Glo( X> !l k Osf THE GIFT OF .rCl.Ji..t.,/->'\JW<.^Lm. «2#^^ .A, :2./pt|. §-..(, : l»J2^Jo 7 7673-1 K 657.O51I902""™"' '■"''"' ''*'?iiInmii'i5ii™.lS,."'^"*'*f ^'tli suggestio 3 1924 022 026 045 (flnrn^U ICam ^rijflnl Htbtaty The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022026045 '^xJ.f^ //. J!i^~<..^t^^^ Reforms in Land Transfer s WITH Suggestions for an Improved System BY DWIGHT Hr OLMSTEAD NEW YORK BURR PRINTING HOUSE igo2 DEDICATOEY. The present work was completed by Mr. Olmstead just be- fore his death, which occurred October 10th, 1901. Its pub- lication has been carried out by his daughters as a token of love, and in the hope that his work might be found useful to those interested in land reform in the future. 0. A. B. PEEFACE. The object o.-' this pamphlet is to give a summary of the history of Land Transfer Eeform in England, the British Colonies and the United States; to state some of the impor- tant objections to the Torrens System; to suggest other re- forms in connection with the system of Block Indexing ; and to explain the practical operation of that system. From the time of the appointment by Governor Cleveland of the five Commissioners of Land Transfer in 1884 down to the passage of the amendatory Block Indexing Act of 1890, or for an entire period of about six years, the system of Block Indexing met with most violent and determined opposition from numerous lawyers, real estate owners, politicians, and ofiicials of 'New York, although the city press almost unani- mously supported the reform. In view of such long-contin- ued and strenuous hostility to the Block System, its success has been phenomenal, and has fully justified its adoption. The New York Act covered in round numbers an area of forty square miles of land, while the Borough of Brooktyn, now incorporated in the City of New York, contains an addi- tional area of about sixty-two square miles; all which com- prising the legal area of one hundred and two square miles of land, has been surveyed and mapped, and brought under the Block System, imder which the records of transfer are indexed with great dispatch, certainty and convenience. To Mr. Frank J. Bell, the Chief Deputy in the Keal Es- tate Bureau of the Department of Taxes and Assessments in the Comptroller's Office in the City of New York, who has held that position since 1885, as also to Mr. Henry W. Vogel, VI PREFACE. the Surveyor of said Department, great credit is due for the manner and ability with which they have superintended and directed the preliminary work necessary for making the Block Maps and Indexes, as well as preparing the Maps and Indexes themselves, as provided by the Block Indexing Act ; all which work has been done in regular hours, in the usual course of office business, and without extra cost to the city. The system is now sure to be perpetuated for all time in the Greater City of New York, whatever may be the future growth of the latter, and to be followed by other large cities and communities in this country in which the population is dense, and a record of real estate transactions is directed to be kept for the purpose of protecting titles and giving legal notice to dealers. It remains to apply the same system to indexing statutory and specific liens on land required to be filed in the offices of the County Clerks of New York and Kings, according to my original plan, and to supplement the whole of the indexing work by the adoption of other reforms calculated to improve its efficiency for the purpose for which it was designed, namely, to facilitate, cheapen and make more secure the trans- fer of land. Although the indexing of Lis Pendens, Decrees for the sale of land, mechanics' liens and other specific liens is being prosecuted in the Clerk's Offices of the counties of New York and Kings, it does not seem to have been legally authorized in either county by the Legislature under any specific direction to index, or any law declaring the legal effect of such index- ing. See Section 9 of Chapter 536 of the Laws of 1893, ap- plicable to the County of New York, and the similar Section 29 of Chapter 365 of the Laws of 1894, applicable to the County of Kings. Those acts, although mostly copied from acts which I had previously drawn, were not in fact pre- pared nor was their passage by the Legislature promoted by PREFACE. Vli me, and they require amendment in order to render indexing under them effective on the Block plan. Since the passage of the l^ew York Block Indexing Act for the City of New York, a bill has been introduced into the New York Legislature providing for the adoption of the Torrens System, and' it is rumored than another bill is to be introduced the coming session, presumably by those either hostile to the Block System or expecting to derive some bene- fit from the proposed legislation. Under these circum- stances, and with the possibility of some adverse criticism at reviving differences which seem to be settled, I have at the last moment decided in the interest of the public and to avoid future argument on the same subject, to reprint in this pam- phlet a prior publication written by me entitled " Land Transfer Eeform, or the Free Transfer of Land," printed in the winter of 1886, a copy of which will be found herein under Part III. The four comiaissioners who advocated the Lot plan were all of high standing in their profession, with large experience as lawyers and conveyancers, and when the important diffi- culty of boundaries in connection with indexing by single lots as owned was suggested to them they frankly admitted the objection to be well taken, and set to work to obviate it. The pamphlet sufficiently states their case, and shows how successful they were in the attempt. Another matter, which is of sufficient importance to occupy a larger space than can be given to it in this volume, is the growing tendency to disregard the safeguards provided or which might be provided by the State for the protection of titles, and to rely upon the security given by the policies of Guarantee Title Companies. Under the operation of the Block Indexing Act in the Keg- istrar's Office in the City of New York, official searching has entirely ceased in that office, and as soon as similar laws are vili PREFACE. passed for indexing in the oflSce of the County Clerk, the like result will follow there. Block Indexing, while an important aid in the examina- tions of titles, does not take the place of such examinations, and unless they can be readily and safely made, the only protection which dealers in land will have will be the insur- ance furnished by the Title Guarantee Companies, of which dealers will be forced to avail themselves. Will real estate owners quietly submit to such compulsion ? ITow, while it is supposed that our recording system does tend to add to the security of titles, just as soon as real estate owners find there is not that security, or it is not furnished by suitable amendments to the laws — which will be evi- denced by the growth and success of Guarantee Title Com- panies — or that the guarantee of such companies is essential to their protection, the present recording acts will be repealed, including, the Torrens Act if it is in operation, and another and less dangerous system of land transfer be adopted. That system will, of course, be the plant of the retention and pos- session by the property owner of his monuments of title, and his delivery of them in case of sale or loan to the purchaser or mortgagee, supported by his actual possession of the land, as is now the practice in the greater part of England. This will wipe out Guarantee of Title Companies, and by the aid of a Statute of Limitations, also all defects of titles which have accrued through the imperfections of the existing system. Part I of this publication was printed in 1899, and a few copies had been disposed of, when the impaired health of the writer and his enforced absence abroad suspended its further issue. It is now printed with much additional matter, which he believes will render it more useful to those interested in the subject of which it treats. Two foot-notes have been added to the above-mentioned PREFACE. IX pamphlet, one relating to the operation of the English Land Transfer Act of 1897, and the other to the recent decisions as to the constitutionality of the Torrens Act in Illinois and Massachusetts. A suggestion has been made that the Torrens System might be advantageously united with the Block system. It is difficult to see how this can be done so long as the area of search under the latter system is required to be established by adjudication of a court. Under the Torrens System questions of overlapping boun- daries and of former adjudications must arise on every trans- fer, and are only determinable by examinations of the titles, but these difficulties do not occur under the Block system, in which the boundaries of the areas of search are fixed by law and are permanent. New Yoek, 1901. D. H. O. CONTENTS. PAET I. (Page 7.) Copy of pamphlet on Eeforms in Land Transfer by the writer, printed in 1889, with foot notes. SUBJECTS OF PAMPHLET. PAGE. 1. Nature of Land Transfer Eeform 7 2. The Method of Transfer without Eegistration . . 8 3. The System of the Eegistration of Deeds .... 10 4. The Torrens System in the Australian Colonies 11 5. The Torrens System in Canada 15 6. The Torrent System in the United States 16 7. Objections to the Torrens System 30 8. Eegistration of Titles in England 25 9. General Suggestions as to Land Transfer Eeforms .♦ 37 10. Specific Eeforms Eecommended 39 11. The Proper Mode of Accomplishing the Eeforms 43 12. Benefits of the Eeform 44 13. Foot Kote No. 1— The Operation of the English Law Transfer Act of 1897 44 14. Foot Note No. 2 — Late Decisions in the United States as to the Validity of the Torrens Act . . 45 PAET II. (Page 49.) Eeport to the Legislature of the writer, as one of the Commis- sioners of Laws Transfer, with the bill for Block Indexing prepared by him; forms of Block Indexing; and Certificates of Search. xii CONTEXTS. PART III. (Page 111.) Land Transfer Reform on the Free Transfer of Land, published December, 1886. PART IV. (Page 237.) Report of the Committee of the ISTew York State Bar Association recommending the Block System. PART V. (Page 353.) Extracts from New York press in favor of Block Indexing. PART VI. (Page 369.) Block Indexing Act now in operation in the office of the Registrar of the City and County of Xew York, as amended by Chapter 166 of the Laws of 1890 (April 33), with forms of indexes annexed. PART VII. (Page 379.) An address before the American Bar Association, August 30, 1890, on Land Transfer Reform, with an explanation of the New York Block Indexing Act. PART VIII. (Page 307.) The practical operation and use of Block Indexing in New York, and copies of sections of the Land Map, with forms and plans of Indexes. REFORMS IN LAND TRANSFER With Suggestions for an Improved System. 1. Nature of the Reform. By the term " Land Transfer Keform " is intended to be designated a reform in the method of transferring and trans- mitting land from owner to owner, and such improvements as are germane to that specific reform. The proximate pur- pose of the reform is the enactment of laws effective to pass real estate from owner to owner quickly, cheaply and with certainty of title, and thus to enhance the value of land and incidentally to encourage its general distribution. No one will question the great importance of this reform. Various plans have been suggested, from time to time, especially in England, within the last fifty years, to accomplish the object sought, but thus far with indifferent success. The most nota- ble of these efforts has been a scheme of public registration similar to the Torrens system which aims to establish inde- feasible titles. The question is a live one, and must continue to increase in interest in this country, so long as the present 8 EEPOEMS IN LAND TEANSFEE. condition and unscientific methods of land transfer prevail. Indeed, it may be added that, without the adoption of some remedy for the evils and dangers of the present system, its abolition is only a question of time. All modern systems of land transfer in civilized countries may be resolved into three — namely: (1) Transfer without registration; (2) The system of registration of Deeds, which may be called the ministerial system of registration, and (3) The system of the registration of Titles, which may be termed the judicial system. My remarks will be confined principally to the operation of the several systems in England, the United States and the British Australian Colonies, as furnishing the best examples of their respective excellencies and defects, and I shall con- clude with a brief statement of such other reforms as I ap- prove, and think will ultimately be adopted in this country in connection with the transfer of land. 2. Transfer withont Registration. The English Plan of the Possession and Delivery of Title Deeds. For upward of two centuries a system of recording deeds similar to our own has been in operation in the counties of Middlesex and York in England. In all other parts of Eng- land an owner's title to land whenever he has occasion to sell or mortgage is evidenced by his known possession of it, and the production and delivery of his deeds and other muni- ments of title. The examination of the title is confined to the abstract and the deeds produced. It would seem that if the operation of the Act for the regis- tration of deeds ia the two counties named had been advan- tageous, it would have induced other counties in England to DWIGHT H. OLMSTEAD. \) adopt the same system, but such has not been the case. In- deed the opinion of the English Bar, as a whole, is distinctly hostile to any registering system whatever. The recording acts in Middlesex and York are bgjieved by English lawyers not only to have been of no valtwa to property in those coun- ties, but in fact the reverse. In July, 1895, a report from the Select Committee of the British House of Commons on the then pending Land Trans- fer Bill, which had been introduced into the House of Lords by Lord Chancellor Herschell, was made. The Blue Book containing the Report may be considered the latest expression of expert English opinion on the subject of Land Transfer, and I shall take occasion to quote from it freely in my subsequent remarks. Mr. John Hunter, the president of the Incorporated Law Society, testified before the Committee, that although very great objections had been taken to the registry system of Middlesex and Yorkshire, yet from the difiiculties of dealing with the vested interests, etc., it had been found almost im- possible to get rid of the registries. He also said that in his opinion " all skilled experience is now against a registry of deeds ; " and that the registries of deeds in those two coun- ties " have lasted forever although they are not wanted." In counties in England in which there is no registration, a banker's loan is made on the security of the deposit of the borrower's title deeds, which gives the lender an equitable lien on the land covered by them, the borrower at the same time executing to the banker a short instrument acknowledg- ing the transaction. It is comnionly a most simple, quick and inexpensive process, and the business is generally transacted at the banks without the aid of a solicitor. Mr. John Ellis, the president of the Bankers' Association, testified before this committee that bankers' loans for from £100,000,000 to £150,000,000 represented the amount which at that time 10 REFORMS IN LAND TRANSFER. was dependent in England and Wales on the deposit of title deeds,' and that snch deposit fulfilled the requisites of promptitude, security, nominal cost and secrecy. Mr. Ellis handed in to the Commi^^e a printed form used on such loans, by which the borrower simply charged the deeds de- posited with the loan, and agreed to execute a mortgage with power of sale when required; and the witness declared that nothing could be more convenient to the bankers than the system of lending on deposit of deeds, and that in his experi- ence in nine cases out of ten no solicitor would be employed. Much other evidence of -like import was given before the Committee, while the testimony as to the safety and con- venience of transfer by the delivery of title deeds under the conditions existing in England, was general. Such a mode of transfer, however, would not answer in this coimtry, es- pecially in our large cities where holdings are numerous and transfers frequent, nor can we repeal our recording acts until a better system is substituted. The Block plan of indexing provides a partial relief, so far as relates to searching, but it does not touch the other serious difficulties of our methods of transfer, which can be remedied only by suitable legislation, of railroad mortgages and receivers' certificates are per- mitted, as bonds and mortgages on individual holdings. 3. The Registration of Deeds. The system known as " Registration of Deeds " is the mode of recording deeds and mortgages, common in the United States. The instruments are recorded in the public registry office in the order of their presentation under the statutory rule that priority of registration gives priority of title except in case of fraud, or prior notice to the grantee actual or con- structive. The system, therefore, requires a re-examination of the records upon every transfer, so that as records accumu- DWIGI-IT H. OLMSTBAD. 11 late, the difficulty, cost, delay and danger of examination in- crease. This method is in use not merely in the United States, but in many parts of Europe, Asia, Africa and Amer- ica. In Scotland registries of deeds are established, in which abstracts or memorials of the deeds are recorded. Searches called " Search Sheets " are considered official documents, and are retained permanently in the registry office. A certi- fied copy of one of these papers is called a ". Certificate of Search" and is received in all courts as prima facie evidence of the facts therein stated. I have endeavored to procure the adoption of this Scotch " Certificate of Search " in New York, but owing to the opposition of lawyers and the officials in the searching offices, so far without effect. A place was left for its entry in the form of Block Index originally de- vised by me, and the plan could still be carried out with ad- vantage. 4. The Torrens System in the Anstralian Colonies." In order to understand the original Torrens System, we cannot do better than to study its operation in the Australian Colonies, where it was first introduced in 1862. In all the colonies the system is substantially the same, the difference being only in minor particulars. The Victoria Consolida- tion Act of 1890 may be considered as^embracing all the best and most approved provisions of prior acts of that and other provinces, with carefully drawn amendments. Messrs. Duffy & Eagleson in their book treating of the Victoria Land Act 12 EEFOBMS Ilf LAND TEANSFEE. of 1890 ^ make the following statement as to the objects and modes of procedure under it : " The objects of the Transfer of Land Act of 1890 (No. 301) as copied from its preamble, are to give certainty to the title to estates in land, and to facilitate the proof thereof and also to render dealings in land more simple and less expensive. The South Australian Act of 1866 states in section 10 its objects to be to simplify the titl^ to land and to facilitate dealing therewith, and to secure inde feasibility of title to all registered proprietors ex- cept in certain cases specified in the Act. In the Torrens System title by registration takes the place of title by deed of the system under the general law. A sale of land, for ex- ample, is effected by a registered transfer, upon which a cer- tificate of title is issued. The certificate is guaranteed by statute, and with certain exceptions constitutes indefeasible title to the land mentioned therein. Under the old system the same sale would be effected by a conveyance, dependent for its validity, apart from intrinsic flaws, on the correctness of a long series of prior deeds, wills," etc. The following extract from a paper of the then Commis- sioner of Titles, laid before Parliament in 1866, aptly sum- marizes the methods and policy of the system : " Applica- tion is made to bring land under the Act, with a title guar- anteed. The title is referred to a solicitor, who investigates it by perusing the deeds and other evidences of title, and re- ports the result; whereupon the Commissioner goes through and considers all the documents, and, if satisfied that a title has been shown, or one that may reasonably be taken, on pay- ment of an extra sum to the public assurance fund he, after certain advertisements and notices to the tenants, and to ad- joining owners and occupiers, directs the land to be regis- ' Transfer land Act, 1890, by Messrs. Dufiy & Eagleson, Bar- nsters-at-Law, C. F. Maxwell (G. Partridge & Co.), Melbourne, 1895. DWIGHT H. OLMSTEAD. 13 tered. When registered the title becomes indefeasible, and thereafter the land is ' transferred, leased, mortgaged and otherwise dealt with in the scheduled forms, and various en- actments give to such forms ampler meanings than the forms themselves express. ISTo notice of any private trust is allowed to appear in the Registry Book, a title to land being placed in this respect on the same footing as a title to fimded prop- erty."i The assurance fund is derived from a small tax paid by applicants at the time of registration. Compensation is paid to any person sustaining loss through the operation of the Act, the action to be brought within six years from the date of deprivation. From the decision of the Registrar as to the title there is no appeal. The title is made indefeasible by the Act itself. It is as if a judge of the Supreme Court, sit- ting at special term in the City of Xew York, should be em- powered to make such investigation abd decree, without the possibility of an appeal. After a registered title is once put on the Register, all future transactions are made through the registry oiBce under certain prescribed forms, which are in- tended to preserve the title indefeasible in its successive own- ers. The owner himself cannot deal with his property in any way except through the registry office, and under the direc- tion of the Registrar. The scheme therefore is to render titles indefeasible by statute in the registered owner, but to compensate any one injured by the operation of the act.^ But Sir Robert Torrens, the author of the Torrens System, in a pamphlet written by him published in London, makes the following saving statement : ^- Indef easibility is indis- pensable if the dependent or derivative character of titles out ' DufEy & Eagleson, pp. 4, 5, S, 9. ' This is wrong in principle. According to the best authorities, compensation should go to the applicant if loss is suffered by him, and the real owner should keep his land. This avoids interference with vested rights, but at the same time offers a premium for errors. 14 EEFOEMS IN LAND TEANSFEE. of which, as has already been demonstrated, all the evils of the English system of conveyance originate, is to be got rid of; and as, despite every precaution, a mistake may be made in granting indefeasible titles, it becomes necessary to provide compensation for persons who may possibly be thereby de- prived of land," etc. As we proceed, it will be seen that it is impossible to render titles indefeasible when questions of boundaries occur (as they invariably must) ; and the Torrens System, therefore, is resolved into a guarantee system pure and simple, against at least that difficulty. The impracticability of guaranteeing boundaries was not only one of the chief reasons for the fail- ure of Lord Westbury's Act of 1862, but it has become an in- superable objection to all like systems. The history of the Australian Acts is not favorable to their eiEciency or- permanence. All of these Acts have been amended or entirely repealed several times. There have been in ^11 twelve Victoria Acts. The South Australian Act of 1886 repealed a number of previous acts, including the original act of 1861, and was followed by three amendatory acts of 1886, 1887 and 1893. In Western Australia, the Transfer of Land Act of 1893 repealed no less than six pre- vious acts. The Land Transfer Act of ilSTew Zealand of 1885 also repealed six previous acts, and was itself followed by two other acts, the last in 1889. And finally the Tasmania Eeal Property Act has, since its passage in 1862, been amended six times— namely, in 1863, 1867, 1878, 1886, 1890 and 1893. The following remarks of Messrs. Duffy & Eagleson, in their book before quoted, may fitly conclude this survey of the Torrens System in the British Australian Colonies : " "With reference to what has been said as to the advantages of the Torrens System it must, of course, be remembered that it is young, and perhaps on its trial yet It is m some respects a DWIGHT H. OLMSTEAD. 15 system of f ornmlary law, and may prove itself open to defects and abuses like those of other formulary systems. And out- siders are likely to have sneers for a system nearly forty years old, which in Tasmania, for instance, is already spread over seven Acts." It may be remarked also that in Australia the Torrens System has a field peculiarly advantageous for it, on account of the comparative newness of the country, the cheapness of the land — rendering small errors imimportant — the definite boundaries of the original sectional surveys, the relatively small number of transfers, and the generally simple nature of the titles. 5. The Torrens System in Canada. In 1885 a system of registration of titles modelled on the Torrens Act was passed for the Province of Ontario in Can- ada providing for the voluntary registration of absolute, qualified or possessory titles, the old Registry Act of 1877 for registration of deeds remaining in force. The first named act provides for certificates of titles after previous examina- tions, and an assurance fund out of which any owner is to be compensated who may be deprived of his land by erroneous registration. No one is entitled to examine the Register ex- cept a registered owner, or by order of the Court, or by gen- eral rule. The original act consists of 127 sections, and is accompanied by CO general rules and 45 forms. The act was amended in 1890. Since the passage of the Ontario Act, similar systems have been introduced into Manitoba, British Cohunbia and the Northwest Territories. It is difiicult to ascertain the exact advantage of the system by its operation in those provinces on account of the limited number of trans- actions and the same general conditions which prevail in Australia. The enactment of the Ontario Acts was promoted by large loan and land companies in Canada, which might be 16 EEFOEMS IN LAND TEANSFEE. and probably were benefited greatly in their dealings by se- curing an official guarantee of their titles. 6. The Torrens System in the United States. Acts similar to the Torrens Act were passed by the Legis- latures of Illinois in 1895, of Ohio in 1896, of California in 1897 and of Massachusetts in 1898. The Illinois Act (which applies only to Cook County) hav- ing been decided in the action of People vs. Chase, 165, 111, 527, to be unconstitutional on the ground that the recorder had no judicial power, a new Act was passed in 1897 trans- ferring jurisdiction over the proceedings under the Act, to any Court having Chancery jurisdiction. The new law is said to have been subsequently sustained in the case of People vs. Simon. Both the California and the Massachusetts acts provide for application for registration to be made to a Court of Equity jurisdiction. By Section 17 of the California act the decree of registration is to be in rem and conclusive, except that by Section 45 the time is limited to five years for bringing an action to set the decree aside. By Section 35 of the Massachusetts Act if there is no ap- pearance or answer on the return day, and no reason to the contrary appears, an order for a general default is to be en- tered and the application taken pro confesso. " By the de- scription in the notice, ' to all whom it may concern,' all the world are made parties defendant, and shall be concluded by the default and order." Section 38 provides that " Every decree of registration shall bind the land, and quiet the title thereto." Of course, the question at once arises whether a proceed- ing which is in fact in personam can be changed by an Act of the Legislature to one in rem, so as to avoid the necessity of such service upon the parties defendant as is required by the DWIGHT H. OLMSTEAD. 1 i common law. This question is disposed of in the opinion given in the case of State of Ohio vs. Guilbert, next following. In 1896 the Legislature of the State of Ohio passed a Tor- rens Act, entitled " An Act to provide for the registration of titles in the State of Ohio, and to simplify and facilitate the transfer of real estate." (Ohio Laws, Vol. 92, p. 210.) The constitutionality of the Act was called in question in the action State of Ohio ex rel vs. Guilbert, Auditor of State et al, 56 Ohio State Rep. 575. (Decided June 22, 1897.) This was a proceeding in mandamus in the Supreme Court of the State, and came up on the refusal of the State Auditor to prepare a uniform system of blank books appropriate to carrying out the purposes of the act and of furnishing such books to the probate judges and other officers. The prayer is for a peremptory writ of mandamus commanding the per- formance of said duties. The case was submitted on de- murrer to the petition. The questions involved were ably and fully argued by opposing counsel. The contention of the defendants was that the act in question contravened several provisions of the Constitution of the State, and among them the following : (1.) Because it provides for cutting off vested interests in property without due course of law in violation of Section 16 of the Bill of Eights. (2.) Because it provides for the taking of private prop- erty for private purposes without the owner's consent in vio- lation of Section 19 of the Bill of Rights. (3.) Because it provides for the exercise of judicial power by the recorder in violation of Section 1 of Article IV. of the Constitution, which vests all such power in the Courts of the State. The decision of the Court (Schanck, J.) in an elaborate opinion sustained all the above-mentioned objections of the defendants. It decides that the proceedings are in personam 18 EEFOEMS IN LAND TEANSFEB. and not in rem. It further declares " That to say the Legis- lature may prescribe such notice as is appropriate to proceed- ings in rem, and thus to invest the proceeding with that char-, acter, is to affirm its power to annul the constitutional re- quirement." * * * "It bears the least possible analogy to a proceeding in rem. The res is not taken into the posses- sion of an officer of the court, l^o charge or lien is asserted against it." * * *' " Th^ judicial force of the whole pro- ceeding is wholly expended in a conclusive determination of the rights of persons in the land." " To authorize a court to determine the adverse claims of parties touching their. rights in things, judicial process is indispensable. This act does not contemplate process. The notice which it prescribes is the notice of the law of admi- ralty. The process required by law of the land is the process of the common law." In support of this decision the Court cites the cases of Welster vs. Reid, 11 How. ^37 (Opinion by Justice Mc- Lean) and Brown et al vs. The Board of Levee Commission- ers, 50 Miss. Jtll. Therefore, any judgment rendered on a proceeding not '(')) rem, without the proper service of process as in cases in personam, must be a nullity. The Court also held in State vs. Guilhert that the provision for an Assurance Tund is void, as taking private property for private purposes Avithout just compensation; also for the reason that the re- corder is without the judicial functions which he is called upon by the act to exercise. The opinion concludes with the following pertinent re- marks : " The views expressed touching the guarantees of the Bill of Rights are in accord with those of eminent lawyers who have considered methods for simplifying the records of titles and diminishing the labors of searching them. The general system in the contemplation of this act has been DWIGHT II. OLMSTEAD. 19 thought impracticable because questions of vested rights must remain open for want of due process. There have, accord- ingly, been recommended legislative enactments to shorten and simplify conveyances, to remove disabilities, to shorten the limitation of actions, to provide for general indexes for townships and wards or other small districts so as to restrict the area of search, and other like remedies acting prospec- tively, and having due regard to vested rights. However the general system proposed by this act may have operated where no system of registration previously existed, and the conserv- ing influence of constitutions are not enjoyed, it seems, in its prominent features, to be inapplicable where constitutional provisions, paramount to legislative enactments, protect vested rights and restrict the State to the exercise of func- tions that are governmental in their nature." So thoroughly was the foregoing case considered on the hearing, and so incontrovertible was the opinion of the Court, that the following year the whole Ohio Act was repealed. (Repealing Act passed February 1 , 1888.) The unsettled legal questions connected with such Torrens Acts as have been passed in the United States are many and serious. But could such questions be settled favorably to the adoption of the system, its complexity, and illy adapted pro- visions to the main purpose in view — namely, that of sim- plicity and convenience, would preclude its general use. All of the above-mentioned acts are merely permissive, but there seems to be no provision contained in them for remov- ing registered titles from the register, as is allowed by the English Act of 1897 in districts in which registration is not compulsory (Section 17). It may be predicted that such omission is likely to cause much difficulty in the future in those States in which the Torrens System has been introduced. Vested rights are not to be disturbed except by due process of law. How far they can be interfered with by a statute 20 EEFOBilS IN LAND TEANSFEE. of limitations, is an important question in connection with the Torrens System. " It is essential," says Cooler, '' that such statutes allow a reasonable time after they tai:e effect for the commencement of suits upon existing causes of action; fhough what shall be considered a reasonable time must be settled liy the judgment of the Legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal time, unless the time allowed is manifestly so inefficient that the statute becomes a denial of justice." See, also, remarks by the same author upon the old maxim, " That what was originally void cannot, by mere lapse of time, be made valid." Cooley on Constitutional Limitations (6th Ed.), 1890, U9. 7. Objections to the Torrens System in the United States. (1.) The method of indexing under the Torrens System is substantially identical with that of the so-called Lot Sys- tem, and the adoption of the Torrens System in the State of Xew York would necessarily require the abolition of the Block System, which is now in successful operation in Xew York and Brooklj-n. Sir Kobert Torrens himself calls his system one of '' Registered Proprietors," which, in fact, it is. The area of search under both the Lot and Torrens systems is the area of individual o^vnership, as represented by diagram. It is true, a written description of the several parcels as owned, placed at the head of each iadex, would obviate the use of dia- grams, but the necessity of writing out the same description on the certificates of search and other papers filed in the Registrar's Office, or referring to the original written head- ings, would be too cumbersome and inconvenient, as well as unsafe in practice. Such written descriptions are out of the question, and description by diagrams would not give certain notice to searchers. In countries like the Australian Colo- DWIGHT H. OLMSTEAD. 21 nies or Canada, where land is cheap, holdings large, transfers infrequent and the original land sections definite in areas, the Lot or Torrens plan of indexing might be used with com- parative safety, if otherwise desirable, but in large cities like x^ew York, in which are recorded many thousand deeds and mortgages yearly, mostly of single lots, the plan is imprac- ticable. (2.) The Torrens System, like the Lot System, would re- quire too many record books for its operation in the City of Xew York. There are now considerably more than 200,000 parcels of real estate in the Borough of ilanhattan separately owned and more than 30,000 deeds and mortgages are re- corded annually in the Xew York Registry Ofiice. All these separate ownerships would require as many different head- ings in the registry and index books, to be increased with the growth of the city, and consequent increase of transactions. (3.) Ln order to operate the Torrens System or any regis- tration of title system after the most improved methods, a mere glance at the provisions of the Australian Acts aud other like Acts — especially the late English Acts and the pre- scribed forms accompanying them, will satisfy any one of the necessity of highly skilled, intelligent and permanent officials in the registry offices, which could not be had in the United States, certainly not in our large cities, or under our election methods, and the business could be conducted only at great expense. The American system of registration, ac- cording to its original principles, and unburdened of uses foreign to its legitimate purposes, is simpler than the Tor- rens System and equally effective. (i.) The Torrens System purports to give to the registered owner an absolutely indefeasible title on registration. How that can be done in this country is not evident, since a judg- ment of title to land, under the Federal constitution as well as the constitutions of the separate States, would be ineffectual oo KKFORMS IX I_\.NP TRANSFER. against a real owner not served with process, or who did not vohmtarily appear. By foroo of these const itiitious, " Xo poison shall be deprived of life, liberty or property without due process of law," which means '' the law of the land " and implies a court, a plaintiff and a defendant. Few, if any, Registrars of Peeds in this coimtry have judicial powers. Of coiirse this criticism does not apply to England or her <:olonies, which are without written constitutions. t^o.) In order to show how impossible it is to be sure of an absolutely indefeasible title under the Torrens mode of in- dexing in any country in which it has been customary to con- vey land under the common law, let it be sxipposed that two ^adjoining parcels of land overlap each other without the tnowledge of the owners, as is often the case, and that both owners apply to register their titles. The titles of those por- tions which overlap cannot be indefeasible in both applioants, neither could a search be made safely against either parcel by itself represented by a diagram. (6. ) On more closely examining the Torrens Act, however, it will be seen that while it affects to provide for huicfi'usible titles, it does not really do so, but only for . The land certificate should necessarily be produced on every dealing with I'egis- tered land, and a duplicate certificate (in case of loss or do- mviour u. oi.Msi'KAn. Ii.'? stvuotvon') sliowM not bo issued \vitlio\it proper sat'oiiimrds. (>. Idontitioatiou bv a solioitor or a rospousiblo otlioor of tho Oo\u-t should bo roipiiivd as a saiVjiuard against porsowifiea- tiot\ or fraud. 7. Tho rule making authoritv should aol on tho advioo of a botird on which tho lv\r aud solioitors shouhl bo roprosontod. " Thoro woro u\auy other auieudiueuts. sueh as tho Statute of Limitetioivs shonhl alWvt registered h\nd the same wav as not registered; that tho partial as well as the entire dis- ehargv of an ineninbraueo sliould he shown on the ivgister; that undivided shares in land shoiild he eapablc of registra- tion; and tlie like." * » * "The Ooiuu-il iwWx nvog- ni«o tho evident desivv of tho Lord Ohaneellor to meet tho objoetious put forward and proved against tho sxstoni esiah- lished l\v the -Vet of ISTTk but thoy ivtaiu their strong ob- jtvtions to ivnipulsion on the gro\mds that if the sxstom he as benetleial as its advoeates suppose, it ought to he able to make its own way. aud tliat land owners will not nH]uire forvH> to make theu\ adopt it if it piwe really advautagvons and oivnomioal. Phis bill is one amending and altering the .Vet of 187."t. li would have boon nmeh more Ovmvenieut aud eojuploto if that Aet wm-e ivjH^aknl aud a now statute t^assod embodyitig tho aimmdments whieh were found ti^ be n^ ipiired." The ne,\t following issue of the ^\i/icj" Journal (^ April ;^. 18!>T) observes with ivfeivuiv to the foivgving statomnu of tho Oo\u»eil of tho lueorporatod Law Siviety. " Their sug- gt\stious aiv so reasonable that we hanlly antieipate that they will bo ri\jivted. b\it if they an\ the whole Ixnly of solioitors. botlv in town and Ovmntry, tnay be n^liod on to ivsist the pas- sagv of tlio bill. Theiv is yet time for l.oi'd Ualsbury to make tho desiivd coivivssion in tho House of Lords. But if not. stops must be taken for the bill to bo opjvsed in tho House of «,\mimons. and thoiv its fate should not ho un^vrtain.'' 34 EEFOEMS IN LAND TKANSFEE. The report from the bill in the House of Commons (as stated in the Solicitors' Journal of May 8, 1897) was that the. Lord Chancellor had assented substantially to the modifica- tions proposed by the Associated Provincial Law Societies, as follows : (1) That the first order of compulsion was not to af- fect more than one county; (2) that the Act was to be made compulsory as to the other counties only on request of the County Councils; (3) that no further order beyond the first was to be made until the expiration of three years ; and (4) that no person should practise for fee or reward in the regis- ters' ofiices other than a solicitor. The President of the incorporated Law Society in report- ing the above compromise at a meeting of the Society held April 30, 1897, refers to it as follows : " It must be quite understood that the Council has in no way abandoned the expression of its opinion that registration of title will not benefit land transfer. The system has been tried as a volun- tary system for thirty years, and has not made its way ; and we do not believe that if compulsion be applied any new and hidden beauties will be discerned in it." The foregoing statement brings the contest over the passage of the then pending Land Transfer Bill between Lord Chancellor Halsbury and the English Bar, down to August, 1897, when a compromise was effected between the contend- ing parties, the Lord Chancellor conceding most of the de- mands of the Bar, and an Amendment to the Cairns' Act of 1875 was passed by both houses of Parliament. The Land Transfer Act of 1875 had substantially failed of its purpose, as had all prior English Land Transfer Acts to establish so-called indefeasible titles, and it was plain that no plan to make the Act effective remained except to render it compulsory. By the Amendatory Act no prior examinations or judicial decrees upon registration were required; compensation in DWIGHT H. OLMSTEAD. 35 case of loss was to go to the applicant for registration unless otherwise ordered, and vested rights were not to be interfered with ; the mode of defining boundaries was left to the appli- cant; possessory titles only were required to be registered; and provision was made for a real representative. A Report of the General Purposes Committee of the Lon- don County Council was issued January 21, 1898; Avhich after referring to the provisions of the various prior Land Transfer Acts, and the order received from the Privy Coun- cil to the London County Council dated ISTovember 19, 1897, providing that, " As respects the County of London, on and after the first day of July, 1898, registration of Title to land is to be compulsory on sale" (being before voluntary), and stating that " a communication had been addressed to the City Corporation and other bodies, asking them, should they desire to do so, to state their views on the question of the Act being applied to London." Communications were addressed to the following bodies: City Corporation, Vestries and district boards, seventeen railway companies and the Incorporated Law Society, Insti- tute of Bankers, Surveyors' Institution, Auctioneers' Insti- tute, School Board for London, Ecclesiastical Commissioners, Building Societies Association, Bridewell Royal Hospital, Lord Portman. The replies are tabulated, from which it ap- pears that 13 are in favor of the Act being applied to London or part of London, and that 44 are against it. By an order of the Privy Council dated January 18, 1898, it was stated " That the intention at present is that the order shall be made to take eilect progressively according to a di- vision of the County into convenient areas not less than four in number. The first area comprising one-fourth or less of the County would be selected with a view to the utilization of the existing ofiices in Lincoln's-inn-fields as the Land Registry of the district. This method of carrying the order 36 EEFOEilS i:S I.AXD TEAXSFEH. into efFect will have the advantage of not throwing imme- diately a very heavy burden on the registry, and will also af- ford such an opportunity as the County Council appear to de- sire of estimating the value of the work as it proceeds, and of watching generally the progress of the Act." And it is added, " That any representations which their experience might lead the Council to make would undoubtedly receive careful consideration." This, then, is the end of the long conflict between the Lord Chancellors of England and the English Bar, relating to re- forms in the mode of transferring land in England. It does not seem propitious for the final success of the land transfer Acts of 1875 and 1897, especially as compulsion is not to be extended by any further order of Council to any other county or part of a coTinty for three years after the first order, and then only, in the case of each county, if the County Council of that county, pursuant to a resolution passed at a meeting at which two-thirds of the whole niimber of the members are present, signifies its desire that it shall be. It must be remembered that the English Land Transfer Acts, 1S75-1S97, which are the only ones now in operation, do not wholly, or in many important features, follow the Tor- rens System. But they have been evolved from that system by able lawyers, and may be said to embody all that is best in it, and therefore those persons who in this country are con- sidering the subject of land transfer would do well to care- fully study those acts, and the history of the contention of which such acts are the inconsequential outcome. I say in- consequential, because the recent English legislation has only resulted in an attempt to force upon dealers in land a sys- tem which after full trial they find they do not want and have rejected. It appears to me that such an attempt cannot ulti- mately succeed. The General Rules and Orders as provided for by Land BWIGHT H. OLMSTEAD. 37 Transfer Act 1897 were settled and finally adopted August 2, 1898. There are 279 rules in all, besides lengthy schedules of forms and scales of charges, comprising in all sixty-two folio pages. For those who do not wish to study the whole subject of land transfer, the perusal of these rules will be sufficient to satisfy them that in the United States at least, especially where Registrars are elective officers, such a system would not only be unworkable by the officials, but unendurable to real estate owners. 9. General Suggestions as to Land Transfer Reforms. (1.) In the first place such reforms should consist mainly in amendments to the existing laws, and conform so far as possible with the established and ordinary modes of dealing in land in this country. To illustrate, if the law relative to the sale of hypothecated corporate securities were applied in a modified form to the foreclosure of bonds and mortgages on real estate, it could be readily carried out. Also, were the law of personal estate as to its transfer and transmission made generally the law of real estate, it would be adopted in- to the current practice without difficulty or friction. But any entirely novel system requiring new methods not com- monly understood, with which the business public were not familiar, and demanding a body of new judicial decisions for its successful operation, would meet much opposition and be introduced with difficulty, even if otherwise desirable. (2.) The registration of and dealings with land should be accompanied by and subject to as little formulary law as is necessary to accomplish the end in view, which is to give notice of transactions. Under theTorrensAct not a step either to buy or sell, mortgage, or lease, can be taken except through the registry office, under the prescribed forms and in the regu- 38 EEFOEMS IS LAHD TEANSFEE. lar order of business, with orwithout delay, as the case may be, and upon the payment of a fee. Besides, if the owner makes a mistake imder the present system, it is his own mistake and at his own risk, but the mistakes of an official he cannot con- trol. The whole business of a public registry office should consist in this state and country as at present in the minis- terial operation of recording and indexing the instruments presented for record, making searches and f \irnishing certified copies of the searches and the records. The office of a K^s- trar should be that of a mere clerk. In short, the system should be ministerial and not judicial. (3.) Any successful system of land registration must be confined to its proper and legitimate use, which is to notify parties interested of transactions, and any use foreign to this is an injury to land and depresses its value. Therefore general liens on land, especially the general liens of judg- ments, as well as courtesy and dower, should be abolished, as has been done long ago in England. (4.) Again, a land transfer system to be of value to pro- tect dealers, must accomplish that end by the force of its own provisions, without foreign aid. In respect of this whole matter it may be said that as soon as a general law of the State, intended for the benefit of the public, cannot be op- erated for the ends sought to be accomplished by the force and adaptability of its own provisions or without the aid of private corporations, its repeal is merely a question of time. Thus, for example, if searching the land records cannot be done cheaply, quickly and efficiently, without the extraneous aid of title companies, its value for the purpose sought is gone. The extent to which title companies are now employed by the public is evidence of the rotten and unstable nature of the present system. Without their assistance it may be truly said that the whole system as now operated would in the larger cities immediately collapse. DWIGHT H. OLMSTEAD. 39 (5.) Lastly, it is the best opinion of modem experts, that the use of the Torrens System in its chief features of formu- lary law, official control, judicial determination of titles on preliminary examinations with guarantee are fallacies, and that its adoption will prove to be only the substitution of a complex and unwieldy system for the simpler method of our present system which is made complex and burdensome by the unnecessary provisions of existing laws which can readily be modified or changed. In short, that there is but one way to obtain a serviceable system of land transfer with registra- tion in this country, and that is hy improving the present system, and it is believed that by such improvement, with the light which has of late years been thrown upon the subject, the transfer of land can be made as quick, inexpensive and safe as is the transfer of registered corporate stocks and United States Registered Bonds, without the addition of the guarantee plan — and this is sufficient for all practical pur- poses. 10. Specific Reforms Recommended. The following are some of the more important reforms in the transfer of land which I would recommend to be carried out in this country : 1. The adoption of the System of Block Indexing by small areas of search in cities and sections in which, by reason of the undue accumulation of recorded papers, searching cannot be conducted with safety and convenience by the use of nomi- nal indexes alone. The conditions of such small areas being (1) that they shall have fixed and permanent boundaries, and (2) that they shall be established by statute as legal areas of search under the same rule of notice as is applicable to the larger areas of counties elsewhere in the States.^ iSee the New York Block Indexing Act, (Laws of 1889, Chap. 349), as amended by the Laws of 1890, Chap. 166. 40 KEFOEMS IN LAIS^D TEANSFEE. 2. The permanent retention in the Kegistry offices for pub- lic use of original searches, and the adoption, in connection therewith, of the Scotch " Certificate of Search" which is an official statement of all recorded instruments relating to any particular lot up to its date. 3. The compulsory use of short forms of deeds, mortgages and leases, by the use of what are called " pattern covenants." See Rawle on Covenants of Title (5th Ed.), Sections 202 and 207, or other short forms. 4. The simplification of judicial proceedings relating to land, including foreclosures, partitions, sales of infants' es- tates, etc. 5. The abolition of the general lien of judgments and other general liens on land. 6. A reduction in the number and duration of specific liens, and all liens and instruments and decrees of transfer to be filed in the Eegistry Office, on the Block plan. I. The abolition of courtesy and dower. A suitable pro- vision to be made for widows in lieu of dower. 8. The laws relating to real estate to be assimilated to those relating to personal estate so far as practicable. 9. The devolution of land, on the death of an owner, upon his personal representative (or a realty representative), in the first instance, for the purposes of distribution and convey- ance under the order of the court to those entitled thereto. 10. The descent and distribution of real and personal es- tate to be alike on the death of an owner intestate. II. A modification of the statute of uses and trusts, so that there shall always be some designated person to convey. 12. Parties to deeds to be more fully described therein than at present, for the purpose of identification. 13. A short but reasonable statute of limitations as to real actions, ignoring, at its expiration, infancy, lunacy, coverture, absence from the State and imprisonment. DWIGHT H. OLMSTEAD. 41 14. Permission to place possessory titles on the register either by verbal description or diagram as the owner may choose, to mature into perfect titles by lapse of time (which must also be for a reasonable period). 15. The adoption of the rule that defects of form alone shall not invalidate a registered instrument of conveyance, where an intent to convey appears on its face and a consid- eration was in fact paid. 16. The doctrine of constructive notice to be abolished and priority of registration in all cases to give priority of title, except in case of actual fraud, as defined in the ease Wyatt V. Barnwell, 19 Vesey Reports ^88, viz: "When the notice is so clearly proved as to make it fraudulent in the purchaser to take and register a conveyance in prejudice of the known title of another." This would render registration practically compulsory. Most of the foregoing recommendations are embodied in the Torrens Acts as well as in the prior English Reform Bills relating to land, and can readily be grafted on the system of Block Indexing in connection with the present system of the registration of deeds. Many of them were set forth in a public address delivered by me before the N^ew York State Bar Association in 1883. Should the reforms recommended be carried out, our pres- ent system would possess all the Substantial advantages of the Torrens System, and none of its objectionable features. That the Torrens System will-ultimately be rejected and the other simpler system prevail, scarcely admits of doubt; since, as remarked by John Fiske, " In the long run the actions of men are determined by what may be called the ' Law of Least Effort' ; and the easiest way of doing things is the one which, sooner or later, is sure to be adopted."' A statement of the desirable reforms relating to land trans- 1 Excursions of an Evolutionist, p. 162. ■la REFORMS IN LAND TRANSFER. fer would not be complete, at least so far as the City of New York is concerned, without reference to the preservation and accumulation of the land records permanently kept on file in the Registrar's, County Clerk's, Surrogate's and other public offices of the city. And while the authorities of the City of New York are contemplating the erection of a new Hall of Records it would be desirable for them to consider at the same time the expediency of reducing the volume of the records, both by destruction of the old records and limiting the number "of the new. The Block Index has indeed ren- dered the operation of searching for recorded instruments easy arid safe, but should the present rapid accumulation of such papers continue for another generation, it is absolutely certain that our registry system will break down of its own weight, as was prophesied when it was inaugurated, and we be relegated to the English method of the possession and de- livery of title deeds. Even the Block System would not save it. The old records, certainly prior to forty years, are not only of no advantage to titles, but a detriment, and service- able only to conveyancers whose business it is to discover " flaws " which, like nits, nestle in the papers. Let us have a new Hall of Records by all means, but let us ascertain in the first place what are to be the demands on it for storage pur- poses. In an address delivered by me in this city in 1881, referring to the same matter, I said, " The books (in the Registrar's Office) take up sixty feet of additional shelving per year. They, have more than doubled in number the past ten years, and as the city grows in population, the rate of ac- cumulation will rapidly increase. So it is not now a question whether the Hall of Records will be able to hold the books, but whether the City Hall Park itself will be able to contain them." In building the new Hall of Records in the City of New York, I suggest that separate alcoves be provided for the DWIGHT II. OLMSTIOAD. 43 books of the several land sections as laid out on the Land Map of the City, as was originally proposed by me. This> can readily be done, as by the Block Indexing Act all the records of each section are kept together in books appro- priated to such section. Such an arrangement would be not only convenient for those examining the books, but would enable the books of the sections to be removed to separate registry offices if desired at any future time. 11. The Proper Mode of Accomplishing the Reforms. It was the view, and undoubtedly the correct one, of Lord Keeper Guilford that laws reflating to real estate reforms should be passed as separate bills, " else one matter of long debate retarded all the rest, upon which no question was made." Sir Matthew Hale was of the same opinion.' Most of the topics connected with land transfer are independent of each other, and are likely to be more fully and intelligently discussed by the general public when considered separately, either by separate bills or under independent sections of the same bill. Again, in securing the adoption of general and specific re- forms connected with the transfer of land, it is desirable that all bills to that end be drawn by a competent commission appointed by the Governor, in order to secure their careful preparation, confidence in their provisions and public sup- port. After the bills are printed, copies should be distrib- uted throughout the State, and not be introduced into the Legislature for its action until at least one year has elapsed after they have been reported. Care and deliberation in the passage of laws affecting real estate are of the utmost im- portance, iplargrave's Land Tracts, p. 273. 44 EEFOKMS IN LAND TKANSFEE. 12. Benefits of the Reform. To make land free, to relieve it from feudal and antiquated customs, to facilitate and cheapen its transfer, to render se- cure its title, and thus to promote its general possession, is not more to the advantage of the individual than of the State, since history teaches us that a general ownership of the soil gives stability and permanence to a nation. But, in addition to this, to impress real estate vs^ith the character of personal estate, so far as the nature of the former v^ill permit, both as to its transfer and disposition, would result, especially in our large commercial cities, in the capitalization of land, and in turning it with its enhanced value into the channels of trade. To accomplish these reforms, and to weave them into the body of our American law, is a work worthy of the ambi- tion of the younger members of the Bar. It cannot be done by laymen, but they can create a public sentiment which' in the end, despite many adverse interests, will compel the re- forms to be adopted. FOOT NOTE NO. 1. The Operation of the English Land Transfer Act of 1897. A comment upon the operation of the English Land Transfer Act of 1897 is contained in a paper read before the Incorporated Law Society at its Annual Provincial Meeting in October, 1900, by Mr. J. S. Eubenstein, published in the November issue of the London Law Times. The two following extracts show how the working of that Act is viewed by the legal profession in England : " Almost every solicitor, as well as every other person possessed of a practical knowledge of the subject, knew from the outset that the new red tape system of conveyancing, introduced by the Act of 1897, was a system which would work solely in the interests of officialism and against the interests of the public. The Act has DWIGHT H. OLMSTEAD. 