which case it shall be so stated in the certificate of title. Sec. 47. Every certificate of title to land shall state whether the transferee (except when the latter is a corporation) is married or not married, and if married the name of the husband or wife. The transferee shall furn- ish the registrar the necessary information be- fore be shall be entitled to have the land trans- ferred to him on the- register. MORTGAGES, LEASES AND OTHER CHARGES. Sec. 48. Every mortgage, lease for a term not exceeding ten years, contract to sell, and other instrument intended to create a lien, in- cumbrance or charge upon registered land or any interest therein shall be deemed to be a charge thereon, and may be registered as here- inafter provided. Sec. 49. On the filing of the instrument in- tended to create the charge in the registrar's office, and the production of the duplicate cer- tificate of title, and it appearing to the regis- trar that the person intending to create the charge has" the title and right to create such A BIIvL FOR AN ACT. 149 charge, and that the person in whose favor the same is sought to be created is entitled by the terms of this act to have the same registered, he shall enter upon the proper folium of the register, and also upon the duplicate certifi- cate a memorial of the purport thereof, and the date of filing the instrument with a refer- ence thereto by its file number, which memorial shall be signed by the registrar. The registrar shall also note upon the instrument on file the volume and folium of the register where the memorial is entered. Sec. 50. A trust deed in the nature of a mortgage shall be deemed to be a mortgage, and be subject to the same rules as a mortgage. Sec. 51. When any mortgage, lease, or other instrument creating or dealing with a charge upon registered land or any estate or interest therein is in duplicate, triplicate or more parts, only one of the parts need be filed and kept in the registrar's office, but the regis- trar shall note upon the register whether the same is in duplicate, triplicate, or as the case may be, and shall also mark upon the others "mortgagee's duplicate," "lessor's duplicate," "lessee's duplicate," or as the case maybe, and note upon the same the date of filing and the volume and folium of the register where the memorial is entered^ and deliver them to the parties entitled thereto. Sec. 52. When an instrument is not ex- ecuted in a sufficient number of parts for the convenience of the parties, the registrar may make and deliver to each of the parties enti- tled thereto certified copies of the instrument filed in his office with the endorsements there- 150 TORRENS SYSTEM. on, marking the same "mortgagee's certified copy," "lessor's certified copy," or as the case may be, and shall note upon the register the fact of issuing such copies. Such" certified copies shall have the same force and effect, arid be treated as duplicates. Sec. 53. The holder of any charge upon registered land, desiring to transfer the same or any part thereof, may execute an assign- ment of the whole, or any part thereof, and upon such assignment being filed in the office of the registrar and the production of the du- plicate or certified copy of the instrument* cre- ating the charge held by the assignor, the reg- istrar shall enter in the register, opposite the charge, a memorial of such transfer, with a reference to the assignment by its file number; he shall also note upon the instrument on file in his office intended to be transferred, and up- on the duplicate or certified copy thereof pro- duced, the volume and folium where the mem- orial is entered, with the date of the entry. The transferee shall be entitled to have a cer- tified copy of the instrument of transfer, with the endorsement thereon, and, in case of the transfer of the entire charge, the duplicate or certified copy of the instrument creating the charge. Sec. 54. A release, discharge or surrender of a charge, or any part thereof, or of any part of the land charged may be effected in the same way as above provided in the case of a transfer. In case only a part of the charge or of the land is intended to be released, dis- charged or surrendered, the entry shall be A BILL FOR AN ACT. 151 made accordingly, but when the whole is re- leased, discharged or surrendered at the same or several times, the registrar shall stamp across the instrument on file, and the memorial thereof, and the duplicate or certified copy produced, the word "canceled." Sec. 55. All charges upon registered land, or any estate or interest in the same, may be enforced as now allowed by law, and all laws with reference to the foreclosure and release or satisfaction of mortgages shall apply to mortgages upon registered lands, or any estate or interest therein, except as herein other- wise provided, and except that until notice of the pendency of any suit to enforce or fore- close such charge is filed in the registrar's office, and a memorial thereof entered on the register, the pendency of such suit shall not be notice to the registrar, or any person deal- ing with the land, or any charge thereon. ATTORNEYS IN FACT Sec. 56. Before any person can convey, charge, or otherwise deal with any registered land, or any estate or interest therein, as attor- ney in fact for another, the deed or instru- ment empowering him so to act shall be filed with the registrar, and a memorial thereof en- tered upon the register in like manner as in the case of a charge. If the attorney shall so de- sire, the registrar shall deliver to him a certi- fied copy of the power of attorney, with the endorsements thereon. Revocation of a pow- er may be registered in like manner. 