45 only been in partial operation in London since the 1st January, 1899, and already 150 persons are employed in embarrassing trans- actions and levying toll upon every person who buys or mortgages property in certain parts of London. The result has been to add quite 25 per cent, to the costs of carrying out small transactions, those not exceeding £1000 for instance. According to a return issued last month in respect of the Land Registry, it appears that the fees for the year ending the 31st March extracted from th^ pockets of persons forced against their -will to go to the office amounted to over £35,000. It may be safely asserted that not one person who contributed to this sum has, so far as we can humanely judge, de- rived an atom of benefit from the payment." " Our Council certainly cannot recall with any satisfaction the part they played when the bill was before Parliament. Convinced that the measure was absolutely bad, and would throw our system of conveyancing back into the state of confusion from which it was rescued by Lord Cairns' far-seeing and statesmanlike Acts of 1881, our Council unfortunately deferred, in their traditional manner, to the views of the legal authorities, and in an evil moment withdrew their opposition to the bill. I may be told that the Council had really no choice in the matter, as both sides of the House were de- termined to have the Act, and that by withdrawing their opposition, the Council were able to introduce safeguards, under which the Act is limited in its operation to London, and is only passed for an ex- perimental period of three years. Both safeguards are, I believe, wholly illusory. The limitation of the Act to London is, I con,- ceive, a misfortune. Had the Act applied to the whole country there would have been such an outcry, and the Act would have been found so preposterous, that it would, I firmly believe, have been repealed ere this."— The Law Times of November 8, 1900, p. 19. FOOT NOTE NO. 2. Recent Decisions in the United States as to the Validity of the Torrens Act. Siace my return to this country from abroad my attention has been called to two important decisions relating to the Torrens Act in Illinois and Massachusetts. 46 REFORMS IN LAND TRANSFER. In People v. Simon, 176 III. 165, decided December 20, 1898, the Court lield that under the Conveyance Act of 1897, commonly known as the Torrens Law (Laws of 111. 1897, p. 141) " the Eegis- trar's duties are ministerial only, the ownership of the land being' determined by a court of competent jurisdiction;" also, "that in upholding the constitutionality, of the Torrens Act of 1897 the Court merely determines that the act does not so violate the con- stitution a^ to render it void, and leaves the construction of provisions not going to the validity of the entire law until the necessity therefor arises." — See People v. Chase, 168 III. 627. In 1898 a Torrens Act was passed for the State of Massachusetts, entitled "An Act to provide for registering and confirming of Titles to Land " (Acts and Resolutions 1898, Chapter 682.) It was amended in 1889 (Acts and Resolutions 1899, Chapter ISO, p. 82), by which this provision was added to Section 2 of the original act. " The proceedings upon such application shall be proceedings in rem against the land and tlie decrees shall operate directly on the land, and vest and establish the title thereto." The question of the constitutionality of this act came up before the Supreme Court of Massachusetts on a writ of prohibition in the case of Taylor v. Judges of the Court of Registration, and the case is reported in 55 N. E. Rep. 812. (Decided January 3, 1900.) The Court decides, Chief Justice Holmes writing the opinion, " that the provision cutting ofE of adverse interests in land of un- known claimants by publication of a notice ' to whom it may con- cern' is not a violation of the Constitution of the United States (Amendt. 14) prohibiting deprivation of property without due process of law. That prescription or a statute of limitations may give a good title as against the world and destroy all manner of outside claims without any notice or judicial proceeding at all. Time and chance which it gives the owner to find out that he is in danger of losing rights, are due process of law in that case." ' Jus- tices Loring and Lathrop dissenting. In the dissenting opinion written by Mr. Justice Loring (in which Mr. Justice Lathrop concurs) he says : " I am of the opinion ' that unless the application is a proceeding in rem a decree under that act, so far as it affects either the rights of absent defendants named and not personally served, or absent persons not named, is not due process of law," and he cites Wehster v. Reid, 11 How. 437; State V. Guilhert, 56 Ohio St. 57 S; S. G. 47 N. E, Rep. 651; Brown DWIQHT H. OLMSTEAD. 47 V. Board of Levee Oommrs., 60 Miss. ^68; People v. Simon, 176 III. 166; S. G. 52 N. E. Rep. 910. The learned Justice concludes with this quotation from Lord Coke: "Where authority and precedent are wanting, there is need of great consideration before anything of novelty shall be estab- lished, and to provide that this be not against the law of the land. 18 Co. Litl. 75." The opinion of the Court and the dissenting opinion are both most elaborate and able, but after reading them attentively and the cases cited, and in view of the possible adverse opinions in other States, as well as m the United States Courts, I have con- cluded not to make any change in the foregoing pamphlet with ref- erence to the same matter. All persons interested in the subject, including Legislature, before whom may come the question of passing a Torrens Act, wiU do well to read carefully both opin- ions in the Massachusetts case. The following disposition of the last-mentioned case in the Supreme Court of the United States, to which an appeal had been taken, was published in December, 1900 : " The constitutionality of the Massachusetts Land Registration Act was involved in the case of William B. Tyler against the Court of Registration, coming from the Supreme Court of Massachusetts. But in deciding the case justice Brown held that Tyler did not have the status requisite to challenge the constitutionality of the law, and that the Court could not decide moot questions or ab- stract propositions presented by a party who did not himself dis- close that he would be affected. The Court holds that it cannot assume to decide the general question whether the Commonwealth has established a court whose jurisdiction may as to some other per- son than the party in the suit amount to a deprivation. The de- cision adds that it will be only after the party has shown that a right has been denied him under the XlVth Amendment that he may have a writ of error from this court. A dissenting opinioii was delivered by the Chief Justice and concurred in by Justices Harlan, Brewer and Shiras." STATE OF NEW YOEK— IN ASSEMBLY. Apeil 21, 1885. Repoet of Dwight H. Olmstead, one of the Commission- EES of Land Teansfee. To the Legislature: The undersigned, one of the commissioners of land trans- fer appointed by the Governor, pursuant to the act of the Legislature entitled " An act to provide for the appointment of commissioners to prepare and report to the Legislature a hill to facilitate and lessen the expense of the transfer of land and dealing therev^^ith in certain cities of this State," being chapter 324 of the Laws of 1884, respectfully submits the following report: The Evils Sought to be Remedied. The act under which said commissioners were appointed does not, by its terms, contemplate any fundamental changes in the general laws of this State relative to estates in land, but an improvement in the mode of transferring land, by which it can be dealt with more expeditiously, cheaply and safely than at present. The evils which it is intended prin- cipally to remedy are those arising in the large cities of the State from the great accumulation of the land records and the confusion and uncertainty of the indexes. It is this in fact which, to a large extent, prevents the convenient, quick and cheap transfer of land in such cities. Within the past few years the evils complained of have greatly increased and have assumed large proportions. They aifect important interests and demand prompt, radical and careful treatment. 50 REFORMS IN LAND TRANSFER. Of course, the reduction of the volume of the records is only possible by reducing their number or by shortening the forms of instruments, but this is a matter to be considered apart from the subject of indexing them. This report will be confined principally to the latter topic as the one more im- mediately pressing, and for that reason, as well as logically, first in order. The Purposes of Indexing Land Records. The purposes for which indexes are required in a public land ofiice are: First, to inform persons who may be inter- ested what instruments have been recorded or filed affecting any particular parcel of land ; and to enable such persons to find and inspect them, it may be in order to see that the stat- utory requirements relating to them have been complied with, or to determine rights thereunder, or for other reasons ; and, second, to notify persons proposing to deal in land of all previous dealings, in order to guard against mistake or fraud. It will be at once observed that the .efficiency of the records for the purposes named must depend primarily, especially in large communities where transactions are frequent, upon the method of indexing adopted. The main question, therefore, is, what plan or method of indexing the land records of the large cities in this State should be adopted for the public con- venience and the safety of dealers. General Principles Applicable to Indexing Land Records. There are certain rules or principles to which any plan of indexing land records must conform in order to be efficient for the purposes indicated : DWIGHT H. OLMSTEAD. 51 First. One rule is that all such records, when there are many, shall he indexed locally, or in what are termed local indexes, that is to say, that all instruments shall be grouped in the indexes according to specific localities, with appropri- ate references to enable such instruments to be found in the record books or on file. Thus, if a city block be taken as the area for each index, all instruments affecting any lot in a block are to be indexed under that block; or, if the area selected for an index be an ordinary city lot, say 25 by 100 feet, then all instruments affecting that lot are to be indexed under that lot. The object and effect of such indexing being to limit the area of search as well as to lessen the number of names of owners to be searched against if a nominal index is to be preserved- Second. Another rule is that the records of mere liens or claims on land and the indexes thereof shall he kept distant and separate from the records of the transfers of the freeholds or fee-simple estates and the indexes of such transfers so that when the liens shall have been paid or discharged they shall not continue to incumber the permanent record of the title. Third. A still other rule is that whatever area of land is chosen for an index, every instrument in any way affecting that parcel shall he indexed under it. The necessity of the observance of this rule is obvious if the index is to serve the purpose of notice, which, with the great and accumulating mass of land records in our cities, the index must do if the doctrine of notice is to continue. We come then to the final questions pertaining to local in- dexing and to which all other questions of land transfer reform are subsidiary, namely, what shall be the areas of the several headings of the indexes, and, after that is settled, what shall be the form, and style of the indexes in other re- spects. 53 REFORMS IN LAND TRANSFER. As TO THE Area to be Adopted for Local Indexes in the Cities of this State. It is conceded that if local indexes for the public land rec- ords are to be introduced into the Registrars' Offices in the cit- ies of this State, such indexing must be either by city blocks or by separate lots, and also as the property is in possession, unless some change is to be made in our present laws relative to notice. The undersigned is in favor of the adoption of the plan of block indexing, even were it merely a question of method and convenience, and he is decidedly opposed to the lot plan, which is recommended by the other commissioners. He objects to the lot plan not only as inexpedient and incon- venient, but as impracticable and incapable of being put in operation, to say nothing of the impossibility of continuing it could it be commenced, and not only so, but for the further reason that the lot plan contemplates fundamental and use- less changes in the law of this State relative to the legal effect of recording, and a different law for cities from that which governs the State at large. Arguments in Favor of the Block Plan of Indexing foe Cities in this State and Against the Lot Plan. First. The block plan is more convenient and safe than the lot plan. City blocks are bounded by streets and avenues, and are, so to speak, insular. The size of an ordinary city block is peculiarly favorable for the purpose of a local index. It limits the search to a sufficiently small area. Each block would have its notorious, permanent number on the city map, no matter how great might be the growth of the city. A century hence the block number would remain the same. The duty of a Registrar to index the transfer of any lot under D WIGHT H. OLMSTEAD. 53 the block in which the lot was located would be simple, and no mistake in the indexing could possibly occur, save by the most culpable negligence on his part. The person leaving an instrument for record would further be protected by his own direction to the register under what block to index it, as well as by the certificate of the record returned upon the instrument, in which the Eegistrar should be required to state the number of the block under which the instrument had been actually indexed. The lot numbers of single lots, on the contrary, would be neither convenient for xise, constant, notorious nor reliable. Second. Under the plan of lot indexing, the Eegistrar would be required to read the description of the property in every instrument presented to him for record or filing with great particularity, and since there are, at the present time, about 20,000 deeds and mortgages recorded yearly in the ISTew York Registrar's Office, without taking into account the^no- tices of liens and claims filed in the office of the county clerk, which may hereafter be filed in the Registrar's Office, or the prospective annual increase of the records, it is obvious that such careful inspection by the Eegistrar would be impossible in the ordinary course of business in his office. Third. Another objection to the plan of lot indexing pro- posed is, that it requires the handling of too many volumes of indexes, and too much work in detail without any cor- responding benefit. The object for which this commission was constituted was " to facilitate and lessen the expense of the transfer of land and dealing therewith," but in what manner the great projected increase in the number of the indexes and records over the present large number in the Reg- istrar's and other offices, and the intricate methods which the lot plan contemplates, tend to accomplish that object, it is difficult to see. In the City of New York are at present about 3000 city -S4 EEForais in land tkansfee. blocks comprising about 160,000 lots of land separately taxed. This gives 160,000 headings of indexes by the lot plan, and only 3000 by the block plan. Now, suppose the volumes of the proposed lot indexes to be made of 250 pages each, or half as thick as the libers of deeds now being written up in the 'New York Registrar's Office, but of the same form and size in •other respects. Under the plan of lot indexing, at least one page of a volume would be required for each lot, and 160,000 pages, with 250 pages to the volume, would give us 640 vol- umes of indexes of the size named, which would be needed for the transfers alone. If the liens were indexed separately from the transfers, as they must be for the most scientific indexing, the total number of volumes of indexes under the lot plan at the outset would be 1280, and this without mak- ing any provision for the future rapid growth of the city. Under the plan of block indexing, on the contrary, allowing eight like pages to each block, 3000 blocks at the same rate of 250 pages to each volume, gives us only ninety-six vol- umes of indexes of transfers or 192 volumes for both transfers and liens, as against 1289 on the lot plan. And upon the estimate of 3000 blocks and 15,000 deeds yearly, for the entire city, there are about five transfers yearly to each block on an average, and allowing for twenty entries on each page of an index, each page of a block index would suffice for four years, and eight pages for thirty-two years. When the 192 indexes shall have been filled at the expiration of that time, it will not be a very great undertaking for the city to print the block indexes up to that date and start a new series, or, what is more probable, a short sensible statute of limitations will then be in operation, as to all possessory titles on the index. Fourth. Another insuperable objection to the lot plan of indexing is the very frequent changes which occur in the areas of lots as laid down on the tax maps,- on account of the erection of new buildings or otherwise. In the new wards DWIGHT IT. OLMSTEAD. 55^ of New York and particularly of Brooklyn, where new build- ings are being constructed with great rapidity, scarcely a lot can be found of the old regulation size, 25 by 100 feet, and the lots are exceedingly variable and are constantly being changed in size and shape. Any one familiar with the ex- tent and frequency of these changes must know how im- possible it would be to index the transfers and other dealings on the lot plan. If attempted, it would produce, iii a short time, the most inextricable confusion in the Registrar's Office, and must ultimately result in the practical adoption of the^ block plan. In the end all transfers would require to be re- indexed on the block plan, but in the mean time and until ' such re-indexing, the existing evils and complications would be largely aggravated, and lawyers and surveyors would reap a rich harvest at the expense of property owners and builders.. It is not likely that the use of lot indexes would tend to reduce the charges of lawyers for examining titles nor the cost of searches. It is pretty certain, however, that the cumbersome- and intricate method proposed of indexing against single lots in a block, as well as against fractional parts of lots requiring at least sixty-four different indexes to every block, with the possible necessity of indexing the transfer of any single lot against several lots, coupled with the proposed notices of claim hereafter mentioned while answering for the practised lawyer, familiar with the details of the system, would be sufficiently confused, to prevent the use of the indexes by property owners, who are not lawyers, and thus one of the- chief objects of a reform in land transfer would be defeated. Fifth. The lot plan could not be put in operation even were it authorized by the Legislature. The present tax maps in the tax offices in New York and Brooklyn are notoriously inaccurate and useless for that purpose. As to blocks not yet built on in the new districts, no information can be derived as ,to their actual ownership until the deeds are produced in_ 56 REFORMS IN LAND TEANSFEE. the Kegistrar's Offices; and diagrams of lots to correspond with the descriptions in the deeds can be made only as fast as the latter are presented for record. Is a Kegistrar of Deeds competent to do this work, or if competent, could it be done satisfactorily in this manner? Land is not often conveyed by diagrams, and what authority could the Legislature confer upon a Eegistrar to interpret the words of a deed or mortgage, so as to settle boundaries between adjoining owners, or to make diagrams conform to descriptions ? How are the in- dexes of lots to be prepared in the Registrar's Offices in order to commence operations ? Is a set of indexes to be made up, in the first instance, with the map or ward number of a lot on each page, corresponding with the numbers of the lots on the tax maps, taking the chance of the latter being correct, or are the diagrams of the blocks to be left blank, and the separate lots drawn on them as future deeds and mortgages are presented to the Eegistrar ? Is it not plain that a system of lot indexing cannot be started in New York and Brooklyn under the common law applicable to the present holdings by metes and bounds and written descriptions without prelim- inary surveys and the adjudication of titles by some court, organized for the purpose, such for instance as the Land Estates Court of Ireland ? The land acts of Sir Robert Tor- rens. Lord Cairns, and all other like acts which contemplate indexing by lots, provide for such preliminary surveys and adjudications either by a court or by a Eegistrar who is vested with judicial functions, without which no parcel or lot of land is allowed to be placed on the local index. This is done in order that the guarantee of the government may be sup- ported by a decree establishing the title, and in such case of course lot indexing is necessary but not otherwise, nor is it otherwise desirable. Sixth,. The legal impediment to lot indexing seems to be fatal to its adoption, even were there no other. Unless a DWIGHT H. OLMSTEAD. 57 Eegistrar can be sure that he always indexes the property affected under a correct diagram, his lot index cannot be safe for the purpose of notice. Such indexing may serve the pur- pose of an ordinary abstract of title, by the aid of which in- struments may be found and examined, but for one of the chief ends of recording and indexing, which is to give notice under the recording acts to subsequent purchasers and incum- brancers, it cannot be used with safety. The reason is this, that the words of the description in a deed are subject to legal construction, that in this State, courts of record are the sole authority to determine the construction, and that a Eegistrar of Deeds is without judicial authority and purely a ministerial officer. As between a written description and a diagram, the description, by construction of law, governs, and no Eegistrar is empowered to decide how far the descrip- tion of a parcel of land which a deed purports to convey cor- responds with the diagram, showing only lines, angles, feet and inches. Suppose, for example, that A, the owner of a lot of land shown on a map as lot !N'o. 1, proposes to convey it to B and does so by a description instead of a diagram, or even by a description and a diagram, the description will govern as agaiiist the diagram, and if the lot be described as abutting on adjacent owners, or as running so many feet, more or less, to the center of a party-wall, or otherwise describing it by metes and bounds, or the like, in such cases a larger area than is actually contained within the limits of lot 'No. 1, as shown on the diagram, may be conveyed by the deed, and this with- out the knowledge or suspicion of either party. For the area of the parcel conveyed depends upon the words of the de- scription as relative to neighboring parcels, and when the deed is once executed, no declaration by the grantee respecting it can affect his actual ownership or the dower interest of his ■wife, or the claims of his creditors, or the rights of persons 58 REFORMS IN LAND TKANSFBE. who may subsequently receive a conveyance of the property from him by the same description. Therefore, if the deed purporting to convey lot No. 1 does by its verbal description, in fact and in law, infringe upon the next lot 'No. 2, and the deed be indexed only under lot ISTo. 1, the index will be faulty in that respect, because a subsequent purchaser of lot Xo. 2 will not find on the index of the latter lot, when he examines the title, the deed previously executed by A to B, which had only been indexed under lot No. 1, but which in fact en- croaches upon lot No. 2. The index of lot !N^o. 2, in order to be a perfect index to give notice to dealers, must show every transfer affecting that lot. The production to a Registrar, of a survey of the lot which the deed purports to convey, would not help the matter, since a survey could only be made use of as evidence of facts upon which his judgment might be based, even if he had judicial power to pass upon the facts, which he has not. In a new country in which the titles have proceeded di- rectly from the government, and the conveyances have in all cases been made according to lots and lot numbers, the plan of lot indexing can be used ; but where for any considerable period of time, conveyances have been made by verbal de- scriptions and by metes and bounds, as well as by courses and distances, the system of lot indexing cannot be used for the purpose of giving notice to subsequent dealers, under our recording acts, unless the areas and boundaries of the lots, including the lines of the adjoining owners, have been first settled in a legal proceeding to which such adjoining owners were made parties. This is so obvious as not to need further comment. Seventh. In order to meet the legal difficulties suggested by the undersigned, the commissioners who favor the plan of lot indexing propose to compel every grantee or mortgagee, upon recording his deed or mortgage, to enter thereon or file DWI6HT H. OLMSTEAD. 59 therewith a statement as to what particular lot or premises on the city tax map he claims that such instrument affects, and to have such instrument indexed accordingly at his risk. The proposition as made by the chairman of the commission at a public meeting of the commissioners stenographically reported, and which is here quoted as a fair statement of the case, is as follows : " I had proposed this, that if we establish the local indexes we should require a man who brings a paper for record to declare what particular pieces of property on the public maps he claims his property to affect ; that if he has been careless enough to leave out something which ought to be put in, that the consequences shall fall on him just the same as if he had not recorded the deed. If there are no circumstances in the law which are equivalent to actual notice irrespective of re- cording the instrument, the legal effect of that would be as it is now; but I do propose that when we establish the system of local indexes we shall call on the person who brings his property for record and who claims the benefit of the notice to the world which the record furnishes, that he shall take the trouble to find out where his property is and to inform the public officer against what property he is to index it, or take the consequences of his carelessness. The grantee, when he pays his money, had better see that his deed correctly de- scribes the property or describes the property sufficiently to have it recorded in the proper place. If there is ever any doubt as to whether or not it infringes on the adjoining lot, why the man who is accepting the deed will of course give himself the benefit of the doubt, whether it touches the other lot or not, and he will say to himself ' I will index against the two,' but if he should not do that, I say let him take the con- sequences. I do not consider he has a right to render a sys- tem of indexing instruments against property inefficacious and fruitless, because he wishes to exercise his divine right 60 EEFOEMS IN LAND TRANSFER. of being as careless as he pleases. I do not propose to intro- duce any system to invite that carelessness. No man with ordinary care would ever take a conveyance of a deed to prop- erty in the city without a reliable survey." The foregoing includes four distinct propositions : First. That surveys shall be practically compulsory upon all purchasers and mortgagers. Second. That in case of doubt, the purchaser or mortgagee shall index against adjacent owners. Third. That the record shall be notice only of what a grantee claims to own under his deed, and not of what he actually does own under it. Fourth. That the correctness of the claim and consequent indexing shall be at the risk of the person presenting the in- strument for record. These propositions will be briefly examined in turn. 1. That surveys shall he compulsory. The lot plan of indexing would undoubtedly compel every person purchasing or taking a mortgage upon a piece of prop- erty to have it accurately surveyed, since under that plan, as the chairman truly says, " 'Eo man with ordinary care would ever take a conveyance of a deed to property in the city with- out a reliable survey." And since about 20,000 surveys would be required annually for deeds and mortgages in the City of l^ew York, and a much larger number for the City of Brooklyn, and as each purchaser or mortgagee would re- quire for his protection a new survey on his own account on each transaction, how all this would tend to facilitate and lessen the expense of the transfer of land it is impossible to understand. D WIGHT H. OLMSTEAD. 61 2. Thai in case of doubt, the person recording the instrument shall index it against the adjoining property. On the lot plan as matter of fact every dealer in land would for safety be compelled to index against all the adjoining lots, as well as against the lot supposed to be covered by the conveyance to him. This would virtually amount to the abandonment of the lot plan, and the adoption of the block plan without the convenient and safe methods proposed for the latter, while the confusion and litigation resulting from such a system of lot indexing would be very great. But what right would a person have to index against adjacent lots and cast a cloud upon his neighbor's titles ? Would not a court of equity interfere by injunction to prevent, and to remove such clouds upon titles ? 3. That the record for the purpose of notice shall cover only what a grantee claims to own, and not what he actually owns under his conveyance. This of course renders necessary a change in the funda- mental law of this State in respect to the City of New York under our present recording acts ; the recording of a deed con- stitutes constructive notice of its entire contents. It amounts to a notice to subsequent dealers that the whole land pur- porting to be conveyed by the deed is actually conveyed. JN'ow, it is proposed, in the City of ISTew York, to limit the operation and effect of such recording to the premises indi- cated hy the grantee by a notice or claim having reference to a diagram. That is to say, as to all land whether actually em- braced in the deed or not, which is omitted from the claim filed by the grantee, the recording of the deed is not to be of any effect. It is submitted that only the most imperative necessity could justify local legislation of that character. 63 EEFOKMS IN LAND TRANSFER. 4. That the accuracy of the indexing shall be at the risk of the person presenting the instrument for record. Now, here is a system ostensibly intended to be for the pro- tection of dealers in land, and yet its first proposition is to cast upon dealers an additional risk, as if the law did not im- pose sufficient risks already. But what is the risk — ^what are to be the " consequences of his carelessness ? " The risk in plain language is, that if a purchaser or mortgagee fails either knowingly or through inadvertence to direct the Eegistrar to index the property transferred to him against every lot in the city map upon which the property so transferred by any chance infringes, he runs the risk of losing the portion which so infringes by the subsequent conveyance to a purchaser or .mortgagee of that portion by his grantor or by an adjoining owner, the same as if there had been no record as to that portion. The injustice of such a law is manifest. Besides, no statement by an owner as has been before remarked can limit or settle the fact of his actual ownership. The property conveyed to him would still be his own, liable to be conveyed or mortgaged by him, and would be subject to his debts. A statement by him made compulsory by statute could not work an estoppel against him or his grantees or creditors. Eighth. Lot indexing upon the plan indicated renders it necessary in case the tax maps are to be referred to for the purpose of designating the area of ownership claimed that such maps shall remain permanently the same as when the system goes into operation, and not be changed or altered in any way thereafter, not even to correspond with any new arrangement of lots. Since, to disarrange or alter the maps would render them useless for reference in respect to past conveyances or notices of claim. If a notice be filed by a grantee that he claims to own on a day certain a certain lot then shown on a certain map, and the map be liable to subse- DWI6HT H. OLMSTEAD. 63 quent alterations and changes as to the areas of the lots or the lot numbers, such a system of notice, based upon such a vari- able map, manifestly would be without value. But it is absolutely necessary for the purpose of taxation, that the tax maps should be frequently altered to correspond with new and diverse ownerships. Therefore, the tax maps cannot be made use of for reference in the manner contem- plated by the advocates of the lot indexes. If that system is to be adopted, maps independent of those in the tax office must be prepared for use in the office pi the Kegistrar. But the difficulty would still remain if the maps are ever after- ward altered in any respect, as they must be as often as the lots are cut up and changed in form and area. It is impossible to devise any scheme permitting alterations in the maps, however carefully made, and at the same time to preserve the method of notice proposed, since, in order to refer to the maps in connection with the notices, it must ap- pear at what precise date and how each alteration of the maps was made. Ninth. Another objection to the system of notices of claim is that whenever an error has been made in a notice filed by an owner, it cannot be rectified by a correct notice filed by a subsequent owner. The filing of a new notice would not be the same in effect as recording an old deed or recording a new one. Under the present system a search is made against the property as owned, but under the proposed system the search must be against the property as claimed, and if the notice of claim falls short, a search against a part not covered by the notice will not reveal a prior conveyance of such part. Tenth. The lot plan requires also a further change in the general law of this State as to the City of New York and other cities where it may be introduced. It abolishes nominal indexes for the cities and substitutes lot indexes, that is to say indexing by diagrams is to take the place of indexing by 64 REFORMS IN LAIfD TRANSFER. names of owners. Should it be proposed to keep a nominal index for the purpose of notice under the recording acts, then this is an admission that lot indexes are merely for furnishing abstracts of title, and are of no value for the purpose of giving notice. The nominal indexes as now kept, without regard to locality, are, as before shown, the chief cause of the evils under which we suffer. Yet nominal indexes in some shape are necessary to be retained, unless we are prepared to adopt the most radical changes in our land laws. Out of this di- lemma there seems to be but one way of escape, and that obviously is to combine the nominal index with the local in- dex in such a manner as to secure the benefit and full effect of both methods. This can be accomplished by the use of a block index in which the instruments are entered under. the several blocks in the order in which such instruments are recorded, and, at the same time, under the names of the grantors and grantees as at present. We will thus have a perfect nominal index combined with a perfect local block index, and will avoid all the difficulties of a purely lot system. A lot index, on the contrary, in which the lots are sepa- rately indexed, cannot be combined with a nominal index wittout great embarrassment, since a nominal index requires that the names shall be entered chronologically, as the instru- ments are recorded, and if the name of the grantor is to be relied on at all in examining the title to any single lot in a block, safety would require searches to be made against all the lots in the block. This would be inconvenient, but it would be the practical outcome of the lot system. Eleventh. The sole purposes of a land index, as before stated, are to enable instruments of record to be readily found in the recording office, as well as to notify the public of them, and for these purposes indexing by single lots would not only be not necessary, but imsafe and excessively incon- DWIQHT H. OLMSTEAD. 65 venient in practice. The area covered hy a local index may he too small as well as too large. A single lot 25 by 100 feet would be too small. The lot index 'does not possess the slightest advantage over the block index. It is urged in favor of the former that it is more convenient to examine the index of a single lot for instruments affecting that lot than to search for the same information under a block index. This is not the fact, but the contrary is the case, for the slightest reflection will satisfy any one that the block index, on account of its more compact form, is more convenient for use than the other. The lot system requires at the start in New York City, as before shown, 1280 volumes of indexes with upwards of 160,000 pages, but the block plan only 192 volumes with 3000 pages. The heading of a block is more readily found than the beading of a lot, which is obvious if we consider the relative number of blocks and lots as well as the relative num- ber of volumes of indexes required under the two methods. And with the necessity that there always will be under the lot plan, of examining also the indexes of adjacent lots, compari- son as to the simplicity of the two indexes is wholly in favor of the block plan. Indexing under a parcel of four city blocks of land, or even of a section comprising several blocks, would be much more convenient than indexing by single city lots. There has never been the slightest difficulty in using nominal indexes for indexing the land records of ordinary county villages ; but should such villages attempt lot indexing, their land records would very soon be thrown into confusion. Twelfth. It has been urged that the plan of indexing rec- ommended by the majority of the commissioners, while in form a lot plan, is substantially the block plan, because all the lots are to be arranged in their numerical order under the blocks in their numerical order. Such an arrangement of lots, however, is merely for the convenience of those exam- 66 REFORMS IN LAND TRANSFER. ining the indexes, but it does not change the character of the indexing. In the block indexes all the instruments are en- tered consecutively in" the order in which they are recorded under the separate blocks, while in the lot indexes they are entered consecutively under the different lots. A search against all lots in a block can be made at a single glance under the block plan, showing the order in which all the instruments affecting that. block have been recorded; but under the lot plan, a complete search can be made aga:inst the block only by reference to at least sixty-four different pages. And if the chronological order is required to be observed, as must often happen, a comparison of entries must be made. The lot plan demands a change in the existing law provid- ing for specific notes of claim, while the block plan does not. Under the lot plan, notice is given of what property a per- son claims to own under his deed ; under the block plan notice is given of what he actually owns under his deed. The lot plan, if adopted, abrogates the present method of searching against names, while the block plan, as proposed, does not. The lot plan makes necessary local laws changing the gen- eral fundamental land laws of the State, while the block plan requires no such changes. The two kinds of indexes require different styles of index books, different modes of procedure and laws for their opera- tion, and are entirely unlike. The Bills Submitted to the Legislattjee by the Major- ity OF the Commissioners. Owing to the delay of the majority of the commissioners in submitting to the Legislature their report and the accom- panying bills, the undersigued has been compelled to confine DWIGHT H. OLMSTBAD. 67 himself in his report for the most part to the general subject of indexing and to such consideration of the matter as came before the commissioners at their several sittings. The bills now, however, having been completed, he is able to comment on them more specifically. They are six in num- ber and are respectively entitled as follows: Bill No. 1. " An act in relation to the recording, filing and indexing of instruments affecting the title to real estate in the City of ITew York." Bill No. 2. " An act in relation to the lien of judgments and decrees and forfeited recognizances upon real estate and chattels real in the City and County of New -York." Bill No. 3. " An act in relation to mortgages to the com- missioners for loaning certain moneys of the United States for the County of New York." Bill No. Jf.. " An act in relation to the indexing of and searches for unpaid taxes, assessments and water-rents and unredeemed and uncanceled sales for non-payment of taxes, assessments and water-rents in the City of New York." Bill No. 5. " An act to provide for the re-indexing of deeds, mortgages and other specific liens." . Bill No. 6. " An act to provide for short forms of deeds and mortgages." As to above Bill No. 1. This bill, while logically drawn, is obnoxious to all the objections which have been urged bj the imdersigned against the system of indexing by lots. The method of lot indexing as presented by the bill is un- wieldy, complicated and incapable of being put in operation. Instead of reducing and condensing the indexes in the various offices, it would increase them very largely ; instead of lessen- ing the volume of the records in the Kegistrar's Office, it would double them by the introduction of the new contrivance of the notices of claim which are to accompany, and be re- corded with all instruments of which notice is intended to be 68 EEFOEMS IN LAND TRANSFER. given; instead of simplifying the present system, "it offers one much more complex, requiring the services of experts to su- pervise and manage it at great cost to the city ; in place of the well-settled land laws of this State, it proposes to suhstitute for the City of New York special and local laws which are unnecessary and open to many objections ; instead of a simple system of indexing which every one can understand, it recom- mends one which only conveyancers and professional search- ers can understand and use. The bill makes it virtually obligatory upon every purchaser or mortgagee of land that he shall procure to be made a survey of the property at considerable expense. It also provides that the notices of claim which are to be recorded as above mentioned shall refer for a description of the property cov- ered by the claim to maps to be filed in the Registrar's OflSce, which maps it is directed shall be altered from time to time to correspond with the tax maps, but which maps themselves must plainly be unchangeable and permanent in order to ren- der such a system of notices of any effect. Because inasmuch as every notice of claim must refer to the maps as existing at the time of such notice, any subsequent changes of the map must necessarily disarrange the system. The system thus resolves itself into an absurdity. The provision of the bill for indexing against the lots ad- joining the one supposed to be affected by the instrument of conveyance is also destructive of the plan of lot indexing, since with the risk attending lot indexing pursuant to surveys which may or may not be correct, every purchaser or mort- gagee will ordinarily index the conveyance to him against the entire block, certainly against all adjacent lots unless the courts intervened to prevent it as they probably would. This is the natural and unavoidable outcome of the lot system. The bill provides that a notice of what the grantee claims to own under his deed may be incorporated in the body of the DWIGHT H. OLMSTEAD. 69 deed, but as such a method of giving notice is not compulsory upon any one, but the notice may be by a separate instrument, it is not likely that a grantor on executing his deed would in- cumber it with the grantee's claim, and it is quite certain that the claim would always be made by a separate instrument as authorized by the bill. IlvTo stronger arguments need be urged against this bill than such as appear upon the face of the bill itself. The necessity for such a bill as is proposed for lot indexing in order to meet the objections made against it, confirms the validity of such objections ; but there are some objections which the bill does not pretend to provide against, and one of the most obvious and fatal is the constant but unavoidable changes in the maps to which the notices of claim are to refer. As to above Bill No. 2. The undersigned, while in favor of abolishing the general lien of judgments on land, objects to their being specifically indexed on the lot plan, and he thinks also, that they, together with all other liens and claims on land, should be filed and entered in the City of ITew York in the Registrar's Ofiice, under one general method. As to above Bill No. S. This bill applies to future as well as to past mortgages to the loan commissioners. It is a suit- able act in relation to past mortgages, but in respect of mort- gages executed after local indexes shall be in use in the Registrar's Office, it would seem desirable that these mort- gages should be acknowledged, recorded and indexed like all other mortgages recorded in that office, and with like effect. As to Bill No. 4- Tn the bill prepared and submitted by the undersigned he has provided for indexing in the office of the clerk of arrears all unpaid taxes, assessments and sale. The general form of the index used for this purpose should be the same as that used in the Registrar's Office for caveats. It is believed that the block indexes will be more convenient for the purpose of keeping a record of the unpaid taxes and assess- 70 REFORMS IN LAND TRANSFER. ments than the lot form of index. All that it will be neces- sary to do, in searching for such liens, will be to see what taxes or assessments on the block have been entered in the index as unpaid; and as the ward numbers will also appear on the index, it does not seem that a simpler method could be adopted than the block plan as proposed. The lot plan could be used, of course, and must be used in laying the tax or as- sessment on the several lots, but it does not appear necessary to duplicate those books in order to give information as to what taxes remain in arrear after a lapse of time. As to Bill No. 5. This bill is intended to provide for the re-indexing of former deeds and instruments in the Regis- trar's and County Clerk's oflBces on the block plan. It is similar to a bill which was introduced for the purpose into the Legislature at its last session. The undersigned in general approves the bill, but it should not go into effect until after the local indexes in the Registrar's Office have been in use a sufficient length of time to familiarize the Reg- istrar and his clerks with them. As to Bill No. 6. This bill for short forms is also in general ■ the same as the bill introduced for the purpose into the Leg- islature last winter. The undersigned approves of the bill so far as it goes, but he thinks it should also provide for short forms of leases and other instruments relating to land. He is in favor, however, of the immediate passage of the bill as it stands. The Poem of Block Indexes to be Adopted, and the Bill Theeefob Peepaeed and Submitted by the Undeesigned. Having shown why it is both inexpedient and impossible to index by separate lots in the cities of this State, and assum- DWIGHT H. OLMSTEAD. 71 ing that the plan of block indexing must be adopted, we come to consider the particular form of the block indexes which should be used. There are some general considerations applicable to this matter. 1. The indexes, while local, should, at the same time, ad- mit of being used in conformity with the land laws and meth- ods of conveyancing in this State. 2. In order to continue the present doctrine of notice, and to meet the difficulties above mentioned of a purely lot index, the indexes, while local, must be also nominal, that is to say, the search must be against the name as well as against the locality. 3. The indexes must be compact, certain and safe in opera- tion for the purposes for which they are intended, simple of construction in order to be easily understood, and convenient for use, both by the Registrar and his clerks, and by the gen- eral public. They should not be so arranged as to be useful only to lawyers, or so complicated as to require the services of experts to manage them. 4. The indexes should be so constructed, that while retain- ing the features of nominal and block indexes, they will admit of continual improvement in the direction of lot in- dexing; that is to say as surveys and maps become more accurate and perfect, that feature of the index, namely the reference to the ward or lot numbers, will become more valuable. 5. Original certificates of search by the Registrar, being in aid of the index, should be retained in his office, and reference to them be made in the index. Whatever improvement will render the indexes more convenient, useful or certain for the purposes for which they are to be used should be adopted. There are other obvious reasons why original searches should be retained by the Registrar, one of them being to avoid the 73 llEfOKMS IN LAND TRANSFER. necessity and expense of re-searching, which has become very burdensome to property owners. 6. The indexes should be of such form and style that they can be conveniently used also for re-indexing instruments which have been heretofore recorded or filed. 7. The indexes of the transfers of the fee-simple or free- hold estates should be kept distinct from the indexes of liens ; but their forms should correspond so far as possible for uni- formity. 8. The lien index should be such as to be in aid of the free- dom of transfer and hypothecation, as well as for the con- venient satisfaction of liens. The lien index should not be constructed solely for the benefit of lienors and claimants, but of owners as well. 9. Both the indexes of transfers and of liens should be de- signed with the view of dispensing, so far as possible, after the indexes are commenced, with the services of lawyers in examining the titles, and of rendering it ultimately as safe, convenient and inexpensive to sell or hypothecate land, as railroad or other corporate securities. Explanation of the Indexes Pboposed by the Undek- SIGNED. The forms of block indexes which have been prepared by the undersigned, being schedules A and B of the subjoined bill, are intended to comply with the foregoing requirements, but the following features of such indexes are novel. (1.) In combining the nominal index with the local index in the manner shown. (2.) In placing at the head of each index a diagram of the block covered by such index. (3.) In providing on the block index for reference to the ward or lot numbers. DWIGHT H. OLMSTEAD. 73 (4.) In providing on the index for reference to the Regis- trar's Certificates of Search. (5.) In separating the index of liens and caveats from the index of freehold or fee-simple transfers. As TO THE Index of Teawseees. The manner of using this index appears upon its face. Upon the receipt by the Registrar of any instrument, he is to enter it in his journal or tickler as at present, and within ten days thereafter, in the block index under the proper block number. It will be his duty to see that the instrument is in- dexed under the proper block according to the description of the property contained in the instrument and the indorsement thereon. It is not required that the reference to the lot number should be accurate. If indorsed on the instrument it may be entered on the index according to the indorsement. All original searches from the time the index is begun are to be entered in a book to be called Registrar's Certificates of Search, to be kept in his office, and are to be noted on the index. A few moments' inspection of an index of transfers will show all the transfers of any lot from one owner to another, made after the system goes into operation, or if the lot num- bers are entered, the title may be traced by them, or if there has been a search, the last search will be an official statement, upon which a dealer may rely of all transfers and liens in the Registrar's Office up to. the date of the certificate. It will be in some sort a certificate of the title. Indeed this form of indexing is so simple, as practically to do away with the necessity of official searches from the time of the commence- ment of the index, although under any system official searches will continue to be required as at present, for the convenience 74 REFORMS IN LAND TKANSFEU. of dealers, and as protection to attorneys who may examine titles. When the index is first put in operation, the lot feature will not be essential to its use or accuracy, but as time pro- gresses, and the maps showing the lot numbers become more accurate through surveys, adjudications by the courts and adjustments between adjoining owners, it may be expected that the lot feature of the index will become more and more important, u;ntil we shall finally have reached a reliable lot index through the present and prudent adoption of the block system, and when that point is attained, we shall have the ad- vantages of both systems, for the number of the lot on the block index will then be a perfect and reliable guide both for the purpose of ^notice and to show the deduction of the title. As TO THE Index of Caveats and Liens. This also is simple in form and easily understood. Liens, notices and claims are entered under the block num- bers in the order of filing, and when satisfied or vacated an entry is made to that effect. After such entry the lien should cease absolutely, but guards should be provided against un- authorized satisfactions. For instance, in ordinary eases a mortgage should not be satisfied on the index without the, pro- duction to the Registrar and cancellation by him of the orig- inal instrument, or its absence be satisfactorily accounted for. Searching for liens on this index is as convenient and simple as searching for transfers on the index of transfers. By in- dexing all the transfers and liens- on the block plan as pro- posed, would be accomplished all the advantages claimed foi the lot plan, but in a much more convenient and simple way dwight h. olmstead. 75 Explanation of the Bill Peepaeed and Submitted by THE UnDEESIGNED FOE BlOCK INDEXING. The bill which has been prepared by the undersigned and is herewith submitted to the Legislature as part of this report, entitled " An act to establish the use of block indexes for public records relating to land in the City of New York," is intended to secure the adoption of indexes upon the plan shown, without changing in any way, in other respects,, existing laws. The bill provides in general that a new map of the city shall be made oh which shall be exhibited all blocks bounded by streets and avenues; that said blocks shall be numbered thereon consecutively from one upwards, beginning at the Battery; that the blocks shall be divided into convenient sections; that block indexes of the forms contained in the schedules of the bill and numbered to correspond with the block numbers on the map, shall be made, one set for trans- fers of freeholds, and one set for liens or caveats ; that after the bill goes into operation all transfers of freeholds or fee- simple estates recorded in the Registrar's OfEce shall be en- tered on the index of transfers, and all claims and liens filed shall be entered on the index of caveats under the proper block numbers in the order of record or filing ; that similar indexes shall be kept in the tax office, and all unpaid taxes and assessments after a certain date be placed thereon ; that certain books shall be prepared for use as part of the proposed system; and that all expenses for the work shall be paid by the comptroller on the requisition of the mayor and corpora- tion counsel with the approval of the board of estimate and apportionment. The preparation of such map and indexes, in the judgment of the undersigned, should be delegated to the charge of the city authorities, and no other reform except, perhaps, the 76 EEFOESrS IN LAKD TRANSFER. adoption of short forms of instruments, should be attempted until after the indexes are completed and put in operation. The hlock indexes can be quickly and cheaply prepared, and the system of indexing under them be put in operation with- out inconvenience, as soon as the books are opened. Upon the presentation of a deed, mortgage or other instrument to the Registrar for record or filing duly acknowledged or proved as now required by law, it will be his duty to indorse it, as at present, with the time of its receipt by him and enter it in his tickler. He will then record the instrument and enter it in the block indexes of transfers or caveats, as the case may be, under the block in which the land affected is located. This is the entire process. Should the plan of block index- ing as recommended be approved by public sentiment during the recess of the Legislature, an act may be drawn and passed at the next session requiring that all future liens and claims on land in the City of Xew York shall be specific and be entered in the proper land office of the city, which is the Hegistrar's office, and the index of caveats has been prepared in anticipation of such a statute. It has not seemed worth while, for the present at least, to provide for the use of block indexes in the office of the county clerk. But if liens on land are to continue to be filed there, then the index of caveats should be required to be used there the same as in the Kegis- trar's Office. Some General Remarks upon Land Transfer. Unquestionably the best and most scientific method of transferring land by the aid of a public record, and the only one which will prevent an accumulation of the records, is that devised by the late Sir Robert Torrens and now in successful operation in Xew Zealand, Australia, British Columbia and manv other of the British colonies. DWIGHT H. OLMSTEAD. 77 It is substantially the same system as that sought to be brought into use by the Land Transfer Act of Lord Cairns, enacted by the British Parliament in 1875, but which, not being made compulsory, and not being suited to the English modes of conveyancing, failed of effect. A similar bill has been introduced into the Ontario Legislature of Canada this winter. This system presents two salient features : 1. A guarantee of titles by the government. 2. A registration of titles in the registry office. It will be observed that the main feature of the Torrens System, apart from the guarantee principle, is the method now in use throughout the civilized world for the transfer of registered stocks, ships, bonds, and other personal securities, namely, by the so-called registration of the title, which con- sists substantially in the application of the rule that no trans- fer shall be actually made unless and until it is entered on the registry books, the deed being considered a mere power of attorney for the purpose of authorizing the transfer, thus assimilating the mode of transferring land to ordinary stock transfers. In the Torrens System the further rule is adopted that each transfer when so entered shall be indefeasible, except in case of actual fraud on the part of the transferee, thus abro- gating the law of equitable notice and equitable assignment. The essential thing sought to be accomplished after the first entry on the local index being to insure the validity of each transfer of the title, as it passes from owner to owner. The undersigned has on several occasions expressed himself strongly in favor of the adoption in this State of the plan of registration of titles as here explained. He has always been opposed to the guaranty of titles by the State, and he is not prepared to recommend the creation of an assurance fund. Manifestly the State cannot go into the examination of all Y8 REFORMS IN LAND TRANSFER. the titles to land in tlie large cities of this State in order to pnt a guarantee system in operation even were it desirable; and as for an assurance fund it does not seem equitable to tax titles whicli are good to indemnify against those which are bad. The best guarantee after all lies in simple and safe modes of transfer. The plan of lot indexing is, of course, indis- pensable to a guarantee system. It is believed that all land reforms' immediately necessary in this State can be accomplished by the adoption of a few measures without materially disturbing our present laws. The most important thing required in the way of land re- form, and which must first receive attention, is a good local index for the registry offices, particularly in the cities. While this is largely a merely mechanical matter, at the same time it presents a problem, the solution of which has taxed the skill of many able conveyancers, but until within a compara- tively recent period, such attempts to index land records, at least in this country, have taken the form of bookkeeping, with debit and credit entries. Eecommendations to the Legislatuee. The undersigned respectfully recommends to the Legis- lature the adoption of the following definite plan of proced- ure in order to remedy the existing evils attending the transfer of and dealings with land in the cities of this State : First. The passage of the bill submitted by the imder- signed providing for block indexing in the City of New York, with such amendments to the bill as the Legislature may deem advisable. Second. The passage of the bill for short forms of deeds and mortgages. DWIGHT H. OLMSTEAD. 