152 TORRENS SYSTEM. TRUSTS, CONDITIONS AND LIMITATIONS. Sec. 57. Whenever a deed or other instru- ment is filed in the registrar's office for the purpose of effecting a transfer of or charge upon registered lands, or any estate or inter- est in the same, and it shall appear that the transfer or charge is to be upon any trust, condition or limitation expressed in such deed or instrument, unless it is otherwise directed in such deed or instrument, the registrar shall note in the certificate, and the duplicate there- of, or memorial, the words "in trust", or "upon condition", or "with limitations", as the case may be, and no transfer of or charge upon, or dealing with the land, estate or interest shall thereafter be registered, except upon the writ- ten opinion of two examiners that such trans- fer charge or dealing is in accordance with the true intent and meaning of the trust, condition or limitation. Sec. 58. If the registrar is satisfied that the proposed transfer, charge or other dealing is in accordance with the true intent and meaning of the trust, condition or limitation, he shall proceed to register the same, and such registration shall be conclusive evidence in fa- vor of the person taking such transfer, charge or other right, and those claiming under him, in good faith and for a valuable consideration, that such transfer, charge or other dealing is in accordance with the true intent and mean- ing of the trust, condition or limitation. TRANSMISSION. Sec. 59. I^ands, and any estate or interest A BILL FOR AN ACT. 153 therein, registered pursuant to this act, shall, upon the death of the owner, go to the person- al representatives of the deceased in like man- ner as personal estate, whether the owner dies testate or intestate, and shall be subject to the same rules of administration as if the same were' personalty, except as otherwise provided in this act, and except that the rule of division shall be the same as in the descent of real property. Sec. 60. Before the personal representa- tive of a deceased owner of registered land or any estate, or interest therein, shall deal with the same, he shall file in the registrar's office a certified copy of his letters of administra- tion, or if there is a will, a certified copy of the same and of the letters testamentary, or of administration, with the will annexed as the case may be, and shall produce the duplicate certificate of title, and thereupon the registrar shall enter upon the register and the duplicate certificate a memorial thereof, with a refer- ence to the letters, or will and letters, by their file number, and the date of filing the same. Sec. 61. Except in the case of a will devis- ing the lands to an executor to his own use, or upon some trust, or giving to the executor power to sell, no sale or transfer of registered land shall be made by the executor or by an administrator in the course of administration, for the payment of debts or otherwise, except in pursuance of an order of a competent court obtained as provided by law. 62. But a memorial of the will and letters testamentary or of letters of administration 154 TORRENS SYSTEM. being first entered upon the register, as herein provided, the executor or administrator may deal with mortgages, leases and other personal interests in or upon registered land, as if he were the registered owner thereof. Sec. 63. Where it appears by the will, a certified copy of which, with the letters testa- mentary, is filed, as provided in this act, that registered land is devised to the executor to his own use or upon some trust, the executor may have the land transferred to himself upon the register in like manner and subject to like terms and conditions and with like rights, as in the case of a transfer pursuant to deed filed in the registrar's office. Sec. 64. When the will of a deceased owner of registered land or any estate, or interest therein, empowers the executor to sell, convey, incumber, charge or otherwise deal with the land, it shall not be necessary for such executor to be registered as the owner, but a certified copy of the will and letters testamen- tary being filed as provided in this act, such executor may sell, convey, incumber, charge or otherwise deal with the land pursuant to the power in like manner, as if he were the regis- tered owner, subject to the like conditions as to the trust, limitations and conditions ex- pressed in the will, as in case of trusts, limita- tions and conditions expressed in a deed. Sec. 65. Before making distribution of undevised registered land the executor or administrator shall file in the registrar's office a certified copy of the proof of heirship, made in the probate or county court, as the case may A BILL FOR AN ACT. 155 be, which shall be conclusive evidence in favor of all persons thereafter dealing with the land that the persons therein named as the only heirs-at-law of the deceased owner are such heirs. Sec. 66. The court of probate may, for the purpose of distribution of the estate, order registered land, or any estate, or interest therein, to be sold by the executor or adminis- trator, and upon the filing of a certified copy of the order of sale and order of confirmation of the sale, and the deeds, in pursuance of the same, in the registrar's office, a transfer of the land, estate or interest to the purchaser may be made upon the register, as, in the case of other sales, by deed. Sec. 67. Whenever, after the expiration of the time fixed for the adjustment of claims against the estate of the deceased, and after proof of heirship, it shall be made to appear to the court of probate that the estate will justifiy it, the court may direct the executor or administrator to make over and transfer to the devisees or heirs, or some of them, in anticipation of the final distribution, a portion of the whole of the registered lands to which they might be entitled on final distribution. And upon the filing of a certified copy of such order in the registrar's office, the 'executor or administrator may cause such transfer to be made upon the register in like manner as in case of a sale. The land so transferred §hall be held free from all liens or claims against the estate. In the proceedings to procure such direction s-uch notice shall be given as the court of probate may direct. 