79 Third. The passage of a bill abolishing general liens on land in the City of New York, and requiring that all specific liens affecting land in said city shall be filed in the Eegistrar's Office. Fourth. The passage at an early day of the bill for re- indexing former transfers and liens on the block plan. Fifth. The subsequent extension of the plan of block in- dexing to Brooklyn and other cities where it can be used, if the plan is found to work satisfactorily in New York City. Sixth. The careful consideration by the Legislature of other reforms, both such as are deemed to be in aid of the indexes as well as those which are intended to simplify es- tates in land and their transfer. Geneeal Eefoems. Among the reforms which are likely to be pressed upon the attention of the Legislature at an early day, the consider- ation of which come fairly within the scope of the general purpose of the act under which this commission was ap- pointed, besides those above specifically recommended, may be mentioned the following, namely : the filing and retention in the Eegistrar's Office of all original deeds, mortgages, and authorizations for transfer as a guard against forgery and as a protection to the record (to be further considered) ; the abolition of the doctrine of constructive notice except in case of actual fraud on the part of the transferee ; a reduction in the number and duration of liens on land; the adoption of the rule that defects of form alone shall not invalidate an instrument of transfer after it has been once registered, pro- vided an intention to convey appears upon its face and there was in fact an intent to convey and a consideration paid; the devolution of land on the death of an owner, whether in- 80 REFORMS IN LAND TRANSFER. testate or not, upon his personal representatives in the first instance for the purpose of distribution under a judicial order on due notice to all parties in interest the same as per- sonal estate; the distribution of land upon the death of an owner intestate under the same canons of descent as personal estate ; a more reasonable statute of limitations affecting land than the present ; and generally the assimilation of the laws relating to real and personal property so far as the subject- matter will permit. All specific transfers of land can be placed on the block index, but if trusts and settlements stand in the way of such indexing it would be very easy to enter them in a sub-record, and provision for this is made in the bill submitted by the undersigned. The undersigned expresses himself generally in favor of the adoption of all the reforms above named, but they should be delayed until careful consideration can be given to them, both upon their intrinsic merits and in relation to their bear- ing upon existing laws. The advantages to be secured to the commercial cities of this country by the accomplishment of such reforms as the foregoing are too obvious to admit of discussion, and too im- portant to such cities and to the country at large financially to admit of long delay; and this country is the one of all others which such reforms would most benefit. On some accounts it is to be regretted that a difference of opinion upon the vital subject of indexing has arisen among , the commissioners, but it is just upon that point that differ- ences might have been expected if at all, for it is a subject which has always been most embarrassing to those who have been called upon to examine it. The question of registering titles to land and indexing land records, while comparatively little attention has been given to it in this country, has for many years in Europe, especially in England, been consid- DWIGHT H. OLMSTEAD. 81 ered to be one of the most pressing as well as difficult prob- lems to solve. The undersigned is satisfied that the Legislature after con- sidering all the views presented will be able to arrive at the conclusion most beneficial to the large and important interests which the measures proposed are intended to affect. Dated I^ew Yobk, April 17, 1885. DWIGHT H. OLMSTEAD, Commissioner. 83 KEFOKMS IN LAND TKANSFEB. BILL FOR BLOCK INDEXING. [The following is the full text of the Bill for Block Indexing in the City of New Yorlcj prepared hy the writer of this pamphlet as one of the Commissioners of Land Transfer (as amended. )'\ AK ACT TO ESTABLISH THE USE OF LOCAL BLOCK INDEXES FOE PUBLIC EECOEDS EELATING TO LAND IN THE CITY OF NEW YOEK. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. The governor is hereby authorized, within sixty days after the passage of this act, to appoint commissioners, who shall be counselors at law of this State, having practiced at least ten years in the City of New York, who, and their successors, together with the corporation coun- sel of said city for the time being, shall constitute a board to be known as the board of commissioners of land records in the City of New York, whose powers and duties shall be as prescribed by this act. § 2. The said board of commissioners shall continue in office for three years from the time of their appointment, and for such additional time as the governor may, from time to time, by his order, in writing, filed in the office of the sec- retary of state, direct and appoint. § 3. In case of the death, resignation or refusal to serve of any commissioner appointed by the governor under this act, the governor shall appoint another commissioner in his stead, who shall have the same powers and compensation during his term of office as the other commissioners so appointed. § 4. The acceptance or resignation of any commissioner DWI6HT H. OLMSTBAD. 83 SO appointed may be signified by bis filing sucb aeceptanee or resignation, in writing, in tbe office of tbe secretary of state. § 5. Tbe said commissioners, in tbe performance of tbeir duties, sball bave free access to all public records and papers in tbis State, and be permitted to examine and copy tbe same free of cbarge. § 6. Tbe said commissioners so to be appointed by tbe governor sball eaeb receive for bis compensation a salary at tbe rate of not less tban tbousand dollars and not exceeding tbousand dollars per year, to be determined witbin said limits by tbe board of estimate and apportionment of said city, and to be provided for and paid by tbe City of New York in tbe same manner as tbe fixed salaries of tbe officers of said city are provided for and paid. § 7. It sball be tbe duty of said board of commissioners, in addition to tbe otber duties devolving upon tbem under this act, to prepare and report to tbe legislature, from time to time, sucb bill or bills as in tbeir judgment will furtber carry out tbe purpose and intent of tbis act. § 8. Tbe said commissioners are bereby required and •directed, immediately upon entering upon tbeir duties, to ■cause to be prepared, under tbeir direction, by competent surveyors and draughtsmen, a land map or plan of said city, on vsrbich map sball be sbown and delineated all tbe streets, avenues, roads, boulevards and parkways of said city, and also all blocks or parcels of land bounded by said streets, avenues, roads, boulevards and parkways. § 9. Tbe said commissioners sball also cause tbe said blocks or parcels of land sbown on said map of said city to be numbered tbereon from number one consecutively upward, for as many blocks or parcels of land bounded by streets, avenues, roads, boulevards and parkways as sball appear on said map ; provided, however, that in cases of small blocks or parcels, more than one sucb block or parcel of land may be in- 84 HEFOEMS IN LAND TRANSFER. eluded in a single block number, whenever in the judgment of said commissioners the same is advisable; but they may cause the parcels of land in said city lying north and east of the Harlem river, including the twenty-third and twenty- fourth wards of said city, to be divided and numbered or designated on said map in such way as they may think best in order to carry out the general intent of this act. § 10. The said commissioners shall also cause said map of said city to be subdivided into convenient land sections for the use to which said map is to be put as by this act pro- vided, and shall cause said sections to be numbered on said map from number one consecutively upward, for as many sections as shall appear on said map, and shall cause the di- vision lines of said several sections to be exhibited on said map. The numbers of said sections and blocks shall com- mence at the southerly part of said city and shall thence be continued northerly as near as may be. § 11. Eour originals of said map shall be made, and when completed, said originals shall be marked as the official land map of said, city, and shall be certified as such by the said commissioners, and one original thereof shall be filed in each of the offices of the register of the City and County of New York, and of the county clerk of said city and county, and of the receiver of taxes in said city, and of the comptroller of said city, and upon said maps being so certified and filed they shall be and become public records, and shall be known and designated as the land map of said city. Said commissioners may cause as many copies of said map to be made as they shall deem necessary for. use in the public offices of said city. § 12. The said commissioners are hereby directed and required, immediately- on the completion and filing of said land map in said offices, to cause to be prepared, in book form, indexes for indexing instruments affecting land in said city, recorded or filed in the office of said register, on and after the DWIGHT H. OLMSTEAD. 85 date when this act shall go into operation, which indexes shall be prepared for use in accordance with the plan or system known as that of local indexing by blocks, and under the blocks and block numbers shown on said map ; and the areas, numbers and descriptions of the blocks shown on said in- dexes and heading the same shall correspond with the areas, numbers and descriptions of the blocks shown on said map. § 13. Said indexes so to be prepared shall be both nom- inal and local, and in form substantially the same as the forms of the schedules hereto annexed, marked, respectively, schedule A and schedule B, which schedules are to be deemed and taken to be a part of this act. The index so to be pre- pared similar to said schedule A, shall be designated the local index of transfers, and the index so to be prepared similar to said schedule B, shall be designated the local index of caveats. There shall be appropriated in each index to each block or parcel of land shown thereon, not less than eight blank pages, including the heading of such index, which pages shall be properly ruled and prepared for future entries therein, according to the plans shown on said schedules. § 14. The block index of transfers shall be made separate and distinct from the local index of caveats. All instru- ments and notices relating to or affecting land indexed in the block indexes of caveats other than discharges of liens may be termed caveats. § 15. Said indexes shall, on their completion, be certified under the hands of said commissioners, and be deposited in the office of the said register in said city, and shall, upon such certification and deposit, be and become public records, and shall be used in accordance with their form, and so far as prac- ticable, for indexing instruments affecting land, and interests in land recorded, or filed in said register's office on and after the date when this act shall go into operation. Additional like maps and indexes shall afterward in like manner be pre- •86 REFORMS IN LAND TRANSFER. pared, certified and filed by and under the direction of the said register and the corporation counsel of said city from time to time, as may be required by the growth of said city. § 16. There shall also be prepared and kept in the office of said register, besides said land map and indexes, books to be known as follows, to wit : a journal of transfers, a journal of caveats, a book of land transfers, a book of caveats, a book of mortgages, a book of leases, a book of powers of attorney, a book of discharges of caveats, and a book of register's cer- tificates of search. § 17. Said indexes and books shall be used for the follow- ing purposes, namely : (1.) In the register's journal of transfers shall be entered a memorandum of all instruments filed or recorded in his office, which, by this act, are to be indexed in the index of transfers. Such memorandum shall state the date of the registration of the instrument, the names of one or more grantors named in such instrument, and the number of the land section and the number of the land block under which said instrument is directed to be indexed as hereinafter pro- vided. (2.) In the register's journal of caveats shall be entered a memorandum of all instruments filed or recorded in the office of said register, which, by this act, are to be indexed in the index of caveats. Such memorandum shall state the date of registration of the instrument, the name of the caveator or lienor named in such instrument, the name of the person or owner against whom the caveat or lien is filed, and the 'number of the land section and block under which said instrument is directed to be indexed. Said memoranda shall be made in said journals immediately upon the said instru- ments being received in the order of their receipt by said register for record or filing. (3.) In the block index of transfers shall be indexed all DWIGHT H. OLMSTEAD. 87 conveyances and transfers of freehold interests, and of interests purporting to be freehold, in land in said city except mortgages, and assignments of mortgages, and all agreements affecting or running with said interests, and all judgments and decrees, or certified copies thereof, vesting or declaring such interests, and all last wills and testaments, or certified copies thereof, duly proved in this state or author- ized by law to be recorded in this state, affecting such in- terests, and all other instruments in writing received for rec- ord by said register whereby or by virtue whereof any right or title in or to a freehold interest in lands in said city shall have been or purports to be conveyed, transferred or trans- mitted, except as aforesaid. (4.) In the block index of caveats shall be indexed all in- struments in writing and papers received by said register for record or filing, other than those by this act directed to be indexed in the block index of transfers, including mortgages, assignments of mortgages, leases for years, notices of liens, and claims, executory contracts and powers ; but after a title to a freehold interest shall have been transferred by operation of law through or by virtue of any such instrument, such in- strument may then be recorded in the book of land transfers and indexed in the block index of transfers. (5.) In the book of land transfers shall be recorded at length, in the same manner as conveyances of land are now recorded in said register's office, all conveyances and other instruments by this act directed to' be indexed in the block index of transfers, and assignments and releases thereof. (6.) In the book of caveats shall be bound all caveats,., liens, notices, claims, executory contracts and transcripts of judgments affecting specifically land in said city, which may be recorded or filed in the office of said register, other than mortgages, and assignments and releases thereof. (7.) In the book of mortgages shall be recorded at length,^ 88 REFORMS IN LAND TRANSFEK. in the same maimer as mortgages of land and assignments and releases thereof are now recorded in said register's office, all mortgages of land in said city, and all assignments and releases thereof received for record. (8.) In the book of leases shall be recorded at length, in the same maimer as leases and assignments thereof are now recorded in said register's office, all leases of land in said city and assignments thereof received for record, and said commissioners, in their discretion, may establish separate books of record for leases for terms of five years and upwards. (9.) In the book of powers of attorney shall be recorded at length in the same manner as powers of attorney are now recorded in said register's office, all powers of attorney to deal with land in said city received for record. (10.) In the book of discharges of caveats shall be bound all original discharges of caveats and of mortgages, liens, claims, judgments and transcripts of judgments authorized by law to be recorded or filed in said register's office. (11.) In the book of register's certificates of search shall be entered at length under the hand of said register original certificates of search made by him affecting land in said city as hereinafter provided. § 18. Xo instrument shall be received by said register for record or filing in his office unless the same be acknowledged by the grantor, claimant or person signing or executing such instrument, or proved in the manner required by law to en- title deeds to be recorded ; and the recording or filing in said register's office of said instruments and notices, by this act or by any other act of the legislature required to be so re- corded or filed, shall be of the same force and effect as to land and interests in land proposed or intended to be charged or affected thereby as is now the ease in respect of the recording and filing of like instruments and notices in any public office DWKIIIT 11. OLMSTBAD. 89 in Hiiifl cMy and county, oxocj)!; as in the section thirty-one of UiiH w.i oUiorwiHii provided. 8 I!). For ilio |)iirf)OHo of iiotico undor this act, or any act whicli may Ikj in forco, (r.i<;\i lilock or \fdr<:c] of land so to be Hopanttdy rinirdKTcd with ft hlock i\uin])r,r hh aforesaid, and alHo ciKtli lol: of land in a block shall Ix; dcciucA to oxtond lo (,li(^ niiddio lin(! of tho Hlrcct.H, av(!nnoH, roads and boule- vards liicM or Uiornaflor laid ont on said land map fronting and adjoining sncli bhx'.ks and loin respectively, and also to iricliidc all rifrhts tt*U» bv lum thonnipou, Kaoli ori^ijiiial ^■>( saitl wrtitioato so ontotxnl shall Ih* siji'uo^l bv tho ivji'istor or his »U'p\ity, aiul A ivtViviuv to tlio vohmio ami folio of suoli oortitioato shall Ih» uuhU* ou tho Kk'«1 iiulox of transftM' opjuvsito to tho PHtrv of tho last traustVr of tlio j>n>portv st^uvlunl ajjaiust, 8aiil rt^"^ istor shall K> oiitiilod to ivvnnvo and iVilUvl fnnu anv porsoiv nvakiu^a; svioh r-rHjuisitiou tho sum i>f tivo wuts for t^aoh aiul oviM'v wturn mado on auv wrtittoato of soaivh, and also tho sum of twoutv-tlvo (HMits t\>r siguiiiii' said twtitloato. 1*ih>- vidtnl, howovor, that whoii a soaivh atYootiug auv paixH^l of laud has oi\w Innm mado aiul outon^d i»» tho hook of ivjiisttM-'s ivrtitloatos of sinnvh. said r<>j>'istor shall not oulor lu said book auothor soaroh atlVotiuj«' tho sau>o pa»\H>l of laud, aji'niust tho sauio (lorsous, for tlu> saiuo (H>riods and for tho sauio trans fors or lions as tlu> provious orisjiual s(>a(vh outorod in said book; but auv unauthoriw^l ontrv bv hitu shall not alYtvt his liabililv mukn* this aot for soaivhos aotmillv outorod bv hin» in said book. § lM>. A oortitiotl oopv of a»>y suoh original (Hn'litioatt> of soaroh, so t>ntorod in tho book of rt^gistorV otM"titloatt>s, shall bo issnod by said rojyistor tuulor his hand and otUoial soal to any porson rtHjniriuj;' tho samo, upon tho |>aymont to tho roji'isttM- of tho s\ini of tiv(> oonts for oaoh and ovory it^tliru ap|>oarinji' tni suoh oorlitioatt>, and also tho sum of t\\HMvt\''tivo oiMils additional, whioh oortiiiod oopy so issutnl shall 1h> of tl\o samo foroo and olVoot, and shall bo rivoivod as ovidouoo in all otMirts tho Sana* as Iho original thtn'tMif kopt in tho ollloo of said rojfislor, uuloss suoh oopy bo shown b> bo oriH>i\oo\is; and sm'h (U'in'inal oortilloatt> shall ooustitul(> ft warranty on tho part of tho r(\i>islor signing!;, or oaiising to ho sijt'i\od by his ' PiWi» too, 110, DWiailT II. ()I,MH'I'HA1). l):i deputy Huch origiiml (MJi-UfioiiIti of 1,lio tnitli of tlio facts thoi'ciii Hialcd to any ])(U"Hon (.lioii or HiibmKiiioiil.ly owiiiiifj,' or liiivirifi; ail iiilnn^Hl. in Hiiid IiiikI or tiny purl, iliordof who sliall rcdy upon hikiIi (lorUficnU^ or (iortiliod (!opy, luid hIiiiII Hiiffor loBB or duniuf^t^ tlioroby, l.o llio oxUmiI, «{ Hiicli loss or dniniifjo; |)rovi(l(((l, liowdvor, l.lml. no tiction nliidl bo brought on any such cortiCicato al'icr l.lio la|)Ho of l.(wi yi^arn from the- dal-o tliorcfof. § i!7. Said rogiHhw Hliall lio lialiii^ for any Iohh or dainagu to any porHon iiitoroHl.od by ri^HHon of luH failnro to iiidc^x nil iiiHtrnriKait mh nKiiiinHJ by tliiH acL, or by roiiHon of an orro- TiooUH entry inado by iiiin or hy liiH dironlion, or by any doi)iity or olork apjiointod l)y liiiii, in any booi< or itidox to bo kopt in his offloo as roqiiintd by tliiw at^l:, tho anioiint of wbicli Iowh or damaji'o iiuiy bo rocovin'od by an aotion al, law; i)rovid('d, bowovor, tiiat Htiid roffintor shall not bo liablo for an (u-roncoiin entry arining from an orronooiiH indorHoinoiit of an inslrn- ment or notiiio |)roBoiit(id to bo ronordod or lilcd by tiio porwon proBontiiig tbo nanio. § 28. Wlionovor any iiiHtrniiiont afTodting land in Haid oity, duly acknowli^dgi'd or proviMl bo iih to ontiib^ tlio sanio to bo recorded and indorHcd as by IImh act iirovidiul, hIuiII be pro- eented to naid rogiHicr for rocord or lilinf;;, ho hIuiII iniino- diatoly indorHO tluMM^on tlio date, lioiir and niinuto of its rocoipt by him, and shall imniodiiitoly thorouiion ontm' n noto of tho HMiiK^ in liiH journal mm by this act providod, and shall, within throe davM thoroafti^r, (tutor waid instrnmont- on tho prop(n' iilock index in \m olliee in the ordiu- of it-H reeeijit by him under thebloek within whieh llie land alTeeted lies in tiio iiniiiner provided by tluH act, ov under whioh said instninunit is direcled lo bo imh^xed. § 2!l. All inMlrumeiils |)resent.ed lo said regiHter for re- oording or filing under the jn-oviHionw of this act nhall bo legibly iiulorHod with the names of one or more of tho re- spective parties thereto, tho number of tho land section and of 94 IIBFOEMS IN LAND TRANSFER. the block in which the land affected by the instrument is sit- uated, the index in which the same is to be entered, whether of transfers or of caveats, and the name of the person or his attorney offering such instrument for record or filing, to- gether with his residence and post-office address, and the register may, in his discretion, refuse to receive an instru- ment unless the same be so indorsed ; provided, however, that the omission of any required indorsement, or an erroneous indorsement, shall not render an instrument invalid nor pre- vent the recording or filing of such instrument from consti- tuting notice, if the same be recorded or filed ; and provided also, that such indorsement and entry in any index or under any block, pursuant to such indorsement, shall be at the risk of the person offering such instrument for record or filing. Such instrument may also be indorsed with the lot or ward number of a lot affected by the instrument, and in such case the register shall enter such lot or ward number on the local index. All assignments of mortgages and of leases, and all releases, satisfactions and agreements respecting mort- gages, to entitle the same to be recorded or filed under this act, shall state in the body thereof the block number of the property affected by the original instruments to which such assignments, releases, satisfactions and agreements respec- tively relate, and said register need not receive such instru- ments for record or filing unless they contain such statement.^ § 30. Every instrument recorded or filed by said register imder this act shall be stamped or indorsed by him with the number of the section and block under which such instru- ment is indexed in the block index in his office, stating whether such indexing is in the index of transfers or index 1 " The land affected by this instrument lies in Block — , in Sec- tion — , on the Land Map of the City of New York (or County of Kings)." (Form of endorsement drawn by writer and in use in the counties of New York and Kings.) DWIGHT H. OLMSTEAD. 95 of caveats, and any certificate by him of the record or filing of any such instrument, in addition to the matters now re- quired by law to be stated, shall state the number of the section and block under which such instrument was indexed, and said register shall be liable to any person for any loss or damage occurring to him by reason of an erroneous certificate of said register in that behalf. § 31. The journals and indexes hereinbefore by this act directed to be made and kept in the office of said register, and the entries made in said journals and indexes, shall for the purpose of notice be deemed and takeli to be a part of the record of the instruments to which such entries respec- tively refer or relate, and such journals and indexes and the entries in said journals and indexes shall be deemed and held to be constructive notice to all subsequent purchasers, mort- gagees, incumbrances and dealers in the land affected of the instruments to which such entries respectively refer or relate, and of the record of filing thereof, and of the execution and contents of such instruments, in the same manner, to the same extent and with like effect as the recording or filing of such instruments now is or may be notice ; and every instrument affecting land shall be deemed to be recorded or filed in the office of the Register of the City and County of ISTew York, when the same shall be received by said register at his office for record or filing. Provided, however, that no such instru- ment shall be deemed or held to be recorded or filed for the purpose of giving notice thereof, unless it shall be entered in the index of the block in which the land affected by such instrument is located subsequent to the entry thereof in the register's journal. § 32. Whenever a judgment or decree shall have been made and entered by any court changing, declaring or establishing the freehold title of any person in land in said city, upon the production of a certified copy of said judgment or decree to 96 EEFOEMS IN LAND TRANSFER. and leaving the same with said register for record, it shall be the duty of said register to record said judgment or decree in the book of land transfers, and to enter a reference to the said judgment or decree in the block index of transfers under the block in which said land is situated; and whenever a mortgage or other lien upon a freehold interest in land in said city shall be foreclosed and a title to such interest shall have been transferred or transmitted to any person by virtue of an order, judgment or decree of any court, it shall be the duty of said register, upon the production to him of certified copies of such mortgage or other instrument creating such^ lien and of such order, judgment or decree, and the deed of conveyance made thereupon, to record such certified copies and deed in the book of land transfers in his office, and also to enter the same in the block index of transfers under the block in which the land affected is situated, and to note the fact of such foreclosure on the margin of the originals of said instruments in his office, and on the block index of caveats where they are entered, if entered on such index. § 33. Any devisee, heir at law or grantee of a freehold interest in land in said city, under and by virtue of a will which has been duly proved in this State, or is authorized by law to be recorded in this State, or grantee of such devisee or heir at law, may have a certified copy of such will and the probate thereof recorded in the office of said register and entered on the block index of transfers in case he shall file and record with such certified copy of such will his affidavit, stating that he is such devisee, heir or grantee, his place of residence and relationship to the testator, if any, and con- taining a description or diagram of the property claimed by him under or through such will, together with the section and block number thereof. And such record may be had on the application of a trustee or guardian of a person interested. § 34. Satisfactions, assignments and releases of mort- DWIGHT H. -OLMSTEAD. 97 gages which shall have been recorded prior to the date when this act shall go into operation, and also assignments of leases which shall have been recorded prior to that date, and also instruments offered to said register for record or filing, chang- ing the effect or interpretation of instruments which shall have been recorded or filed prior to that date, shall be re- corded, entered and filed in the same offices and in the same manner as is now authorized by law for the recording and * filing of such satisfactions, assignments, releases and instru- ments, to the intent that the entries of all such satisfactions, assignments, releases and instruments, which relate to instru- ments filed or recorded prior to the above last-mentioned date shall be entered in the same offices, and in the same books and under the same system of recording, entry and indexing as at present ; but if such instrument so recorded or filed shall refer to an instrument entered on a block index in said office of said register, a note thereof shall be made on such index opposite to the entry of such last-mentioned instrument. § 35. Said register shall, on and after the date when this act shall go into operation, keep in his office nominal indexes in lexicographical form, containing a list of the names of all grantors and grantees of land entered from time to time on the local index of transfers in his office, referring after the names of said grantors and grantees to the volume and folio of the record of the several instruments to which they are par- ties. Said register shall also keep in his office similar sepa- rate lists of mortgagors and mortgagees whose names appear upon the block index of caveats. He shall also keep in his of- fice a similar separate list of registered caveators and owners other than mortgagors and mortgagees, whose names appear upon the index of caveats. Such lists shall be kept separate for the several land sections and blocks, and shall be made up complete for each calendar year from the time said local in- dexes are commenced, and shall be printed at the expense of 98 REFOEIIS IN LAXD TKAXSFEH. said city as often as the board of estimate and apportionment of said city may direct. § 36. Whenever, after the making of said land map, any new or additional blocks of land shall be formed in said city by the opening or closing of any street, avenue, road, boule- vard or parkway, it shall be the duty of the then register and corporation counsel of said city to cause such new blocks to be numbered consecutively upward from the last number then upon said land map, or to be designated in some other convenient way, and to cause maps of such new blocks to be made, and to certify and file said maps in the same manner and in the same offices as the previous land maps. And the separate maps of such new blocks may be consolidated into one or more maps, and also said new blocks may be subdivided into land sections whenever in the judgment of said register and corporation counsel it shall be advisable to do so; and upon said maps or any of them being certified and filed as aforesaid, they shall constitute land maps of said city and become public records. The land blocks and land sections and the nvimbers and designations of said blocks and sections shall not be changed after they have been once designated and entered on said maps. § 37. Whenever, in the judgment of said commissioners, and after their term of office in the judgment of said register, the hereinbefore mentioned form of block indexes authorized by this act cannot, in exceptional cases, for any reason be con- veniently and safely used for indexing transfers of land, caveats, liens and instnmients as provided by this act, or is not provided for, and the use of such indexes is not in fact in any such case practicable or provided for, said commission- ers may during their term of office, and afterward said reg- ister may with the approval in writing of the corporation counsel of said city, in such cases substitute such other meth- ods of indexing or entering in such register's office such DWiailT II. OLMSTEAD. 99 transfers, caveats, liens and instruments as they shall deem advisable, and may in like manner establish sub-indexes or sub-records in cases where the circumstances warrant, and the methods so substituted and put into operation in the office of said register shall be of the same force and effect as any other method authorized by this act. § 38. In case where there shall have been an erroneous indexing of any instrument in the oflSce of said register under the wrong block or otherwise, he shall, on being satisfied thereof, re-index such instrument in the proper index, and he shall at the same time make a note of such reindexing upon the index in which the instrument was so erroneously in- dexed, opposite the entry thereof, and also upon the instru- ment recorded, if the same be in his possession, or produced to him for the purpose. § 39. ITo entry in any book or index in said register's office shall be erased so as to be illegible, but, in case of any correc- tion, the same shall be made without destroying the original entry, by drawing a line through such original entry. § 40. Any person presenting to said register an instrument for record or filing under this act shall pay to said register, in addition to the fees required by law for recording or filing like instruments, the further sum of one dollar for the entry of such instrument on the block index. § 41, Whenever an instrument transferring land or any interest in land has been entered on the block index of trans- fers, and the next succeeding instrument transferring the same land or any part thereof is executed by a person other than the last preceding registered owner, said register need not place such last instrument on the index of transfers unless such instrument shall contain or be indorsed with a statement of the name of the last preceding registered owner of said land, signed by the grantee named in such last-mentioned in- strument, or by his attorney, and such instrument shall there- 100 KEfORilS IN LAND TKAXSFEE. upon be indexed accordingly; but the omission of such statement shall not impair or render invalid the effect of in- dexing such instruments, if the same be indexed. § 42. The said commissioners shall also, immediately after their appointment, cause to be- prepared, imder their direc- tion, two sets of indexes other than those hereinbefore men- tioned, to be known respectively as the block index of reindexed conveyances and the block index of reindexed mort- gages, which indexes shall be both nominal and local, and substantially the same in form as those contained in said schedules A and B hereto annexed. The said indexes pro- vided for by this section shall be properly ruled and prepared for entries therein according to the plans shown on said sched- ules, and shall be properly indorsed for identification, and so as to indicate the periods of time covered by them respec- tively.^ § 43. Upon the completion of said last-mentioned indexes said commissioners shall proceed to cause to be reindexed therein, subject to their direction under the blocks and block numbers, and, so far as practicable, upon the same general plan as the said other block indexes, all conveyances, mort- gages unsatisfied of record, and instruments other than sat- isfied mortgages and the satisfactions thereof which shall have been recorded in the office of said register up to the time when this act shall go into operation. § 44. If, in the opinion of said commissioners, it shall in particular cases be impracticable, or for any reason not advisable to reindex some of the instruments mentioned in the last above section upon the plan therein mentioned, then they may in their discretion in such cases as to such instru- ments adopt and carry out any other plan of reindexing which they shall think best in order to accomplish the general purpose of this act. ' Pages 106-108. DWIGHT H. OLMSTEAD. 101 § 45. After the completion of said reindexing in the in- dexes so to be prepared therefor, said indexes shdll be certified by said commissioners and be deposited by them in the office of said register. § 46. Said commissioners at the time of reindexing said instruments as aforesaid, if they think it expedient to do so, shall prepare nominal indexes in lexicographical form of the parties to such instruments, similar to the other lexico- graphical indexes hereinbefore mentioned, and cause said in- dexes to be printed and copies thereof to be deposited in the office of said register ; but such printing and the cost thereof shall be subject to the approval of the Board of Estimate and Apportionment of said city. § 47. The said commissioners shall also immediately after their appointment cause to be prepared under their direction other block indexes of the same general form as said Schedule B, hereto annexed, to be used for reindexing therein notices of lis pendens, notices of foreclosure by advertisement and certificates of sheriff's and marshal's sales recorded or filed in the office of the Clerk of the City and County of New York. § 48. Said commissioners shall, on the completion of said last-named indexes, proceed to reindex therein all the said notices of lis pendens, notices of foreclosure by advertise- ment and certificates of sheriff's and marshal's sales recorded or filed in the office of said Clerk of said City and County of New York up to the date when this act shall go into operation. § 49. The said commissioners may vary the form of the indexes mentioned in the last section of this act whenever, in their judgment, the prescribed form cannot conveniently or safely be used, and they may also index the said notices and certificates together or in separate volumes as they shall think proper. § 50. In the performance of their duties in reindexing the instruments and records directed by this act to be so re- 102 REFORMS IN LAND TRANSFER. indexed, the said commissioners shall have free access at all reasonable hours to the said instruments and records, and be permitted to have and control the same, subject to the right of the public, and of said register and county clerk, to have access thereto ; and all proper facilities shall be furnished to said commissioners by said register and county clerk to enable said commissioners to perform the duties imposed upon them by this act. § 51. The said commissioners, for the purpose of facilitat- ing the work which they are required to do under this act, may, if they shall think it expedient to do so, for and on behalf of the mayor, aldermen and commonalty of said city, and subject to the approval of the Board of Estimate and Ap- portionment of said city, acquire and purchase any records, searches, minutes, maps and indexes claimed to be private, which have been made by any person or persons in the course of or connected with his or their official employment in any public office in said city or othervdse, and the consideration to be paid on such purchase or purchases shall be provided by said Board of Estimate and Apportionment, and paid by said comptroller in the same manner as other moneys are provided and paid for the expenses of said city; and said board may at any time act with reference thereto, and appropriate said moneys on the request of said commissioners. § 52. Such records, searches, minutes, maps and indexes so purchased by said commissioners may be used by them in the same manner and with the same eflFect as if prepared under their direction, so far as they shall deem expedient, and when so acquired, said records, searches, minutes, maps and indexes shall be properly indorsed by said commissioners, and be deposited in said register's ofiSce, and thereupon shall become public records. § 53. In case it shall be determined by said commissioners that the present Hall of Records in said city is not a safe DWIGHT H. OLMSTEAD. 103 or convenient place for the keeping and public use of said maps, books and indexes directed by this act to be prepared, then in such case the comptroller of said city, subject to the approval of the Board of Estimate and Apportionment of said city, on being notified thereof, shall provide another room or rooms for the safe-keeping of such maps, books and indexes, and for their convenient use by the public, and the sent, furnishing and maintenance of such room or rooms shall be provided for and paid in the same manner as the other expenses of carrying out the provisions of this act. Such room or rooms where such records shall be kept and used shall be known and designated as the ofiice of the register of the City and County of New York, notwithstanding said reg- ister may have another place for the transaction of the busi- ness of his office. § 54. For the purpose of procuring and preparing the maps, indexes and books directed by this act to be procured and prepared and putting the same in use, and otherwise carrying out the directions and intent of this act, said com- missioners, in the name and on behalf of said city, may hire rooms, purchase stationery and material, and employ sur- veyors, draughtsmen and such other expert persons, assistants and clerks as they may in their judgment require or think proper for such purpose, and may agree with the persons so employed for their compensation ; and such work or any part thereof may be done by public or private contract, as said commissioners shall elect, and the compensation to such sur- veyors, draughtsmen and other persons so employed and the cost of such material and work and of putting said system of indexes and books in use and operation in the offices where they are to be used as provided by this act, and the other ex- penses authorized and to be incurred under this act shall be provided and paid in the manner directed by the next section of this act. 104 KEFOEMS IN LAND TRANSFEK. § 55. The Board of Estimate and Apportionment of the City of New York is hereby authorized and directed, from time to time, to determine the amounts of money which may be required to carry out the provisions of this act, and to appropriate said moneys therefor, which said amounts, "so from time to time appropriated, shall be included in the final estimate made by said board for the next succeeding annual tax levy, and shall be certified by the comptroller of the City of New York as a part of the said estimate; and the said comptroller is authorized and directed to pay, out of the amounts so determined and appropriated, the expenses au- thorized by this act. And said comptroller is authorized to raise such money, from time to time, by the issue of revenue bonds of said city, which bonds shall be paid out of said moneys to be appropriated and raised as aforesaid. § 56. If it shall be determined by said commissioners that this act cannot go into operation at the time herein designated therefor by reason of the non-completion of said maps or in- dexes, or for any other reason, thereupon said commissioners by notice published in the City Record in said City of ISTew York for thirty days prior to the expiration of said time, may extend the time for said act to go into operation, and for said books, maps and indexes to be completed, not exceeding six months from the time herein designated therefor; and said act upon such publication shall thereupon go into opera- tion at the time designated in said notice by said commis- sioners. § 57. The word " land," as used in this act, shall be con- strued to include lands, tenements and hereditaments and all estates of every description in land. § 58. This act shall be construed liberally by all courts, according to the true intent and purpose thereof, which is declared to be to establish the use of block indexes for public records relating to land in the City of New York; and, in DWIGHT H. OLMSTBAD. 105 case the construction of said act, or of any part thereof, shall be doubtful, the Courts are hereby directed to give such con- struction thereto .as shall carry out the general purpose, mean- ing and intent of this act, as herein declared ; and said act is hereby declared and shall be deemed and taken to be a general and public act and not a local act. § 59. All acts and parts of acts inconsistent with this present act are hereby repealed; but all existing acts, so far as this act is not inconsistent therewith, shall be deemed to remain in force. § 60. This act shall go into operation on the first day of , in the year one thousand eight hundred and , except as is by this act otherwise expressly provided. 106 EEFOKMS IN LAND TRANSFER. SCHEDULE A. FoBM oiT Local Block Ikdex for Indexing Tkansfees OF Land and Cektificates oe Search. NINTH STREET. Section IV. Block 1420. X > < c. 1420. H X > < H G m EIGHTH STREET. Grantees. Tbansfbbs. Date of Registration. Ward or Lot No. Cebtiticates of Search. Grantors. Vol. 1 Fol. Vol. Fol. John Doc. Richard Roe. 4 1886, January i. 3 2 6 Bichard Roe, by Geo. Sharp, Sheriff. James White. William Black. Robert Moore. 10 21 8 9 1886, March 1. 1887, April 20. 3 10 16 62 William Blacic, by Joel YoQng, Executor. John Young. 40 11 1890, September 19. 3 Robert Moore, by Mary Moore, Heir. Frank Hart. r7 .3 1891, May 1. 10 84 34 Franl£ Hart. Thomas Scott. 101 6 1892, November 1. 10 112 86 Henry Brown. Ira Smith. 800 10 1892, November 5. 6 140 7 Ira Smith, by Charles Clute, Attorney. Lewis Green. 220 8 1893, March 4. 6 145 3 DWIGHT H. OLMSTBAD. lor P5 P M o 02 fe o m ^ ffj M - 1-5 FIFTH AVENUE S! fe M X ^ H « 12; m W a! H FOR I AVEAT MO I/) w w iz; -* K n fl r-( H fc s X h- 1 -^ O "e Iz; M o ^ t^ <^ PQh^ ij o o £ IXTH AVENUE 1-^ s-^ o g C M o 138 ph 0) ^^ MM 108 BEFOimS IX LAXD TRANSFER. T3 s _d o O m o o 1 o 1 00 „ o. t S S £ ^1 c d o CO O CO O O » „ = " . ^ =' -; g'l" 38 S i'l S2 g= gs g'S "1 "-- "s -^^ 1 1 "^ 1 or >* c; ^ X CO C4 > ^ o o <= « 2 S M i i i i i i i 1. ^ 1 a 1 1 1 S g 1 1 i i 1 ill 1 s " 1 ;| « 1 1 1 i <3 1 1 d 1 1 1 1' 1 if 1 ^ !? ^ ■= E i s § i s ? 3 ^ « < 1. 5 S ^ 3 1 i s ! 1 1 1 i f 1 a -e § -a =0 to 1 1 1 = ^ ^ 1 i S g ^ ^ " " g SCHEDULE 0. Form of Registrar's Certificate of Search. Office of the Registrar of the City and County of IvTew York, State of New York, land section four, block one thou- sand four hundred and twenty, lot ten : I hereby certify that I have, on the requisition of Thomas Scott, searched the block index of transfers of land, and also the block index of caveats in my office, for all entries of in- struments thereon since {insert date) affecting the following premises, to wit : {Insert description or diagram.") Such search being against the names of the following per- sons, to wit : James White, Robert Moore, Frank Hart and Thomas Scott, and that the underwritten are the only said entries on either of said indexes to the date of this certificate, except of such caveats on the block index of caveats as appear thereon to be satisfied. On Bloch Index of Transfers. James White to Eobert Moore, book of transfers, volume twenty-one, folio nine, registered April twentieth, eighteen hundred and eighty-seven, lot number ten. Eobert Moore, by Mary Moore, heir, to Erank Hart, book of transfers, volume seventy-seven, folio three, registered May first, eighteen hundred and ninety-one, lot number ten. Frank Hart to Thomas Scott, book of transfers, volume one hundred and one, folio five, registered !N"ovember first, eighteen hundred and ninety-two, lot number ten. 110 EEFOKMS IN LAND TRANSFER. On Block Index of Caveats. Kobert Moore to Emil Smith, lease, book of leases, volume twenty, folio four, registered April first, eighteen hundred and eighty-eight, lot number ten. Frank Hart ads. Sam. Jones, notice of action, book of caveats, volume six, folio four, registered June second, eighteen hundred and ninety-one, lot number ten. Thomas Scott ads. John Plint, mechanic's lien, book of caveats, volume fifteen, folio two, registered March fourth, eighteen hundred and ninety-three, lot number ten. Witness my hand and seal of office this day in the year [Official seal. J Registrar of the City and County of New York. LAND TRANSFER REFORM OR THE FREE TRANSFER OF LAND SCIENTIFIC REGISTRATION AND INDEXING OF LAND RECORDS, INCLUDING EXPLANATION OF PROPOSED LEGISLATIVE BILLS FOR BLOCK AND LOT INDEXING D WIGHT H. Olmstead One oftbe Commisstorurs of Land Transfer NB'W YORK, - DEOEMiBKR, 1886 " The present shackles upon land are not the results of any national deliberation or decision, but are pure inventions of lawyers." — Lord HOBHOUSE. STATEMENT. In 1884 the Legislature of the State of New York, passed an act entitled " An Act to provide for the Appointment of Commissioners to prepare and report to the Legislature a bill to facilitate and lessen the expense of the transfer of land, and dealing therewith in certain Cities of this State," being chapter 324 of the Laws of 1884, and the operation of such bill was to be confined to cities containing not less than one hundred thousand inhabitants, with leave to the Commissioners to confine it to the City of 'New York. In pursuance of this Act the Governor appointed five Com- missioners, of whom the writer of this pamphlet was one. All of the Commissioners except the writer of this pam- phlet, united in a report to th Legislature, accompanied by a Bill for single Lot Indexing, while the latter presented a report accompanied by a Bill for Block Indexing. The op- eration of both Bills was confined to the City of New York, as permitted by the Act. This pamphlet has been written for the purpose of furnish- ing some general information upon the subject of registering and indexing public land records, respecting which little seems to be understood in this country; of stating the prin- ciples which should govern such registration and indexing; and of analyzing and criticising the Bill prepared for Lot Indexing by the majority of the Commissioners of Land Transfer. New Yoek, December, 1886. CONTENTS. PART I. PAGE. Land Tenure and Land Transfer 117 Public Eegistration 130 Eegistration of Deeds and of Titles 131 Indefeasible Eegistration 134 Eequisites of 134 Guarantee 137 Official Supervision of Transfers 130 ~ Eeport of the British Commission of 1857 130 Eeport of Special Committee of House of Commons of 1879 131 Systems of Eegistration Approved 133 Quotation from Sir Henry Maine 133 Local Indexing 138 Four Cardinal Eules 139 First Eule ■ 140 Second Eule 143 Third Eule 143 Fourth Eule 143 General Measures of Eeform Proposed 145 Eef erenee to Publications and Writers 146 PART II. Explanation of Proposed Plan for City Block Indexing 149 Certificate of Search 151 Text of Proposed Bill for Block Indexing in the City of New York 153 Appendix — Form of Index for Transfers 176 Form oi Index for Liens 177 Form of Certificate of Search '. 179 116 CONTENTS. PART m. Proposed Plan for City Lot Indexing 181 Synopsis of Bill for Lot Indexing 181 Explanation of Bill and Criticisms 192 Difference Between the Block Index and the Lot Index Shown — The Block Index 194 The Lot Index 195 Particulars of Lot Plan. Excessive and Insufficient Indexing 199 Contrivance 'to Prevent Insufficient Indexing 201 Bill for Lot Indexing Violates the Four Cardinal Rules — First Eule 302 Second Rule 208 Third Eule 211 Fourth Rule - 212 Searching Not Ended Under the Plan of Lot Indexing 213 Block Indexing Inevitable 216 1. Lot Plan Too Complicated 217 2. Its Operation Too Burdensome 218 3. The Tax Maps Unreliable 220 4. Grantors Would Always Index Against Entire Block 220 5. Irresistible Gravitation to the Block Plan 222 Previous Plan of Writer 223 PART IV. Obstructions to Reform 224 Lack of Information 224 Action of the State Senate 224 Of the Real Estate Exchange 22-5 Of the Association of the Bar 230 Conclusion 232 PAKT I. MODERN LAND EEFOEMS. Land Tenure and Land Transfer. Modern land reforms may be considered under the heads of Land Tenure and Land Transfer. Land Tenure has reference to estates in land, how held, their distribution and duration. It is sufHcient here to remark that the direction of modern reform is toward simple titles to "land, its general distribution among the peo- ple, free holdings, and in opposition to entailments and permanent settlements. Not only is this deemed to be advantageous to the farming population which in every country constitutes the great body of the people, but also to the State as ensuring permanence of government through general possession of the soil. Upon this branch of the subject I may direct attention to the leading article in the last April number of the British Quarterly Review, entitled, " The Land and the Labourers." The writer in commenting upon the large number of land , owners in France, very truly says, " There can be no land agitation in that country, because there the land is a veritable national possession." Another author in a recent Review declares that " Small ownership is the best protection against socialism." It is proper, however, to remark that there are many writ- ers who, on the contrary, advocate co-operative or associative tilling of the soil. The other division of the land question is that of Land Transfer. .118 REFORMS IN LAND TRANSFER. While considerable attention has been given to the sub- ject of land transfer for many years past, especially in Eng- land, interest in it has been confined principally to the legal profession, and it can scarcely be said to have risen to the dignity of a question of public reform or social ethics until within the past two or three years. The prominence of this subject in England has been in- •creased through the operation of the British Act of 1882, drawn by Lord Cairns, known as the Settled Land Act, which permits the fee of settled or entailed land to be sold by the life tenant and a good title conveyed to the purchaser. While this act, which is almost revolutionary in its char- acter and was expected to be of vast importance to the -agricultural interests of England, has not accomplished all that was intended, it has done much to call public attention to the difiiculties of English conveyancing to which has been charged to some extent — perhaps erroneously — the failure of the Act. The land question, in one form or another, is now the uppermost one in England, not excepting the Irish problem, which is also a land question, and one of the most important branches of the subject is recognized to be that of land transfer. As illustrating the drift of public sentiment in England I quote from an article upon " The Transfer of Land," by the Duke of Marlborough, published in the Fortnightly Review of April, 1885. The article commences as follows: " In every country the theory of the land laws has de- pended on the fact that land was never intended to be dealt with by free commerce and barter, and its sale and exchange have at all times been surrounded with legal difficulties of every description. Lord Cairns' Act of 1882 deals a death blow at this doctrine, and recognizes once for all the im- DWIGHT H. OLMSTEAD. 119" portance of rendering land negotiable in the hands of limited owners. It requires but one step more to free the land from the grip of the law and to render it as negotiable as other forms of wealth." Referring to the complicated methods of English convey- ancing, the article proceeds to say: " It can hardly be wondered at that, with such a system, a. fall in the value of land produces a deadlock in the land market. I will ask any man of business where his trade would go to in England if his business was hampered and hindered by this mode of treatment. Of course in former times it was never contemplated that land should be sold at all. It was in the spirit of things intended that it should remain entailed in families forever. Lord Cairns' Act has revolutionized the fundamental idea of an agricultural aris- tocracy by giving life owners power to sell to whom they please, and he has been forced to do this by the condition of the times ; he has not, however, taken the further absolutely necessary steps of rendering the land salable hy mahing its transfer feasible." The writer of the article proposes the following decisive remedy for the difficulty: " I have said that Lord Cairns' Act has provided betimes for a commercial crisis which is fast overtaking this coun- try. His act however only goes half way; he did not venture- to attack the legal profession. He has not suggested a word about land transfer. The simple cure is to sweep away at one blow the entire- machinery of deeds and substitute in matters of sale a simple- mode of registration of parcels bought and sold. Deeds were- the invention of lawyers ; registration is a complete substitute. " The State must afford means for wholesale registration of land on a very different basis to the feeble attempts which have heretofore been made in this direction." The writer of the article then goes on to recommend a plan 120 REFORMS IN LAND TRANSFER. for the registration of titles, including the abolition_of deeds, " Setting aside the examination and proving of deeds in toto, and substituting the simple process of making a possessory title become de facto an absolute title by the simple method of efficient public notice." Public Registration. Owing to the permanent nature of land it caimot be passed from hand to hand on a sale like a chattel, and in order to pre- vent fraudulent transfers and protect dealers, public regis- tries in which to record transactions have been established from the earliest times. Anciently the parties to deeds were much more accurately described than is the custom at pres- ent, as will be noticed in the deed recorded on a tablet in Assyria 670 B. C, to which I have previously alluded, in which a grantee is described as " ISTeuchates the less, the son of Asos, aged about forty years, of middle stature, yellow complexion, cheerful countenance, long face, and straight nose, with a scar in the middle of his forehead." Some more precise description of parties will, in time, become necessary in this country, especially in the large cities, as the population increases, and some better plan for protection must be adopted than acknowledgements and the certificates of notaries. It is my impression that when original deeds come to be filed permanently in the registry offices, it will be required that the grantees also sign and acknowledge them, as a pro- tection against forgery, and for the subsequent identification of such grantees. The book in which are entered in a public land office the land records is entitled a Land Register, and the official who has charge of the office and of the entries is properly styled the DWI6HT H. OLMSTEAD. 121 Eegistrar, although in our statutes his designation is incor- rectly that of Kegister. In England and Canada and the other British colonies he is invariably called the Registrar. I shall also employ the English plural Indexes^ instead of the Latin Indices^ the latter being now more commonly used to designate the power or root of a quantity in mathe- matics. (Webster. ) 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 virtue of the execution and deliv- ery to the grantee of the deed or other instrument of trans- fer. Under the statute making the recording of an instru- ment constructive notice, the deed or other papers by which the transfer is €fEected, are recorded or filed in the registry office, and the condition of the title at any time is ascertained by a search for and the careful examination of these records by lawyers skilled in the business upon whose opinion the client must rely. Under the method pursued in this State, these examina- tions are repeated on every sale or mortgage of a parcel of land at a repeated cost both for searches and professional services. In the system of the Registration of Titles, however, there can be no actual transfer of a title until such transfer is entered on the public land registry in the registry 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 registra- tion of a United States bond. This mode of transfer is indicated by the phrase, " ISTo 123 REFOHMS IN LAND TRANSFER. transfer except upon the books," the actual transfer and public notice of it being alike simultaneous. Under the nfethod of the registration of deeds, the validity of the title depends upon an extra judicial opinion deter- mined from the records, but under the plan of the registration of titles, the register speaks for itself, each transfer being indefeasible except where there is fraud on the part of the transferee, or forgery. The registration of titles is, of course, much preferable •to that of deeds, where it can be accomplished. The mode of conveyance by a public register is less liable to be affected by fraud and the loss of documents than when the conveyance is by deed, while under the former method there can be no ques- tion as to the notice. While the fundamental principle of registration of title consists in the fact that a title can be made only by public registration, this may or may not be accompanied by the guarantee of the title by the government. Sometimes the title is supported by an Assurance Fund de- rived from certain fees received by the Registrar. Some- times the government guarantees the whole title to the owner to whom a certificate of the title is issued ; sometimes it guar- antees the validity of each transfer from the time registration is commenced, and sometimes the title is rendered indefeas- ible after registration for a certain number of years. In Turkey in Europe the transfer is made on a public reg- ister and the government issues the deed. In most of the British colonies where the Torrens Act is in operation, the whole title is indefeasible, and the cer- tificate of title issued to each new owner is conclusive. In Victoria the title is indefeasible only after seven years' registration. In Prussia, and generally in continental Europe,, the title passes by registration only, and is accompanied by govern- mental guarantee. DWIGHT H. OLMSTEAD. 133 In Scotland, where priority of registration gives priority of title, the government does not guarantee the title, but holds itself responsible for a correct certificate of search by the Registrar, and makes such certificate prima facie evidence of the title. Deeds are recorded in the counties of Middlesex and York, England, and while the consolidated Yorkshire Kegisteries Act of 1884 continues the principle of priority of title in the order of registration, it does not provide for a guarantee. I am aware that a registration of title is commonly un- derstood to carry with it a guarantee by the State, in the same manner in which a corporation guarantees the ownership of its stock in the persons in whose names it stands on the cor- poration books, but this is an error. Whenever a deed or mortgage is required to be entered on a public land register, before the transfer can become opera- tive as such, either in law or equity, this in my judgment properly constitutes a registration of title without regard to guarantee which, if furnished, is merely accessory to the title thus transferred. The proper meaning of a registration of title to land is a title made only by public registration, that is to say, on the public and official land register. This will be found to be the fundamental reform in land transfer recommended by modern authorities on the subject, to which all other reforms, even that of indexing, are sub- sidiary, indexing being merely a mechanical, although a nec- essary process in aid of the main reform. Most of the English Commissions and writers have con- sidered the subject of land transfer under the two heads of registration of title, and registration of deeds, but I think its consideration under the divisions of the mode of convey- ance and notice would have led to more satisfactory results. That is to say, how the actual transfer should be effected, 124 EEFORMS IN LAND TRANSFER. whether by deed or by registration, and if by the former, whether the doctrine of constructive notice or of notice by the record only should be adopted. Where the transfer is by reg- istration, the question of notice does not arise, as the registra- tion itself constitutes notice. Indefeasible Registration. In order to secure an indefeasible title by registration of- the title, there must be four identifications concurrent with the registration, namely : 1. Of the transferrer; 2. Of the parcel transferred; 3. Of the title transferred; and 4. Of the estate transferred, including incumbrances. Thus, there must occur no per- sonation or forgery, and the entry on the register must be on the authorization of the person qualified to transferj the area and location of the parcel transferred must be entered on the register correctly either by diagram or description; the title transferred must be precisely stated, whether a fee simple, a base fee, or for life, or for years, &c. ; and the quan- tity of the estate transferred, whether the whole or an undi- vided interest, must be indicated. But above all, in order to render such registration inde- feasible, the title of the transferrer or the person named as owner, must on each transfer be such in fact and in law, as is stated on the register. This is plain, if the registration is to furnish certainty of title. Therefore, the condition of the title at the time of the first transfer must be ascertained and settled in some conclusive way, and this can only be done by a judicial decree made on an official examination of the title. Such examinations would be impossible in the City of New York. In this city are upwards of 160,000 titles to DWI6HT H. OLMSTEAD. 125 land separately held, which would preclude the required ex- aminations even were there Courts established for the pur- pose. Neither, without such examinations, could there be a guar- antee of the title by the State, nor an Assurance Fund be founded, even were these otherwise desirable. So we must forego the idea of titles made indefeasible at the start either by examination, guarantee, or judicial decree, and do the next best thing, which is to render titles indefeas- ible through the lapse of time. In order. to accomplish this, the present law must be amended so that there shall be no transfer for the purpose of notice except on the public records. This would result practically from the adoption of the Scotch rule that priority of registration gives priority of title, which would compel registration, but it would be accom- plished more effectively by permitting no transfer of the title at all except upon the register, as under the Torrens System. The essential thing being the simuUaneousness of the notice of the transfer with the transfer itself. The deed, the execution of which is now the most vital act connected with the transfer of land, would upon the adoption of either plan named, be relegated to an inferior office. In the first case the mere execution of the deed could not as now constitute notice, and in the second case the deed would be- come a mere power of attorney to authorize the transfer on the books ; but in either case it should be -filed and retained permanently in the Registrar's Office in support of the trans- action. English lawyers have sometimes advocated the registering of possessory titles, which are to grow into perfect titles un- der the operation of a Statute of Limitations. It is of no consequence whether the person registering is or is not in possession of the identical property conveyed to him, 126 IIEFOIIMS IN LAND TRANSFER. SO long as he has the title to it; and if he has not the title, the registration will not give it to him except under the opera- tion of the Statute of Limitations. Besides, it may be difficult or impossible to identify the property described in the deed of conveyance as that in actual possession. This is the chronic difficulty, namely, of making owner- ships of property as now conveyed by common law descrip- tions, correspond with surveys and diagrams with certainty. I do not believe that any form of registration can be of service in the absence of scientific indexing. If however the deed be indexed within a certain defined area under a proper system of local indexing, the question of possession becomes immaterial. It is likely, moreover, that any adverse possession will have been ascertained before the time for bringing an action will have expired. // a grantee has not the title to the property in fact, he or Ms subsequent grantees will still acquire the title which ist recited upon the record, and not questioned within the pre- scribed time. Some of the measures I Would advise in order to perfect titles would be as follows : 1. The adoption by the State of one of the two methods of registration above named, and I would prefer transfer by the register rather than by the deed. 2. The use of local indexes upon the plan hereafter sug- gested with legally defined areas. 3. The adoption of a short Statute of Limitations, not ex- ceeding 10 years, ignoring infancy, lunacy, coveture, absence from the country, imprisonment, &c. 4. The establishment of an official supervision over trans- fers, accompanied by other legislation calculated to make transfers secure. 5. The filing and recording of all deeds and other evi- DWIGHT H. OLMSTEAD. 137 dences of transfer in the registrar's ofiSce under the amended law, after a certain date. Guarantee. Now, after the first transfer under the law as amended shall have been placed upon the register and indexed in the local index, the whole scheme to secure indefeasible titles, at the end of the period prescribed by the Statute of Limitations or at any future time, will come to naught unless each suc- ceeding transfer after the first he made indefeasible. Such transfers can be rendered absolutely indefeasible only by judicial decision or State guarantee, with or without the support of an Assurance Fund, which latter is probably un- desirable. It is true that the State cannot afford to take any risk in guaranteeing titles, and it is equally true that if it is possible to adopt measures to avoid the risk, then we can rely upon such measures and a guarantee is unnecessary. Still, under appropriate legislation, so little would be the risk of guaranteeing subsequent transfers of the actual title which the first owner registering had, to the extent of his interest, and so great would be the present and ultimate advantage to the public of such guarantee, that I should be very much dis- posed to favor it. We must, of course, under such a system, rely mainly upon the adoption of simple and safe modes of transfer, which, on account of the general simplicity of our titles, can be introduced into this State without difficulty. The experience of foreign countries in guaranteeing titles is such as to warrant the belief that the limited guarantee which is proposed would be without any risk to the State worth considering, since, under the methods of transfer used in such foreign countries, titles are substantially indefeasi- Ue, even without the guarantee. 138 REFORMS IN LAND TRANSFER. After the first registration shall have become unimpeach- able through the lapse of time under the operation of a Statute of Limitations, and the intermediate transfers shall be protected by proper guards, transfers of land can then be made as expeditiously, cheaply and as safely for all practical .purposes, as is now the transfer of Registered United States Bonds. The method which I have set forth of obviating the diffi- culty of a complete registration of titles has frequently been suggested, with more or less modifications, by recent writers, among others by Mr. F. Hoare Colt, who in 1873 made the following remarks in a pamphlet written by him: " Let us suppose, then, that an Act of Parliament is passed providing for the compulsory registration of the purchaser as owner on every sale, of the mortgagee as o^vner on every mortgage, of the real representative or the heir-at-law as owner on every devolution by death, and of the trustee as owner on every settlement or bankruptcy, what are the results to be looked for ? An attentive consideration will show that these results are immense. The whole landed property of the nation must at no very distant period, as to the facility of transfer, undergo a complete revolution. The outstand- ing claims and defects of title inherent on many first regis- trations must inevitably disappear by lapse of time. Grad- ually the register alone will become the indisputable record of an indefeasible title; and the transfer of the registered titles will be effected by a simple entry on the record. * * * The writer, in furtherance of this object, proposes to enter on the register a note that the title has been examined on sale or mortgage, where this has been in fact done." (Remarks on the Land Transfer Question^ 18Y3.) In 1885 the same writer, after reiterating his former opinions, says : " If such an Act had been passed twenty or thirty years ago, the objects now sought would have been realized. As it is, we are no nearer, owing to the persistent efforts of all re- DWIGHT H. OLMSTEAU. 12& formers to start with indefeasible titles. This point being now abandoned on all sides, we may, perhaps, hope to see an eiBcient registration Act passed next session." These views are also similar to those of Mr. W. Strickland Cookson, as stated by him in 1857, the substance of which are given in the Statement on the Land Laws by the Council of the Incorporated Law Society of London, published the pres- ent year, as follows : "Mr. Cookson's plan was that (after the coming into ex- istence of his projected registry) upon any dealing with land by a fee simple owner, or person having the power to convey, the fee simple, a transfer of the entire fee simple to one or more persons should be executed and placed on the register. The validity of the title of the first transferee so registered toas to depend upon the validity of the title of Jiis transferrer; but when by lapse of time all claims adverse to such trans- ferrer should become statute-barred, or otherwise have ceased to exist, then the register, and the register only, would consti- tute the evidence of the title to the property. * * * The idea was in fact to establish a register of land upon the same basis as the registers of stock and shipping." The statement goes on to say that this system was embodied in a bill drafted by Mr. John BuUar, and was in principle the same as that contained in Lord Cairns' Land Transfer Act of 1875, except that by Mr. Cookson's scheme registration was made compulsory, while by Lord Cairns' Act it was not. The statement after giving a full resume of British legisla- tion upon the subject, and after commenting upon the Tor- rens System, concludes as follows: " In short it is obvious to the Council that any system of registration of titles, in which the Registrar or Registrars would have to perform functions other than purely minis- terial, could never be worked in England with that certainty and dispatch which would be required, and that if any system of registration is to succeed, it must rather proceed on the lines of Mr. Cookson than on those of Sir R. Torrens." 130 KEFOKMS IN LAND TEANSFEK. And this may be said to be the almost unanimous conclu- sion of English lawyers at this day. Official Supervision of Transfers. As Mr. Hoare above observes, under the plan recom- mended, defects in titles will disappear with lapse of time. But whether they have actually disappeared involves ques- tions both of fact and of law. It is necessary, therefore, whether titles be guaranteed or not, that an official super- •vision should be given to each transfer subsequent to the first registration. This supervision need not be judicial, but it is certainly necessary that it should exist in order to furnish reasonable assurance of the condition of a title at any subse- quent time; that is to say, that -the same title first placed upon, the Register has. continued to be conveyed. Besides, it has seemed to me for a long time that what is done by irresponsible, and frequently by inexpert persons in the examination and certification of titles to land might be much better and more safely done on each transaction once for all by competent officials appointed expressly for the pur- pose, either with or without a guarantee. One of the reasons urged by me in my address before the New York State Bar Association in the year 1882 upon the subject of Land Transfer Reform, for the adoption of the principle of the registration of title was that it afforded " Greater safety to titles by reason of official supervision even though it be merely ministerial over each transaction by the Register." British Commission Report of 1857. In 1854 a Royal Commission was issued in England to twelve Commissioners to consider the subject of the Registra- tion of Title with reference to the Sale and Transfer of Land. DWIGHT H. OLMSTEAD. 131 In 1857 this Commission made its Keport, which has been the foundation of all subsequent legislation by Parliament on the subject. It recommended a limited plan of registration of title, naming the following as the advantages of such a system in giving facilities to the sale and transfer of land : " 1. It will secure the principal benefits and advantages sought to be attained in a system of registration of deeds. " 2. The system will render unnecessary retrospective in- vestigation of the title, as to all the dealings subsequent to the commencement of the registration, and will gradually operate to dispense with such investigation altogether. "3. It will simplify the title to real property for the future, * * * and it will have this effect even though it should happen that no concurrent improvements are effected in the general law of real property. " i. It will make purchaseis of the fee and leases perfectly secure. "5. It will simplify to the utmost extent the forms of transfer, and the modes of conveyance. " 6. It will tend to increase the salable value of lands." Report of 1879 of the Special Committee of the British House of Commons. In the year 1878 the British House of Commons appointed a Special Committee of very able men to consider the ques- tion of land transfer. The committee sat for two years, took much testimony, considered the subject thoroughly, and united in recommend- ing certain reform measures, among which were the fol- lowing : " The compulsory use as far as practicable, of short stat- utory forms analogous to those used in Scotland." " The appointment of a real representative to the deceased 133 REFORMS IN LAND TRANSFER. ' owner of land having the same control over and power to make a title to freeholds, which a personal representative now possessed in regard to chattels real." " The repeal of the Statute of Uses." " The appointment in connection with each registry, both in England and Ireland, of an official searcher or staff of searchers, whose duty it would be, for a small fee, to search the register and to give to intending purchasers or mortgagees a ' Certificate of Search ' showing the state of the title as disclosed by the registry up to the date of the search, such certificate to form part of the title, and to be evidence in case of subsequent dealings with the property as to the previous title disclosed by the register." " The localization of the registration of titles, as far as practicable, concurrent with the establishment of district registries for the registration of assurances." Systems of Land Registration Approved. A valuable contribution upon the subject of land transfer is to be found in the work of Sir Henry Maine on Early Law and Custom, published by Henry Holt & Co., of JSTew York, in the year 1883. I shall conclude this part of my remarks by quoting from Chapter X. of that work on " Classifications of Property." That portion of the chapter relating to the land registries of Hesse-Darmstadt and Zurich was thought to be of suffi- cient importance to be quoted at length in the article on " Eegistration " in Vol. XX. of the " Encyclopsedia Britan- nica " at page 342, where also a reference to the most im- portant English statutes relating to registration and the transfer of land will be found. The author of the article in the " Encyclopfedia Britan- niea " above referred to, remarks that " A compulsory system DWIGHT H. OLMSTEAD. 133 of registration of title in England has been so universally recognized as expedient that its adoption can onty be a ques- tion of time," and it states that one of the efEects of the adoption of such a system will be " The recurrence to the primitive legal conception of the transfer of land as a matter of public notoriety." Sir Henry Maine is an eminent authority upon the sub- ject which he treats, and the following extract is valuable not only as exhibiting the true character and office of the registration of titles, but for its important suggestions as to the result likely to follow the adoption of the system. Extract from Sir Henry Maine's Booh on Early Law and Custom. " It is to be recollected, first, that the primitive convey- ances of allodial land were before all things public. Land belonged to the tribe, joint family, or village com- munity before it belonged to the individual household ; even when it became private property, the brotherhood retained large rights over it and without the consent of the collective brotherhood it could not be transferred. The public consent of the village to a sale of land is still required over much of the Aryan world. Although, as we know, the Mancipation in Eoman legal history is in a form of private transfer, it plainly bears the stamp of its original publicity. The five witnesses who had to assist at a Mancipation represent the old consenting commimity, according to a prin- ciple of representation by fives widely diffused among prim- itive races. As a private conveyance, Mancipation was extremely clumsy, and I have no doubt it was a great advartage to Eoman society when this ancient conveyance was first sub- ordinated to Tradition or simple delivery, and finally super- seded by it. 134 EEFOEMS IN LAND TEANSFEE. Nevertheless, the most successful modern experiments have reverted in principle to a method of transfer even older than Mancipation, and the latest simplifications of the con- veyance of land are a reproduction of the primitive public transfers in the face of the community, in a new form appro- priate to large and miscellaneous societies. In France, and in the territories incorporated with the Em- pire of iSTapoleon I., there has existed ever since the estab- lishment or introduction of the Code called by his name a system of publicly registered sales and mortgages of land. In some of the Germanic countries there was long a disin- clination to adopt these expedients ; but they have now been almost universally copied on the Continent, and, as some- times happens, the new system is most perfect when the delay in accepting it was longest. The land registries which have the highest commendation from juridical writers are those of certain small Teutonic communities — e. g., the State of Hesse-Darmstadt, and the Swiss Canton of Zurich. I can here give but a brief descrip- tion of the mechanism. The land of the community is divided into a number of circumscriptions of no great area. For each of these a central office is established, with a staff of functionaries who are to some extent experts, and at each office a register is opened in which separate portions or groups of pages are appropriated to separate masses of land. There has been some controversy as to what the area selected for separate treatment should be — ^whether a space deter- mined by land measurements, or as we should say, an estate — an aggregate of lands once held as separate property ; but I be- lieve that the historical system, that which deals with estates rather than areas settled by land surveyors, has been found practically the most convenient. When a register has once been opened, the legal history of every parcel of every area is thenceforward recorded in it, and every transfer of mort- gage must be registered in it under pain of invalidity. Whether a person wishing to sell or mortgage has the right to do so it is the business of the staff of experts to ascertain. It is absolutely essential to the system that the register should be easily accessible, and the formalities of registration simple and cheap." DWIGHT H. OLMSTEAD. 135 It will be observed from the foregoing extract that the systems which have received such decisive approval contain the principal reforms which I have urged in this paper, viz. : local indexing with small defined areas, registration under pain of invalidity of transfer, a register easily accessible, registration simple and cheap, and a small staff of officials in the registry office to some extent experts, to decide on the correctness of the transfers, and whether a person wishing to sell or mortgage has the right to do so. The adoption of this programme, which would require only a few amendments to our present law, accompanied by a short Statute of Limitations (even if the officials had no judicial power), would render titles in this State, in a brief period of time, practically indefeasible. I proceed however with the remarks of Mr. Maine : " As to the great mass of English freehold property there is a general admission among lawyers of the expediency of registration, but vehement dispute as to the best method, and a certain disposition to look upon the practical difficul- ties as insuperable. It is true that these difficulties are far greater than abroad. Our land law is much more complex than the land law of Continental countries, where it has its counterpart, if it has any, in the exceptional law applied to the estates of a limited number of noble families ; and English real-property law has been still further complicated by the liberty of transfer and devise which we have enjoyed from a comparatively early period. The great difficiilty with us lies in the preliminary process of ascertaining whether a person desirous of selling or mort- gaging has the right to do it ; but this is in most Continental countries a comparatively easy matter, the bulk of the land haying been held until the early part of this century by a tenure of strict villenage, or, as we should say, in copyhold. My immediate object, however, is not to pass an eulogy on the principle of conveyance by entries on a register, or to weigh one system of registration against another. 136 EEf'OKMS IX LAXD iiiAXSiER. I wish rather to point out some remarkable consequences of registration which ought to have our attention in our special branch of study. * * * It is very remarkable that where there is a perfect system of land registry the strong tendency is to revert to the doc- trines of Eoman Law as it must have been before Possession, Usucaption, and Bonitarian ownership grew up. The registry of the sale or mortgage of land being ex- tremely easy, expeditious and cheap, there is a marked dis- position among authors and expositors of land to say to the members of the community, either register your transfers or mortgages, or cause them to be registered, or you shall have no rights whatever. If you neglect doing that which it is in your power to do at any moment, and at a trifling cost in time and money, you shall not have the benefit of Possession, of Bonitarian owner- ship, of Usucaption, or Prescription. At most, there shall be an Action of Contract to compel the seller of land to register and the buyer to pay the pur- chase money. As regards mortgages they shall rank in the order of priority of registration, and if you delay going through the proper formalities, or compelling them to be gone through, you, the mortgagee, will be postponed to cred- itors more diligent than yourself, and you will be satisfied after them. I follow German writers of authority in saying that this is the condition to which legal doctrine is approximating in much of Germany, though it is not quite adjusted to it. The singular result is that some of the most intricate and difiicult chapters of law cease to be of any or mvich impor- tance. The expedient of public registration is, it will be seen, purely mechanical. A contrivance very like it in prin- ciple spontaneously and very early suggested itself to the human race. Nevertheless, where a public registry of mortgage and land transfer has been established, some of the most famous and luxuriant branches of law show a tendency to dwindle and wither away under its shadow. Possession, Usucaption, Bonitarian ownership, and Tlypothek occupy together a pro- digious space in the Eoman jurisprudence ; the bulk of what D WIGHT H. OLMSTEAD. 137 corresponds to them in other systems of law is very great; if they are reduced to a fraction of their present dimensions, the diminution of the aggregate body of the law will be ex- traordinary and will have been produced in a most unexpected way. I have dwelt on these Continental systems of land registra- tion, and on the effects attributed to them by German juri- dicial opinion for two reasons. In the first place, the fact is certainly curious that the latest improvements in the mechanism of mortgage and land transfer involve a reversion to the primitive publicity of con- veyance. The public register, at some accessible spot, in which all transactions must be registered, under penalty of immediately forfeiting all their benefits, pretty much corresponds to the primitive assembly of the village before which all transfers of shares in the domain must be accomplished, in order that the brotherhood may consent to them and supply evidence of them by the general recollection. * * * The tendency of German juridicial opinion, which I have mentioned, shows that we are in danger of over-estimating the stability of legal conceptions. Legal conceptions are indeed extremely stable; many of them have their roots in the most solid portions of our nature, and those with which we are most familiar have been for ages under the protection of irresistible sovereign power. Their great stability is apt to suggest that they are abso- lutely permanent and indestructible; and this assumption seems to me to be sometimes made not only by superficial minds but by strong and clear intellects. I am not sure that even such juridicial thinkers as Ben- tham and Austin are quite free from it. They sometimes write as if they thought that, although obscured by false theory, false logic, and false statement, there is somewhere behind all the delusions which they expose, a framework of permanent legal conceptions which is dis- coverable by a trained eye, looking through a dry light, and to which a rational code may always be fitted. What I have stated as to the effect upon law of a mere mechanical improvement in land registration is a very im- 138 EEFOKMS IN LAND TRANSFER. pressivB warning that the position is certainly doubtful and possibly not true. The legal notions which I have described as decaying and dwindling have always been regarded as be- longing to what may be called the osseous structure of juris- prudence ; the fact that they are nevertheless perishable sug- gests very forcibly that even jurisprudence itself cannot escape from the great law of Evolution." Such are the opinions of the highest modern authorities upon the subject of land registration, and it is not surprising if, after becoming acquainted with and giving my adhesion to them, I should persistently refuse to unite in a request to the Legislature to enact a bill which permits of the restriction of the effect of the record as public notice of transfers. If we cannot enlarge the scope of the notice, we can at least prevent its further limitation, and thus leave the way open for the adoption of a system of registration more conformable than the existing one to modern views. The extracts which I have given will be found to be in singular contrast with the ideas of my co-Commissioners, who say in their argument : " We would not have it supposed, that in thus taking the trouble to show the entire lack of foundation for this objection (that the restriction of notice interferes with the principle of registration of title) we have done so under any idea that the system of so-called ' registration of titles ' is one that is at all likely to he, or ought to be, or justly or properly can he estab- lished in this State." Local Indexing. Although local indexing is regarded as one of the chief aids in carrying out the principles of the registration of title, it is a method necessary to be adopted in any event provided registration in either form, either of deeds or of title, is to continue. DWIGIIT H. OLMSTEAD. 139 And therefore, while many persons may not subscribe to the theory of the registration of title they would regard index- ing as an entirely separate and distinct matter, which in fact it is. Without a scientifically constructed local index which shall accurately notify the records to the public there can be no registration of title, neither can there be a registration of deeds, where there are many, to any useful purpose. A local index for land records is one in which instruments are grouped according to specified areas of land,- each area so taken forming the heading of a separate index. Such an index is sometimes called a locality index, but improperly ; the word local signifying " pertaining to a par- ticular place," but the word locality signifying " existence in a place" (Webster). And therefore an index in which instruments " pertaining " to particular parcels of land are entered under separate parcels is a local index, and this is its technical name among writers. Four Cardinal Rules for Local Indexing of Land Records. After no little consideration of the subject, I venture to state four rules which I think must be admitted to be the correct rules or principles according to which the local index- ing of land records must be conducted. So obvious and fundamental do they seem to me, that I have named them cardinal rules, and I believe their enuncia- tion will shed much light upon this difficult subject. I have, in former writings, laid down various principles or rules which seem to me important to be recognized in attempting to reform our methods of land transfer, but I now wish to state more precisely than I have heretofore done, those which pertain to local indexing. 140 EEFORMS IN LAND TRANSFER. These rules are as follows: k FiEST. — The area of land tahen for each index must have fixed and permanent boundaries established by law, or by a preliminary judicial detei'mination as is done under the Tor- rens Act. Second. — All instruments in any way affecting the area taken for an index must be indexed under such area; but instruments must not be indexed under areas not affected by them. Third. — The index must serve the purpose of giving pub- lic legal notice of the records. Fourth. — The index must be simple in form, and safe and convenient for public use. I shall now proceed briefly to explain these rules. First. — The area of land taken for each index must have fixed and permanent boundaries established by law ; that is, the area of the index must be both definite in form and fixed by law. It is the very condition of a local index that its limits shall be fijted by law and be publicly known, as well as permanent. The obvious reason being in order that instruments may be both indexed and searched for under the know?! area. Tliis condition is absolutely essential to a local index in order to render it of the least value for any purpose. A county hav- ing established lines, in this respect is a true local index. So is a town, or a city, or a ward in a city, or a city block bounded by streets. A single lot within a city block, on the contrary, cannot be used for a local index, unless, as is done under the Torrens Act, the ownership by a judicial decree is first made to con- form to the diagram of the lot as plotted on a map, or unless the lot has always been conveyed by diagram. DWIGHT H. OLMSXEAD. 141 A verbal description of a single lot written out in full might theoretically serve as a local index, but this could not be carried out in practice. The smallest area of land with fixed and permanent boundaries in the City of ISTew York is the city block, and it is peculiarly well adapted to serve the purpose of indexing land records. For the cities of this State therefore we are confined to the block as the limit of the local index or area of search. We can reduce the area of the local index from the county to the city block, where blocks exist, and provide that all instru- ments affecting a block or any portion of a block shall be in- dexed under the block in precisely the same manner, under the same general law, and with like legal effect as we now record and index under each county instruments relating to land in such county. In cities, when advisable, several blocks might be united to form a single index. And where counties are found too large for local indexes, town areas might be substituted, or areas bounded by public roads or other fixed boundaries. There should be some general law upon this subject applicable to the entire State. In this connection it is important to emphasize the fact that both the county and the city block possesses the same essential conditions of a local index, to wit, having areas which are permanent in form, which are established hy law, and which are matters of public record. A city block index is simply a county local index reduced in size, and a change from the county to the block involves no change in the general law of recording in the State. Indeed, in the Clerk's office of Onondaga County in this State the indexes of the deeds and mortgages are kept for the City of Syracuse by city blocks, and in some cases by city lots when the original grants were by lots, and for the rest of the county the indexing is by towns. JSTo nominal indexes are kept or needed. And that cou.nty furnishes a good illustration of the convenience with which small local indexes can be introduced 142 EEFOEMS IN LAND TRANSFER. in the State without altering in any way the present law of recording. In one or two other cities of the State I am in- formed that indexing by city lots has been attempted and abandoned. Second. — All instruments in any way affecting the area of search tahen for an index must he indexed under such area; but instruments must not he indexed under areas not affected by them. The propriety of this rule is also obvious. It is required to be observed not merely to avoid confusion of the records, but in order that the entries relating to each area may be found under such area. Besides, nothing is to be gained by indexing instruments under areas not affected. If the in- strument affects two adjoining areas of search, such, for example, as two counties or two blocks, the instrument must be recorded and indexed under both areas, so that a person searching against either area will have full notice of the instrument and of its contents so far as it covers land within that area ; but to index against areas not affected permits of the insertion in indexes of a mass of useless entries which in the end will prove fatal to the convenient use of the indexes. If indexing is to be by single lots as owued, then let every instrument relating to a lot be indexed under it, but none other. And if indexing is to be by blocks, then let every instrument affecting a block be indexed under such block, but none other. This is common sense. The universal objection which property owners make to having notices of whatever kind which do not contain a sub- stantial claim filed against their lots is well founded. No sufficient reason can be given for filing claims or notic.es of any sort against specific lots not affected by them, not even the convenience of finding papers, since papers can most read- ily be found by looking for them under the areas which they affect To be compelled to search for them under the areas DWIGHT II. OLMSTEAD. 143 which they do not affect, or may not affect, is not a logical method, must he troublesome, and can only lead to irremedi- able confusion. Thied. — The index must serve the purpose of giving pub- lic legal notice of the records. This is not only the chief object of a local index, but with the great and rapidly increasing number of records in the JSTew York Eegistrar's Office, as well as in the other recording offices in this State, it is plain the index must serve the pur- pose of notifying the records to the public if the present doc- trine of notice under the recording act is to continue. The present 'nominal indexes in the form in which they are kept for the County of J^ew York have become, on account of the great accumulation of names, worthless, and other coun- ties are fast getting into the same condition. When record- ing was first introduced into this 'State the deeds and mort- gages were so few as not to require any nominal indexes, or at any rate very simple ones. We will get back again to first principles by reducing the area of search for cities from the county to the city block, and elsewhere to towns. It would seem that on this third rule the committee of the Association of the Bar of the City of ISTew York by this sen- tence contained in their report agree with me : " If this system (the block) is to be any relief from evils now existing, the grantee should be required to look no fur- ther than this index, and to take no notice of any deed or in- strument not there appearing." FouETH. — The index must he simple in form and safe and convenient for public use. In confirmation of this rule I cannot do better than to quote from the report of the special committee of the British House ■ of Commons upon the subject, made in 1879 : 144' REFORMS IN LAND TRANSFER. " A really good index is the first essential to the success of every system of land registration. Such an index ought to be at once so simple that any one consulting it might at once be referred to every instrument ailecting the property in which he is interested, and so accurate and complete that any person exercising ordinary care and endowed with ordi- nary intelligence might feel sure that no information to which he ought to have had access had escaped him." And it goes without saying, that the indexes should be of such form and plan that they can be operated by any Reg- istrar who may be elected to office, and that they should be convenient not alone for lawyers who may become familiar with them, but for the general public as well. Any person wishing to examine the indexes should be able by mere inspection of them to ascertain at once what instruments have been recorded or filed affecting any partic- ular parcel of land. I have thus stated what I deem to be the chief rules for local indexing, without the observance of which, in my opin- ion, local indexing can neither be conducted so as to accom- plish the intent of the recording act, nor indeed at all. Indexing by itself is purely a mechanical operation subordi- nate to mechanical rules, which are capable of being stated, and which must be complied with if success is to be attained. In reducing the area of search from the entire county to the single city block for cities, we shall find the block to be as small an area as is convenient. Nothing is to be gained by taking the single city lot as the area even were this possible. The Torrens System is a single lot mefhod,^ which so far has been introduced successfully only in new countries where the original transfers from the government have been recent, and for the most part by lot numbers, but it is admitted that the details and complications of that system would preclude its 1 Sir Eobert Torrens, the author of the system, himself calls it a system of "Eegistered Propriptorships." DWIGHT H. OLMSTEAD. ' 145 use under the plan of registration of deeds requiring past transactions to be examined, and that it would be intolerable did not the government avoid this by guaranteeing the title to each new owner. In case of State guarantee, of course, the particular property of which the title is guaranteed must be indicated, but it need not be by diagram. The advantage of being able to adopt a block index in cities without any change in the general law of recording, or in the methods of conveyancing, and the great convenience and safety in the use of -permanent block numbers in ordinary and official transactions relating to real estate cannot be over- estimated. General Measures for Land Transfer Reform. There are certain general measures intended to promote land transfer reform, as well as special ones looking solely to the effective operation of the local indexes. It is my idea that the first reform in order is the adoption of a scientifically constructed local index, one which cannot only be mechanically operated, but which will perform the function of notifying to the public conveniently and certainly the existence of all records affecting any particular lot or par- cel of land. Such an index is indeed indispensable to the local registration both of titles and of deeds. xifter such an index shall have been put into operation and found by actual experiment to work satisfactorily and effi- ciently, then I would advise the adoption of other reforms, most of which are obviously desirable. I am in favor of the ultimate adoption in this State of the following reforms: (These are substantially the same reforms as those men^ tioned in the foregoing pamphlet in Land Transfer on " Re- forms.") 1-tG KEFOUJIS IN LAXD TRAXSFER. Before concluding this portion of my remarks, it may be well to call attention to the circumstance that the intricacy of a title, or doubt as to the right to sell, does not interfere with the adoption of the principle of registration in connec- tion with the use of block indexes such as I recommend, since all which is required to be done in order to register either a title or a deed, is to make a note of the instrument under the area of search to which it relates. The index has nothing to do with the title, but only with the areas to which the instruments refer. So I can see no cause why the local index should not be used in any country regardless of the complexity of the titles or of the ownerships. For those who desire to become better informed upon the subject of Land Transfer and Registration, reference is made to the following magazine articles and publications: The Transfer of Land. By the Duke of Marlborough, in the Fortnightly Review of April, 1885. Land Reformers. By the Duke of Argyll, in the Con- temporary Review of October, 1885. The Question of Land. By the Right Hon. G. Shaw Le- fevre, in the Nineteenth Century of October, 1885. The Transfer of Land. By Howard W. Elphistone, in the Law Quarterly Review of January, 1886. An American View of the English Land Problem. By John Swann, in the National Review of January, 1886. The Laws Relating to Land. By Sir J. F. Stephen, in the National Review of February, 1886. Free Land. By the Right Hon. Lord Hobhouse. Part I. in the Contemporary Review of February, 1886, and Part II. in the same Review of March, 1886. Registration of Title to Land. By Thomas Key, in the Law Quarterly Review of July, 1886. DWIGHT H. OLMSTEAD. 147 A new view of Registration of Title to Land. Editorial in the Westminster Eeview of July, 1886. British Reports : Second Report of the Real Property Commissioners of 1832. Report of the Registration and Conveyancing Commis- sioners of 1850. Report of the Commissioners appointed to consider the Subject of Registration of Title with reference to the Sale and Transfer of Land, of 1857 (very full and valuable). Report of the Special Committee of the House of Com- mons on Land Titles and Transfer of, 18Y8-9 (important). Handy Book on the Registration of Title and Transfer of Land. By F. tloare Colt. London. Remarks on the Land Transfer Question (1873) and Sup- plementary Suggestions (1885). By the same author. Lord Cairns' Land Transfer Act of 1875. The Reform in the English Land System. By the Hon. George C. Broderick. London. (1883.) Chapter X. on Classifications of Property from " Early Law and Custom." By Henry Sumner Maine. Henry Holt & Co., ISTew York. 1883. Article on " Registration," in the Encyclopsedia Britan- nica. Vol. XX., page 342. Handy Book of The Land Transfer Acts (Torrens Sys- tem), containing copies of Acts. Issued from Office of Reg- istrar-General of Land. By Authority. Wellington. (1878.) Registration of Title in the British Colonies. Returns to the House of Commons by Colonial authorities. (1881.) Supplementary Returns to the House of Commons of Colo- 148 REFORMS IN LAND TRANSFER. nial authorities upon the " System of Conveyancing by Eeg- istration of Title," in operation in South Australia, Queens- land, New South Wales, Victoria, Tasmania, Western Aus- tralia, New Zealand, British Columbia and Fiji, made up to December 31, 1879. The T-orrens System of Conveyancing by Registration of Title in Adelaide and South Australia. Report by W. E. Maxwell, Commissioner of Land. (1883.) Land Transfer Reform. An Address before the Canadian Institute, Toronto, by J. Herbert IMason. (1883.) The Torrens System of Transfer of Land. By Herbert C. Jones. Toronto, Casswell & Co. (1886.) (Very com- plete, and containing reference to all British and Colonial Acts.) Registration of Titles. Prize Essay. By R. Burnet Mor- ris. London. (1886.) Statement on the Land Laws. By the Council of "the In- corporated Law Society of London. (1886.) Land Transfer. Published by Order of the Bar Commit- tee. London. (1886.) A perusal of the last three documents named will give a very complete idea of the present opinion of the English bar upon the subject of registration and land transfer. In addition to the foregoing documents valuable informa- tion may be obtained upon the subject from papers published by the Juridicial Society of London and by the Cobden Club,, the writings of Horace Davey, S. J. ; Mr. Ringold Pearless, Mr. Hunter, Mr. Westenholme, Mr. Arthur Arnold, Mr. W. Strickland Cookson, Mr. E. M. Underdown, Mr. William Whitworth and others, and the testimony accompanying the Reports of 185*7 and 1879, and various articles appearing during the past two years in the Law Times, and other Law magazines, and particularly in the Solicitor's Journal and the Law Journal of London. DWIGHT H. OLMSTEAD. 149 PAKT II. PROPOSED PLAN FOE CITY BLOCK INDEXING PFESUANT TO THE BILL EEPOETED TO THE LEGISLATUEE ENTITLED " AN ACT TO ESTABLISH THE USE OF LOCAL INDEXES FOE PUBLIC EECOEDS RELATING TO LAND IN THE CITY OF NEW YOEk/' The theory of block indexing for cities has been already explained. City blocks having permanent and legally de- fined boundaries, and being of uniform and convenient size, are in every respect admirably suited to the purpose of local indexes. The full text of the bill for block indexing prepared by me containing some amendments to the first draft, is to be found annexed. The bill provides for indexing transfers of land and liens on land in the City of New York in separate block indexes of similar general form, without any change in the general law of recording which obtains throughout the state, except that the indexes are to form part of the record so far as may be necessary to give notice of instruments recorded. The bill also provides for indexing only in the Registrar's and Tax offices, it being contemplated that by subsequent enactment all liens on land in the city except unpaid taxes and assess- ments shall be filed in the Registrar's Ofiice. Separate indexes for freehold transfers and for liens are now deemed to be the most approved method, so that when the liens shall have expired or been satisfied the lien papers may be destroyed and not continue to encumber the title. Only freeholds, or deeds purporting to convey freeholds, are placed upon the index of transfers anticipatory of the subse- quent adoption in this State of the principle of registration of title. 150 KEFOKMS 12f LAND TRANSFER. The blocks are to have permanent block numbers and to be groiiped in sections or wards as may be thought preferable, so that all the books relating to any section may be kept together convenient for reference. Thus, no matter how large the city grows, the different sections will always remain independent registry districts, and can be superintended by clerks familiar with the sections and the titles embraced in them. Under the proposed scheme for block indexing, the instru- ment to be recorded is to be endorsed when left for record, with its proper block number and section, and whether it is to be entered in the index of transfers or liens, and the Eeg- istrar is to index it accordingly immediately on its receipt by him. I have concluded that dealers will feel better satisfied to know that their papers are recorded for the purpose of notice when left with the Registrar for record as at present, and that the public will be sufficiently protected by the provisions of the bill in that behalf. Instruments are to be placed in the index chronologically as they are received for record, and there is to be also a sep- arate nominal index for each section or group of blocks, or even for each block if thought advisable. The present form of nominal indexes might be improved by indexing each name under its first letter and the next first vowel. It has been suggested to me that it should be made obligatory upon every person leaving an instrument for record to endorse on it its proper ward number. This suggestion I considered when preparing the bill, and concluded to leave it to the grantees to direct the ward number to be entered on the index or not as they might prefer. I should have no objection to the plan being tried however, provided the penalty for omitting the ward number is made merely a pecuniary one. This bill also provides for reindexing the old records. DWIGHT H. OLMSTEAD. 151' Certificate of Search. The scheme of the Certificate of Search is copied from the Scotch plan and furnishes precisely what is required,, namely, an official statement of all recorded instruments re- lating to any particular lot up to its date. We thus get all the possible advantages claimed for the sin- gle lot index, without the disadvantages which are inseparable from the lot plan. We have in a compact form on one page an official and re~- liable return of all papers recorded affecting the title to any- parcel, not as conformed to a diagram, hut as described in and" conveyed iy the last recorded deed, the original of which cer- tificate is to be retained in the Registrar's Office, and is to run with the title in favor of any subsequent owner for ten years . from its date. The certificate of search is highly approved by Scotch conveyancers, and was unanimously recommended for adop- tion in England by the Special Committee of the British House of Commons above referred to. In Scotland the certificate is made by law prima facie evi- dence of the title. Finally, no bill for the Registration of Titles in any form should be introduced and acted upon by the Legislature ex- cept such as has been prepared and recommended for passage by a commission of competent men appointed especially for that purpose, who are willing to study the subject thoroughly and give their time and attention to it, and who will inform themselves of all which has been written in relation to it. The Commission should also take testimony and procure and compare the views of lawyers and others. ISTo one person is likely voluntarily to take upon himself the responsibility and labor of preparing such a bill, nor- should the work be committed to a single i.n^lividual. 153 REFORMS IN LAND TRANSFER. BILL FOR BLOCK INDEXING. [The following is the full text of the Bill for Block Indexing in the Cit^ of New York, prepared by the writer of this pamphlet as one of the, Commissioners of Land Transfer (as amended.)] AS ACT TO ESTABLISH THE TTSE OF LOCAL BLOCK INDEXES FOE PUBLIC EECOEDS EELATING TO LAND IN THE CITY OF NEW YOEK. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. The governor is hereby authorized, within sixty days after the passage of this act, to appoint commissioners, who shall be counselors at law of this State, having practiced at least ten years in the City of New York, who, and their successors, together with the corporation coun- sel of said city for the time being, shall constitute a board to be known as the board of commissioners of land records in the City of New York, whose powers and duties shall be as prescribed by this act.. § 2. The said board of commissioners shall continue in office for three years from the time of their appointment, and for such additional time as the governor may, from time to time, by his order, in writing, filed in the office of the sec- retary of state, direct and appoint. § 3. In case of the death, resignation or refusal to serve of any commissioner appointed by the governor under this act, the governor shall appoint another commissioner in his stead, who shall have the same powers and compensation during his term of office as the other commissioners so appointed. § 4. The acceptance or resignation of any commissioner DWIGHT H. OLMSTEAD. 153 SO appointed may be signified by his filing such acceptance or resignation, in writing, in the office of the secretary of state. § 5. The said commissioners, in the performance of their duties, shall have free access to all public records and papers in this State, and be permitted to examine and copy the same free of charge. § 6. The said commissioners so to be appointed by the governor shall each receive for his compensation a salary at the rate of not less than thousand dollars and not exceeding thousand dollars per year, to be determined within said limits by the board of estimate and apportionment of said city, and to be provided for and paid by the City of New York in the same manner as the fixed salaries of the officers of said city are provided for and paid. § 7. It shall be the duty of said board of commissioners, in addition to the other duties devolving upon them under this act, to prepare and report to the legislature, from time to time, such bill or bills as in their judgment will further carry out the purpose and intent of this act. § 8. The said commissioners are hereby required and directed, immediately upon entering upon their duties, to cause to be prepared, under their direction, by competent surveyors and draughtsmen, a land map or plan of said city, on which map shall be shown and delineated all the streets, avenues, roads, boulevards and parkways of said city, and also all blocks or parcels of land bounded by said streets, avenues, roads, boulevards and parkways. § 9. The said commissioners shall also cause the said blocks or parcels of land shown on said map of said city to be numbered thereon from number one consecutively upward, for as many blocks or parcels of land bounded by streets, avenues, roads, boulevards and parkways as shall appear on said map ; provided, however, that in cases of small blocks or parcels, more than one such block or parcel of land may be in- 154 EEFOEMS IN LAND TKANSFER. eluded in a single block number, whenever in the judgment of said commissioners the same is advisable; but they may cause the parcels of land in said city lying north and east of the Harlem river, including the twenty-third and twenty- fourth wards of said city, to be divided and numbered or designated on said map in such way as they may think best in order to carry out the general intent of this act. § 10. The said commissioners shall also cause said map of said city to be subdivided into convenient land sections for the use to which said map is to be put as by this act pro- vided, and shall cause said sections to be numbered on said map from number one consecutively upward, for as many sections as shall appear on said map, and shall cause the di- vision lines of said several sections to be exhibited on said map. The numbers of said sections and blocks shall com- mence at the southerly part of said city and shall thence be continued northerly as near as may be. § 11. Four originals of said map shall be made, and when completed, said originals shall be marked as the official land map of said city, and shall be certified as such by the said commissioners, and one original thereof shall be filed in each of the offices of the register of the City and County of ~New York, and of the county clerk of said city and county, and of the receiver of taxes in said city, and of the comptroller of said city, and upon said maps being so certified and filed they shall be and become public records, and shall be known and designated as the land map of said city. Said commissioners may cause as many copies of said map to be made as they shall deem necessary for use in the public offices of said city. § 12. The said commissioners are hereby directed and required, immediately on the completion and filing of said land map in said offices, to cause to be prepared, in book form, indexes for indexing instruments affecting land in said city, recorded or filed in the office of said register, on and after the ■ DWIGHT H. OLMSTEAD. 