156 TORRENS SYSTEM. Sec. 68. For the purpose of final distribu- tion the court of probate may determine the right of all persons in registered lands, or any estate or interest therein of the deceased, declare and enforce the rights of devisees, heirs, persons entitled to dower and home- stead, and others, assign dower and home- stead, and make partition and distribution according to the rights of the parties. The court may give direction to the executor or administrator as to the transfer of registered land, and any estate or interest therein to the devisees or heirs and may direct the transfer to be to several devisees or heirs, or tenants in common, or otherwise, as shall appear to the court to be most convenient, consistently with the rights of the parties, or as the parties in- terested may agree. DEALINGS OF ASSIGNEES, RECEIVERS, MASTERS, ETC. Sec. 69. Before an assignee for the benefit of creditors, receiver, master in chancery, special commissioner, or other person appointed by court shall deal with or transfer registered land or any estate or interest therein, he shall file in the registrar's office a certified copy of an order of the court showing that such assignee, receiver, master in chancery, special commissioner, or other person, is authorized to deal with or transfer such land, estate or in- terest, and if it is in the power of such person he shall present to the register the duplicate certificate of title; and thereupon the registrar shall enter upon the register, and the duplicate certificate, if presented, a memorial thereof, A BILL FOR AN ACT. 157 with a reference to such order by its file number. In the case of a deed of the land to the assignee or receiver, the same shall be filed in the registrar's office as in other cases. Sec. 70. Such memorial having been entered, the assignee, receiver, master in chancery, special commissioner, or other per- son, may, subject to the direction of the court, deal with or transfer such land as if he were the registered owner. TAX SALES. Sec. 71. The holder of any certificate of sale of registered land or any estate, or inter- est there for any tax, assessment or imposition, shall within three months after date of sale, present the same to the registrar, who shall thereupon enter on the register of the land a memorial thereof, stating the day of sale and the date of presentation and shall also note upon the certificate of sale the date of presenta- tion and the book and page of the register where the memorial is entered. The holder of such certificate shall also within the same time, mail to each of the persons who appear by the register to have any interest in the land, a notice of the registration of such certificate. Unless such certificate is presented and regis- tered, and notice given as herein provided with- in the time above mentioned, the land shall be forever released from the effect of such s?le, and no deed shall be issued in pursuance of such certificate. When it shall appear by the affidavit of the holder of the certificate filed with the registrar that the place of residence 158 TORRENS SYSTEM. of any person interested in the land cannot upon diligent inquiry be ascertained, the re- quirement of this section as to mailing notice shall not apply to such person. Sec. 72. A tax deed of registered land, or an estate or interest therein issued in pursu- ance of any sale for tax or assessment made after the taking effect of this act, shall have only the effect of an agreement for the trans- fer of the title upon the register, and may be filed in the registrar's office, and a transfer ef- fected as in case of other deeds of conveyance. But no certificate of title shall be issued there- on, unless the deed is so filed within sixty days of its. date, nor unless it shall appear to the registrar that the time for redemp- tion allowed by law to any minor heirs, idiot or insane person interested in the land has ex- pired, whose places of residence can, upon dil- igent inquiry, be ascertained, and the person who appears by the collector's books to have paid the tax last paid before the sale on which the deed is issued, has had at least ten days' notice of the application for such certificate of title; and that the terms of this act have been complied with. The notice required may be given upon persons residing in the county by personal service, and upon persons living out of the county by mail. Any person interested in the land may show as cause why such cer- tificate of title shall not issue, any fact that might be shown on a bill in equity on his be- half to set aside such deed. A BILIv FOR AN ACT. 159 LIS PENDENS NOTICE. Sec. 73. No suit, bill or proceeding at law or in equity for any purpose whatever affect- ing registered land or any estate or interest therein .or any charge upon the same, shall be deemed to be lis pendens or notice to any per- son dealing with the same, until a certificate of the pendency of such suit, bill or proceed- ing, under the hand and official seal of the clerk of the court in which it is pending, shall be filed with the registrar and a memorial thereof entered by him upon the register of the last certificate of the title to be affected. This section shall not apply to attachment proceedings when the officer making the levy shall file his certificate of levy as