155 date when this act shall go into operation, which indexes shall be prepared for use in accordance with the plan or system kno^\'n as that of local indexing by blocks, and under the blocks and block numbers shown on said map ; and the areas, numbers and descriptions of the blocks shown on said in- dexes and heading the same shall correspond with the areas, numbers and descriptions of the blocks shown on said map. § 13. Said indexes so to be prepared shall be both nom- inal and local, and in form substantially the same as the forms of the schedules hereto annexed, marked, respectively, schedule A and schedule B, which schedules are to be deemed and taken to be a part of this act. The index so to be pre- pared similar to said schedule A, shall be designated the local index of transfers, and the index so to be prepared similar to said schedule B, shall be designated the local index of caveats. There shall be appropriated in each index to each block or parcel of land shown thereon, not less than eight blank pages, including the heading of such index, which pages shall be properly ruled and prepared for future entries therein, according to the plans shown on said schedules. § 14. The block index of transfers shall be made separate and distinct from the local index of caveats. All instru- ments and notices relating to or affecting land indexed in the block indexes of caveats other than discharges of liens may be termed caveats. § 15. Said indexes shall, on their completion, be certified under the hands of said commissioners, and be deposited in the office of the said register in said city, and shall, upon'such certification and deposit, be and become public records, and shall be used in accordance with their form, and so far as prac- ticable, for indexing instruments affecting land, and interests in land recorded, or filed in said register's office on and after the date when this act shall go into operation. Additional like maps and indexes shall afterward in like manner be pre- 156 REFORMS IN LAND TRANSFER. pared, certified and filed by and imder the direction of the said register and the corporation counsel of said city from time to time, as may be required by the growth of said city. § 16. There shall also be prepared and kept in the office of said register, besides said land map and indexes, books to be known as follows, to wit : a journal of transfers, a journal of caveats, a book of land transfers, a book of Caveats, a book of mortgages, a book of leases, a book of powers of attorney, a book of discharges of caveats, and a book of register's cer- tificates of search. § 17. Said indexes and books shall be used for the follow- ing purposes, namely : (1.) In the register's journal of transfers shall be entered a memorandum of all ' instruments filed or recorded in his office, which, by this act, are to be indexed in the index of transfers. Such memorandum shall state the date of the registration of the instrument, the names of one or more grantors named in such instrument, and the number of the land section and the number of the land bloek under which said instrument is directed to be indexed as hereinafter pro- vided. (2.) In the register's journal of caveats shall be entered a memorandum of all instruments filed or recorded in the office of said register, which, by this act, are to be indexed in the index of caveats. Such memorandum shall state the date of registration of the instrument, the name of the caveator or lienor named in such instrument, the name of the person or owner against whom the caveat or lien is filed, and the number of the land section and block under which said instrument is directed to be indexed. Said memoranda shall be made in said journals immediately upon the said instrii- ments being received in the order of their receipt by said register, for record or filing. C3.) In tlio block index of transfers shall be indexed all DWIUIIT H. OLMSTEAD. 157 conveyances and transfers of freehold interests, and of interests purportiiii, to be freehold, in land in said city except mortgages, and assig-nments of mortgages, and all agreements atfecting or running with said interests, and all judgments and decrees, or certitied copies thereof, vesting or declaring such interests, and all last wills and testaments, or certified copies thereof, diily proved in this state or author- ized by law to be recorded in this state, affecting such in- terests, and all other instruments in writing received for rec- ord by said register whereby or by virtue whereof any right or title in or to a freehold interest in lands in said city shall have been or purports to be conveyed, transferred or trans- mitted, except as aforesaid. (4.) In the block index of caveats shall be indexed all in- struments in writing and papers received by said register for record or filing, other than those by this act directed to be indexed in the block index of transfers, incliiding mortgages, assignments of mortgages, leases for years, notices of liens and claims, executory contracts and powers ; but after a title to a freehold interest shall have been transferred by operation of law through or by virtue of any such instrument, such in- strument may then be recorded in the book of land transfers and indexed in the block index of transfers. (5.) In the book of land transfers shall be recorded at length, in the same manner as conveyances of land are now recorded in said register's office, all conveyances and other instruments by this act directed to be indexed in the block index of transfers, and assignments and releases thereof. (0.) In the book of caveats shall be bound all caveats, liens, notices, claims, executory contracts and transcripts of jiidgments affecting specifically land in said city, which may be recorded or filed in the office of said register, other than mortgages, and assignments and releases thereof. (7.) In the book of mortgages shall be recorded at length. 158 REFORMS IN LAND TRANSFER. in the same manner as mortgages of land and assignments and releases thereof are now recorded in said register's office, all mortgages of land in said city, and all assignments and releases thereof received for record. (8.) In the book of leases shall be recorded at length, in the same manner as leases- and assignments thereof are now- recorded in said register's office, all leases of land in said city and assignments thereof received for record, and said commissioners, in their discretion, may establish separate books of record for leases for terms of five years and upwards. (9.) In the book of powers of attorney shall be recorded at length in the same manner as powers of attorney are now recorded in said register's office, all powers of attorney to deal with land in said city received for record. (10.) In the book of discharges of caveats shall be boimd all original discharges of caveats and of mortgages, liens, claims, judgments and transcripts of judgments authorized by law to be recorded or filed in said register's office. (11.) In the book of register's certificates of search shall be entered at length under the hand of said register original certificates of search made by him affecting land in said city as hereinafter provided. § 18. No instrument shall be received by said register for record or filing in his office unless the same be acknowledged by the grantor, claimant or person signing or executing: such instrument, or proved in the manner required by law to en- title deeds to be recorded ; and the recording or filing in said register's office of said instruments and notices, by this act or by any other act of the legislature required to be so re- corded or filed, shall be of the same force and effect as to land and interests in land proposed or intended to be charged or affected thereby as is now the case in respect of the recording and filing of like instruments and notices in any public office DWIGHT H. OLMSTEAD. 159 in said city and county, except as in the section thirty-one of this act otherwise provided. § 19. Eor the purpose of notice under this act, or any act which may be in force, each block or parcel of land so to be separately numbered with a block number as aforesaid, and also each lot of land in a block shall be deemed to extend to the middle line of the streets, avenues, roads and boule- vards then or thereafter laid out on said land map fronting and adjoining such blocks and lots respectively, and also to include all rights of dockage and water rights fronting said blocks and lots respectively within the lines of the streets and avenues as extended. § 20. Saijd books and indexes shall be made of such con- venient form and size as said commissioners shall determine, and each of said books and indexes shall be indorsed with its appropriate title and volume, and with the date of its com- mencement, and also with the number on the land map of the land section to which the entries therein relate ; and no record or entry in any volume of said books or indexes other than in the register's journals shall be made, except such as relate to land located in the same land section. § 21. All instruments in writing relating to or affecting land in said city, or any interest in such land, recorded, filed or entered in the office of said register on and after the date when this act shall go into operation shall be entered in said books and indexes as provided by this act ; but no entries shall be made in said books and indexes except in respect of such instruments recorded, filed or entered on or after that date ; and all the maps, books and indexes and the entries in, and contents of, said maps, books and indexes at any time to be made or prepared under this act, shall be public records. § 22. The said commissioners are also hereby required and directed, immediately upon assuming their duties, to cause to be prepared a set of books in ledger form of debit and 160 REFORMS IX LAND TRANSFER. credit entries, to be used and kept in the Bureau of Arrears in said city for the purpose of entering therein taxes, assess- ments and water rates on land in said city, and sales for the same and pajTuents thereof. Such books shall be known as the Block Index of Land Taxes and Assessments of the City of ISTew York, and shall be arranged by sections and blocks in consecutive order to correspond with said land map of said city, and under each block shall be entered the several ward or lot numbers of the several lots in the block liable to taxa- tion. It shall be the duty of the Clerk of Arrears of said city to enter upon said Index of Land Taxes and Assessments un- der the appropriate lot numbers all taxes, assessments and water rates and all sales for unpaid taxes, assessments and water rates and all payments of such taxes, assessments and water rates and redemptions from such sales afiecting any lot immediately upon such taxes, assessments and water rates being confirmed, or upon such sales being had, or payments or redemptions made. A sub-index shall accompany said Index of Land Taxes and Assessments referring to the vol- umes and pages in which are entered the several land sections and blocks so that they can be readily found. If any tax, assessment or water rate confirmed prior to the date when this act shall go into operation shall then be in arrears, or any lot shall have been sold for an unpaid tax, assessment or water rate and not then have been re- deemed, a note thereof shall be entered on said block index of land taxes and assessments under the ward or lot number affected. § 23. The said clerk of arrears in said city shall, upon the requisition in writing of any person, and upon the payment to him a fee of one dollar, make under his hand, and de- liver to such person, his certificate in writing, of all the un- paid taxes, assessments and water rates then upon, or sales for unpaid taxes, assessments and water rates of anv lot or DWIGHT H. OLMSTEAD. 161 parcel of land, or contiguous lots of land, in said city claimed to be owned by such person, appearing on said local index of taxes and assessments, and particularly described or shown upon a diagram in such requisition, with its or their ward number or numbers, and upon the payment of all such unpaid taxes, assessments and water rates appearing upon such cer- tificate, and the redemption from such sales as shall appear upon such certificate affecting any such lot or parcel of land, the owner thereof, and ^n.y subsequent owner thereof, shall be forever thereafter free and exempt, and said land shall there- after be free and exempt from the payment and lien of any taxes, assessments or water rates theretofore laid or levied on such land. !No sale for any unpaid tax, assessment or water rate laid or levied in said city, after this act shall become op- erative, nor any lease on such sale shall be of force or valid unless the entries of such unpaid taxes, assessments or water rates shall have been made in said local index of land taxes and assessments as required by this act. All fees received by said clerk under this act shall be paid by him to the comp troUer of said city monthly. § 24. All the aforesaid maps or plans, books and indexes shall be completed, certified and deposited for use as aforesaid in the said officer on or before one month prior to the time when this act shall go into operation. § 25. Said register, upon the requisition, in writing, of any person, shall make a search in his ofiice for any period for entries on either the said index of transfers or the index of caveats affecting any parcel of land or contiguous parcels of land described in such requisition, and upon the completion of such search, which shall be within five days after the mak- ing of such requisition, said register shall, if required so to do, in writing, by said person, enter in the book of register's certificates of search kept in his office in substantially the 163 REFORMS IN LAKD TRANSFER. form of schedule C, hereto/ which is to be deemed and taken as part of this act, the certificate of search made by him thereupon. Each original of said certificate so entered shall be signed by the register or his deputy, and a reference to the volume and folio of such certificate shall be made on the local index of transfer opposite to the entry of the last transfer of the property searched against. Said reg- ister shall be entitled to receive and collect from any person making such requisition the sum of five cents for each and every return made on any certificate of search, and also the sum of twenty-five cents for signing said certificate. Pro- vided, however, that when a search affecting any parcel of land has once been made and entered in the book of register's certificates of search, said register shall not enter in said book another search affecting the same parcel of land, against the same persons, for the same periods and for the same trans- fers or liens as the previous original search entered in said book ; but any unauthorized entry by him shall not affect his liability under this act for searches actually entered by him in said book. § 26. A certified copy of any such original certificate of search, so entered in the book of register's certificates, shall be issued by said register under his hand and official seal to any person requiring the same, upon the payment to the register of the sum of five cents for each and every return appearing on such certificate, and also the sum of twenty-five cents additional, which certified copy so issvied shall be of the same force and effect, and shall be received as evidence in all courts the same as the original thereof kept in the office of said register, unless such copy be sho-wn to be erroneous ; and such original certificate shall constitute a warranty on the part of the register signing, or causing to be signed by his ' Pages 179, 180. DWIGIiT H. OLMSTBAD. 163 deputy such original certificate of tLe truth of the facts therein stated to any person then or subsequently owning or having an interest in said land or any part thereof who shall rely upon such certificate or certified copy, and shall suffer loss or damage thereby, to the extent of such loss or damage ; provided, however, that no action shall be brought on any such certificate after the lapse of ten years from the date thereof. § 27. Said register shall be liable for any loss or damage to any person interested by reason of his failure to index an instrument as required by this act, or by reason of an erro- neous entry made by him or by his direction, or by any deputy or clerk appointed by him, in any book or index to be kept in his office as required by this act, the amount of which loss or damage may be recovered by an action at law; provided, however, that said register shall not be liable for an erroneous entry arising from an erroneous indorsement of an instru- ment or notice presented to be recorded or filed by the person presenting the same. § 28. Whenever any instrument affecting land in said city, duly acknowledged or proved so as to entitle the same to be recorded and indorsed as by this act provided, shall be pre- sented to said register for record or filing, he shall imme- diately indorse thereon the date, hour and minute of its receipt by him, and shall immediately thereupon enter a note of the same in his journal as by this act provided, and shall, within three days thereafter, enter said instrument on the proper block index in his office in the order of its receipt by him under the block within which the land affected lies in the manner provided by this act, or under which said instrument is directed to be indexed. § 29. All instruments presented to said register for re- cording or filing under the provisions of this- act shall be legibly indorsed with the names of one or more of the re- spective parties thereto, the number of the land section and of 1C4 eefor:ms in land transfer. the block in which the land affected hy the instrument is sit- uated, the index in which the same is to be entered, whether of transfers or of caveats, and the name of the person or his attorney offering such instrument for record or filing, to- gether with his residence and post-office address, and the register may, in his discretion, refuse to receive an instru- ment unless the same be so indorsed; provided, however, that the omission of any required indorsement, or an erroneous indorsement, shall not render an instrument invalid nor pre- vent the recording or filing of such instrument from consti- tuting notice, if the same be recorded or filed; and provided also, that such indorsement and entry in any index or under any block, pursuant to such indorsement, shall be at the risk of the person offering such instrument for record or filing. Such instrument may also be indorsed with the lot or ward number of a lot affected by the instrument, and in such case the register shall enter such lot or ward number on the local index. All assignments of mortgages and of leases, and all releases, satisfactions and agreements respecting mort- gages, to entitle the same to be recorded or filed under this act, shall state in the body thereof the block number of the property affected by the original instruments to which such assignments, releases, satisfactions and agreements respec- tively relate, and said register need not receive such instru- ments for record or filing unless they contain such statement.^ § 30. Every instrument recorded or filed by said register under this act shall be stamped or indorsed by him with the number of the section and block under which such instru- ment is indexed in the block index in his office, stating whether such indexing is in the index of transfers or index 1 " The land affected by this instrument lies in Block — , in Sec- tion — , on the Land Map of the City of New York (or County of Kings)." (Form of endorsement drawn "by writer and in use in the counties of New York and Kings.) DWIGHT H. OLMSTEAD. 165 of caveats, and any certificate by him of the record or filing of any such instrument, in addition to the matters now re- quired by law to be stated, shall state the number of the section and block under which such instrument was indexed, and said register shall be liable to any person for any loss or damage occurring to him by reason of an erroneous certificate of said register in that behalf. § 31. The journals and indexes hereinbefore by this act directed to be made and kept in the office of said register, and the entries made in said journals and indexes, shall for the purpose of notice be deemed and taken to be a part of the record of the instruments to which such entries respec- tively refer or relate, and such journals and indexes and the entries in said journals and indexes shall be deemed and held to be constructive notice to all subsequent purchasers, mort- gagees, incumbrances and dealers in the land affected of the instruments to which such entries respectively refer or relate, and of the record of filing thereof, and of the execution and contents of such instruments, in the same manner, to the same extent and with like effect as the recording or filing of such instruments now is or may be notice; and every instrument affecting land shall be deemed to be recorded or filed in the ofiice of the Register of the City and County of ISTew York, when the same shall be received by said register at his office for record or filing. Provided, however, that no such instru- ment shall be deemed or held to be recorded or filed for the purpose of giving notice thereof, unless it shall be entered in the iudex of the block in which the land aft'ected by such instrument is located subsequent to the entry thereof in the register's journal. § 32. Whenever a judgment or decree shall have been made and entered by any court changing, declaring or establishing the freehold title of any person in land in said city, upon the production of a certified copy of said judgment or decree to 16fi REFORMS IN LAND TRANSFER. and leaving the same with said register for record, it shall be the duty of said register to record said judgment or decree in the book of land transfers, and to enter a reference to the said judgment or decree in the block index of transfers under the block in which said land is situated; and whenever a mortgage or other lien upon a freehold interest in land in said city shall be foreclosed and a title to such interest shall have been transferred or transmitted to any person by virtue of an order, judgment or decree of any court, it shall be the duty of said register, upon the production to him of certified copies of such mortgage or other instrument creating such lien and of such order, judgment or decree, and the deed of conveyance made thereupon, to record such certified copies and deed in the book of land transfers in his office, and also to enter the same in the block index of transfers under the block in which the land affected is situated, and to note the fact of such foreclosure on the margin of the originals of said instruments in his office, and on the block index of caveats where they are entered, if entered on such index. § 33. Any devisee, heir at law or grantee of a freehold interest in land in said city, under and by virtue of a will which has been duly proved in this State, or is authorized by law to be recorded in this State, or grantee of such devisee or heir at law, may have a certified copy of such will and the probate thereof recorded in the office of said register and entered on the block index of transfers in case he shall file and record with such certified copy of such will his affidavit, stating that he is such devisee, heir or grantee, his place of residence and relationship to the testator, if any, and con- taining a description or diagram of the property claimed by him under or through such will, together with the section and block number thereof. And such record may be had on the application of a trustee or guardian of a person interested. § 34. Satisfactions, assignments and releases of mort- DWI6IIT H. OLMSTEAD. 167 gages which shall have been recorded' prior to the date when this act shall go into operation, and also assignments of leases which shall have been recorded prior to that date, and also instruments offered to said register for record or filing, chang- ing the effect or interpretation of instruments which shall have been recorded or filed prior to that date, shall be re- corded, entered and filed in the same offices and in the same manner as is now authorized by law for the recording and filing of such satisfactions, assignments, releases and instru- ments, to the intent that the entries of all such satisfactions, assignments, releases and instruments, which relate to instru- ments filed or recorded prior to the above last-mentioned date shall be entered in the same offices, and in the same books and under the same system of recording, entry and indexing as at present ; but if such instrument so recorded or filed shall refer to an instrument entered on a block index in said office of said register, a note thereof shall be made on such index opposite to the entry of such last-mentioned instrument. § 35. Said register shall, on and after the date when this act shall go into operation, keep in his office nominal indexes in lexicographical fotm, containing a list of the names of all grantors and grantees of land entered from time to time on the local index of transfers in his office, referring after the names of said grantors and grantees to the volume and folio of the record of the several instruments to which they are par- ties. Said register shall also keep in his office similar sepa- rate lists of mortgagors and mortgagees whose names appear upon the block index of caveats. He shall also keep in his of- fice a similar separate list of registered caveators and ovraiers other than mortgagors and mortgagees, whose names appear upon the index of caveats. Such lists shall be kept separate for the several land sections and blocks, and shall be made up complete for each calendar year from the time said local in- dexes are commenced, and shall be printed at the expense of 1C8 EEJJ'OEMS IN LAND TRANSFER. said city as often as the board of estimate -and apportionment of said city may direct. § 36. Whenever, after the making of said land map, any new or additional blocks of land shall be formed in said city by the opening or closing of any street, avenue, road, boule- vard or parkway, it shall be the duty of the then register and corporation counsel of said city to cause such new blocks to be numbered consecutively upward from the last number then upon said land map, or to be designated in some other convenient way, and to cause maps of such new blocks to be made, and to certify and file said maps in the same manner and in the same offices as the previous land maps. And the separate maps of such new blocks may be consolidated into one or more maps, and also said new blocks may be subdivided into land sections whenever in the judgment of said register and corporation counsel it shall be advisable to do so; and upon said maps or any of them being certified and filed as aforesaid, they shall constitute land maps of said city and become public records. The land blocks and land sections and the numbers and designations of said blocks and sections shall not be changed after they have been once designated and entered on said maps. § 37. Whenever, in the judgment of said commissioners, and after their term of office in the judgment of said register, the hereinbefore mentioned form of block indexes authorized by this act cannot, in exceptional cases, for any reason be con- veniently and safely used for indexing transfers of land, caveats, liens and instruments as provided by this act, or is not provided for, and the use of such indexes is not in fact in any such case practicable or provided for, said commission- ers niay during their term of office, and afterward said reg- ister may with the approval in writing of the corporation counsel of said city, in such cases substitute such other meth- ods of indexing or entering in such register's office such DWIGHT H. OLMSTEAD. 169 transfers, caveats, liens and instruments as they shall deem advisable, and may in like manner establish sub-indexes or sub-records in cases where the circumstances warrant, and the methods so substituted and put into operation in the office of said register shall be of the same force and effect as any other method authorized by this act. § 38. In case where there shall have been an erroneous indexing of any instrument in the office of said register under the wrong block or otherwise, he shall, on being satisiied thereof, re-index such instrument in the proper index, and he shall at the same time make a note of such reindexing upon the index in which the instrument was so erroneously in- dexed, opposite the entry thereof, and also upon the instru- ment recorded, if the same be in his possession, or produced to hira for the purpose. § 39. Ifo entry in any book or index in said register's office shall be erased so as to be illegible, but, in case of any correc- tion, the same shall be made without destroying the original entry, by drawing a line through such original entry. § 40. Any person presenting to said register an instrument for record or filing under this act shall pay to said register, in addition to the fees required by law for recording or filing like instruments, the further sum of one dollar for the entry of such instrument on the block index. § 41. Whenever an instrument transferring land or any interest in land has been entered on the block index of trans- fers, and the next succeeding instrument transferring the same land or any part thereof is executed by a person other than the last preceding registered owner, said register need not place such last instrument on the index of transfers unless such instrument shall contain or be indorsed with a statement of the name of the last preceding registered owner of said land, signed by the grantee named in such last-mentioned m- strument, or by his attorney, and such instrument shall there- 170 REFORMS IN LAND TRANSFER. upon be indexed accordingly; but the omission of such statement shall not impair or render invalid the effect of in- dexing such instruments, if the same be indexed. § 42. The said commissioners shall also, immediately after their appointment, cause to be prepared, under their direc- tion, two sets of indexes other than those hereinbefore men- tioned, to be known respectively as the block index of reindexed conveyances and the block index of reindexed mort- gages, which indexes shall be both nominal and local, and substantially the same in form as those contained in said schedules A and B hereto annexed. The said indexes pro- vided for by this section shall be properly ruled and prepared for entries therein according to the plans sho^vn on said sched- ules, and shall be properly indorsed for identification, and so as to indicate the periods of time covered by them respec- tively.^ § 43. Upon the completion of said last-mentioned indexes said commissioners shall proceed to cause to be reindexed therein, subject to their direction under the blocks and block numbers, and, so far 'as practicable, upon the same general plan as the said other block indexes, all conveyances, mort- gages unsatisfied of record, and instruments other than sat- isfied mortgages and the satisfactions thereof which shall have been recorded in the office of said register up to the time when this act shall go into operation. § 44. If, in the opinion of said commissioners, it shall in particular cases be impracticable, or for any reason not advisable to reindex some of the instruments mentioned in the last above section upon the plan therein mentioned, then they may in their discretion in such cases as to such instru- ments adopt and carry out any other plan of reindexing which they shall think best in order to accomplish the general purpose of this act. 'Pages 176-178. DWIGHT I-I. OLMSTEAD. 171 § 45. After the completion of said reindexing in the in- dexes so to be prepared therefor, said indexes shall be certified by said commissioners and be deposited by them in the office of said register. § 46. Said commissioners at the time of reindexing said instruments as aforesaid, if they think it expedient to do so, shall prepare nominal indexes in lexicographical form of the parties to such instruments, similar to the other lexico- graphical indexes hereinbefore mentioned, and cause said in- dexes to be printed and copies thereof to be deposited in the office of said register ; but such printing and the cost thereof shall be subject to the approval of the Board of Estimate and Apportionment of said city. § 47. The said commissioners shall also immediately after their appointment cause to be prepared under their direction other block indexes of the same general form as said Schedule B, hereto annexed, to be used for reindexing therein notices of lis pendens, notices of foreclosure by advertisement and certificates of sheriff's and marshal's sales recorded or filed in the office of the Clerk of the City and County of ISTew York. § 48. Said commissioners shall, on the completion of said last-named indexes, proceed to reindex therein all the said notices of lis pendens, notices of foreclosure by advertise- ment and certificates of sheriff's and marshal's sales recorded or filed in the office of said Clerk of said City and County of I^ew York up to the date when this act shall go into operation. § 49. The said commissioners may vary the form of the indexes mentioned in the last section of this act whenever, in their judgment, the prescribed form cannot conveniently or safely be used, and they may also index the said notices and certificates together or in separate volumes as they shall think proper. § 50. In the performance of their duties in reindexing the instruments and records directed by this act to be so re- 173 REFORMS IN LAND TRANSFER. indexed, the said commissioners shall have free access at all reasonable hours to the said instruments and records, and be permitted to have and control the same, subject to the right of the public, and of said register and county clerk, to have access thereto ; and all proper facilities shall be furnished to said commissioners by said register and county clerk to enable said commissioners to perform the duties imposed upon them by this act. § 51. The said commissioners, for the purpose of facilitat- ing the work which they are required to do under this act, may, if they shall think it expedient to do so, for and on behalf of the mayor, aldermen and commonalty of said city, and subject to the approval of the Board of Estimate and Ap- portionment of said city, acquire and purchase any records, searches, minutes, maps and indexes claimed to be private, which have been made by any person or persons in the course of or connected with his or their official employment in any public office in said city or otherwise, and the consideration to be paid on such purchase or purchases shall be provided by said Board of Estimate and Apportionment, and paid by said comptroller in the same manner as other moneys are provided and paid for the expenses of said city; and said board may at any time act with reference thereto, and appropriate said moneys on the request of said commissioners. § 52. Such records, searches, minutes, maps and indexes so purchased by said commissioners may be used by them in the same manner and with the same effect as if prepared under their direction, so far as they shall deem expedient, and when so acquired, said records, searches, minutes, maps and indexes shall be properly indorsed by said commissioners, and be deposited in said register's office, and thereupon shall become public records. § 53. In case it shall be determined by said commissioners that the present Hall of Eecords in said city is not a safe DWIGHT H. OLMSTEAD. 173 or convenient place for the keeping and public use of said maps, books and indexes directed by this act to be prepared, then in such case the comptroller of said city, subject to the approval of the Board of Estimate and Apportionment of said city, on being notified thereof, shall provide another room or rooms "for the safe-keeping of such maps, books and indexes, and for their convenient use by the public, and the rent, furnishing and maintenance of such room or rooms shall be provided for and paid in the same manner as the other expenses of carrying out the provisions of this act. Such room or rooms where such records shall be kept and used shall be knovsTi and designated as the office of the register of the City and County of 'New York, notwithstanding said reg- ister may have another place for the transaction of the busi- ness of his office. § 54. For the purpose of procuring and preparing the maps, indexes and books directed by this act to be procured and prepared and putting the same in use, and otherwise carrying out the directions and intent of this act, said com- missioners, in the name and on behalf of said city, may hire rooms, purchase stationery and material, and employ sur- veyors, draughtsmen and such other expert persons, assistants and clerks as they may in their judgment require or think proper for such purpose, and may agree with the persons so employed for their compensation ; and such work or any part thereof may be done by public or private contract, as said commissioners shall elect, and the compensation to such sur- veyors, draughtsmen and other persons so employed and the cost of such material and work and of putting said system of indexes and books in use and operation in the offices where they are to be used as provided by this act, and the other ex- penses authorized and to be incurred under this act shall be provided and paid in the manner directed by the next section of this act. 174 EEFOEMS IN LAND TRANSFEE. § 55. The Board of Estimate and Apportionment of the City of New York is hereby authorized and directed, from time to time, to determine the amounts of money which may be required to carry out the provisions of this act, and to appropriate said moneys therefor, which said amounts, so. from time to time appropriated, shall be included in the final estimate made by said board for the next succeeding annual tax levy, and shall be certified by the comptroller of the City of l^ew York as a part of the said estimate; and the said comptroller is authorized and directed to pay, out of the amoimts so determined and appropriated, the expenses au- thorized by this act. And said comptroller is authorized to raise such money, from time to time, by the issue of revenue bonds of said city, which bonds shall be paid out of said moneys to be appropriated and raised as aforesaid. § 56. If it shall be determined by said commissioners that this act cannot go into operation at the time herein designated therefor by reason of the non-completion of said maps or in- dexes, or for any other reason, thereupon said commissioners by notice published in the City Record in said City of !N'ew York for thirty days prior to the expiration of said time, may extend the time for said act to go into operation, and for said books, maps and indexes to be completed, not exceeding six months from the time herein designated therefor; and said act upon such publication shall thereupon go into opera- tion at the time designated in said notice by said commis- . sioners. § 57. The word " land," as used in this act, shall be con- strued to include lands, tenements and hereditaments and all estates of every description in land. § 58. This act shall be construed liberally by all courts, according to the true intent and purpose thereof, which is declared to be to establish the use of block indexes for public records relating to land in the City of !N^ew York; and, in DWIGHT H. OLMSTEAD. 175 ease the construction of said act, or of any part thereof, shall be doubtful, the Courts are hereby directed to give such con- struction thereto as shall carry out the general purpose, mean- ing and intent of this act, as herein declared ; and said act is hereby declared anu shall be deemed and taken to be a general and public act and not a local act. § 59. All acts and parts of acts inconsistent with this present act are hereby repealed ; but all existing acts, so far as this act is not inconsistent therewith, shall be deemed to remain in force. § 60. This act shall go into operation on the first day of , in the year one thousand eight hundred and , except as is by this act otherwise expressly provided. 176 KEFOEMS IN LAND TRANSFER. SCHEDULE A. FoBM OF Local Block Index for Indexing Tbansfees OP Land and Certificates of Search. Section IV. Block 1420. CO H > < H 2i C H NINTH street. 1420. EIGHTH STrSeT. <: Grantors. Grantees. Transfers. Date of Registration. Ward or Lot No. Cbbtipioates of Search. Vol. Fol. Vol. Fol. John Doe. Richard Roe. 1 4 1886, January 2. 3 2 6 Richard Roe, by Geo. Sharp, William Black. 10 8 1886, March 1. 3 James White. Robert Moore. 21 9 1887, April 20. 10 16 62 ■William Black, by Joel Young, Executor. John Young. 40 11 1890, September 19. 3 Robert Moore, by Mary Moore, Heir. Frank Hart. 77 .3 1891, Mayl. 10 84 34 Frank Hart. Thomas Scott. 101 5 1892, November 1. 10 113 86 Henry Brown. Ira Smith, by Charles Clute, Attornej . Ira Smith. Lewis Green. 200 220 10 8 1892, November 5. 1893, March 4. 6 6 140 145 7 3 DWIGHT H. OLMSTEAD. 177 P P w D 02 |Zi o cc Iz; [t] M 1-^ FIFTH AVENUE $ K M « ^ fe CO H FOE I AVEAT C/3 MO M N 3 "^ K B « 1-1 h >=! Izi X l-H «) O ^e % (—1 o ^ Hi ^ pqk; jj o £ SIXTH AVENUE h:1 O %^ M C M O O (^ 0) .— < MM 178 EErOEMS IN LAND TEANSFEE. t3 o O O W o H "o 00 ffl ^ B o 2 "o o Tf 00 fl > ■a _ ^ c« SEf^ 1>^ o"^ nd fe-§ §& gg ";! -^a "^ ■-3 So CO o CO o CO so o ^s ■a «D t-: «• ■ g| gs" af^' A 11 rfl CO& cod "1 g| OgA 1 "1 S| ■3 CO Tjl w ^ oo CO M fe '"' "o Tf o US GO ^ in ;> « ER i P3 1 i 1 f 1 1 1 J 1 1 1 IS 01 > tH o o B e _aj .2 v R o'3 So i <5 1 DD "3 2" g ^ o la w 0] 1 H < 1 (l,s W f |21 13 i 3 1 1 o to H 5 > a* CD V eighteen hundred and ninety-three, lot nxmiber ten. Witness my hand and seal of office this day in the year [Official seal.] Registrar of the City and County of New York. DWIGHT H. OLMSTBAD. 181 PAET III. PEOPOSED PLAN POE CITY LOT INDBXIIfG UNDER THE BILL PEE- PABED BY THE MAJOEITY OF THE COMMISSIOITEES OP LAND TEANSPEE. TMs bill is entitled " An Act in relation to the recording, filing and indexing of instruments affecting the title to real estate in the City of New York." I shall first give a general synopsis of the bill, and then comment upon some of its peculiar features. Synopsis of the Bill. Section 1 of the bill provides that all instruments, except powers of attorney and satisfactions of mortgages, recorded in the [Registrar's Office of the City and County of New York, and all notices of lis pendens, liens and other instruments affecting specific real estate filed or recorded in the office of the clerk of said city and county, after this act goes into operation, shall be indexed against the property affected thereby in the manner prescribed by this act. Section 2 of the bill provides that there shall be prepared and kept in the office of said Kegistrar a series of books with accompanying maps corresponding with the city tax maps, to be called the Land Kegister Index, wherein shall be laid down and designated each block or plot of land in said city, and the separate lots if any into which the same shall be subdivided. That said blocks shall be numbered from one upward commencing at the Battery. That in the said series of books called the Land Eegister Index, a separate place shall be assigned to each block, with 182 EEFOKMS IN LAND TKANSFEE. pages sufficient for the several lots, and a convenient number of pages in blank. Prefixed to the part of the index assigned to each block is to be a map of such block specifying its number, " and showing separately the respective lots contained therein, if there be any subdivision into lots, with the location and di- mensions of such lots respectively as laid down on the tax maps, and showing the numbering of the respective lots from one onward, as above prescribed, which maps shall be upon a scale sufficiently large to allow of the making of alterations therein as herein provided for." At the head of the page assigned to each lot is to be entered the number of the block and the lot. And whenever a new lot is formed on the City tax maps by reason of a new division, consolidated or otherwise, a new page is to be assigned to such new lot, with an additional lot number, and the date of plac- ing the new lot upon the Land Register is to be entered, and •also a statement from what old lots the new lot is formed, ^nd a diagram of such new lot as laid down on the tax maps ■showing among other things its distance from the nearest tjorner. The heading of a new lot index is to be substantially in this form : " Lot 70 (seventy) Block or Plot 10 (ten) placed on Land Eegister Index September 1, 1890, formed out of part of old lots 16 (sixteen) and 17 (seventeen.)" I beg the reader as he proceeds, to note the complex nature of these entries. When a change occurs, such that the new lot absorbs exist- ing lots, an entry is to be made in substantially this form : " September 1, 1890, Registry account of this lot hence- forth closed. Its area embraced in Lots 70 (seventy) and 71 (seventy-one) same block or plot." DWIGHT H. OLMSTEAD. ISa. In order to show the complicated character of the bill I now quote this clause entire. " The foregoing provisions for closing the registry ac- . count of original lots, and entering the newly formed lots on the Land Eegister shall be applicable in all cases where the tax maps shall be so changed as to form a new lot or lots, including, among others, the case of one lot being divided into two, or of two lots being consolidated into one, or of a block or plot being newly laid out in lots in whole or in part, and in all cases where a new lot or lots shall be formed on the tax maps from previously existing lots there shall be such closing of the original registry account of the original lot or lots which shall be affected by the change, and such entry of all the newly formed or changed lots upon the Land Register ; but where there shall be a change in the tax maps merely by correcting a prerious incorrect statement of dimensions or distances, without the formation of anv new lot or lots, it: shall not be required to close the registry account or accounts of the lot or lots affected by the correction, or to open a new account or accounts therefor, and in such case entries shall be made upon the page assigned to such corrected lot and upon the page or respective pages assigned tt): such other lot or lots as shall be affected in location or dimensions by such correction, showing distinctly the correction in dimensions or distances so made, with a diagram of the lot as corrected, and proper note of such correction shall likewise be made upon the before mentioned map of the block or plot prefixed' to the portion of the index assigned to such block or plot." All which of course must be perfectly understood by any one attempting to search a title, or who expects to examine, the Land Register Index intelligently. The bill goes on to,, provide for entering new lots in the Land Register Index by " the use of different colored ink or otherwise/'- and when the, changes become so numerous as to be inconvenient, for the-- preparation of new maps of the blocks showing the changes, to serve for future use in the place of the old maps ; and also . that when a page of the index of a lot becomes full to carry 184 REFORMS IN LAND TRANSFER. the entries to another page as follows : " Registry account of the lot brought forward from page 300 of this volume." Changes in " the Land Register Index and accompanying map in order to make the same conform to the changes in the tax maps shall be made as of and on or before the first day of September in each year," and " shall embrace all such changes in the tax maps made during the twelve months end- ing on the first day of June next preceding," and such changes shall be made only once a year. " And where, upon an instrument requiring to be indexed in the interval between the fifteenth day of July and the first day of September in any year, the page of the Land Register Index appropriated thereto shall have an entry actu- ally made therein in pursuance of the provisions of this act, closing the registry account of said lot as of the first or second day of September of such year, the instrument shall nevertheless be indexed on the said page and as against the lot as existing prior to such change made as of the first or second day of September." Section 3 of the bill provides for indexing new blocks and lots upon the opening and altering of new streets. Section 4 of the bill provides that on or before the 1st July in each year the Tax Commissioners of said city shall give to the Superintendent of the Land Register Index a mem- orandum of all changes made in the tax maps during the pre- ceding twelve months so as to enable the latter to conform the Land Register Index and Maps to such changes. Then comes a provision for permitting lot owners to have their lots entered on the tax maps as the same have been in possession for at least two years previous pursuant to a survey and affidavit. Section 5 of the bill provides for a new officer to be known as the " Superintendent of the Land Register of the City of !N"ew York," to hold office for five years and until a successor DWIGHT H. OLMSTEAD. 185 shall be appointed. He is to be a lawyer of at least five years' standing, and to have a salary of not less than seven thou- sand dollars nor more than ten thousand dollars per year, and is to be appointed by the Mayor and the Chief Judges of the Superior and Common Pleas Court. The Superintendent is to appoint a Deputy vs^ho shall be a City Surveyor, who shall receive a salary of not less than five thousand dollars nor more than seven thousand dollars per year. Such Su- perintendent is to supervise the preparation of the Land Eegister Index and Maps, and to have the charge of them, and to superintend the alterations therein and the additions thereto, and perform such other duties as are prescribed by this act. Said Superintendent is also to appoint such number of clerks with such salaries as shall be allowed by the Board of Estimate and Apportionment. Now comes the kernel of the bill relating to notice to which I invite particular attention. Section 6 of the bill provides that in order to entitle any instrument affecting real estate or chattels real situate in the City and County of New York — other than a power of at- torney or satisfaction piece of a mortgage — to be recorded in the ofiice of the Register of said city and county, the block or plot and lot numbers on the Land Register shall either be designated to the Register in the body of such instrument, or by a separate instrument. If in the body of the instru- ment, the designation shall be in substantially the following form : " This instrument is claimed to affect Lots 6 (six) and Y (seven) in Block or Plot 10 (ten), or Block or Plot 10 (ten) on the Land Register of the City of New York ; and the in- dexing of this instrument is to be against those lots, or that block or plot." 186 REFORMS IN LAND TRANSFER. If by a separate instrument it shall be in substantially the following form : " I, the undersigned A B, of the City of New York (or I, the undersigned A B, of the City of New York, as agent or attorney of C D, of the same city), do hereby claim that the within (or annexed) instrument, or a certain instrument properly designating it, being a deed (or mortgage, or what- soever it may be), dated January 1, 1885, from A B and others to C I) and others, affects Lots 6 (six) and 7 (seven) in Block 10 (ten), or Block or Plot No. — , on the Land Reg- ister of the City of New York, and request that the indexing of the said instrument be made against such lot or lots, block or blocks, plot or plots. In witness whereof I have hereunto set my hand and seal this day of , eighteen hundred and eighty- six." Of course, as the entry of the notice in the body of an instrument in chief is optional with the grantor, such notice will always in practice be by a separate instrument executed by the grantee. The bill then proceeds as follows : " The said instrument in chief shall be indexed against the lot or lots^ or the block or plot (in cases where such block or plot shall not be laid out into lots), which shall have been designated to the Register as aforesaid as the premises claimed to be affected thereby, and the record of the instru- ment shall not be effectual by way of notice to subsequent purchasers in respect of any other real estate than that em- braced within the lot or lots, or block or plot, designated as- aforesaid for the indexing thereof; but in respect of such other premises the effect of the said instrument in chief (if by its terms, other than by the specification as aforesaid of the lot or lots, block or plot, on the Land Register affected there- by, it shall have or be entitled to any effect in respect of such other premises), shall be that of an unrecorded deed, or other instrument, such as it may be, and the failure to record or index the instrument as against or in respect of premises DWIGHT H. OLMSTEAD. 187 affected thereby other than the lot or lots, or block or plot, on the Land Register designated as aforesaid for the indexing thereof, shall not, in respect of subsequent purchasers of such other premises, impair or alter the legal effect of actual no- tice, or of circumstances having like legal effect as actual notice to them of such instrument in chief, which shall be so as aforesaid in legal effect unrecorded as against such other premises because of failure so to index the same, except that the record of the instrument shall not be constructive notice in respect of the premises against which there shall be such failure to index the same." The entry in the index pursuant to the directions of the notice under the lots indicated is to be in the following form : Gbantob. Grantee. Nature or ■Instrument. Date. Date of Record. Place op Record. A. B. and others. C. D. and another. Deed. Liber 1,800, p. 200. There is nothing to indicate, it will be observed, in the entry itself, whether the instrument referred to actually affects the lot under which it is indexed, or whether the notice is merely precautionary. The bill also provides for indexing against lots additional to those specified in the instrument in chief upon the payment of the prescribed fee. In order to fvirther show the nature of the machinery de- vised for lot indexing I give another extract from the bill : " When the Eegister shall find that the registry account of any lot against which he shall have been directed in either of the methods in this act specified to index an instrument had been previously closed so as not to admit the same to be so indexed he shall, instead thereof, index the instrument against the lot or lots to which shall have been carried in pursuance of this act the registry account of the lot or lots in 188 REFORMS IN LAND TRANSFER. respect of which there shall be from such cause inability to index the instrument in accordance with the direction, stating in such entry in the index the time of its being actually made, and such indexing shall be of like legal effect as of and from the time when it shall be actually made as if it had been prop- erly directed at the time when actually entered, but not previ- ously thereto." The instrument in chief may also at any time be recorded and reindexed by the owner or person interested upon a proper application ; but if he is not in possession of the orig- inal instrument, a supplementary instrument in substantially the following form must be executed and recorded by him: " I, the undersigned, A B, of the City of New York (or, I, the undersigned, A B, of the City of New York, as agent or attorney of C D, of the same city), do hereby claim that a certain instrument recorded in the office of the Register of the City and County of New York in Liber 1900 of Con- veyances, pages 10, &c., being a deed (or mortgage or what- soever it may be) dated January 1, 1885, from E F and others to G H and others, affects Lots 6 (six) and 7 (seven) in Block 10 (ten) on the Land Register of the City of New York, although the same has not been indexed or directed to be indexed against the same, and I hereby declare that I am (or that the said C D is) interested as owner or as part owner, or as lessee or as mortgagee or in any other manner to be specified generally) in said Lots 6 (six) and 7 (seven), and that I desire and request (or that I, on behalf of said C D, desire and request) that the above mentioned instrument re- corded in the book and on the pages above mentioned shall be indexed against the said Lots 6 (six) and 7 (seven) in Block. 10 (ten) on the Land Register of the City of New York, and I further declare that I am (or that the said C D is) unable to deliver to the Register to be again recorded the above men- tioned instrument heretofore recorded in Liber 1900 of con- veyances, pages 10, &c., because the said instrument is not in my possession or under my control (or, if the instrument is executed by an agent or attorney, because the said instru- ment is not in my possession or under my control, nor, as I DWIGHT H. OLMSTEAD. 189 am informed and verily believe, in the possession or under the control of the said C. D). In witness whereof I have hereunto set my hand and seal this day of , eighteen hundred and eighty- six. The execution of said supplementary instrument shall be acknowledged or proved in like manner as legally required for acknowledgements or proof of a deed which is to be re- corded, and there shall be subjoined to such supplementary instrument an affidavit of the- person executing the same, sworn before an officer authorized to take affidavits, which shall be substantially in the form and to the effect following, namely : City and County of New York, ss. : I, the above named A B, being duly sworn, do depose and say: that the foregoing application is made in good faith, and in the belief that the instrument therein mentioned af- fects the lot (or lots) against which the same is thereby requested to be indexed, and that the foregoing statement in respect of inability to deliver the said instrument to the Register to be again recorded, and the reason of such inability is correct and true, as above set forth. Sworn before me, this day of , 1886. The bill then proceeds as follows : " Upon receiving such supplementary instrument so au- thenticated and verified, the Eegister shall record the same, including the certificate of proof or acknowledgment and the verification in the set of books appropriated to the record- ing of instruments of the class of the said previously recorded instrument therein mentioned, and shall forthwith index the said previously recorded instrument against the lot or lots, block or blocks, plot or plots specified for that purpose in said supplementary instrument, and from the time of the delivery to the Eegister for record of such supplementary instrument the said previously recorded instrument shall have the like effect by way of constructive notice to subsequent purchasers 190 liEFOKMS IN LAND THANSFER. of the lot or lots, block or blocks, plot or plots against wliicli the said previously recorded instrument shall by such supple- mentary instrument be requested to be indexed as' if the said previously recorded instrument had been duly recorded and duly indexed against such lot or lots, block or blocks, plot or plots specified for the purpose in said supplementary in- strument at the time of the delivery of such supplementary instrument to the Eegister to be recorded. The fee of the Register for recording such supplementary instrument shall be five dollars. The fee of the Eegister for recording an ac- companying instrument shall be the same as if it were a deed, and the Register's fee (or 'mdcxlng under this act shall he twenty-jive cents for each separate lot or block or plot against which such indexing shall he." By an amendment to the original bill the fee for indexing' against additional lots to the one specified in the notice of claim is to be two dollars per lot ; but at that rate per lot all or any lots in a block may be indexed against at the option of any person recording an instrument. Section 7 of the bill provides for indexing mortgages in separate indexes upon the same general plan us the foregoing, and for discharging the same. Upon receiving an instru- ment for record the Register is required to enter it at once in his Tickler and within thirty days thereafter it is to be en- tered on the Land Register Index ; and the Register is to re- turn in his certificate of recording the fact of the entry in the Index, stating against what lots the property is indexed. Section 10 of the bill provides for duplicate indexes for tlio Register's office and triplicate indexes for the County Clerk's office, the index in the latter office to-be called the Land Register of liens. Whenever the annual changes re- quired by this act are made in the Register's office correspond- ing changes are to be made on the books in the County Clerk's office under the direction and superintendence of the Super- intendent of the Land Register. DWIGHT H. OLMSTEAD. 191 Section 11 of the bill provides that all notices of lis pendens, certificates of Sheriff's or Marshal's sales and of foreclosure by ad^-ertisement filed in the office of the County Clerk after the act goes into operation shall state the block and lot on the Land Register Index of Liens. Section 1:3 of the bill is as follows : " Sec. 12. ^Mlenever the original instrument so to be filed shall not designate by proper description the lot or lots, block or plot claimed to be affected thereby, any party claiming the benefit of such instrument, or his attorney, may at any time afterwards file a certificate signed and acknowledged by him referring to the original instniment, having a certified copy of such original instrument annexed thereto and containing a proper description by the block and lot number, or by the block or plot number when not divided into lots, so claimed to be affected, and may file such certified copy and certificate with said County Clerk, who shall thereupon enter the same in the Land Register Index of Liens in the same manner as is provided in the foregoing section, and such original in- strument shall affect such lot or lots, block or plot only from the time of such last mentioned entry." Section 13 of tlie bill provides for satisfaction of liens. Section li of the bill provides for an Alphabetical Volume for indexing wharves, piers, bulkheads and such other prop- erty as shall not be placed in the Land Register ; such index- ing to be against the parties. Section 15 of the bill declares when the act shall go into operation and provides for the preparation of the Indexes and accompanying maps. Pamphlets are to be made with convenient references showing in what volumes and on what pages of the index the blocks can be found ; and on or before the first day of September of each year the Superintendent of the Land Register is to prepare and print n^t less than one thousand copies of a printed pamphlet index showing any 193 REFORMS IN LAND TRANSFER. new blocks or plots in the city and what blocks or plots have been changed or had their accounts closed on the Register. Explanation of Bill for Lot Indexing, and Criticisms. —Object and Plan. The foregoing is a very complete synopsis of the bill pre- pared by the majority of the Commissioners of Land Trans- fer, to accomplish what they call single lot indexing, but which in fact is a very complicated, extraordinary and im- practicable mode of file indexing. The bill is drawn on the curious theory that while the index is not to be used to notify the public of dealings under the recording act — or at least there is no provision that it shall be — its 6nly use as connected with notice is to restrict and limit the public notice which otherwise would be given by the recOrd. The customary and obvious purpose of a local index is to give to the public who may examine it the fullest possible legal notification of instruments which have been recorded; but the sole legal use to which it is proposed to put this index outside of enabling persons to find papers is to limit the notice and thus do away with the legitimate purpose of re- cording. In looking over the various reports and arguments for and against this bill it does not appear to me to have been as fully explained to the public as it might be, which probably affords some ground for the statement reported to have been contained in a memorial of the Committee of the Real Estate Exchange to the Assembly at its last session, " That the mat- ter in dispute is one which the Assembly as constituted is unfitted to decide, it being a matter purely for experts." It seems the Assembly thought it better not to advance DWIGHT H. OLMSTEAD. 193 the bill until some one did understand it, and consequently it was thrown over for another year. Two principal things have prevented a popular under- standing of the bill ; one being its involved and confused style of language and the other the ambiguity of certain of its pro- visions, especially as to the intended effect of the notices required to be made and iiled with the instruments recorded. I shall now proceed to analyze and explain more fully than I have heretofore done the peculiar provisions of this bill, and to make such suggestions respecting it as may occur to me, some of which will be new, and some repetitions of what I have said before. I shall in any event endeavor to make the bill understood, even at the cost of some elaboration. The whole object of this bill as declared by its authors in their report to the Legislature is as follows : " It must be constantly borne in mind that the system advocated by the majority of the commissioners is an index — nothing more — an easy and accurate method of finding the ■ papers relating to any particular piece of real estate." !N^ow, while a great many easy and accurate methods of finding papers in land ofiSces might be suggested, and some without the machinery and injurious effect of this bill — and this is undoubtedly in a general sense the legitimate object of an index — still in a more particular and precise sense the purpose of an index is to notify the public of transactions under the recording act. In considering this bill, however, we must put ourselves in the place of those who prepared it, and look at it in view of their intent. We have seen what they intended to effect by their bill. Let us now see how they propose to accomplish it. I will in the first place show in what respects the two forms of indexes, the block and the lot, agree, and in what they differ. I will next state what the majority of the com- _ missioners have endeavored to accomplish, and their scheme. 194 EErOEMS IN LAND TEANSFEE. The Block Index. Under the block plan, the city blocks are to be numbered from one upward, beginning at the Battery. These blocks are to be again subdivided into convenient sections or wards, also numbered consecutively. The local indexes are to be prepared by entering in the index books headings for the blocks in numerical order, sub- divided into sections also in numerical order so that the rec- ords relating to any section may be kept in an alcove appro- priated to that section, and a clerk may be assigned if desired to each section. At the head of each set of pages assigned to a block index will be placed a diagram of the block conspicuously stamped with its section number and its block number, and showing the names of the bounding streets. Instruments presented to the Registrar for record are to he endorsed with the section and blocJc number of the block affected, and are to be indexed accordingly in the proper block index in chronological order. All instruments are to be deemed to be recorded as at pres- ent when received by the Registrar, and he is required ,to make a proper entry thereof immediately upon his books. The local index is to form a part of the record for the purpose of notice. There are to be two sets of indexes, one for transfers of freehold and fee simple interests, and a similar corresponding one for liens. Nominal indexes are to be kept for the several sections and for the blocks if desired. The particular property affected by the instruments re- corded is to be ascertained by the examination of the records of the instruments themselves and by the aid of an official search for each parcel as owned, which is to be retained per- manently in the Registrar's Office, and continued from time DWIGHT H. OLMSTEAD. 195 to time, called a " Certificate of Search," by the mere inspec- tion of which all the instruments affecting any particular lot up to the date of the search will be seen at a glance. The lots will not be delineated on the diagrams of the block indexes. The bill otherwise continues the present mode of registering deeds, and does not attempt to amend the present law of con- structive notice. It is deemed that this should be left for future legislation. The Lot Index. The majority of the Commissioners of Land Transfer have appropriated my ptan of placing a diagram of the block at the head of each index, the only change being the filling up of such blocks with the diagrams of the single lots as taken from, the city tax maps. This is the provision of their bill for the form of their index : " Prefixed to the portion of the index assigned to each block or plot there shall be a map of such block or plot, speei- fyihg its number and showing separately the respective lots contained therein, if there be any subdivisions into lots, with the location and dimensions of such lots respectively as laid down on the tax maps, and showing the numbering of the re- spective lots from one onward as above prescribed, which maps shall be upon a scale sufficiently large to allow of the making of alterations therein as herein provided for." Succeeding the several block diagrams are to be headings for the several lot numbers as shown on the map in coiisecu- tive order, and it is intended that the instruments affecting the separate lots shall be entered under their respective lot numbers. The books of lot indexes, with the block headings of the same, taken together are styled the " Land Register Index," 196 REFORMS IN LAND TKANSFER. and the maps of the blocks forming such heading are to he corrected once in each year pursuant to the changes in the tax maps, and this " Land Register Index " is to form the basis of the system of notices hereinafter referred to. The lot plan does not contemplate divisions of the blocks into sections, but leaves the different libers to be searched for through the entire Registrar's Office as novt^. The foregoing is the sole and only difference between the two styles of block and lot indexes. It will be seen that both indexes are to a certain extent block indexes, the one without any lots shown on the blocks, the other with all the separate lots exhibited with their dimensions and their distances from other surface lines. The entries under the blocks however are to be different. In the block plan the entries are to be made under the several hlocJcs in the order in which they are recorded, while in the lot plan they are to be made under the several lot numbers in the block in the order in which they are recorded. The wse to be made of the two indexes is also different. The especial office of the block index is to notify to the pub- lic the instruments recorded, while the other index, so fat as it is a lot index, is merely an index whereby instruments and records relating to any particular lot can be conveniently referred to. As before remarked, the index proposed for lot indexing is not a local index with legally and permanently defined areas like the block index, but a file index which is of no value as connected with reforms in land transfer. There are many file indexes for land records in use in this country, some patented, and some not, much better than the one under discussion, because exempt from its complicated machinery and objectional provisions. The following are the two forms of headings of the block and lot indexes : DWIGHT H. OLMSTEAD. 197' J L Fifth Avenue. M o ■o a u o £ 1 •Q « k ■M e u *- &« ■w «l 0) (U O Q - u 9 k 55 *j ji •a o ^ be — ia. S «'S A b e 5 S c « B 3 ft- n s Sixth Avenue. n r c " o O 198 REFORMS IN LAND TRANSFER. J L e 2 Fifth Avenue. Sixth Avenue. O Ca QO ■V CO 1 OT fe s s s S If SB 5» • IS 2f 08 » 6S et" 8S 9f' IZ if 98 8f S8 6f. ts OS 88 IS o 88 ss <\l 18 8S 'St OS f-S 61 fiS 81 9S il 2,6 ei 8S SI 6S n 09 ei 19 81 89 II 89 01 W 6 »-< c* m ■* ta to £- 00 73 -1-1 .a be « A e -^^ o o gu 4> S c u 9 ^ II 5 ® e S s e r .14 u o D WIGHT H. OLMSTEAD. 199 I am willing to admit that both forms of indexing are merely methods of arrangement under blocks, but I should at the same time insist that the indexing by lots, aside from any other considerations, is complicated, unscientific, and that if attempted it would ultimately fail, and the more simple form of indexing by blocks be substituted. With only the present number of blocks in the City of New York the lot plan would require a very much larger number of index books of the same size than under the block plan. I have estimated that the lot plan would require 1280 volumes of 250 pages each, against 192 volumes of equal size under the block plan. An attempt has been made to ignore this circumstance as of no consequence ; but, taking into account the rapid growth of the city, I deem it of great importance. Particulars of Lot Flan. Excessive and Insufficient Indexing. Having thus examined the form of the lot indexes, let us consider just what is the further plan projected for the pur- pose, as is said, of enabling papers to be found ; that is to say, of establishing a file index by the aid of lot numbers. The difficulty of single lot indexing arises from the fact of the nonconformity, or possible nonconformity, of the actual ownership' of the lots as described in the deeds of conveyance with the diagrams of the lots as laid down upon the tax maps, or upon any maps for all that. The difficulty is admitted to exist by the plan of the majority bill. This bill is contrived expressly in the endeavor to override this difficulty, which up to this time has been supposed to be as insurmountable as the squaring of the circle. 13'ow what was to be done ? Here was the trouble. If a VOO KKI'iUniM IN 1,A\1< rUANSI'Kli, grMi\1i*(> wtM'o pornutloil to >iin><'( tln> Kogiwlritr 1o iinlos hi« ooiuov!\iu'<' uf :\ «injil(> lot nj-^iiiiiHl hU tiu' lolw in ii hlook. with oiil n\s(riolioii, lliis wmiKl iuwonnl (o ii Moi'k iiulo\ ; iiiiil if on (lu> otlior liMud lie woro koI oiuiipt'lh^d (o iiiiloN ngninul itll siu'li lol8 luul pnvlw of lola i»8 liis dood n\if)lil tilVool, llio inili>N \vo\ild hi> wortlilosM MS mm ii»tlo\ o( llio rci'oi'doil pnpi-i'M. Ill oriliM' to Hivun' lot iiidoxitij^' lliori't'oro il wiim hIimoIhIcIv rsH(M\liiil (lull llio iiulo\iiiiJ' mIiouIiI lu'illior lu> i>ii lli<' oi\o liiiinl loo ('.iwNNM'i', nor on llio odior iiisiiffii-ioiil. 'I'lio i'oiiolunion wiis nnjivoiiliililv .'irrivi'il iit tliiil hIiiijIo IoI imlosiiij^' wiim ini possililo, hut inv oo ooiuniinMionorn liiivlnfJ' nlMi'lod oil' wilh llio nolloii of Minij,io lol imloxiiiH; ^iiiul |ioi'liii|m tlio imriloniililo ilosiro of proponiii!)' Hoinolliing' novi'l) ooilltl nol, rolroiil, on lirolv willi oroiiil. mnl oonMoiiiioiillv lliov niiiniMl llinl if lliov ooiiM nol liriiiiv llio imloNiujj; down lo llu' winglo lol, lliov would ronlriol il os iinirli d.v posslhlt^ timl roll il lol iih (/(M'/di/. So lliis iw llio |iliin of llioir liill. In ordi>r lo ronlriol llio indosinff im nmoli im |ioHMililo n (oo irt lo lio piiid Id llio Ivoj^iHlnir of I wo dolUirw por lot (in llio originid Mil Iwonlv liv<> immiIm) for om'li lol indoxod iigiiiiiHl, wilh llio privilogo lo llio griinloo lo iiidi'x IiIh inHlrnnionl ngniiiMl iiH niiinv loin HH lio niiiv oIiooho mI. Iliiil rMl(>; wliilo in ordiM- lo conipol indoxing iigiiinwi. o sii/fli'ioiillii loftjo niYO or II Hiillioionl nninhor of IoIh, iiinloiid of oliiirging ii lilvo or ov'on liirg'cr HUiii upon ii poi'Mon I'liiliiig lo indi'x iigiiiiml oiiimgh loin, ji ooiilriviin<«o Ih providod wlioroliy if ii griinloo fiiiln fo index ng'iiiiiHl. nil llio IdIh iilToolod liy liiH dood or inorlgiigo lio JH lo loso llw liciii'/il of III!' roroni oh lo such itoHioii of llir proju'rlji as //'I'.i inilliiii llir IoIh on llii' iiid/i nol iihliwcil (iijohid. M'lio (loniniiHHionorH who propowi* llio pliin Hiivillg lliiil if ii griintoo fiiilH In rooord iiinl indox \tndor lli(( prop(>r IoIh wliioh hJH d<'od onvorn, ho otlgllll nnf fo liiivo flio lionolll, of |,lit\ rocnrd DVVIGHT II. OLMSTEAD. 201 to any greater extent than the grantee who neglects to record and index his deed in all the counties 6r blocks which his deed affects. The following are the particulars of this plan to compel indexing against as many lots as a deed affects, so that in examining the indexes all the instruments which are to be deemed in legal effect recorded, may be found entered under those lots. Contrivance to Prevent InsufHcient Indexing. It is made mandatory upon every person leaving an instru- ment affecting land with the Registrar or County Clerk to be recorded or filed, except powers of attorney and satisfactions, to record with such instrument a separate notice (unless it is inserted in the deed) in writing. duly signed, sealed and ac- knowledged by such person, stating what lot or lots on the Land Register Index he claims the instrument in chief affects and against which it is to be indexed, under the penalty that such instrument shall be deemed to he " unrecorded " as to< all land embraced in the instrument covered by lots not men- tioned in the notice. That is to say, if the deed affects lots Nos. 1, 2, 3 and 4 on the Land Index map and the notice di- rects the deed to be indexed only against Nos. 1, 2, 3, so far as the deed affects land in No. 4 it is to be deemed to be un- recorded precisely as a deed conveying land in two adjoining counties is to be deemed in legal effect recorded only in the county in which the grantee chooses to record it. It is proposed (but under a mistake which I shall presently show) to apply the same principle to lot indexing. The notice to index may be inserted in the instrument of conveyance at the option of the grantor, but it is not an option he Is ever likely to exercise. So it will be seen that under this plan, whether an instru- 202 REFORMS IN LAND TRANSFER. ment is recorded or not, and to what extent, turns, so far as such recording is to constitute constructive notice under the recording act, upon the sufficiency of the notice to index, which must not only refer correctly to the lot numbers on the index map as laid down therein at the time of the notice, but must also be properly executed and acknowledged like any other recorded instrument. And in case of error in the lot nimibers, or of the defective or fraudulent execution of the notice, or by a person not legally competent to execute it, it will follow that the instrument in chief, although fully re- corded on the books of record in the Registry OfBce, is to be deemed in legal effect " unrecorded." It is somewhat diflBcult to understand how this can be as to an instrument which is actually recorded together with the required notice, but such at any rate is the bill. Mr. Henry A. Clinton has shown, in opposition to this bill, what a wide door it opens to frauds, that I think it unneces- sary to do more than to call attention to his pamphlet and to express the hope that all persons who feel an interest in this subject will procure and read it. He very properly says that the title of such a bill should be " An Act to facilitate frauds in the transfer of lands and to punish honest men." I will now show how the plan of the majority bill flatly vio- lates every one of the four rules of local indexing above set forth. The majority hill violates the four cardinal rules of local* indexing. Yiolation of the First Bnle. The majority bill violates the first rule that the area of a local index, that is to say, the area of search, must have fixed and permanent boundaries established by law in order to ren- DWIGHT H. OLMSTEAD. 203 der the indexing effective for the purpose of notice under the recording act; and this occasions the necessity for the risk required to be taken by grantees under the notices to index. In respect of this matter the whole argument of the ma- jority of the commissioners turns upon the supposed simi- larity of the proposed lot indexing to county and block indexing. But the cases are entirely^different, as we shall see. In order to show how important and vital the majority of the commissioners deem this point to be for their bill (as in- deed it is), I quote the following clauses from their argu- ment of February 25, 1886: " Why is it any more wrong in principle to provide by law, under a system of local indexing, such as this, that a grantee shall take proper steps for having his deed entered on the local index in the proper place on pain of losing the benefit of the record by way of constructive notice as to the property, or so much of it as he fails to direct the indexing against, and that in respect of such property it shall be deemed an unrecorded deed, than it is to provide, as certainly is done under the present law, that if a grantee fails to record his deed at all, there shall be no constructive notice, and it is an unrecorded deed in toto." And again: " It is very certain that if we are to establish any system of locality indexes, and to refer parties proposing to deal with real estate to the index of the locality as a reliable test for ascertaining whether there is any instrument of which he is to be chargeable with constructive notice, other than such as he is acquainted with, and as one consistent with the scheme of his purchase, we must mahe it absolutely obligatory upon the parties bringing for record the instruments which are to be entered upon the index to take such steps as are necessary in order to have the instrument indexed in the right place, under penalty of losing the benefit of their record." And still again: 204 EEFOEMS IN LAND TEANSFEE. " It is true that our bill makes it mandatory upon the partj bringing an instrument for record to point out to the Regis- trar the proper place on the local index for entering a note of the record of the instrument, on pain of losing the benefit of the record by way of constructive notice in so far as he fails to do so ; but this, as we have before shown, is a necessary condi- tion of the establishment for proper working purposes of any and every locality index, whether on the lot or block plan. This cannot be called a change in the fundamental or general law of the State." And the majority of the commissioners in their argument for a fourth time put the case as a clincher thus : " Then Mr. Ohnstead says it is not to be tolerated that merely by reason of the grantee's omission to index the deed against all the property, when it is indexed against part, the deed should be treated as a recorded deed in respect of part of the property, and as an unrecorded deed in respect of the other part. For this proposition we can discover no ground or reason whatsoever. It rests purely upon the ipse dixit of Mr. Dwight H. Olmstead, unsupported by any principle either legal or equitable. What would he say to the case under the present law, of a deed, conveying land in two coun- ties, recorded in one and not in the other ?" This is also the sole legal argument contained in tTie report of the committee of the Association of the Bar, to wit:^ " It is, urged against the lot system that, while it leaves the law of registration of titles and of constructive notice- by recording deeds where it now is as to all other counties of the State, it changes this law fundamentally as to this city, and prospectively as to other cities in this State to which the system may be extended ; that whereas now a recorded deed is notice to all the world of its contents the lot system limits the effect of the record as notice, to such lot or lots as the in- strument is actually indexed against. To this objection it may be said that such a limitation of the effect of the record ' Which, was a report in favor of Lot Indexing. DWIGHT H. OLMSTEAD. 305 as notice is essential to any system of locality, as distin- guished from nominal indexes." Unfortunately for the argument the analogy does not hold good, and the eases of county or block indexing and single lot indexing are entirely different. In the case of county and block indexing, the area or extent of the property con- cerning which notice is given by the record is determined not by a specific notice of the grantee, but by the fixed and public lines of the county and of the block. In county or block indexing no separate notice is required to be filed by the grantee in order to define the area of search. It is fixed by law; and of that the grantee takes no risk. He has public notice of the area of search, as likewise have all succeeding purchasers of the same property. The grantee does direct, it is true, in both cases, under what area to index, that is to say, in what county and under what block or lot number ; but when h& directs his deed to be re- corded and indexed within a certain county or a block, know- ing the publicly defined lines of the area, he knows also that he is fully protected as to all his land lying in that area. As to the extent of the area of search he taJces not a particle of rish, but in single lot indexing this is just the rish which is imposed upon him. When he is called upon to select a lot upon a map under which he is to index his deed, he does not know that the lot npon the map covers the entire property embraced in his deed, nor how much of it. It is well enough to say that he ought to know, and that he ought to take the risk and to rely upon a survey which may or may not be correct ; the ready reply is, that he ought not to be compelled to do so unless it is necessary — not unless some equally corresponding benefit ensues to him or to the public thereby. There is really no necessity for such a scheme, nor is any public policy subserved by it. The only persons who might legitimately derive any advantage 306 EEFOEMS IX LAXD TEANSFEE. from it are the grantees themselves, and they are injured by it. We come right back to the common sense and obvious conclusion of the impossibility of using single lot diagrams, as shown on the city tax maps, for the purpose of giving legal notice of the transfers of the lots supposed to be represented by such diagrams, where the prior conveyances were by verbal descriptions. The whole matter was well expressed by a young law;)-er last winter, when he remarked that '' there is no such thing as ownership in the City of Xew York according to lot diagrams." This was a neat but conclusive refutation of the arguments put forth in favor of single lot indexing. The position assumed that the plan of block and lot indexing are in effect identical cannot be maintained ; because whether a deed is in legal effect recorded or not depends in each case upon entirely different conditions. In block indexing whether notice is given by the record of the deed or not depends upon whether it is recorded and in- dexed under the known and legally defined area of search^ but in lot indexing imder the plan proposed, whether notice is given by the record or not is made to depend upon the accu- racy and validity of the special notice which is required to be filed on each transaction. In the one case, the defined boundaries of the county and the block protect the record, in the other there is no such protection, and the grantee assumes the risk and protects himself as best he may. The proposed law changes the present general, and it may be called the fundamental, law of the State in three important respects: First. — In making the effect of the record as notice depend not upon the record itself, but upon the sufficiency of the sep- arate and special notice which is required to be filed. Second. — In imposing upon the immediate grantee a risk which he is not now required to take. DWIGHT H. OLMSTEAD. 207 Third. — In the possible deprivation of a subsequent grantee of the full benefit of the record ^s notice, notwith- standing that the instrument of transfer is upon the records, thus imposing upon the subsequent grantee a risk which is not now imposed upon him. At present a subsequent grantee is not obliged to inquire for his protection further than whether a prior deed of the property was or was not recorded, and he should not be required to, since the record is intended not alone for the benefit of the immediate grantee but of all suc- ceeding owners as well. I again repeat that the proposed lot plan changes the general law of this State in respect of the City of ISTew York, as to the legal effect of recording, while the block plan does not ; and it would change the general law in like manner in respect of any city where the lot method might be introduced under the particular scheme suggested. Thus we would have one law for the City of New York south of the Harlem Kiver, and another for that portion north of said river which has not been divided into lots, one for the City of Brooklyn and another for the rest of the county of Kings, &c., it being con- templated to extend the system to all the large cities of the State. Surveys. A single word as to surveys. It is the possibility of error in a survey which makes it un- reliable for indexing. Under our present system of con- veyancing, surveys are made by purchasers and mortgagees for greater certainty of location, according to surface lines. They show nothing more and are not supposed to. I do not think any good lawyer would recommend a client either to convey or to take solely by a survey and diagram a convey- ance of a lot of land which had in prior conveyances been 308 REFORMS IN LAND TRANSFER. described by the common law methods, such as by abutments, meets and bounds, courses and distances, or as in possession^; and if this be so, neither should a grantee be obliged to rely upon the accuracy of a survey in order to determine the valid- ity of his record. It is enough hov^ever to say that in local indexing the first rule of defined areas is imperative, and renders it unnecessary to consider the question of surveys further. Violation of the Second Rule. The lot plan violates the second rule of local indexing by permitting instruments to be indexed against lots not affected by them. I have shown in a previous argument that under the lot system every lot in a block will for safety require to be indexed also against all the adjoining lots, and illustrated it by the following diagram showing how lots are usually located in a block relative to each other. DWIGHT H. OLMSTEAD. 209 J n AVENUE. AVENUE. L 1- rH tH 1H H iH i >H iH W M r Thus the corner lot No. 1 will require to be indexed against itself and two adjacent lots, three in all; the inside lots No. 1 will be indexed in all against not less than four lots and often five lots. And if a house should be built across the rears of four avenue lots, as is frequently done, the lot upon which the house stands must when sold be indexed against not less than six lots in all. 310 REFORMS IN LAND TRANSFER. Upon inspecting the lot indexes, after entry shall have been made in them according to the plan of the majority bill, it will not appear upon their face what particular lots the several entries really affect or relate to, as many of them will be entered merely for precaution, nor will there be any way of ascertaining what property they are intended to affect, ex- cept by a reference to the deeds which they accompany. That is to say, information as to the area within which the instru- ment is to be searched for can only be discovered by finding the instrument itself. This will compel searching against all lots which by any possibility may be affected by the con- veyance. The majority of the commissioners in their report to the Legislature say: " If the lot so shown (on the map) only represents part of the lot number under examination, we have only to ex- amine the pages of all the lots which contain its other parts." But it is for the reason that the searcher on account of there being no fixed area will not know how far the lot on the land map represents the property to be searched against, that he will be compelled for safety to look through the indexes of all the adjoining lots. Such a system of indexing and searching in a very brief period would lead to inextricable confusion. Besides, owners who hold their lots free and clear will not wish to have such notices filed against them. It has been said by their proposers that these notices are really unobjec- tionable, but it will be found that they will be strenuously objected to by property owners, and, as I think, on very sub- stantial grounds. DVVIGHT H. OLMSTEAD. 311 Yiolation of the Third Rule. The lot plan violates the third rule of local indexing, by not expressly providing that the index shall serve to give public notice of the records under the recording act. The majority of the commissioners have insisted repeatedly that their index was not to be employed to give legal notice of the records, but only to enable searchers to find the required papers; but whatever may have been their intentions on the subject, the index must serve to notify the public of the rec- ords, if public notice is to be given of them at all. This is inevitable. Indeed, it is the essential feature of a local index that such should be its use. The majority of the commissioners • founded their main argument on that theory. They say : " It is very certain that if we are to establish any system of locality indexes, and to refer parties proposing to deal with real estate to the index of the locality as a reliable test for ascertaining whether there is any instrument of which he is to he chargeable with constructive notice/' &c. Why then did they not provide by their bill that no one in searching a title should be required to look beyond the index for notification of the records? It was evidently because in such case the area of search must be defined, and they would be obliged to admit that under their system, which permits deeds to be indexed against any and all the lots of a block, the area of search would be the entire block — in other words it would be indefinite within the block. I have several times inquired what is the area of search under their system, and have been met either with no reply or the reply that it is the area which each grantee chooses to designate by his notice to index, which latter, of course, is the fact. He may indicate the entire block, if he chooses to do so, and to pay the prescribed fees. 312 KEi'OKMS IN LAND TRANSFER. It follows that in examining a title the searcher must first make up his mind what lot numbers on the map the title affects, or may affect, before he can know against what lots to search. The area of the lot index being therefore undefined, it cannot be used to give legal notice of the records, even were it desired to do so. Such an index cannot be a " reliable test." Yiolation of the Fourth Bnle. The lot plan violates the fourth rule of local indexing, that the index must be simple, safe and convenient for public use. The required services of experts to manage the indexes raises - a strong presumption of their unfitness for general use. No one will pretend that any person can find the papers in the recording offices hy the aid of these indexes, except lawyers and those sJcilled in the system, nor can the special use to which the indexes are to be put, namely, to limit and determine the effect of the record, be understood by the community, either theoretically or practically, save by con- siderable study. Let us consider the method for an instant. Here are to be numerous large volumes of indexes, with head- ings of all the blocks, each block followed by the lot numbers of all the lots within the blocks, not less than from sixty to ninety in all in long blocks, and the instruments recorded are to be indexed against not only the prineipal lots affected but additional lots as well, the numbers of the lots having first to be ascertained from the Land Map preliminary to the search, the lots being in many cases, and in most cases in the uptown wards, divided and subdivided, and the subdivisions carried to new pages, and, in addition the value of the record de- pending wholly upon the notices which are not entered on the indexes at all. Does any one suppose that a layman will understand either DWIQHT H. OLMSTEAD. 213 the system or the indexes sufficiently to enable him to make any intelligent use of the indexes pursuant to the system? And if not, are they simple, safe and convenient for public use ? Even were the block indexes somewhat inconvenient (which is denied to be the case) they would be infinitely preferable to the proposed lot indexes. One of the commissioners in his reply to an anonymous pamphlet on the subject asks, " Does the author of the pam- phlet mean to be understood that any acceptable system of local indexing must be one that ladies can use without the aid of a lawyer? " Although I am not the author of the pamphlet I can reply for him in the affirmative, and that while such a system may not be acceptable to the lawyers, it will be to the public. I claim that no index should be introduced into our registry offices which any lady of ordinary intelligence cannot under- stand and use, and from which she cannot learn in a few moments what instruments have been recorded affecting any particular parcel of real estate. This is not the case with the lot plan proposed, upon the confession of its authors, and it is a sufficient reason for its rejection, even were there none other. Searching not ended under the Plan of Lot Indexing. The lot plan as proposed does not provide that nptice of all instruments affecting a lot shall be exhibited on a single page of the index, and consequently does not put an end to searching. Why the contrary statement has been so frequently and persistently made by the majority of the commissioners I cannot imagine. In their report to the Legislature they say: 314 EBFORMS IN' LAND TRANSFER. " The lot system absolutely puts an end to searching. All entries afEecting a lot or any part of it, being required to be made on the page or pages of that lot, a certified copy of the page gives all the information we now derive from a search, in a very much shorter time, and substantially without ex- pense, and the correctness of the information is a mere ques- tion of the correctness of the copy." This is reiterated in their argument: " Searching would cease, because a certified copy of a page of any lot, obtained for a trifling sum, in a very short time would give all the information we can now derive from a search." Doubtless many persons have been impressed, -if not im- posed upon, by the foregoing statement, and it had much weight in giving a favorable impression of the lot plan. I regret tq be obliged to say that the assertion is absolutely incorrect. It is claimed that under the majority bill, searching would cease because a copy of a single page of the index would give all the required information. Let us examine this. The majority bill provides for indexing not only against the lot supposed to be affected by the conveyance, but against other or adjoining lots; and this is a protection of which we may be sure every grantee will avail himself. The majority of the commissioners in their argument say : " We freely concede that where, a,t the time when the deed is presented for recording and indexing, the party presenting it or his conveyancer, supposes that the deed does or may affect an adjoining lot or lots, although not sure that it does so, he will naturally give himself the benefit of the -doubt and index against such adjoining lot or lots in respect of which the doubt exists, so as to be on the safe side." And all the argument which follows the foregoing admis- DWIGHT H. OLMSTEAD. 315 sion, cannot and does not pretend to change the fact admitted; that grantees will index against adjoining lots whenever they consider themselves safer in so doing, and this in the nature of the case will invariahly occur. The final argument is a confession and avoidance. The commissioners say : " Yet let us suppose that in looking for the instruments relating to one lot, we have to pick them out of those relating to three or four lots. This he (myself) says, will be the result under the lot system. But what is the inevitable result imder his block system ? " The argument of the majority commissioners upon this point concludes with these highly suggestive remarks : " In conclusion upon this point we think we ought to say that the extra charge for indexing against additional lots was fixed by us in our bill at a sum somewhat exceeding the nec- essary and reasonable compensation for that service, and that it was so done with the idea of affording some chech against the possible practice of unnecessary indexing against adjoin- ing lots, by reason of mere carelessness and indisposition to take the trouble of finding out the proper lots for indexing, and that we did so because suggestions were made that such a practice may grow up. " If such a practice should, notwithstanding the small ex- tra charge contained in our bill, grow up and become an abuse, it seems plain enough that it ought to be and readily can be checked hereafter, by an alteration making the addi- tional charge high enough to deter the practice." This charge was put in the original majority bill at twenty- five cents per lot, but the magnitude of the difficulty caused a jump in the amended bill to two dollars per lot ; and there is no telling, should the bill by any untoward chance become a law, what the pivotal sum would be found to be. I can guarantee that it would be considerably higher than two dol- 216 EEFOEMS I3Sr LAND TRANSFER. lars per lot, indeed so high that the repeal of the law would be called' for in short order. Does any one now believe the commissioners to have been entirely ingenuous when they averred that all the entries re- specting a single lot would be found on one page of the lot index, or that no searching under their system would be re- quired ? The truth is that in practice, at least all lots next to the principal lot would be indexed against as well as the principal lot, and inasmuch as the entries themselves do not show on their face to what properties they refer, this would require on the examination of a title, not only that the indexes of all adjoining lots should be examined, but that all the in- struments entered under the adjoining lots should be exam- ined also, in order to see what property they affect. And the cost to the client would be proportionately increased. The statement so frequently made by the authors of the lot plan that a single page of the index would show the whole title to a lot and that no further search would be required cannot be true, because since there would be no safety in omitting to ex- amine against adjoining lots, so there would be no safety in a search which did not also cover such adjoining lots. And when such search is made, the return of the Registrar will precisely correspond in form with the Certificate of Search which I propose in connection with block indexing, with this impor- tant difference, that while on my Certificate of Search will be returned only one entry for each transaction, on the pro- posed lot search will be returned several entries of the same transaction; that is, as many entries of it as there are under the several lots searched against. Block Indexing is Ineritable under the Practical Operation of the Proposed Plan for Lot Indexing. The indexing of land records being entirely a mechanical DWIGIIT H. OLMSTEAD. 217 process, designed to aceomplish a certain mechanical end, it must be perf orm"^jd scientifically if success is to be expected. If a ship is not properly built to float it will go to the bottom. And if a land record index be constructed unscientifically, it will not work. I will no-,; endeavor to show why the lot plan as projected will fail if attempted. In the first place the machinery of the lot plan is too com- plicated and requires too much work in detail. To use a homely expression, it is too fine. Like some machinery de- vised for weaving, it would not accomplish the object aimed at by reason of the closeness and fineness of its operation. It is unfit for common and public use. In illustration of this I may refer to the form of the lot indexes with block headings, the careful delineation of the several lots required to be made thereon, that there shall be no mistake in transcribing the lot numbers, the annual re- vision of the index maps, and -their amendment from time to time (in red ink) ; that the dates of the corrections on the maps are not noted; the care and particularity required in the preparation of the notices to index that there shall be no mistake about the numbers either of the lots conveyed or of the adjoining lots to be indexed against ; that the survey shall be accurate in order that a sufficiently large area shall be indexed against; the care as to the possession, that it as well as the actual ovniership shall agree with the survey and the tax maps — ^besides much more that might be mentioned. All these requirements demand for safety a corresponding vigilance on the part of dealers. The complicated nature of the majority bill, arising from its various provisions, is very great, as any one can see from a cursory perusal of it, and this is also evident from the difficulty which the general public have had in understanding it. The public would not long submit to such an act. 318 EEJFOEMS IN LAND TRANSFER. In the second 'place the practical operation of the system would prove too burdensome upon the property owners to warrant its continuance, the sole avowed purpose of which is to enable papers to be found in the Registry Office — that is to say, to enable professional searchers and conveyancers to find them. Let us suppose a case after the bill should go into operation. For example, a mortgagee to whom a inortgage has been executed upon which he has advanced a loan, takes his mort- gage to the Registrar to be recorded. The Registrar refuses to receive it, and upon the mortgagee inquiring the reason he is told to consult his lawyer ; for it is not likely the Registrar would stop the business of his office to explain this compli- cated matter even were he able to do so, much less to offer to take the responsibility of preparing the requisite notice. The lawyer explains with a grave face, at least as grave as he can assume, that the Legislature has enacted a law to facilitate and lessen the expense of the transfer of land, a very im- portant and very intricate law, so much so that the Legis- lature itself did not understand it, but only " experts ; " that the act requires the preparation and presentation to the Registrar with the mortgage before the latter can be recorded, of a certain carefully prepared notice ; in fact, that the matter requires the services of a lawyer. But as the latter does not intend himself to assume any risk, even if his client does, he advises that a survey be made, and he will probably quote one of my learned co-commissioners to the effect that " Xo man with ordinary care would ever take a conveyance of a deed to property without a reliable survey." All this causes delay, and the mortgage remains unrecorded. Finally, the survey comes in showing some variation from the description in the mortgage, as is ordinarily the case, and the notice is prepared, executed, acknowledged and recorded, together with the mortgage, after much annoyance, vexation and at DWIGHT H. OLlISTJiAD. 319 no little expense. It matters not that the prescribed notice would usually be prepared and executed at the time of the execution of the mortgage — the steps to be taken and the ex- pense to be incurred are the same in either case. The intelli- gent dealer in real estate will demand to be informed what all this duplication of papers, this trouble and expense means, and he will be told that it is merely to aid conveyancers " to find papers " in the Registry Offices. He will further insist upon knowing the ultimate reason, and it will come out that it is in order to compel a grantee or mortgagee to take the risk of the boundaries of his lot so far as he is to be protected by the record, and that it is a risk which is not taken under the county system, and would not be under the block system. He will understand that under these last systems he is protected by the fixed boundaries of the areas, and that he is called upon to file no separate notice and to assume no risk other than that of recording or refraining from recording his deed or mort- gage within the proper known area; that if he records his deed he is fully protected, and that if he does not he is not protected. He will also consider the inaccuracy of the tax maps, the possible inaccuracy of the transcriptions, the fre- quent changes of the areas of lots and the corresponding changes of the maps, the possibility of mistake in the notices, and the trouble and expense of preparing them ; the difficulty of subsequent examinations of the title, the possibility of loss and mutilation of the maps and of the record of the notices ; and he will see that he has no assurance or evidence of his instrument being fully recorded as to all the property em- braced in it as now by the certificate of the Registrar endorsed on the instrument on its return to him from the Registrar's Office — and that all this machinery and risk is without any corresponding benefit to him. How long will the public be likely to acquiesce in this lot indexing, when they fully un- derstand it, and when they remember the convenience, 230 EBFOKMS IJ7 LAND TEANSFEK. simplicity and protection of the old method? Should the lot plan ever go into operation in the City of New York, and the public come to understand it experimentally as they of necessity in that event must, the system would as soon as possible thereafter be swept away by the besom of destruc- tion ; but in the meantime the conveyancers, searchers, ex- perts, clerks, surveyors and others would have profited greatly by it, and have reaped a large pecuniary harvest to the im- mense detriment of the real estate interests of the city, the depreciation of property, and the delay of desired reforms in land transfer. The statement which has been occasionally made that both the block and lot plans are better than the present method is not warranted. In my judgment the system proposed by my co-commissioners is very much worse than the present system with all its inconveniences and dangers. I cannot see in it the least merit. In the third place, the condition of' the tax or ward maps of the city, and their uncertainty, especially in the Twenty- third and Twenty-fourth Wards of the city, is such as to preclude their use for any valuable object under the lot bill. There is a very careful method of plotting city lots now being conducted under the supervision of official surveyors in Philadelphia, for the purpose of taxation only, but with unsatisfactory results. An attempt to plot single lots as owned in order to give notice of the records will result in a failure, even as a mechanical operation. In the fourth place, the adoption of the proposed lot plan would result in this, that all deeds and mortgages of impor- tance would he indexed against all the lots in a Nock, that is against the entire hloclc, at whatever cost. And why ? Be- cause it would avoid the risk of the accuracy of the notices and surveys, of the uncertainty of areas of search, the risk DWIGHT H. OLMSTEAD. 221 of loss and mutilation of maps, and of subsequent changes in the maps. It would avoid the necessity of all subsequent reference to the maps as to the then conveyance. . It would avoid the necessity of a specific and critical examination of the notice on a subsequent sale or mortgage of the same prop- erty so far as such particulars affected the immediate trans- action, and it would also obviate the expense of such subse- quent examination on a subsequent sale or mortgage. All persons who buy real estate in the City of New York as a permanent investment for their families, all who buy to sell again for a profit, all who desire occasional loans on the pledge of their real es_tate, in fact all who wish to be en- tirely safe, without any question, on the purchase of parcels less than a block, would dodge the notices and the depending risks by directing the Registrar in all cases to index against all the lots in the block, that is, against the entire block. The cost, in case of long blocks of 64 lots, would be $128, and of short blocks of say 32 lots, $64 ; and upon mortgage loans, the mortgagors would have that added to their disbursements. In all cases of ordinary purchases and mortgage loans in the City of New York, the values involved are too large to permit a dealer to hesitate one moment what course to pursue, and he would index against the entire block the more willingly by knowing that such a complex, stilted, unwieldy and dan- gerous system of notices cannot last, and that in the end all transfers would have to be reindexed on the block plan. Upon a purchase by myself personally, I should index against the entire block, and should advise my clients always to do the same, and I think all careful lawyers would give similar advice. After what I have said, I think the question will again be raised in the minds of the majority of the commis- sioners, how much larger a penalty than two dollars per lot will it he necessary to impose upon grantees in order to com- pel lot indexing? 223 KEFOEMS IN LAND TEANSFEE. In the fifth place, and lastly, should the lot plan ever bj attempted, from the time it went into operation, there would be an immediate but irresistible gravitation toward block indexing, which would ultimately be attained; and the lot indexes prepared and introduced at very great expense would be thrown aside as waste paper, and all conveyances be rein- dexed on the block plan. This would inevitably follow, be- cause the mere object of accessibility to papers in the Registry Offices would not justify the burden, complexity, inconvenience and expense of the lot system, especially since the object can be accomplished by much simpler methods. And, moreover, there is little use in shortening the forms of conveyances if they are to be multiplied. Whatever inconveniences there may be about the block plan, and there must be some connected with any system of indexing, they are insignificant compared with those at- tending the lot plan. It is urged that, in the block index, the instruments are thrown together into a " confused mass." Nothing is further from the truth. The entries in the block indexes are to be chronologically made, and will be readily found. It is quite unnecessary to speculate upon the form of the indexes prepared by me. There are many ways of arranging a block index, and any" person with ordinary me- chanical skill can suggest a convenient form. I am informed that the officers connected with the Tax Office in the City of ~Ee,vj York say that the plan proposed by my co-commis- sioners for that office is impracticable, and I should think it would be, notwithstanding that, for the purpose of taxation, it is necessary merely to identify the separate parcels taxed, without regard to their dimensions or location with reference to adjoining lots. DWIGHT H. OLMSTEAD. 233 Preyious Plan of Writer. It has been publicly charged against me by one of the majority commissioners that I was formerly in favor of single lot indexing. Although this is not important, I am willing to admit that seme three years ago I was unable to see any way out of our present difficulties in the Kegistrar's Office, save by a resurvey of the city and the preparation of a new city map, so that the single lots could be used as indexes to aid in referring to the recorded papers', but such a scheme as that of special notices or of changing the law of the State as to the legal effect of recording instruments in the manner suggested, never once entered my mind, and as soon as it was brought forward I opposed it. A bill embodying my views at that time was prepared imder the auspices of the Land Transfer' Reform Association of the City of New York, and I advocated it in a public lecture. It was a scheme, it is true, to enable papers to be found in the Registrar's Office, but without the plan of special notices, or of any thought of using the index as notice. At any rate, after much consideration by the executive committee of that association, all of whom were lawyers, we unanimously renounced that scheme, for the reason, as I understood, that legal notice of the records by such lot indexes was impossible, and adopted the plan of ■ block indexes. The important question being not how to find papers, but how to give efficient public notice of them by aid of the local index, and thus to satisfy the chief purpose of recording. 224: HEfOEMS IX LAND TEAHSFEE. PART IV. OssTEUCTioiirs TO Kefoem. The principal obstacle to the cause of land transfer reform in this State lies in the want of general information upon the subject. It has been observed that the majority of the Commission- ers of Land Transfer stated in their report to the Legislature that the system advocated by them contemplated nothing more than an easy and accurate method of finding papers. Such a trivial matter as this could scarcely warrant the ap- pointment of five State Commissioners, and the remark indicates a misconception of the character and scope of the subject which the Commission was created to consider. The chief but fallacious argument put forward by the majority of the commissioners, as well as by the Conxmittee of the Association of the Bar, in support of their plan, namely, the supposed similarity between block and lot indexing, also indi- cates a want of appreciation of the subject, while the Special Committee of the Real Estate Exchange more wisely re- frained from all argument. !N"either the Judiciary Commit- tees of the Senate or of Assembly, so far as I am advised, accompanied their reports with any reasons for approving the lot scheme, and the majority bill affecting more than $2,000,000,000 of real estate in the City of Xew York was passed by the Senate without any discussion of its merits whatever. It is fair to say that Legislative action upon the bill was unquestionably infiuenced by the impression which was assid- uously promoted by its projectors, that the bill was generally approved by the bar and by the public sentiment of the city, which was entirely untrue. DWIGHT II. OLMSTEAD. 225 Not only did none of the Committees of the Real Estate Exchange venture to give reasons for approving the bill, but it is admitted that those Directors of the Exchange who are not lawyers did not pretend to understand it. While the city press has been almost unanimously in favor of the block plan, only one paper so far as I have observed — The Mail and Express — has attempted to discuss the relative merits of the two opposing systems, or even the general topic of land transfer. One or two newspapers have advocated the immediate passage by the Legislature of one or the other of the bills as a relief from the present intolerable condition of things, but without apparently looking very closely into the essential features of either bill. So obvious has been the want of knowledge by lawyers, as well as the general public and the press, upon the questions involved that I have steadily opposed any action by the Legislature until they should be more thoroughly understood, and I am sure that this course has met with the approval of all fair-minded persons, as well as of those who desire the welfare of the city without regard to individual interests. The several bills reported to the Legislature by the majority of the commissioners relating to the lien of judgments, to mortgages to the United States Loan Commissioners, to indexing and searching for unpaid taxes and assessments, to reindexing deeds and mortgages, and for short forms, did not require a commission for their consideration, nor for the preparation of bills relating to them, the most important of which, that for short forms, having been already prepared under the direction of the Land Transfer Keform Association of the City of New York. !N^or did any of the bills which the majority of the commis- sioners did prepare, except so far as they amended the previ- ously drawn bill for short forms of deeds and mortgages, contain any of the elements of those reforms which are recog- nized by modern authorities as important. The index pre- 236 EEFOBMS IN I.AXT) TEANSFEE. pared by them is not such as is known as a local index, because the area of the index is not defined by law, and its proposed use is even in opposition to recognized reforms. The act as to the lien and indexing- of judgments is faulty in following the plan suggested for indexing deeds, and it should have abolished the specific lien on land of judgments altogether, as has been done in England. The act relating to mortgages to Loan Commissioners is of trivial consequence, and should be covered by the main act for recording and indexing instru- ments. The act for indexing unpaid taxes and assessments is objectionable in following the scheme of indexing sug- gested for deeds instead of indexing as now under blocks and ward numbers, which is sufficient for taxation purposes. The act for reindexing the old records should be carried out on the general plan to be adopted for indexing the new records. The act for short forms, as before mentioned, is not the work of the Commission, except in making verbal corrections in an act previously draAvn by me, and in taking from the last mentioned act its compulsory character, which I should pre- fer to have retained, although I should not oppose the passage of this bill as it stands. I think it would also be an im- provement to the bill to retain the provision for a short form of lease, which had also been prepared by me, but making its use permissive and not compulsory, as in case of deeds and mortgages. It was intended when the commission was appointed that public sessions should be held, and lawyers be invited to appear before it ; but after two stich meetings, at which it was evident that the general sentiment was averse to the lot plan, the Commission declined to call another public meeting, and it was not done. It is true, as has been stated, that at the first sessions of the Commission only one of the commission- ers was in favor of single lot indexing, all the other four commissioners expressing themselves in favor of block index- DWIGHT H. OLMSTEAD. 