herein provided. Sec. 74. No judgment or decree or order of any court shall be a lien upon or affect registered land or any estate or interest there- in, until a certificate, under the hand and official seal of the clerk of the court in which the same is of record, stating the date and purport of the judgment, decree or order, or a certified copy of such judgment, decree or order, is filed in the office of the registrar and a memorial of the same is entered upon the register of the last certificate of the title to be affected. ATTACHMENT, EXECUTION, ETC., LIENS. Sec. 75. Whenever registered land is levied upon by virtue of any writ of attachment, execution or other process, it shall be the duty X60 TORRENS SYSTEM. of the officer making such levy to file with the registrar a certificate of the fact of such levy, a memorial of which shall be entered upon the register, and no lien shall arise by reason of such levy until the filing of such certificate and the entry in the register of such memorial any notice thereof actual or constructive, to the contrary notwithstanding. Sec. 76. The claim authorized by "an act to revise the law in relation to liens" may, in the case of registered land, be filed in the registrar's office instead of with the clerk of the circuit court; and being so filed, a memorial thereof shall be entered by the registrar, as in the case of other charges, and proceedings to enforce the lien may be had, as provided in said act. Until it is so filed and registered, no such lien shall be deemed to have been created. Sec. 77. Any person making any claim to or asserting any lien upon registered land not shown upon the register, or adverse to the title of the registered owner, and no other provision is herein made for asserting the same in the registrar's office, may make affidavit thereof setting forth his interest, right, title, lien or demand, and how and under whom derived and the character and nature thereof. The affidavit shall state his place of residence and also his place of business, if he has one, and designate a place at which all notices relating thereto may be served. Upon the filing of such affidavit in the office of the regis- trar, the latter shall enter a memorial thereof, as in the case of a charge. Sec. 78. No statutory or other lien shall be A BILL FOR AN ACT. 161 deemed to affect the title to registered land until after a memorial thereof is entered upon the register, as herein provided. Sec. 79. The certificate of the clerk of the court in which any suit, bill or proceeding shall have been pending, or any judgment or decree is of record, that such suit, bill or pro- ceeding has been dismissed or otherw^ise dis- posed of, or the judgment, decree or order has been satisfied, released, reversed or overruled, or of any sheriff or other ofiicer that the levy of any execution, attachment or other process certified by him, has been released, discharged or otherwise disposed of, being filed in the registrar's office and noted upon the register, shall be sufficient to authorize the registrar to cancel or otherwise treat the memorial of such suit, bill,' proceeding judgment, decree or levy, according to the purport of such certificate. PROCEEDINGS IN CHANCERY. Sec. 80. Whenever any person interested in registered land or any estate or interest therein or charge upon the same, shall be entitled to have any certificate of title, memorial or other entry upon the register canceled, re- moved or modified, and the registrar or person whose duty it shall be to cancel, remove or modify the same or do any act towards the same, shall, upon request, fail or refuse so to do, or is absent from the county, or cannot be found, or for any reason such request cannot be made upon him, a court of chancery may, upon petition by the person interested, make such order as may be according to equity in 162 TORRENS SYSTEM. the premises and upon a certified copy of such order being filed in the registrar's office, the registrar shall make such cancelation, memor- ial or modification as shall be decreed in such order. Sec. 81. Any person feeling himself ag- grieved by the action of the registrar or by his refusal to act in any matter pertaining to the first registration of land or any estate or interest therein, or any subsequent transfer of or charge upon the same, the filing or neglect or refusal to file any instrument, or to enter or cancel any memorial or notation, or to do any other thing required of him by this act, may file his bill or petition in equity in any court of competent jurisdiction, making the registrar and other persons, whose interest may be affected, parties defendant, and the court may proceed therein as in other cases in equity, and make such order or decree as shall be accord- ing to equity in the premises and the purport of this act. Sec. 82. The court may, in any case con- templated in sections 80 and 81, in addition to the costs, award such damages, including rea- sonable attorney's fees, as it shall deem just in the premises. INDICES. Sec. 83. The registrar shall keep tract indices, in which shall be entered the lands registered in the numerical order of the town- ships, ranges, sections, and in cases of sub- divisions, the blocks and lots therein, and the name of the owners, with a reference to the A BILL FOR AN ACT. 163 volume and folium of the register in which the lands are registered. Sec. 84. He shall also keep alphabetical indices, in which shall be entered in alpha- betical order the names of all registered owners and all other persons interested in or holding charges upon registered land, a short description of the land and nature of the deal- ing, with a reference to the volume and folium of the register in which the land is registered. PENALTIES. Skc. 85. Whoever