237 ing, and it was not until the former intimated that he could not continue to serve on the Commission unless his views were followed that the other three commissioners consented to approve the lot plan, two of them at least, and, as I under- stood, the third, on the ground that it was not worth while to break up the Commission, which had been secured after so much trouble, upon a distinction without a difference, as they deemed it to be ; it being claimed by them that the two plans did not differ in substance, but that the difference was merely one of detail, and that it was substantially the same to index under a lot vsdthin a block as against the block alone. And this matter will be found referred to in my report to the Leg- islature under heading Tiuelfth. Had those gentlemen who afterwards advocated the lot plan understood the materiality of this difference, which I think I have conclusively shown, I doubt very much whether they would have taken the position they did, and I think I may infer this from the persistency with which they have adhered in all the reports and argu- ments which they have made or have influenced to be made to this as the prime argument of all, namely: " That such a limitation of the effect of the record as notice, is essential to any system of locality, as distinguished from nominal in- dexes." (Report of Com. of Asso. of the Bar.) Of course, reforms of the nature and magnitude contem- plated cannot be accomplished without great detriment to and opposition by those who are interested in the continuance of the established order of things. In a private circular issued in 1882 by a company for guaranteeing land titles in the City of 'New York, it was estimated- that during the year 1881 the fees paid to lawyers in that city for examining titles were over $1,750,000, and that the disbursements paid to the Eegistrar, County Clerk and other officers probably amounted to $400,000 more. !N'ow, if any one supposes that a system in which so much 328 EEFOEMS IN I,AND TEANSFEE. money is involved can be broken np without a fierce struggle, or without the determined opposition of those who profit by its retention, he is not, in my opinion, a judge of human nature, and the only hope of the success of this or of any land reform in the City of New York lies in the fact that the present system cannot for mechanical reasons he continued. The plan of the majority bill would undoubtedly assist law- yers to find papers in the registry ofiices, and thus reduce their labors to some extent, but the effect of it, so far as the public is concerned, would be not only to prevent any real reform, but to fasten upon the real estate interests of the city a much more complicated and expensive system of examining titles than the present one. While it is very natural under the circumstances that the majority of the commissioners should desire the passage of their lot bill, and to secure its approval by as many of their professional brethren as possible, in so saying I do not wish to be understood as intimating that they were influenced in drawing the bill or have been in urging its passage by any improper motives. I prefer to attribute their position throughout to a want of knowledge and sufficient study of the subject. Still it must be apparent that a bill of the character prepared by them, which is wholly in the interest of con- veyancers and equally against the interest of the public, must attract much support from the former. It is sufficient for me to say that I think my co-commissioners failed to comprehend the nature, extent and difficulties of the subject committed to them by the Legislature. They undertook to establish local indexing by single lots, without any idea in their minds apparently of the necessity of fixed areas of search for such indexing, and they seem not to have dis- covered to this day that this indispensable condition for a local index cannot be ignored. They have apparently not seen the relation which local indexing bears to other questions DWIGHT H. OLMSTEAD. 229 of reform connected with land transfer, at any rate they have given no evidence of it, nor have they seemingly had any notion of reforms intended to be in aid of and to protect the index. ITeither in their report nor in their argument have they made the slightest allusion to any of those questions of reform in land transfer which have in recent years claimed the attention of lawyers and legal writers so largely in Eng- land and elsewhere in Europe. They have not referred to or commented in any way upon the different systems of land transfer now in vogue throughout the civilized world intended to simplify titles, and " to facilitate and lessen the expense of the transfer of land, and dealing therewith," which was the subject they were appointed to consider and report upon. Indexing, while important, forms but a small part of the general subject of land transfer, and considering what has been done by foreign Commissions appointed to investigate the subject, I regret to be obliged to admii that the work of this Commission has not been a success, and this will be obvious from a comparison of its work with that of any like foreign Commission. One good result will, however, come from it, and that is the public discussion which is sure to follow. And I am not certain but the very failure of the Commission will occasion the ultimate establishment of a good system of land transfer in this State. It has brought prominently to public attention the evils of the present sys- tem, the remedies to be applied, and is likely to be followed by adequate reforms of some kind. I regret that the officers of the Eeal Estate Exchange have not acted the past year in the direction of land transfer reform, but in opposition to it. They naturally followed the lead of the counsel of the Exchange, who is one of the majority members of the Com- mission. 330 EEFOEMS IN LAND TRANSFER. The Report of the Committee of the Association of the Bar of the City of New lork. It has been claimed by the majority of the commissioners that the members of the Bar of the city generally were in favor of the bills prepared by them for lot indexing and that in my opposition I stood " entirely alone." In order to emphasize this before the Legislature, a plan was arranged to have the Bar Association, through its Stand- ing Committee on the Amendment of the Law, make a report upon the bills direct to the Legislature on behalf of the Asso- ciation without a formal discussion before the Association, in the same manner as the report of the special committee of the Real Estate Exchange was put forth as the opinion of the entire Exchange. Consequently, in March last, a member of the Committee on Legislation of the Eeal Estate Exchange, presented to the Bar Association a memorial purporting to issue from the Exchange, asking that the majority and minor- ity bills prepared by the Commissioners of Land Transfer, then pending before the Legislature, might be referred to the Standing Committee of the Association of the Bar on the Amendment of the Law, with instructions to such Committee to report thereon direct to the Legislature, the mover stating the reason for such action to be that it was too late in the session for deliberation by the Association. Great opposi- tion to the motion was at once made, it being a mode of pro- cedure entirely contrary to the custom of the Association. The mover made a second speech in favor of the motion, but so strong an opposition to it was manifested that he finally amended his motion so that the Committee was instructed to report to the Association at a special meeting to be held at the expiration of four weeks. This Committee on the Amendment of the I;aw consists of nine members, but there are this year, I am informed, only eight acting members. DWIGHT H. OLMSTEAD. 331 I attended all the hearings before it, and only four of the Committee heard all the arguments. Two other members attended each once only. The report was favorable to the majority bills. It was signed by the Chairman and Secre- tary, no other members of the Committee signing it, although it is stated that all concurred. Before the report came up for discussion in the Bar Association the majority commis- sioners mailed special cards to the members to attend, and I supposed there would be a very large meeting of the Asso- ciation and a large attendance favoring the majority report. The block and lot systems were as fully debated as one evening would permit. A division being taken upon the mo- tion to approve the report of the Committee, there were thirty-four votes in favor of and thirty-one against such ap- proval. But it was apparent that the strength of the Associa- tion was hostile to the lot plan. Among those seated near me whom I noticed voted against approving the report were David Dudley Field, Albert Mathews, John H. V. Arnold, E. B. Hinsdale, Aaron J. Vanderpoel, Theodore W. Dwight, John Erving, Henry L. Clinton, George Hill, J. Murray Mitchell, George L. Eives, George W. Ellis, David McClure, Henry W. Sackett, Samuel Jones, and others of like stand- ing. By reference to the list of members of the Bar Asso- ciation, I find that connected with the law offices of the four majority commissioners, including themselves, are not less than fourteen members of the Association, and it is to be presumed they were all on hand to cast their votes. The result of the meeting was that it was perfectly evident that the lot plan of indexing does not meet the general ap- proval of the lawyers of the New York Bar, and upon one of my co-commissioners being reminded subsequently by Mr. Clinton, before the Judiciary Committee of the Assembly, of the character of the vote, he frankly admitted that it was without force. This disposes of the report of the Committee 332 EEFOEMS IN LAND TRANSFER. of the Bar Association. The action of the Bar Association also disposes of the assertion which has been so often made that my opposition to the lot plan is captious. It is also a sufficient and to me satisfactory answer to the peculiar and personal remarks which run through the argument of the majority commissioners that my argument is " absurd," " without a particle of foundation," " extravagant and reck- less," and that I " stand alone." Conclusion. In conclusion, while I disclaim any personal feelings towards other members of the Commission, or any one else, on account of this contention, the magnitude of the subject and my interest in it is such that I shall reserve to myself the right, on all proper occasions, to characterize, as I think it deserves, the system of land transfer which my co- commissioners are making such extraordinary efforts to fasten upon the people of this State, and especially upon the City of ~Sew York. In my judgment it is a scheme which will not bear examination; would, wherever put in operation, greatly injure real estate and depreciate its value ; tend to restrict its free transfer ; is directly hostile to reform, and must necessarily be condemned by all persons who have given a thorough study to the subject of registering and indexing public land records. To the lack of such study, and the want of acquaintance equally among lawyers and laymen in this country with the somewhat intricate and tech- nical questions involved, the controversy is due. But I be- lieve a very large majority of lawyers, as well as real estate oAvners, in the City of New York, to be opposed to the plan of my co-commissioners, and to be in favor of block indexing, as both schemes are popularly understood. I have now said all I desire to say iipon the subject of land transfer in this DWIGHT H. OLMSTEAD. 233 State. I have not the time to devote to it further, but shall await such action as the Legislature may take respecting it. And should its action be adverse to my views, and favorabl-e to the scheme of the majority of the commissioners, I shall confidently rely upon my opinion of the ultimate failure of the plan, for the reasons which I have stated. I wish to express the obligations which the real estate owners of the City of New York are under to those members of the Assembly, and especially to Hon. Lucas L. Van Allen, of the Seventh Assembly District, for the interest which they took in the, subject in the Assembly, and for their successful efforts to defeat in that body the passage of the lot indexing bills. Credit is also due to Messrs. Herbert B. Turner, E. B. Hinsdale and Henry L. Clinton for their effective opposition to these bills. REPORT OF THE COMMITTEE NEW YORK STATE BAR ASSOCIATION LAND TRANSFER RECOMMENDING THE BLOCK SYSTEM OF INDEXING March 14TH, 1887 Luther R. Marsh John H. V. Arnold David Dudley Field Augustus Schoonmaker Hamilton Harris Hooper C. Van Vorst George M. Diven Eepoet of the Committee Appointed by the Bae Asso- ciation OF THE State of New Yoek ON the Subject of LAND TRANSFER REFORM. To the Bar Association of the State of New Yorh. The undersigned, your Committee, appointed under the resolutions of January 20, 1887, to wit: " Resolved; That it be referred to a special committee of seven, to be appointed by the President, to consider and re- port to this Association in what manner, if any, the present method of transferring land and recording and indexing deeds, mortgages and other instruments relating to land in this State, can be simplified and improved ; that said commit- tee have leave to hold public sessions, and that they invite the opinions of lawyers and others as to the matters so re- ferred ; that said committee be requested to prepare a bill or bills embodying such reforms as they may recommend, and that they report at the next annual meeting of the Associa- tion. " Resolved, That the Executive Committee be requested to print the report of such special committee when the same shall be prepared, and cause copies to be mailed to members of the Association, in order that the Association may be prepared to take action thereon at such next annual meeting," hereby report. Your Committee accepted the responsible duties assigned them, and, after due consideration, have come to a conclusion respecting the subject submitted to them. 238 REFORMS IN LAND TRANSFER. Eeform in the method of transferring land is imperatively needed. Its necessity is increasing every year. In the City of New York the old and still existing system is unwieldy, producing long delays and great expense. [NTearly 4000 vol- umes of records have already accumulated in the office of the Register, and they are increasing at a rapid rate. The ratio of increase keeps pace with that of the population. As the number of inhabitants of that City has doubled every seven- teen years since 1820, as shown by statistics, and as there seems no sign now of decrease in the rate, it is likely that the present population of 1,600,000 between the rivers will be- come three millions, and the Register's records under the present system reach 8000 volumes ere this century shall end. The present system of searching titles, — even now dependent upon the private indexes of employees in the Register's office, — would then become water-logged, and break down by its own weight. If searches cannot now be completed without great delays and great expense, the delay and expense would, at that time, be such as to prohibit further searches. Even now titles are sometimes taken without examination and the risk of possible defects incurred by the purchaser rather than to encounter the delay and expense of searching. As near as may be, land should be made as easily transfer- able as personal property. With very slight difficulties inci- dent to the nature of the estate, a man ought to be able to sell and part with or mortgage his lot, his farm or his house, as quickly and as cheaply as his corporate stocks or other per- sonal estate. There is no insuperable obstacle to this. But now a man cannot carry through a sale or mortgage of land in the City of New York, even after the terms are agreed on, without an average delay of, perhaps, thirty days, sometimes much longer, at an average expense of, say $150, and often at a considerably larger sum. DWIGHT H. OLIXSTEAD. 239 This is a serious weight upon real estate. To remove the obstacle to the ready, easy, quick and inexpensive transfer of real estate, would be to increase, very largely, the wealth of the City, and of the entire State, and to make this now cum- brous form of property an element of- commercial activity. It would also tend to distribute land amongst the people; to make a greater number land-owners, and thus add strength to our country and create for it zealous defenders. One of the most important branches of the subject of land transfer is that of recording and indexing instruments re- quired to be recorded under the Statute for the protection of dealers in real estate. Differences of opinion among the Commissioners of Land Transfer appointed under the Act of the Legislature, passed in 1884r, as to the best mode of indexing, have recently brought the subject to public attention. Four of the Commissioners have reported in favor of in- dexing in the City of I^ew York by single lots, as owned and represented on the City tax maps, while the remaining Com- missioner has recommended indexing by City Blocks bounded by Streets and Avenues, and he opposes the lot plan on the ground that it is unscientific, requires a harmful and unnec- essary change in the general law of the State as to the legal effect of recording, and is cumbersome and impracticable. One of the chi-ef objections urged by him is that lots have not legally defined, fixed and permanent boundaries, which he regards as indispensable as a basis for any system of local indexes. It is admitted on all sides, that the hloch plan can be operated without difficulty, and would be a vast improvement on the present method of indexing. The difference of opin- ion occurs only respecting the lot plan. "Without going at great length into a consideration of the 340 EEFORMS IN LAND TRANSFER. arguments which have been offered, pro and con, on either side, your Committee are of the opinion that the requirement of legally defined lines for local indexes to be used in noti- fying the public of transactions under the Eecording Acts of this State, is important to be observed; and, indeed, that unless such boundaries are fixed and established by law, the business of searching titles would soon fall into inextricable confusion. City Blocks have legally defined, and readily ascertainable and permanent areas, while the lots located within the blocks have not, and therefore, for whatever other purpose such lot diagrams may be used, they cannot be used for the essential purpose of giving notice under the Recording Act. If instruments are to be recorded according to areas of land taken for local indexes, such areas mast be certain and defi- nite before such a system can go into operation; otherwise it would be impossible to determine in any given case, whether the instrument had been fully recorded or not as to all the land affected by it embraced within the area of the local index. This is self evident. In illustration of this, suppose, under the scheme proposed for lot indexing by the majority of the Commissioners, a grantee should direct his deed in which the premises were not described by exact measurements, to be indexed against a single lot and lot number sho^vn on the tax map ; how would a subsequent grantee, or even a -Court, upon the production of the deed, notice and map, be able to decide whether the deed was, or was not, fully recorded ? Such a decision could not be arrived at, because it could not be determined whether the boundaries of the property con- veyed by the deed and the boundaries of the lot on the dia- gram were coterminous ; and this is occasioned by the common law modes of conveyancing which have heretofore prevailed in this State, such as by courses and distances, metes and DWIGHT H. OLMSTEAD. 341 bounds, abutments, street numbers, and the like. There is no certainty that the ownership conforms to the diagram. They may be different. It is claimed that a survey will determine how far the ownership agrees with the diagram. If this were possible, there would be no necessity for the special notice to index for which the lot bill provides; the object of which is to compel the grantee to take the risk of the area of the diagram for the purpose of giving public information of the transfer, and to lose the benefit of his record in case of mistake. If the area could be determined by a survey for the purpose men- tioned, then the indexing could be under the lot diagram, without any additional contrivance. It is not doubted but if all the lots in a block had perma- nent and defined areas, like the sections and fractions of sec- tions in the western country, laid out by Governmental Sur- veys, and the lots had always been conveyed according to such areas or sections, the lot system of indexing would be easy of accomplishment. If all the lots in the City could be diagramed, embraced in a common map, numbered in their numbered blocks, and have defined boundaries established by law corresponding to actual possession, permanent and easily ascertainable (which is im- possible), then the unit of the lot, instead of the block, would make the system of record and indexing theoretically as per- fect as could be wished. But, it stands to reason, if carefully considered, that single lots with variable and uncertain areas, however well they may answer for filing papers, cannot be' used efficiently to give notice of instruments under the Kecording Act; the reason being the uncertainty of the correspondence of the areas con- veyed by the deed, with diagrams, as shown on maps. Such notice can only be given by the use of defined areas such as we have in Counties. 343 REFORMS IN LAND TRANSFER. In this State there are fifty-six of such Counties whose boundaries and areas are fixed by Statute and monumented on the ground by State surveys. These Counties serve the purpose of political divisions and their permanent and read- ily ascertainable limits render them available for many purposes, among which is that of recording instruments relating to land under the act to prevent fraudulent trans- fers. The method, of recording and indexing under such legal and permanent areas has always been followed since recording commenced. Counties are true local indexes, pos- sessing the condition of legally defined areas necessary to such indexes, and suitable for the required purpose of notifying the public of transactions. The principle of recording referable to defined areas is undoubtedly correct, and any attempt to record instruments in violation of that principle must lead to disaster, and great detriment to real estate. If then, we cannot or ought not to change the principle of recording which now obtains in this State, wha,t is to be the remedy for the confused condition of our land records ? In considering the matter, if will be seen that the diflSculty does not arise from the nature of the local County index, but from the large number of transactions occurring within the area of each County, owing to its increased population, and the consequent accumulation of transfers and names of par- ties which renders searching uncertain and dangerous. For this difficulty there are only two remedies ; the first is that of a better classification of names by the initial letters ; but this has been tried and failed. The other remedy is, the substitution for the Coimty areas of lesser areas having the like condition of legally defined limits. We have such areas ready at hand, in towns, cities, city wards, and city blocks. The question is, which one shall we adopt ? There cannot be many owners in a block, and conseqiiently the examina- DWIGHT H. OLMSTEAD. 343 tion of a nominal index of owners to be searched against would be very brief. By substituting, therefore, the area of the City Block, bounded by legally defined, visible and permanent lines, for the present County area, we can record and index under blocks in the same manner, and subject to the same law of recording as to its legal effect, as we now record and index under Counties. We simply change the machinery, reducing the Coimty area to the Block area ; but we make no change in the prin- ciple of recording, nor in the general law of the State as to its legal effect. A deed is now recorded by leaving it with the Register for the purpose. The grantee simply leaves his deed with the recording ofiSce, and is safe. The officer re- cords and indexes it in his County, and his certificate of such record which he is required by law to endorse on the deed, is evidence before any Court, that it is fully recorded as to its entire contents, as to all the land affected by it lying within the County in which it is recordedj and the record itself, duly certified, is evidence of the fact. [N'ow what is the scheme embodied in the bill for lot index- ing prepared by the majority of the Commissioners of Land Transfer ? In order that every instrument may be conveniently re- ferred to, it is provided that any person offering an instru- ment for record shall, by a notice in writing to be recorded with it, designate the number of the lot or lots as shown on the tax map (or a copy thereof) against which the instrument is to be indexed, and that, thereupon, the legal effect of such instrument as to any land affected by it which is not covered by the notice, shall be that of " an unrecorded deed." " It be- ing intended by the plan to apply to lot indexing the same method now in use as to County indexing, that is to say, that whereas now the grantee selects the County under which he 244 REFORMS IN- LAND TRANSFER. will index, he shall, under the new system, in like manner select the lot under which he will index " ; those who propose the scheme overlooking the fact that City Blocks have perma- nent and legally defined boundaries, while lots as represented on the tax map have not. Your Committee do not see that the bill for lot indexing contains any provision for reducing the area of search from the County to either the block or to the lot. The recording and indexing is still to continue under the County area, with the contrivance which has been mentioned superadded, of a chief and an ancillary instrument. The block system reduces the area for record and indexing from the County to the Block. The lot system does not reduce that area at all, but seeks to accomplish the result of a reduction of area by an auxiliary paper, called a Special no- tice to index ; so that, in fact, under the lot plan, the deed is recorded, as now, in the Coiinty, but its legal effect as notice is__ determined by the Special notice. But in the Block sys- tem the area of the record is not the County but the Block. Therefore, by the lot system, this curious anomaly would occur ; that the present principle of recording by Counties is to be applied to determine whether an instrument is in legal effect recorded ; but whether it is not recorded in legal effect, depends upon the notice. Such a scheme as this does not merit serious consideration ; especially as it is proposed to establish it not for any purpose of giving notice of the records under the Recording Act, but merely to establish an index, which may be called a file index, or one to facilitate finding papers. Is it better that the question of record and notice shall be determined by the hlock plan of defined areas, or by the lot plan of loose and separate notices referable to changing areas, and unreliable maps ? DWIGHT H. OLMSTEAD. 245 There are also mechanical objections to the proposed lot system which, in the judgment of your Committee, would prevent its operation. To one of these objections your Com- mittee will particularly allude. And this is the attempt to establish a system of recording and indexing dependent upon notices which are referable to unreliable, variable and con- stantly changing maps. Why need there be two instruments to accomplish one ob- ject? It is difficult to say, in the proposed lot plan, which is the more important instrument, the deed or the notice. Without the former, the property would not be conveyed ; and without the latter, the property may as well not have been conveyed, as to all purposes of record, except between the immediate parties. Your Committee do not perceive how, after a brief period of time, titles can be examined with safety under such a system. It has been argued by the advocates of the lot system that this system does not change the legal eifect of recording in this State. This is manifestly an error, since, while now the legal effect of the record, as notice, depends upon the record itself, under the proposed lot plan, such legal effect is made to depend upon the accuracy of the Special notices ; so that, on the adoption of the latter system, a different law as to the legal effect of recording would prevail in the same County, or even in the same City. As to the City of ISTew York, it is admitted that the lot system could not at present be applied to much of the land north of the Harlem River; and if it should be attempted there, on account of the very uncertain surveys of that region, the titles would soon fall into inex- tricable confusion. The proposed indexing of instruments against lots not af- 246 REFORMS IN LAND TRANSFER. fected hy such instruments is also a very objectionable feature of the lot plan. And it may seriously be claimed to operate as a cloud on the title of the lots indexed against. It is admitted that grantees will ordinarily avail themselves of the permission given by the lot bill, to index, for greater safety, against lots adjoining the principal one conveyed, and this would result in as many notices being filed against single lots as there are conveyances of adjoining lots. In a short time, therefore, the accumulation of notices against each lot would be very great. And on a foreclosure or partition or other real action being brought, it would be necessary to make all junior noti- fiers parties to the same at great trouble and expense. Whether such notices are strictly clouds on the titles of the lots designated by them, or not, practically they will be con- sidered and dealt with as such. Your Committee cannot be expected to recite all the rea- sons which have been offered on both sides of this question, in the various Reports and pamphlets which have been pub- lished, but which they have carefully considered. But they are unanimously in favor of the hloch plan for the City of J^ew York, and opposed to the lot plan. Some of the considerations which have determined your Committee in favor of the hloch system may be briefly sum- marized as follows: I. That the change from Counties to lesser areas, with legally defined boundaries, is purely mechanical and does not change or interfere with the general principle or law as to the legal, effect of recording which now obtains throughout this State, and which permeates our entire real property law. II. That the principle upon which it rests, of legally de- fined areas, is correct and indisputable. III. That it does not change the ordinary and the well un- DWIGHT H. OLM^TEAD. 247 derstood methods of conveyancing, and the habits, customs, or laws of the people of the State in such matters. IV. That it is perfectly simple, easily understood and easily carried into effect. V. That its adoption would lessen the expense of and facilitate the transfer of lUnd, greatly enhance its value, and encourage its more general distribution. VI. That it would leave the law of real estate open to other reforms which may be desirable. VII. That the introduction of the block plan would be at- tended with comparatively little expense, and may be readily and quickly accomplished. VIII. That it would afford a complete and perfect remedy for the present difficulties, delays and expense, of recording and indexing. And some of the considerations which have induced your Committee to report adversely to the lot system, as proposed by the bill of the majority Commissioners, are 1. That it changes the general law of this State as to the legal effect of recording, wherever the lot plan is introduced, without any commensurate public benefit. 2. That the lot plan as proposed is extremely complicated, requiring the services of expert persons in the Registry Of- fices for its management, and that it cannot be readily under- stoodj or be conveniently or safely used by the public. 3. That the principle upon which it rests is wrong, and is destructive of the present and correct principle of recording ; which is, that the record shall speak for itself, without refer- ence to anything extrinsic, and that an instrument shall go on the record as notice for what it is worth. 4. That the Special notices to index which are required to be filed, impose upon grantees the risk of the area of search for the purpose of notice ; which should not be done, and from .248 EEEOEMS IN LAND TEANSFEE. which they are exempt under the present law of legally and visibly defined areas. 5. That the lot bill does not provide for reducing the area of search to the block, or to any smaller legally defined area ; which is the chief as well as essential, reform required. 6. That the lot system works a revolution in the habits and' customs of the people respecting real estate dealings, and which would be especially disadvantageous to small holders. 7. Even could the proposed lot system be operated for any length of time without coming to disaster, it would be doubt- ful if it would be any improvement upon the present system. 8. That the lot plan would probably immediately cause much needless expense and litigation. 9. That its introduction and maintenance would be at- tended with large and useless cost, of which no estimate has been furnished by the advocates of the measure. 10. That the system of dividing full lots into smaller ones of 17, 15 and even 12 feet in width, for small buildings which now quite extensively prevails, would tend to run the lot system into confusion. 11. That the mechanical difficulties of the lot plan as pro- posed by the majority bill would prevent its successful opera- tion. Other objections to the lot plan might be mentioned, and some of them are to be found in the reports and pamphlets before referred to. As to the Bill now before the Legislature for reindexing the records in the Register's Office, your Committee suggest that it should not be passed until the method of future index- ing is determined on, so that the present and future system of indexing may be homogeneous. Your Committee have read the majority and minority re- ports of the Committee of Seven, recently appointed by the DWIGHT H. OLMSTEAD. 349 Association of the Bar of the City of New York, upon the same subject, and are of the opinion that both reports show the impracticability of the lot planj — the report of the ma- jority of the Committee by the amendments to the lot bill which it declares to be absolutely necessary, and the minority report by its critical examination of the practical working of the lot plan. The argument of the minority report against the bills for lot indexing now before the Legislature, in the opinion of your Committee, are convincing. Some of the more populous Counties also experience incon- venience in the searching of titles. In those of sparser popu- lations there is, as yet, but little difficulty. Some Counties have incurred expense for improved methods of indexing, and may not be inclined to make any other change at present, at least. Each County knows its own wants. Therefore it has been deemed advisable, to put the power in the hands of the proper authorities, in each County, to adopt the plan of re- ducing areas from Counties to Towns or other smaller defined spaces, as they may choose. Your Committee recommended the passage by the Legis- lature of a compulsory law for the City of New York; and another law for the rest of the State, permitting the public authorities of the several Counties to reduce the local areas of their Counties for the purpose of indexing land records to to%vns, cities, city wards or city blocks, whenever it may appear to such authorities advisable so to do. Your Committee have in conjunction with some members of the ISTew York City Bar Association, drawn Bills which, they think, will meet the emergency. The Bill for block indexing as to the City of New York, has been already intro- duced into the Legislature. They have drawn another and permissive bill for the State at large, outside of New York Citv, to effectuate the views above expressed. Copies of both 360 REFOEMS IN LAND TRANSFER. bills are annexed hereto, and their passage by the Legislature is reconamended. Your Committee also recommend the enactment of a law authorizing the use of shorter forms of deeds, mortgages and leases than those now in use, to be made general and uniform for the entire State ; but that the use of the forms be not made compulsory, at least when first put upon the Statute book. It would be better in their judgment, to submit the forms, in the first instance, to public criticism and approval. The subject of general liens has' also been brought before your Committee. There is no doubt that these liens give great embarrassment to the searchers of titles. Your Com- mittee think, however, that the public is not yet prepared for their abolition. The general lien of judgments on land has for several years been abolished in England. Your Commit- tee leave it to the Association to say whether it would not be better to allow the general lien of judgments on land for a short specified time (say three or six months, or a year) to continue, so as to enable the creditor to ascertain what real estate the debtor has, and then to file his specific lien against such property as he may choose ; at which period the general lien should cease. This, however, it might be better to leave for future consideration. At all events some reform in the matter of liens is needed, so that the books to be searched for liens should be all in one and the same public office. The liens should be kept separate from the chain of title, so that, when discharged, they shall no longer be in the way of and encumber the record of the title. Your Committee think they have done all which at present could be expected of them in considering and reporting upon the subject of indexing. Although this forms but a small part of the general subject of Land Transfer Reform yet it is a most important and intricate branch of the subject, and quite new, at least in this country ; and your committee will DWIGHT H. OLMSTBAD. 351 be gratified if, by this Report, they have been able to shed any light upon it. All which is respectfully submitted. Dated New Yoek, March 14th, 1887. LUTHER R. MARSH, DAVID DUDLEY FIELD, HAMILTON HARRIS, JOHN H. V. ARNOLD, AUGUSTUS SCHOONMAKER, HOOPER C. VAN VORST, GEORGE M. DIVEN. LAND TRANSFER REFORM. The N'ew Yokk Peess in: Favoe of the Block System AND AqAIN-ST the LoT SySTEM. [From the New Yorh Daily Times, January 31, 1887.] Land Teawsfbe Eefoem. The rapidity with which certain bills designed to promote reforms in the methods of transferring titles to real estate have been pushed in the Assembly indicates a purpose of ac- complishing some results in this direction at the present session of the Legislature. Concerning most of the bills there ought to be no difficulty, and these should be passed, the sooner the better. There is not the slightest reason for delaying the enactment of laws prepared for the purpose of putting an end to the ridiculously cumbrous and prolix state- ments contained in the present forms of deeds, mortgages, and other documents affecting real estate. All that it is necessary for the Legislature to do is to decree that a few words shall take the place of many, and the thing is done. The effect of such an enactment would be to lessen, by five- sixths or more, the number of words going into future rec- ords. As the new volumes containing such records are in- creasing from year to year, the saving of time and trouble, to say nothing of paper, would be great. 354 REFORMS IN LAND TRANSFER. There should also be no question as to the adoption of bills designed to substitute specific for general liens, to pro- vide for retaining official searchers in the proper public office, and to require that all documents affecting the title to real property shall be filed in one office instead of being scattered around among a number, as is now the case. We hardly think there is much difference of opinion among well-in- formed lawyers or laymen as to these points. The proposed devices have, furthermore, been so thoroughly considered by the Bar Association and , other public bodies that there re- mains but little new to say in support of them. When it comes, however, to the matter of indexing papers affecting real estate titles there is a hitch, and the advocates of two schemes are heard from. It is conceded that the pres- ent method, which requires the indexing simply in the names of persons as grantors and grantees, mortgagors' and mort- gagees, and the like, is bad. It is likewise admitted that the indexes should be local — ^that is, the property should be in- dexed and not the persons holding title to it. It is further evident that the local indexes should restrict the search to the smallest practicable field. It is at this point that conten- tion arises. One set of men advocate what is called Lot In- dexing, while the other insist upon Block Indexing. These two methods are expressed respectively by their titles. Ac- cording to the first named there should be entered in books diagrams of single lots and parcels, and underneath them a list of the conveyances and incumbrances affecting them respectively. By the second method the intention is to take the respective city blocks as the standard and arrange the list of documents under diagrams of them. Although the immediate intention is to have the new method apply only to the City of New York, the ultimate purpose is to introduce it generally throughout the State. The importance of be- ginning such a movement aright is self-evident. DWIGHT H. OLMSTEAD. 255 A careful review of the arguments advanced by both sides in the controversy seems to indicate the Block system as the simpler and sounder. It starts on a better basis. The blocks are as fixed and immutable as the boundaries of a county. Lots are not. Mistakes under a system of lot in- dexing would be more numerous, and such mistakes under the proposed bill would be fatal. The system of lot indexing would, moreover, open the doors to frauds and impositions. It is admitted that, if the new system were to be accompanied by a State guarantee protecting a purchaser against loss, the Lot system would be preferable. But no such guarantee is contemplated. To begin a system of lot indexing would require, it is esti- mated, nearly 1300 large volumes. With the block index less than 200 would be required. Changes in the laws of doubtful constitutionality indicating the effect of registration would be required in the adoption of the Lot system. To in- troduce the Block system no such changes need be made. Then, again, if the Block system be once in vogue, it will be easy to get to the Lot system, should the latter, in course of time, by mutual agreements or judicial settlements, be made available. By beginning with the Lot system there is great danger that confusion will result, and that after a period of experiment a resort will be had again, in defense of property rights, to the present outgrown methods. In carrying out the needed reform let us begin with a certainty. This the system of block indexing affords. Every one, including the most persistent advocates of the Lot system, admits its superiority to what we have now. It may, and doubtless will be, improved in course of time, but even its adoption will be a great stride in the way of reform. 256 KEJFOKMS IN LAND TRANSFER. [From the Real Estate " Record and Guide" February 12th, 1887.] Land Law Refoem. A number of causes are at work all over the civilized world to bring about changes in our existing laws. Indeed, dis- cussions relating to landed property are constantly going on in parliaments, legislatures, as well as in books and news- paper articles, and is bringing out wide diversities of opinion as to the relations of the different classes of the commimity to the soil on which they live. Henry George's views, as ex- pressed in his works, have had a wide circulation, but his adherents outside of a few theorizers are to be found only among a certain section of the working classes. The popular demand in Great Britain is of an agrarian character. There is a disposition to give the working farm laborers an actual stake in the soil. The movement is so- cialistic in so far that it calls on the government to transfer- the titles of land from the few rich owners to the body of the working farmers. George's nationalization of the land is, so far, a mere dream. But the multiplying of the number of owners of the soil is a problem that is now engaging the earnest attention of the foremost statesmen in England. Indeed, Lord Salisbury, Lord Randolph Churchill and Mr. Gladstone are as fully committed to the desirability of peas- ant ownership of the land they work as is Mr. Chamberlain, whose views on that subject are very radical. But the question which is up for almost immediate settle- ment is a reform in the methods of transferring titles to real property. In England every legal impediment was formerly thrown in the way of conveying real estate. It was made costly, and the titles were insecure because no accurate ofBcial record was kept. But Lord Cairns' Act, already on the Stat- DWIGHT H. OLMSTEAD. 357 lite book of England, was a long step in the right direction, and now the Salisbury Cabinet, as will be seen by the Qiieen's speech, promises to bring in a bill to make the transfer of real estate easy, -cheap and certain. The British colonies in the Pacific Islands have an admirable system of transfer, as has also the Kingdom of Prussia and other German States. In this country we are also makiijg progress, and will, doubtless, in time get rid of the legal impediments to the cheap and easy transfer of realty. Heretofore the main op- position has come from ofiicials and members of the legal profession, which profited by the impediments and costs which stood in the way of transfers of real estate. But the coming into existence of companies to guarantee titles has changed the whole aspect of the case. These corporations have almost monopolized the business of searching titles in Baltimore, Philadelphia, and Boston, and they have made' such progress in New York that the real estate lawyers in self-defense are organizing a company to guarantee the titles when they are employed to make searches. The special value of these guaranteeing organizations is that they render original researches unnecessary. A title once guaranteed is negotiable ever afterwards without going to the expense and waste of time of a tedious research every time a property changes hands. There is now before the Legislature the bills drawn by the Land Transfer Eeform Commission. One calls for a short form of deed. If this is passed it will put an end to the useless multiplicity of words in our local records. As to the other bills there was a division of opinion among the Commission — one member favoring block and the others lot indexing. We have published a great deal on this vexed question without expressing any decided views of our own. We are inclined to believe, however, that the block system 358 EEFOEMS IN LAND TEANSPEE. should first be tried, for reasons whicli we find very well stated in a recent issue of the New York Times: Theoretically the lot system of indexing deeds and mort- gages is the ideal system, and yet, according to the report of the Eegistrar-General at Melbourne, Australia, it appears they are a good deal troubled in the British colonies with re- gard to conflicting boundaries of adjacent parcels, and large sums of money are being spent for surveys. As the advo- cates of the block system point out, what is necessary for a local index is a certain outline or boundary — ^this we have without expense in the established blocks of our city, as shown on all our tax maps. These boundaries we cannot have for lots without surveys ; and 180,000 lots at $15 each is $2,700,- 000 for surveys alone. The committees of the Bar Association of this city and this State are now discussing this matter, and it is to be hoped they will reach some definite conclusion. Let us make haste slowly. We cannot afford to make a mistake. The block system would be an immense improvement on the present sys- tem, and if that worked well we could make another step in advance. [From the New York Mail and Express, February 19, 1887.] Land Teansfee Kefoem. At a meeting of the Bar Association last evening the committee of seven that was appointed recently to look into the question of land transfer reform made its report, or rather reports, for there were two of them, as there always are when this question is discussed. The difference in the committee occurred, as usual, on the respective merits of the DWIGHT H. OLMSTEAD. 259 " block " and the " lot " system of indexing transfers. Two of them favor the former plan, while five prefer the latter. The differences between these two systems have been dis- cussed pretty freely in our columns, and the relative simplic- ity of the block system is so apparent that whatever the lawyers may think of it, the ordinary layman will be apt to prefer that method which renders transfers the easiest and least expensive. In this respect there is no comparison be- tween the two systems. The " block " index requires compara- tively few volumes, secures title as absolutely as anything can, and renders searching the matter of a few minutes' work. The lot indexes could be worked only by experts ; they would require many volumes, and the titles would be apt to get very much mixed. As to this last point, and the more purely legal aspects of the question, Mr. E. B. Hinsdale said last evening that the only lot maps of this city were confessedly unreliable. They were also subject to constant and curious changes. With these maps under the lot system a man's neighbors could make him no end of trouble, and he would have to be constantly on the alert to see that a slice of his property was not taken off. This would hardly be safe in a place like 'New York, where one foot of land might be of such immense value. Then, too, imder the block system as under the present system a boy could carry the needful documents to the Registrar's Office and a transfer would be safely settled, but if the lot plan was adopted the trouble would only begin where now it was ended. It would be no mean undertaking to attempt to educate the people up to that system, and in the attempt interminable confusion would be sure to spring up. This is only one of the difiBculties of the " lot " plan, but it is an insurmountable and unanswerable one. The two reports of the Committee are to be printed and distributed among the members of the Bar Association, and the subject will be considered again, and perhaps a vote will 260 EEFOUMS IN LAND TllANSFBE. be taken, at the March meeting. When this topic was first mooted in the Association the members took little interest in it, and apparently took no pains to understand it, and the fact that a majority of the Land Transfer Reform Commit- tee was in favor of the " lot " plan was decisive in its favor. Then, too, whatever argument there is in the idea that trans- fers of land should not be made easy, but should be kept in a complicated condition, so that nobody but lawyers can effect them, and then at a considerable expense — all this was in favor of the lot plan. Now, however, the subject is becoming clearer, and its importance is more generally recognized ; and there are many lawyers who have none of that professional feeling of which we have spoken, which desires to keep all law a sealed book to the people, to be opened only with a golden key. We are confident that in the end the simpler plan will prevail, both in the Bar Association and in the Legislature. [From the New Yorh Times, March 2, 1887.] Real Estate Indexing. The Bar Association of this city is engaged just now in try- ing to determine whether it should recommend to the Legis- lature the lot or the block system of indexing as the basis upon which to build a reform in the methods of transferring title to land. Last year the association took a very languid interest in the matter, and by a majority of three votes, at a very slimly attended meeting, recommended the lot system. This year the attention of lawyers has been called to the subject a little more thoroughly, and the result has been to change the current of opinion most decidedly. The Bar Association took up the subject again, appointed a commit- tee to examine the bills before the Legislature, and proposes to take some action that shall fairly represent the opinion of the profession and of the intelligent public. DWIGHT H. OLMSTEAD. 261 Two reports have been made to the association by the com- mittee. The majority report recommends the lot system as preferable. The minority report favors the block system. These reports will be the subject of discussion at a meeting to be held next Tuesday evening. It is believed that if a full attendance is had, the minority plan in favor of the block system will be adopted. Meanwhile, and apparently with a view to precipitating matters, the Judiciary Committee of the Assembly, which has charge of the pending bills on the subject, is reported to have arranged for hearing arguments in advance of the Bar Asso- ciation meeting. There is no occasion for undue haste in this matter. No plan which proposes to change the system of transferring titles to real estate should be adopted except after a most thorough and careful inquiry. It is not a time nor an occa- sion for the haphazard enactment of doubtful or imprac- ticable schemes or hobbies. A mistake in litigation on the subject may result not only in endless litigation, expense and annoyance, but it may seriously threaten the value of realty in this city. It is everywhere conceded that the adoption of the block system will be an immense improvement on the one now in operation. Taken in connection with the other proposed laws on the subject of land transfers it will result in saving more than one-half of the time and money now consumed in selling or otherwise transferring real estate. If the adop- tion of the lot system were practicable it might prove a fur- ther aid in the same direction. The difficulty, however, lies in its avowed impracticability in existing circumstances. A parallel is found in the discussions concerning high license and prohibition. On the one hand is a method which will mitigate if it will not wholly remove most of the existing evils. On the other is a scheme which, if it could be carried 363 EEi'OKMS IN LAND TRANSFEK. into operation, might prove even a greater success, but which in the nature of things cannot be put to the test. Is it not wise to take half a loaf if no more can be had ? The advocates of the lot system have, since last year, been obliged to modify their scheme in many particulars. Even they have found that the plan, as originally introduced into the Legislature, will not work. They still adhere, however, to the project of using the notoriously untrustworthy and changeable tax maps to designate the boundaries of property. Under such a system instruments affecting realty would have to be recorded against all the adjacent property, and persons having a perfect title would be liable at any time to be hailed before the Tax Commissioners to defend such title. The door would be opened to all manner of frauds, and even the greatest of care would not suffice to prevent the making of serious errors. In point of fact even those members of the Bar Association's Committee who favor the lot system do not favor the adoption of the bill before the Legislature which is designed to carry this system into effect. To put the lot system in operation it will be necessary furthermore to make some material changes as to the effect of registration of in- struments, and these changes are in the direction of com- plexity. The minority report of the Bar Association's Committee is valuable especially because of its conservatism. It de- clares only in favor of adopting the city block as a unit. A volume is to be given to each block, and the area of search for instruments affecting property on that block is to be re- stricted to that volume. The adoption of such a measure would be a good beginning. If in the future the system of indexing by lots is made practicable, the change to that may be easily and inexpensively made. But there is no use in trying to put it into operation when its "effect will be to in- crease litigation and to cast clouds upon the titles to real DWIGHT H. OLMSTEAD. 2G3 estate. It would be better to cling to the present antiquated method than to resort to one which is likely to prove more troublesome and expensive. [From the New York Commercial Advertiser^ March 12, 1887.] The impression that the lot system of indexing real estate records is being urged in the interests of certain large con- veyancing firms is strengthened by the formation of a title insurance company, which embraces three of the authors of the bills and nearly all of the advocates of the lot system. This will tend more strongly to convince the disinterested that the result of the system, if adopted, will really be to make the need of a lawyer in all such transactions greater even than it is now, and the title insurance absolute to protect one in using the system. [From the New York Herald, March 18, 1887.] The Land Teansfee Refoem — Result of Study. Realty owners and trustees of estates which absorbing in- terest the proceedings of the Legislature in regard to the proposed land transfer reform and the new method of index- ing deeds. They have noticed with surprise the important action of the Bar Association during the week when in a large meeting of the ablest real estate lawyers the lot system was recommended to the Legislature by a mere majority. This is regarded as quite a revulsion in feeling. Only a year . ago that same Bar Association almost unanimously favored the lot system of indexing, and the block system had very 364 EEFOEMS IN LAND TRANSFEK. few friends. This year in a meeting of over two hundred members the block system had 94 votes and the lot system 120. The feeling among the conservative real estate men is gaining ground that while with the growth of New York some reform is necessary in the mode of indexing deeds, it is best not to go too fast. That feeling is apparently also shared by the more experienced lawyers. They claim that, naturally, next to the division of the land in counties, cities or towns, comes the division in blocks. The block has fixed boundaries the same as the city, the same as the county. The city lot known as. 25x100 feet has no fixed boundary. In fact, it occurs almost daily that a builder buying four lots, say 100x100, divides these four lots in six lots before build- ing upon them and then erects thereon houses having a smaller frontage. The boundary of a lot, therefore, depends upon the will of the owner, not upon the will of the municipal authorities, whose power in fixing the block boundary is su- preme. IProm the New Yorh Tribune, March 18, 1887.] Bills Affecting Eeal Estate. Few of the bills now before the Legislature more directly or vitally concern property-owners in 'New York than those relating to new methods of recording and indexing instru- ments affecting real property. The proposed legislation has grown out of a real and pressing need. Land transfer re- form in this city has become an actual necessity. If the old cumbrous system should continue many years longer, it would soon be, if it is not already so, a dangerous as well as most laborious undertaking to search and pass upon titles to real estate on Manhattan Island. DWIGHT H. OLMSTEAD. 265 But in establishing a new system it should clearly appear that it is not a change from one bad method to another as bad or worse; and also that the necessity for the reform is not made the occasion by unscrupulous politicians of engrafting upon the proposed laws provisions for political purposes. If there are any statutes that should be kept clear of such influ- ences, those of this character are among them. The bills now pending that propose to institute what is distinguished as the " Lot System " of indexing instruments affecting real prop- erty may accomplish all that has been claimed for them by their most ardent advocates, and if so they should be passed. But some circumstances surrounding them must not be lost sight of, and certainly demand that action upon them be de- liberate and that the claims of the friends of the measure be clearly substantiated. It is certain that their enactment will throw a large amount of new patronage into the hands of Governor Hill and his friends, and that the expense to the city will be great. "What sum that expense will eventually reach it is impossible to say, but some of the estimates place it at figures sufficiently high to be startling. The view of its practical working taken by many of the most prominent and conservative members of the ISTew York Bar is also deserving of consideration. These have stated in the most positive manner their conviction that to establish the " Lot System " in the way proposed would lead to a condition of affairs much worse than the present. This feeling has even led to the formation of an association from their members, for the purpose of opposing these bills, with men of the character of Aaron J. Vanderpoel and Henry L. Clinton among its chief officers. The " Block System " which is advocated by Dwight H. Olmstead, one of the Land Transfer Commissioners, in the place of the " Lot System," is apparently free from these defects, whatever others it may_have. The only one that has 266 EEFOKMS IN LAND TRANSFER. been urged against it is that it does not go far enough — does not accomplish enough. Those members of the committee of the Bar Association who approved of the " Lot System " were unanimous in the holding that the " Block System " " would be a vast improvement " over the present method. It is claimed that its practical effect is to reduce the extent of search upon a piece of real property from the entire City and County of New York to the exactly defined limits of a- single city block, and practically to make the searching of titles in New York simpler than in any rural locality. The Legislature will be required to pass upon these two methods. An extraordinary haste has been manifested in some of the efforts made to advance the " Lot System " bills to speedy enactment. This is no case for hasty action. The result will affect too many millions of value to be disposed of lightly. Let the fullest investigation of the merits of the two plans be had, and then a decision reached that will sus- tain the strongest practical test. [From the Netv York Tribune, April 25, 1887.] The Land Transfer Eefoem Bills. . If the Legislature does not reach a speedy determination on the question of the adoption of the " lot " or " block " system of indexing land transfers in this city, it will not be for lack of opinions and briefs from high authorities. The " block system " has had especially able and influential advo- cates. The recent report of Willis S. Paine carries additional weight, because made in his official capacity as Superintend- ent of the Banking Department. The difficulty with the lot system appears to him chiefly to lie in the fact that the city lot, which is taken as the unit, has ill-defined limits, is subject DWIGHT H. OLMSTEAD. 