fraudulently procures, assists in fraudulently procuring, or is privy to the fraudulent procurement of any certifi- cate of title or other instrument, or of any entry in the register or other book kept in the registrar's office, or of any erasure or altera- tion in any entry in any said book, or in any instrument authorized by this act, or know- ingly defrauds or is privy to defrauding any person by means of a false or fraudulent in- strument, certificate, statement or affidavit, affecting registered land, shall be guilty of a misdemeanor and fined not exceeding five thousand dollars, and imprisoned not exceed- ing five years, or either, or both, in the discre- tion of the court. Sec. 86. (1.) Whoever forges, or procures to be forged, or assists in forging the seal of the registrar, or the name, signature, or hand- writing of any officer of the registry office, in cases where such officer is expressly or im- pliedly authorized to affix his signature; or (2.) Fraudulently stamps, or procures to be stamp- 164 TORRENS SYSTEM. ed, or assists in stamping any document with any forged seal of said registrar, or (3.) Forges, or procures to be forged, x>r assists in forging the name, signature, or handwriting of any person whomsoever to any instrument which is expressly or impliedly authorized to be signed by such person; or (4.) Uses any document upon which any impression, or part of the impression, of any seal of said registrar has been forged, knowing the same to have been forged, or any document the signature to which has been forged, knowing the same to have been forged, or swears falsely concerning any matter or procedure made and done in pursuance of this act, shall be imprisoned in the penitentiary not exceeding ten years, or fined not exceeding one thousand dollars, or both fined and imprisoned, in the discretion of the court. Sec. 87. No proceeding or conviction for any act hereby declared to be a misdemeanor or a felony shall afEect any remedy which any person aggrieved or injured by such act may be entitled to at law or in equity against the person who has committed such act or against his estate. FEES. Sec. 88. The fees of the registrar shall be as follows: On the filing of any application for first registration the applicant shall advance the sum of $15, which shall be in full of all services of the registrar and examiners up to the granting of the certificate of title. ^When the A BILL FOR AN ACT. 165 application includes titles derived from more than one source, an additional sum of $5 for each source shall be advanced. For granting certificate of title upon each application and registering the same . . $2 00 4 4 For registering each transfer, including the filing of all instruments connected therevs^ith, and the issue and registra- tion of the new^ certificate of title 3 00 When the land transferred is held upon any trust condition or limitation an additional fee of 5 00 For entry of each memorial on the regis- ter, including the filing of all instru- ments and papers connected therewith and endorsements upon duplicate certificates 3 00 For filing copy of will with letters testa- mentary, or filing copy of letter of_ administration and entering memorial thereof 5 00 For the cancellation of each memorial or charge 1 00 For each certificate showing condition of the register 1 00 For any certified copy of register or any instrument or writing on file in his office, the same fees now allowed by law to recorders of deeds for like services. Sec. 89, This act shall be construed liber- ally so far as may be necessary for the purpose of effecting its general intent NOTABIvD. The advance made through more genefal education — acting upon freedom of thought — led to reforms in civil government; and to larger culture and refinement; a refor- mation came in social customs and morals; larger growth in population, and the daily necessities proceeding therefrom, developed invention and improvements in mechanic arts; but, in unnumbered things, modes and methods have been changed for the betterment of the people. Now, the great increase and wide extension of commerce in all lines, speed of communica- tion, and attention to economics in trade, demand a speedy change — from the poor con- trivance of the musty past — in the mode and manner of all dealings in real estate. The Torrens System furnishes a well tried and successful substitute for the faults of the pre- sent system. The author of the Torrens System, when speaking of his method of transfer of title, re- fers to it in the following language: "A method by which transfers and other dealings in real estate is conducted by the duplicate mode of conveyancing by registration of title." Should a certificate of title be lost by an owner, he can procure another. Upon proper showing, the Registrar, when applied to, will write ""cancelled" across the duplicate in his ofl&ce, and issue a fresh certificate, of which he will return a duplicate as before. PART IX. THE TORRDNS "Bllyly FOR AN ACT," IN THE STATE OF ILLINOIS. REPLY TO AN OBJECTOR, WHO MADE A PUBLIC ASSAULT UPON THE BILL. BY HARVEY B. HURD, Of the Chicago Bar. The fact that the land transfer bill pending in the Legislature has been recommended by a commission composed of four lawyers and one real estate dealer of considerable experience and has been favorably recommended for pass- age by the judiciary committees of both Houses of the Legislature, ought certainly to have suggested to Mr. Objector the propriety at 168 TORRENS SYSTEM. least of the examination of the many able papers discussing every question he has touch- ed in regard to the Australian system of registration of titles, and the official reports of its operation in the several places where it has been in use, collected in the Chicago I