267 to frequent changes and often is inaccurate in measurement. Moreover, as the indexes must be based upon existing tax maps, which are notoriously inaccurate and liable to frequent alterations, titles will be constantly affected by conflicting claims of adjoining owners. Some of the language used by Mr. Paine is strong. After giving instances, he declares: " Such cases show the confusion, unfounded claims to adjoin- ing property, and probability of vexatious litigations that naturally will result from the adoption of the lot system." On the other hand. Superintendent Paine thinks that " the block system unites the virtues of simplicity and definiteness. The block area is known to all, and as a rule is unalterable. * * * This system restricts searching; and with a name index for each block, a search would be the labor of a few minutes. * * * The adoption of this system would be a most desirable reform." The opinion of the State Bar Association, as expressed in the unanimous judgment of the committee appointed to consider the subject, is no less emphatic. This committee was composed of men of experience and wide reputation, in- cluding ex-Judge Hooper C. Van Vorst, Luther K. Marsh, David Dudley Field, John H. Y. Arnold, Hamilton Harris, Augustus Schoonmaker and George M. Diven. When ex- perts of such character as they, after careful consideration, unanimously report that the lot system is wrong in principle, complicated and impracticable, and that the block system, on the other hand, is " perfectly simple, easily understood, and easily carried into effect," and that " it would afford a complete and perfect remedy for the present difficvilties, de- lays and expense of recording and indexing," the members of the Legislature can scarcely treat the matter with indiffer- ence. The briefs of Commissioner Olmstead, Henry L. Clinton and others have also served to call the attention of the New York lawyers as well as Assemblymen and Senators to 268 EEFORMS IN LAND TEANSl'ER. the needs of land transfer reform, to the dangers of the lot system and the merits of the block system. The effect has been seen in, the rejection by the Assembly of the Lot System bill by a decisive vote. But it ought to go further and secure the speedy cure of the existing and expanding evil§ of land transfer in this city, by the prompt adoption of the bills already introduced embodying the features of the block sys- tem. It is admitted on the part of all that they would work a great and necessary reform without any accompanying evil consequences. Why not enact them at once ? THE NEW YORK BLOCK INDEXING ACT as Passed and now in Operation in the City of New York." An Act to Peovide foe Recoeding and Indexing Instett- MENTs Affecting Land in the City of N^ew Yoek ACCOEDING TO CiTY BlOCKS OE OtiIEE LiMITED AeEAS. Chapter 349, Laws of ITew York, 1889, June Sd. As amended by Chapter 166, Laws of 1890, April 23d. The- People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Every, instrument affecting real estate or chat- tels real, situate in the City and County of !N'ew York, which shall be recorded in the office of the Register of said city and county, on and after the first day of January, one thousand eight hundred and ninety-one, shall be recorded and indexed pursuant to the provisions of this act. § 2. Upon the passage of this act the board of taxes and assessments of said city is hereby authorized and directed to prepare a map of said city, on which shall be shown ayd delineated all the streets, avenues, roads, boulevards, park- ways and water fronts of said city, and also all blocks or par- cels of land bounded by said streets, avenues, roads, boule-'- vards, parkways and water fronts, subject, however, to the next following section. The word " block," as used in this act, designates a plot or parcel of land such as is commonly so designated in the City of ISTew York, wholly embraced lA similar Act has been passed for the County of Kings (Ghap. 536, Laws of 1893), and is now in operation there. 270 EErOEMS IN" LAND TEANSPEE. within the continuous lines of streets, or streets and water front taken together where water forms one of the boundaries of a block, and such other parcels of land or land under water as inay be indicated by said board of taxes and assessments upon said map by block numbers as constituting blocks. § 3. The said board of taxes and assessments shall also cause said maps to be subdivided into land sections for the use to which said map is to be put, as by this act provided, and shall cause the division lines of said several sections to be exhibited on said map, and shall cause said sections to be numbered on said map from number one consecutively up- ward for as many sections as shall appear on said map. There shall be eight of such sections south and west of the Harlem river, and as many of such sections north and east of the said Harlem river as said board of taxes and assess- ments shall determine. The center line of the Harlem river and Spuyten Duyvil improvement channel shall form the boundaries of the sections fronting thereon. § 4. The said board of taxes and assessments shall also cause the blocks or parcels of land shown on said map to be numbered thereon by block numbers from one consecutively upward, provided, however, that they may cause the land in said city, lying north of one hundred and fifty-fifth street, and north and east of the Harlem river, including the twenty- ttird and twenty-fourth wards of said city, to be divided into parcels and numbered on said map by block numbers in such way as they may think best, in order to carry out the general intent of this act, and such parcels shall be considered as blocks for the purposes of thi^ act. The numbers of said blocks shall commence at the southerly part of said city, and shall thence be continued northerly as near as may be. § 5. For the purpose of notice under this act, each block shall be deemed to extend to the middle line of the streets, avenues, roads and boulevards then and thereafter laid out DWIGHT H. OLMSTEAD. 271 on said land map fronting and adjoining such block, and shall also be deemed to extend to the exterior bulkhead line where water forms one of the boundaries of a block. And the said several sections and blocks shall, for the purpose of this act, be such as are fixed and laid down on said land map by said board of taxes and assessments. In cases where the blocks are small, two or more of them may, in the discretion of said board, be included in one block having a single block number. § 6. The said board of taxes and assessments shall cause five copies of said map to be made and shall certify the same under their respective hands and shall file one copy of said map in the. office of the Register of the City and County of [N'ew York, one in the office of the clerk of said city and county, one in the office of the receiver of taxes in said city, one in the finance department of said city and one in the department of taxes and assessments in said city; and upon said map being so certified and filed, it shall be and become a public record, and shall be known and designated as the land map of the City of New York. § 7. Such number of any of the aforesaid maps as the board of estimate and apportionment of said city may direct, shall be printed by said board of taxes and assessments for sale at a price fixed by said board of estimate and apportion- ment, and the proceeds of such sale shall be paid into the city treasury, to the credit of the general fund for the re- duction of taxation. § 8. The Register of the City and County of ISTew York is hereby directed and required immediately upon the com- pletion and filing of said map in his office to cause to be pre- pared one or more books for each of said sections for the indexing therein under the proper block numbers and block diagrams of all instruments now required by law to be re- corded in the books of conveyances. The said Register shall 2T3 KEFOKMS IN LAND TEANSFEE. also cause to be prepared one or more books for each of the said sections for the indexing therein under the proper block numbers and block diagrams of all instruments now required by law to be recorded in the books of mortgages. Said in- dexes when completed shall be deposited in the office of said Eegister. They shall be prepared so as to contain the names of the parties to each instrument, the date of recording the same, and the liber and page of the record thereof, and shall be in substantially the forms of the schedules hereto annexed, designated respectively Schedule A and Schedule B, which schedules are to be deemed and taken to be a part of this act. Said books shall be entitled block indexes of conveyances and mortgagees respectively, and shall indicate the sections and blocks to which they shall respectively relate, and the said books shall be public records. § 9. It shall be the duty of said Register to provide and keep in his office besides said land map and block indexes, books to be entitled the daily index of conveyances and the daily index of mortgages, together with books of record in which shall be recorded at length conveyances and mortgages recorded in his office, each of which shall be endorsed with its proper liber number as well as with the number of the section to which it shall relate, and which shall contain the record of instruments relating to land in that section. § 10. Every instrument presented to said Register for record and requiring to be indexed under this act after the date when this act shall go into operation in order to entitle the same to be recorded, shall contain in the body thereof, or shall have indorsed thereon to be recorded therewith, a desig- nation of the number of every block on the said map in which the land affected by the instrument lies. Every assignment of a mortgage and every agreement respecting a mortgage, to entitle the same to be recorded, shall contain in the body thereof, or shall have indorsed thereon, to be recorded there- DWIGHT H. OLMSTEAD. 273 with a designation of the number of every block on the said land map in which the land lies which is affected by the mortgage to which such assignment or agreement relates. And the record of the instrument shall not be effectual by way of notice to hona fide purchasers or incumbrancers in respect to any land situated in any block not so designated, except as hereinafter provided in section sixteen of this act.^ § 11. Whenever any instrument affecting or relating to land in said city entitled to be recorded and required to be indexed under the provisions of this act shall be presented to said Register for record, he shall forthwith indorse thereon the date, hour and minute of its receipt by him, and enter in the proper daily index the name of every party executing the said instrument, the date of the record thereof and the number of every block designated, as aforesaid for the in- dexing of such instrument, and within ninety days thereafter shall cause the said instrument to be indexed in the proper book or books of block indexes under the block number and diagram of every block so designated. § 12. In the certificate of said Register now required to be indorsed on instruments recorded by him he shall certify, in addition to the other matters required by law to be stated therein the number of every block on said land map imder which the said instrument has been indexed. § 13. The entries made in said indexes, in conformity with the requirements of this act, shall, for the purpose of notice, be deemed and taken to be a part of the record of the instru- ments to which such entries respectively refer, and shall be notice to subsequent purchasers or incumbrancers to the same extent and with like effect as the recording of such instru- ments in the office of said Register now is or may be notice. iThe following form of endorsernent was drawn by me and has since been in use in New York and Brooklyn. " The land affected by this instrument lies in Section Y in Block 1961 on the Land Map of the City of New York (or Brooklyn)."—!). E. 0. 274 EEFOEMS IN LAND TRANSFER. § 14. Said Kegister, on and after the first day of Jan- uary, eighteen hundred and ninety-one, shall keep in his office for each section alphabetical indexes containing lists of the names of all grantors and grantees of land entered from time to time on the block index of conveyances in such section in his office, referring after the names of said grant- ors and grantees to the liber and page of the record of the several instruments to vs^hich they are parties and to every block affected by said instruments. Said Register shall also keep in his office similar alphabetical indexes of mortgagors and mortgagees whose names appear upon the block indexes of mortgages. Said Register shall prepare the books for such alphabetical indexes, and in lexicographical or such other form as he may think proper, but said last named in- dexes shall not be deemed or held to be a part of the record of the instruments to which they refer, for the purpose of notice or otherwise, nor shall they be deemed to constitute notice of said instruments, or of the contents thereof. The indexes provided for in this section shall be in lieu of the general indexes now required by law to be kept in the office of said Register. § 15. Whenever, after the making of said land map, any new or additional blocks of land shall be formed in said city by the opening or closing of any street, avenue, road, boule- vard parkway or otherwise, it shall be the duty of said board of taxes and assessments to cause new maps of such new or additional blocks to be made, and such new or addi- tional blocks to be numbered on said maps, with block num- bers following in consecutive order the highest block number on the maps or the block indexes immediately previous thereto, and to certify such new maps and file them in the same offices as the previous land maps. On and after the first day of January next succeeding the making and filing DWIGHT H. OLMSTEAD. 375 of any such new map, the indexes of all blocks theretofore existing, comprising the land in the new blocks so formed as aforesaid, shall, except for the purpose of completing the indexing belonging to the preceding year, be closed and dis- continued, and a new index shall be opened for every such new block in the form herein prescribed, which new index shall thenceforth be used for all entries relating to land in such new blocks. The date of closing shall be entered on the map previously in use and at the end of every index on the block indexes so discontinued, with references to the number of every new block to be used in place thereof, and the date of opening shall be entered on the new map so made and filed, and at the beginning of every such new index with references to the number of every block before in use for the land con- tained in such new block ; and on and after the said first day of January said maps, so filed as aforesaid, shall constitute a part of the land map of said city and become public records, and the recording and indexing of instruments relating to land shown thereon shall be subject to the provisions of this act, as to the manner of indexing as hereinbefore provided, and the legal effect of such recording and indexing. The numbers and boundaries of blocks and sections shall not be changed except as is in this section provided. § 16. In cases where any instrument shall have been re- corded without such designation as is required by section ten of this act or with an erroneous designation, the said Reg- ister shall, on presentation of proper proof thereof, enter such instrument in the proper index, under the proper block num- ber of every block, the designation of which shall have been erroneously stated or omitted, and shall, at the same time, make a note of such entry and of the date thereof in every place in which such instrument may have been erroneously indexed, opposite the entry thereof, and also upon the record of the instrument and upon the instrument itself, if the same 276 EEFOKMS IN LAND TEANSFEE. be in his possession or produced to him for the purpose, and the record of such instrument shall be constructive notice as to property in any block not duly designated at the time of such record oisy from the time when the same shall be prop- erly indexed. § 17.' No entry in any book or index in said Kegister's Office shall be erased so as to be illegible, but in case of any correction the same shall be made without destroying the original entry by drawing a line through such original entry, and in all such eases the date of such correction attested bv the signature of the register or his deputy shall be entered upon the same page on which such correction is rhade, on the margin opposite such correction. § 18. Any person presenting to said Register an instru- ment for record binder this act shall pay to said Register, in addition to the fees now required by law for recording like instruments, the further siim of twenty-five cents for each block under which such instrument is required to be indexed, and the like sum of twenty-five cents for each block shall be payable whenever an instrument already recorded is required to be indexed under section sixteen of this act. § 19. The provisions of this act shall not apply to the in- dexing of general assignments, wills, powers of attorney, executory contracts for the sale or purchase of land or satis- factions of mortgages, except as in the next section provided ; but such instruments shall be filed or recorded as now re- quired by law, and when recorded they shall be indexed in separate alphabetical indexes. § 20. Whenever there shall be filed with the said Register a satisfaction of any mortgage which has been indexed as herein provided, the Register shall forthwith enter upon the index of such mortgage the date of the filing of the satisfac- tion of the same and the liber and page of the record thereof in the form shown for such entry in said Schedule B. DWIGHT H. OLMSTEAD. 377 § 21. The board of estimate and apportionment of the City of ISTew York is hereby authorized and directed from time to time to determine the amounts of money which may be required to carry out the provisions of this act until the first day of January eighteen hundred and ninety-one, and to ap- propriate said moneys therefor, and said comptroller is authorized to raise such money from time to time, by the issue of revenue bonds of said city, and the amount of bonds shall be included in. the final estimate for the next succeeding year. § 22. JSTo expenditure shall be made or obligation incurred under any provision of this act until an appropriation there- for shall have been made by the board of estimate and ap- portionment of said city, nor in excess of any such appropri- ation. § 23. Chapter seven hundred and eighteen of the laws of one thousand eight hundred and eighty-seven, entitled " An act to provide for the recording and indexing of conveyances and instruments relating to land in the City of New York according to limited areas," and acts amendatory thereof, and all other acts and parts of acts inconsistent with this act are hereby repealed, but all existing acts, so far as this act is not inconsistent therewith, except chapter seven hundred and eighteen of the laws of one thousand eight hundred and eighty-seven, shall be deemed to remain in force. § 24. This act shall take effect immediately, but it shall not go into operation as to recording and indexing and the legal effect thereof, until the first day of January in the year one thousand eight hundred and ninety-one when it shall go into operation accordingly. 278 EEFOEMS IN LAND TEANSFEB. SCHEDULE A. JORM OF BLOCK INDEX OF CONVEYANCES. Section I, Block 140. NAME OF STREET NAME OF STREET CONVETANCKS. Grantors. Grantees. Date of recording. Remarks. Liber. Page. Richard Eoe William Black Eichard Eoe James White Robert Moore William Black John Young Robert Moore Francis Hart Francis Hart Thomas Scott Henry Brown Lewis Green DWIGHT H. OLMSTEAD. 379 SCHEDULE B. FOBM OP BLOCK INDEX OP MORTGAGES. W rt H Section I, w Block 140. fa M S <1 NAME OF STREET NAME OF STREET Mortgagors. Mortgagees. If MORTGABBS. 11 SATISFACTION. 1 Liber. Page. Liber. Page. 1 Eichard Roe Robert Moore William Black.... Francis Hart Ira Smith James Dunn Emil Smith Amos Wright .... Samuel Jones Charles Clute Henry Burke John Flint ' , Ira Smith Thomas Scott THE AMERICAN BAR ASSOCIATION LAND TRANSFER REFORM WITH AN EXPLANATION OF THE NEW YORK BLOCK-INDEXING ACT A PAPER READ BY DWIGHT H. OLMSTEAD OF NEW YORK AT THE Thirtkknth Annual Meeting, August 20, 1890 \Refrinted from -the Report of the Transactions of the Association] LAND TRANSFER REFORM WITH AN EXPLAIfATIOJST OE THE NEW YOEK BLOCK-INDEXING ACT. A Papeb Kead Before the AiMEEiCAif Bae AssociATioisr.. at Saeatoga, August 20, 1890, by Dwight H. Olmstead. Object of the Reform. It is the object of Land Transfer Keform, by making the transfer of land simple, inexpensive and safe, both to render the title to land more secure and to enhance its value. It can readily be understood what advantage vs^ould accrue to land could it be sold and transferred in the open market with the same convenience and certainty as to the title as are regis- tered railroad or United States bonds. That much, at least, it is proposed to accomplish by this reform. How far titles to land can be made, or it is worth while to make them abso- lutely unimpeachable is an open question. Although some consideration will hereafter be given to this question, its solu- tion is not essential to the main purpose of the reform. So difficult is it to pass laws which change, or which even appear to interfere with, the habits and customary dealings of a people, that it is likely this reform will not be brought about by any sudden movement, or by the enactment of any single code, but that it will occur through the adoption of separate statutes enacted from time to time as they receive intelligent public approval. That we are fast coming not only to free 383 REFORMS IN LAND TRANSFEK. and untrammeled ownership in land, but also to free modes of transferring it, notwithstanding the communistic theories respecting land which to some extent prevail, is obvious. Feudal tenures were but a modification of the primitive idea of land held in common under the supervision of the Chief or State ; but the tendency of modern times is more and more to individual, separate and unrestricted holdings. This tend- ency may be observed in the legislation, which is being advo- cated both in England and in this country, to apply to real estate, so far as practicable, the same rules of transfer and transmission which have been found so safe and convenient in dealing with personal estate, and generally to treat both real and personal estate alike in the single sense of property. Respecting this matter. Sir Henry Maine, in his valuable work on Ancient Law, says : " The history of property on the European continent is the history of the subversion of the feudalized law of land by the Romanized law of movables ; and, though the history of ownership in England is not nearly completed, it is visibly the law of personality, which threat- ens to absorb and annihilate the law of realty." How to bring about this result, and with the least friction or change in the usual methods of dealing with land, is the problem to be solved. This paper will at the outset give a short history of the re- form in Europe and in this country. It will then comment upon the subjects of Registration, Indefeasible and Guaran- teed Titles, and Indexing, giving an explanation of the Block- Indexing Act which is to go into operation in the City of !N^ew York on the first of January, 1891, and conclude with a statement of the particular reforms which are recommended to be adopted in connection with the transfer of land. DWIGHT H. OLMSTEAD. 383 I. History of the Reform. In England. For the past fifty years the project of simplifying the titles and transfer of land has received great attention in England. In the year 1854 a royal commission was created to con- sider the subject. The report of this commission, made in 1857, was able and full so far as it discussed the principles of land transfer which had been developed to that date. It recommended a limited plan of registration of title. This report, and the report of the special commission of the House of Commons of 1879, have been the foundation of most of the subsequent British legislation upon the subject. Among the more prominent acts passed may be named Lord West- bury's Act of 1862, which attempted to establish indefeasible titles; Lord Cairns' Land Transfer Act of 1875, which pro- vided for guaranteed titles upon preliminary examinations; the Conveyancing and Law of Property Act of 1881, which established the use of short forms of conveyances ; and Lord Cairns' Settled Land Act of 1882. The report of the select committee of the British House of Commons of 1879 was valuable, and contained, among other recommendations, the following: the use of short forms of transfer; the appointment, on the death of an owner, of a real (or realty) representative, with powers corresponding to those of a personal representative ; the making of a cadastral or general land survey for the purpose of identifying prop- erty; the establishment of district registries, with an official searcher for each district ; and that priority of title be accord- ing to registration, except in case of actual fraud. The rec- 284 EBFOEMS IN LAND TRANSFER. onimendations of the cadastral survey and of short forms for transfers have both been carried out, the prescribed short forms being now in common use in England. The land sur- vey is nearly, if not quite, completed, and will form an inval-' uable basis in England for indexing. There are only two counties in England in which convey- ances of land are recorded — namely, Yorkshire and Middle- sex — and in those counties the same rule of notice prevails as is recommended in the report of 1879. In all other counties transfers of land are made by delivery of title deeds. A land transfer bill, prepared by Lord Halsbury, the pres- ent Lord Chancellor of England, intended to simplify titles and transfer, has been introduced into the House of Lords for the past three successive years, but its passage up to this time has been defeated by the strenuous opposition of the English bar. This bill is an attempt to establish indefeasible titles by compulsory registration, somewhat after the plan of the Torrens Act. In Continental Europe. Throughout continental Europe the title of land, as a rule, is transferred on a public register. Sometimes, as in Russia, Austria, Hesse, Denmark and Sweden, the transfer is made on the authorization of local courts. In all governments on the continent there is an official supervision of transfers. In Prussia the title can be proved only by the register, and pri- ority of registration determines the priority of title. In Europe, outside of Great Britain, the priority of title by registration is generally the rule. Usually, governmental guarantee does not exist, but the title is protected by regis- tration, official supervision, and by judicial decrees made on transfers. dwi6ht h. olmstead. 285 The Toeeens System. Mention should be made of the Torrens system of land transfer, of which Sir Robert E. Torrens is the author. This system is in use in New Zealand, Australia, and in most of the British colonies, and in a qualified form has lately been introduced into the Canadian provinces of Ontario and Mani- toba and the Northwest territories. The peculiar feature of the system is the guarantee of titles by the government made upon preliminary examinations, supported by an assurance fund derived from a small impost upon transfers. The title, as shown upon a certificate of title issued by the Registrar, is guaranteed by the government. This system contains many valuable provisions. Thus, the rule that no transfer shall be actually made except upon the register, thereby avoiding the question of notice, and also the rule that defects of form prescribed by law shall not defeat a transfer once entered upon the register, if the deed shows an intent to convey, and there was, in fact, a consideration paid — -these rules, like many others of the same general character embodied in the system, are sound. But the objections to the Torrens system are serious and fundamental. Not only is the machinery devised to operate it cumbersome and compli- cated, and not to be entrusted to any except expert officials, but its method of attempting to establish indefeasible titles and its plan of indexing are both fatally defective, as will hereafter be shown. In the United States. The history of Land Transfer Reform in the United States is confined, almost exclusively to matters which have occurred in the State of New York during the past ten years, and which culminated in the passage of the Block-Indexing Act 386 REFORMS IN LAND- TRANSFER. for the City of New York of 1889. In January, 1882, a re- port was made by a special conunittee of the Association of the Bar of the City of New York, which had been appointed to consider and report what changes, if any, should be made in the manner of transferring title to land in the city and State. The committee reported that by reason of the accu- mulated records in the offices of the County Clerk and Reg- istrar of deeds of the city, " searches practically could not be made in those offices," and recommended the appointment of a State commission, which should consider and report a mode of transferring land free from the difficulties of the present system. The report was adopted by the association, and during the same year like recommendations were made by the Chamber of Commerce and by real estate and other associations of the city. This was the beginning of a long contest in New York for land transfer reform. Subsequent events in that contest were closely connected with the reform of indexing, the course of which will be given in a subsequent part of this paper. II. REGISTEATIOlirj INDEFEASIBLE AND GUARANTEED TiTLES. As already stated, the main object of land transfer reform is to render titles to land secure to the several owners as titles pass from one owner to another ; that is to say, to make titles certain and indefeasible in the real owners. This brings up the subjects of registration and of indefeasible and guaran- teed titles as attempted to be established under the Torrens and other registration systems. DWIGHT H. OLMSTEAD. 387 EEGISTEATIOTiT. The registration of deeds or assurances, as understood in England, is the method of recording common in this country. Under this method the title passes to the grantee immediately upon the delivery to him of the deed or other instrument of transfer. And the recording of the instrument merely serves to give notice to subsequent dealers. But under the Torrens system of the registration of titles, the title, after being subjected to a judicial investigation by the Registrar, is " registered " by him. Such registration consists of an entry on the public land register in the registry office of a description of the property, the name of the owner and the nature and condition of the title. The Registrar then issues a " certificate of title " to the owner, certifying to the facts entered on the register, which the government guarantees to be true. Sometimes an assurance or indemnity fund, derived from a charge on transfers, is established, which is the pri- mary fund to look to in case of loss. When a transfer of land is to be made, the seller surrenders his certificate of title to the Registrar, accompanied by an authorization to him to make the transfer, and the transfer is thereupon entered on the register, and a new certificate of title is made out and given to the new owner. A peculiar feature of this system is, that after a title is once registered, no subsequent dealings with the property are recognized unless and until entered on the register, the plan being indicated by the phrase, " JSTo transfer, except upon the books," in analogy to the method of transferring stocks. Deeds of conveyance, as we regard them, are not used in this system, transfers being made effec- tive only by registration. There are two prime advantages to this method: one, that all question of notice is avoided, the transfer and the notice of the transfer being simultane- 288 EEFOEMS IN LAND TEANSFEE. ous; and the other, the assurance of an official supervision over transfers by the government. Indefeasible Titles. The subject of indefeasible titles has relation to the condi- tion of a title prior to its registration, and the difficulty with registering titles arises not so much from dealing with land in the future as in the past. A title, in order to be absolutely indefeasible, must be such in fact and in law as is entered on the register, and in every registration system thus far tried the effort has been made to settle the title by the aid of a decree. But since no decree can be made not liable to be impeached for want of jurisdiction, as for a defect of par- ties, it follows that absolutely indefeasible titles cannot be arrived at in that way. Besides, no title which has here- tofore for any considerable period of time been dealt with according to the common law, can with any certainty as to its condition, be entered on a register without careful and relia- ble preliminary examination. All registry of title systems provide for such examinations. They may be made in coun- tries where transfers have been few and the ownerships large and capable examiners are employed, with comparative safety. But it is obvious that in such large cities as I^ew York, where there are not far from 200,000 titles to land sep- arately held, or even in smaller cities, prior examinations sufficiently reliable on which to warrant judicial decrees or State guarantees would be impossible. In short, the Torrens System is not practicable, at least in this country. It is a question whether public policy will justify the guar- antee by the State of titles to land, and whether such guaran- tee would not be an unfair discrimination against personal estate. For why should the State be called upon to make DWIGHT H. OLMSTEAD. 389 good the title to a lot of land any more than to a share of corporate stock ? ASSUEAKTCE FfiTO AND TiTLB GtTAEAKTTEE COMPANIES. As for an assurance fund, such a fund could not be safely established apart from a system providing for preliminary examinationa. It has been suggested that title guarantee companies might be resorted to for protection. But what is needed is the adoption of such a system of transfer as will fully and suifieiently protect the public without these aids. How Titles May be Made Secuee and Teansfees Safe. There seems to be no course left to perfect titles, except to follow a plan like that suggested by Mr. W. Strickland Cook- son in 1857, which is to place possessory titles on the register pursuant to an affidavit of the supposed owners as to their condition, and to allow them to mature by lapse of time, careful official supervision being given to intermediate trans- fers. And thus, at length, by the aid of a short statute of limitations intended to cut off suits relating to past trans- actions, and of a few laws to facilitate and protect future transfers, we would arrive at titles practically indisputable, or at least marketable. ISTo other method of approximating indefeasible titles is possible, unless the State is prepared to guarantee at the outset the title all the land lying within its boundaries, in which case the public would rely upon the guarantee rather than upon the validity of the titles. The proposed plan of Mr. Cookson is substantially followed by Mr. Charles F. Brickdale in his book on Registration of Titles to Land, published in London in 1886. This plan is 390 EEFOKMS IN LAND TRANSFER. also approved in the Statement of the Land Laws hy the Council of the Incorporated Law Society of the United King- dom (London, 1886), which considers very fully and satis- factorily the whole subject. III. Indexing as Connected with Land Teanspeh Eefoem. In the opinion of the writer, the only safe and practicable way of effecting land transfer reform is to begin at the foun- dation stone, which is indexing. All true reforms in land transfer must be built upon a scientific mode of indexing. This subject is considered in the remainder of this paper. General Principles of Indexing. What is the purpose and proper method of indexing ? In recording in a public Registry Office instruments relat- ing to land, two objects are sought to be accomplished — one, to preserve evidence of dealings and thus to prevent mistakes, and the other to give public notice of dealings and thereby to prevent fraud. Such a record cannot be made avail- able for either purpose, however, unless a method of index- ing is adopted which will enable a person, conveniently, inexpensively and with certainty to inform himself as to all instruments recorded in the Registrar's Office affecting the property in which he may be interested. If the record is to serve the purpose of notice upon which priority of title may depend, then such conditions are indispensable. The diffi- culty of indexing records increases with their number, and DWIQHT H. OLMSTEAD. 291 to such an extent has this evil grown in the large registry- districts throughout the country that some remedy must be applied or our recording acts must be repealed. This is the problem which has confronted the City of New York, and it was a serious one. In the Kegistrar's OfEce of the City and County of JSTew York are recorded at the pres- ent time^ about 25,000 deeds and mortgages annually. This- vast bulk of pape . is still growing, and their great number, together with the changes of names of landowners constantly occurring through marriage, divorce, the adoption of new names and the varieties in spelling, especially of foreign names, render searching in that office not only impossible by the general public but unsafe even for expert searchers. Con- sequently we see springing up a crop of title guarantee com- panies, while the conveyancing lawyers combine themselves into opposition guarantee companies, and official Registrars issue circulars linderbidding both sets of companies for busi- ness. The evil referred to is a growing one as population and transactions increase, and without the application of an efficient remedy every city in the Union must ultimately be subject to it. The Kemedt foe an Oveegeowit Index. What is the remedy for an overgrown index of the records in a public land office ? This question we will now proceed to answer. The remedy, and the sole and only remedy, consists in reducing by statute the existing areas of search to lesser areas of search, and by providing that recording and indexing under each of such new lesser areas shall be of the same legal force and effect as was the recording land index- ing under the large area. Thus, the Legislature may enact to substitute for the county area of search the areas of the 393 EEFOEMS IN LAND TEANSFEE. several towns in the county. And as the area of each town is less than the entire county area, so an index of instruments recorded in the town would be proportionately smaller than an index of all the instruments recorded in the county. In short, a small index is easily examined, while a large index is not, and by reducing the size of the areas of search we reduce the size of the index. And this reduction may proceed to such an extent that the index is the least of the difficulties connected with recording. But in respect of the area of search this condition must be observed, without which such reduction of areas would be futile if it is desired to give no- tice by the index (which is essential), viz. : The -areas of search rnust he fixed by law, and it must also he required that the registration of instruments shall he made under their proper areas of search, and in default thereof, that such reg- istration shall he without legal effect as notice. It follows that such areas must possess definite, permanent and visihle boundaries, or such as are capable of being ascertained by survey. Aeea of Seaech. We are now preparing to give a somewhat formal definition of the terms " area of search " and " local index." An area of search, technically defined, is an area of land with definite boundaries, established or authorized by statute, under which instruments " pertaining thereto " are by law required to be indexed in order that efficient notice of them may be given to dealers in land under the recording act. An index of such instruments is called a local index. Areas of search may be large or small, as the Legislature may direct. The entire State may constitute an area of search, as was the case in the early history of this State, or such areas of search may be counties, or towas, or govern- DWIGHT H. OLMSTEAD: 393 mental sections of land, or fractions of a section, or election districts, or city wards, or even city blocks. Observing the necessity of definite, permanent boundaries, it becomes a question of convenience. All things being equal, large areas of search are safer than small areas. Moreover, small areas of search increase the work in a registry office. In a sparsely settled country it is not requisite that areas of search should be as small as in thickly-populated regions. And then in some cases it may be desirable to adopt boundaries with which neighborhoods are familiar, such as wards or the boundaries of tovms, rather than to adopt new areas especially surveyed and monumented. COMMISSIOWEES OP LaND TeANSFEE AND ThEIE KepOETS. In the year 1884, in conformity with the various requests which had been made, the Legislature of the State of iSTew York passed an act authorizing the governor to appoint commissioners to prepare and report to the Legislature a bill to facilitate and lessen the expense of transferring land in certain cities of the State. (Laws of 1884, chapter 324.) In pursuance of this act, Mr. Cleveland, who was then gov- ernor, appointed five commissioners, of whom the writer was one. By the terms of the act the commissioners were per- mitted to confine their labors to the City of New York, which they concluded to do. They held their first meeting in the fall of 1884. Indexing was the first subject which engaged their attention, as being the most pressing and important. It was unanimously agreed that the proper relief for the diffi- culty arising from the large number of recorded papers con- sisted in the use of smaller areas of search than the county area. The size of these new areas was the net point con- sidered. All the commissioners except the writer decided to 294 EEFOEMS IN LAND TEANSFEK. recommend for areas of search the areas of individual o^vner- ships represented by lots laid down on the city tax maps, connected with a certain scheme of notices, while the writer advocated indexing by the areas of city blocks. Hence it was that two reports to the Legislature were made, one in favor of so-called lot indexing, the other in favor of block indexing.' The reports were accompanied by bills intended to put the respective methods in operation. Explanation of the Peoposed Plan of Lot Indexing. The plan of lot indexing of the four commissioners of land transfer was as follows: In order to avoid the difficulty of the possible lack of cor- respondence between the diagrams of the lots shown on the city tax map, proposed to be used as areas of search, and the lots as actually owned, the lot plan provided that each grantee, on recording his deed or mortgage, should record with it a designation of the lot or lots on the tax map which he claimed such instrument to affect, and the Registrar was to be required to index the instrument under the diagrams of the lot or lots so indicated ; and as to ail property covered hy the instrument lying in other lots not so designated, the instrument was to he, in legal effect, unrecorded. In other words, the grantee or mortgagee was himself, by this scheme, to fix the area of search for the instrument so recorded. Some of the objections to the scheme were : 1. The areas of search would be fixed by the individual grantees, and hence might be variable for successive convey- ances of the same property. No rule of recording under which notice is given by the record can be made applicable to changeable and shifting areas of search. 2. Areas of search must be statutory, and have reference DWIGHT H. OLMSTEAD. 39 S to the rule of notice which is by statute made applicable to them. Therefore the areas must possess certain boundaries and be established hy statute as areas of search before an effi- cient system of recording can go into operation. The proposed plan of lot indexing was in certain respects similar to that of the Torrens and other like systems of re- cording and indexing under the areas of the individual own- ers. In those systems, however, the boundaries of the several ownerships are ascertained by examinations of the title and by surveys, and are declared by judicial decrees to which all persons interested are intended to be made parties. But if there has been an insufficient examination of the title or an error in the survey, or the decree is impeachable for the non- joinder of necessary parties then the boundaries cannot be relied on for safe indexing, where priority of title is made to depend upon the priority of the record. Consequently, record- ing and indexing by the areas of property, ownerships must- always be imperfect and unsafe, since neither examinations of title, surveys nor decrees can ever be conclusive. It is the uncertainty of the boundaries of ownership which renders any system of indexing by them uncertain and unreliable. Of course, where boimdaries have always been identical with monumental boundaries, as in case of sections and fractions of sections of government land, there can be no trouble in indexing by such parcels, since in such cases the indexing is in fact by definite areas. Therefore the block plan of indexing was advocated instead of the lot plan, because " in order to give notice of land dealings hy a public record, the areas of search used for the purpose must have fixed, perma- nent and ascertainable boundaries, established by statute in connection with the statutory rule, that in order to be fully notified to the public, instruments must be indexed under the several areas of search which they affect." This was the same principle upon which recording and indexing had 29G EEFOEMS IN LAND TEANSFER. always been conducted in this State, and it seemed clear that it could not be changed. The conclusion necessarily was that safe indexing required the use of definite statutory areas of search and the retention of the present system, as against the plan of indexing by the areas of ownerships, whether fixed by judicial decree, as under the Torrens Sys- tem, or by the use of notices designating the areas of search, for which the four commissioners had provided by their bill. It was also objected that the mechanical difficulties of in- dexing under variable axeas of search would be insuperable. Kepoet of the Special Committee of the Bar Associa- tion OF THE Statj; of JSTew York. On March 14, 1887, a special committee of the Bar Asso- ciation of the State of New York, consisting of Messrs. Luther E. Marsh, David Dudley Field, Hamilton Harris, John H. V. Arnold, Augustus Schoonmaker, Hooper C. Van Vorst and George M. Diven, to whom the subject had been referred at the previous annual meeting in January, made their unanimous report in favor of block indexing. The fol- lowing are extracts from their report : " The principle of recording referable to definite areas is undoubtedly correct, and any attempt to record instruments in violation of that principle must lead to disaster and great detriment to real estate. " By substituting therefor the area of the city block, bounded by legally defined visible stnd permanent lines, for the present county area, we can record and index under blocks in the same manner and siibject to the same law of recording as to its legal effect as we now record and index under counties. We simply change the machinery, reducing DWIGHT H. OLMSTEAD. 297 the county area to the block area, but we make no change in the principle of recording nor in the general law of the State as to its legal effect." The following is the final finding of the committee upon the respective merits of the two plans: " Your committee . . . are unanimously in favor of the block plan for the City of ISTew York, and opposed to the lot plan. Some of the considerations which have determined your committee in favor of the block system may be briefly summarized as follows : " I. That the change from counties to lesser areas, with legally defined boundaries, is purely mechanical, and does not change or interfere with the general principle of law as to the legal effect of recording which now obtains throughout this State and which permeates our entire real property law. " II. That the principle upon which it rests of legally de- fined areas is correct and indisputable. " III. That it does not change the ordinary and well- understood methods of conveyancing and the habits, customs or laws of the people of the State in such matters. " IV. That it is perfectly simple, easily understood and easily carried into effect. " V. That its adoption would lessen the expense of and facilitate the transfer of land, and greatly enhance its value and encourage its more general distribution. " VI That it would leave the law of real estate open to other reforms which may be desirable. " VII. That the introduction of the block plan would be attended with comparatively little expense, and may be read- ily and quickly accomplished. 398 REFORMS IN LAND TEANSPER. " VIII. That it would afford a complete and perfect rem- edy for the present difficulties, delays and expense of record- ing and indexing." The report then recounts some of the reasons which in- duced the committee to report adversely to the lot plan, only two of which will be given, viz. : (1) " That the lot bill does not provide for reducing the area of search to the block or to any smaller legally-defined area, which is the chief as well as essential reform required." (2) " That the mechanical diffi- culties of the lot plan, as proposed by the majority bill, would prevent its successful operation." The committee " recommend the passage by the Legis- lature of a compulsory law for the City of New York, and another law for the rest of the State, permitting the public authorities of the several counties to reduce the local areas of their county, for the purpose of indexing land records, to towns,, cities, city wards or city blocks, whenever it may appear to such authorities advisable to do so." This report concluded the legal controversy which had arisen between the respective advocates of the lot and block plans of indexing. The New Yoek Block-indexing Act of 1887. (Laws of 1887, chap. 718.) A block-indexing bill for the City of New York was in- troduced into the Legislature by friends of the block plan during the year 1887. It passed both houses without seriou? opposition, the vote in the Assembly being 70 to 12, and in the Senate 23 to 4, and it became a law by the approval of the governor. The bill provided for the preparation of a record book for each city block, in which were to be entered DWI6HT H. OLMSTEAD. 299 all the records relating to such block, and each book was to contain a nominal index of the records in that book, to be bound with the book. So that, in respect of any lot in a block, by consulting the block book all the recorded papers relating to such lot could at once be found. This plan, while correct in principle as confining the areas of search to blocks, required the preliminary preparation of a large number of blank record books, at least 6000 of such books being re- quired in which to record deeds and mortgages for the 3000 blocks south of the Harlem Eiver. Although it was obvious that in this respect the act would ultimately require amend- ment, those who prepared it urged its passage as a step in the right direction and as the only bill which could then be passed, which was undoubtedly true. Governor Hill ap- proved of the main features of the bill and signed it. In relation to this, as well as to other like bills which have come before him, he has shown himself a friend of these reforms. It being found inexpedient to make up the large number of blank record books for which the act of 1887 provided, the writer, in the following year, at the request of certain of the city authorities who were favorable to the block system, pre- pared a new bill upon the lines of the bill accompanying his report to the Legislature in 1885. The bill was introduced into the Legislature early in 1888, but on account of the great opposition to it from the hostile interests named, which succeeded in postponing its passage that year, it did not be- come a law until 1889. It has been amended in some small particulars the present year, and goes into operation on Jan- uary 1, 1891. It should here be stated, in justice to those commissioners who had previously somewhat vehemently ad- vocated the lot plan of indexing, that some of them rendered valuable aid in perfecting the block bill just mentioned, and that two of them united with other prominent lawyers in a memorial to the Legislature recommending its passage, it 300 EEFOKMS IN LAND TRANSFER. being understood that a third commissioner also approved the bill, and would have signed the memorial except for his absence from the city. The New York Block-indexing Act of 1889. (^Laws of 1889, chap. 349.) The time at our disposal will not permit us to do more than to refer briefly to the provisions of this act of 1889. It is founded on the principle, which has been explained, of small statutory areas of search in lieu of the county area. And a , jump has been made at once from the entire county area to the lesser areas of city blocks bounded by streets and avenues. Possessing fixed and permanent boundaries and being of small and fairly uniform size, they serve the purpose admira- bly of areas of search. The correct principle upon which such reductions of areas of search may be made is clear. This, however, is the first time in history that an attempt has been made to index public land records under so small areas as city blocks, apart from the faulty method of the Torrens and other guarantee systems of indexing by the areas of individual ownerships. The new act, besides reducing the legal areas of search to blocks, provides for two principal me- chanical appliances in order to put the system in operation, one of which is the making of a complete map of the city, on which are to be laid down all the city blocks, each block num- ber having its appropriate and permanent block number. This map is again to be subdivided into sections, and there will be thirteen sections for the present city. All the books relat- ing to land in any section will be indorsed with their section number, as well as their block numbers, and should he hept together in separate alcoves. So that, whatever may be the D WIGHT H. OLMSTEAD. 301 after-growth of the city, the separate sections will constitute independent registry districts, and independent offices may be established if desired. The other mechanical process di- rected by the act is the preparation of the index books, the form of which is prescribed by the act and is novel. In order to avoid mistakes of indexing, it is directed that at the head of each index of a block shall be placed a diagram of the block, showing its section number, its block number and the names of the bounding streets. Under the block diagram will be entered references to the liber and page of the recorded in- struments. There will be separate indexes for deeds and mortgages. Under this scheme the index books will be made up separate from the record books, as at present, and each volume of the indexes should contain about 250 pages or in- dexes for each twenty-five blocks. Afte:r these indexes have been put in use next January, a person wishing to learn what deeds or mortgages have been recorded affecting any partic- ular lot in a block will only need to look in the index book under the diagram of the block in which the property is situated, where he will find at a glance a reference to all pa- pers which have been recorded affecting that block. The act requires a person filing an instrument for record to indicate, either in the body or by indorsement, under what section and block it is to be indexed, and it is to be indexed by the Reg- istrar accordingly, and if this direction is not complied with the record of the instrument is by the act without legal effect. It is this provision which constitutes the block the legal area of search. The consequence will be that, as to all instru- ments recorded in the l^ew York Registrar's Office on and after January 1, 1891, searching, as now conducted, will be abolished. As to prior records, searching will be continued until they shall have been re-indexed on the block plan, which, it is contemplated, will be done at an early day. In confirmation of the importance of the index in connec- 302 EEFOEMS IN LAND TRANSFER. tion with registration, we cannot do better than to quote from the report of the special committee of the British Hoiise of Commons upon the subject, made in 1879 : " A really good index is the first essential to the success of every system of land registration. Such an index ought to be at once so simple that any one consulting it might at once be referred to every instrument affecting the property in which he is interested, and so accurate and complete that any person exercising ordinary care and endowed with ordi- nary intelligence might feel sure that no information to which he ought to have had access had escaped him." It, is obvious that the indexes should be of such form and plan that they can be operated by any Registrar who may be elected to office, and that they should be convenient, not alone for lawyers who may become familiar with them, but for the general public as well. Important Omissions from the Block Bill. In the original block bill prepared by the writer were the three following important provisions, which it became neces- sary to strike from the bill in order to secure its passage : 1. A provision for a block index of unpaid taxes and as- sessments, in which it was to be the duty of the clerk of arrears of the city to enter all taxes and assessments unpaid at the expiration of three months from confirmation. And the receiver of taxes was required, upon the requisition of any person and the payment to him of one dollar, to give a certifi- cate of such unpaid taxes and assessments on any lot, which should be conclusive upon the city. 2. A provision for the retention of original searches in the Registrar's Office, and the issue of a " certificate of search " by him after the Scotch plan. A reference to the book and DWIGHT H. OLMSTEAD. 303 page where such original searches were to be found was to be entered in the block index opposite the name of the owner at the time the search was made. 3. A provision for entering, in the block indexes, judg- ments and decrees transferring or changing titles. One of the subsequent bills also contained a provision for re-indexing the past records in the offices of the Registrar and County Clerk in the City of ISTew York upon the block plan. These provisions should now be enacted into laws. Paeticulae Eefoems Recommended. The following are some of the more valuable reforms which could with advantage accompany and be superadded to the block system of indexing in this country : These reforms are the same as those before recommended. Benefits of the Rbfoem. We have thus endeavored to explain some of the important measures connected with land transfer reform. Should they be carried out in this country, as is probable sooner or later will be the case, the effects will be far-reaching. To cap- italize land, to turn its value into the channels of trade, is to enrich this country beyond computation. It means enor- mous wealth to our commercial cities and prosperity to the cultivators of the soil. Take the City of New York for in- stance. Make it possible for the owners of real estate in that city to convert it into money with the same facility and free- dom from expense as personal assets are converted, and to borrow money on it at the bank or elsewhere as readily as it can be borrowed on the security of .railroad bonds, and the 304 REFORMS IN LAND TRANSl'EK. market value of land in that city would be enhanced enor- mously. That great and powerful influences will come in conflict with this reform cannot be doubted, since to make land more desirable for investment is to render personal se- curities less so. But in an agricultural country like this, whose chief wealth comes from land, the interests of the land owners will ultimately prevail. DWIGHT H. OLMSTEAD. 305 FORM OF BLOCK INDEXES. Form of Block Index of Conveyances. Section i. Block 40. NAME OF STREET NAME OF STREET Grantore. Grantees. Date of record. Conveyances. Remarks. Liber Page Eichard Eoe William Black Robert Moore Richard Eoe James White 306 KEFOKMS IN LAND TKANSFEB. Form of Block Index of Mortgages. NAME OF STREET H H Section i. Block 40. W H CD H 40. Z :< NAME OF STREET Mortgagors. Mortgagees Mortgages. Discharges. Liber Page Liber Page Richard Koe James Davis. . . . Robert Moore Emil Smith William Black.... Joseph Wright. . , Explanation of the New York Block Indexing System. The Section Map. The Block Map and the Indexes. The E"ew York Block Indexing Act (Chap. 349 of Laws of 1889, June 3d, as amended by Chap. 166, Laws of 1890, April 23d) requires a map of the entire city to be made, on which shall be delineated all the city blocks and the bound- ing streets (Sec. 2) ; that the blocks shall be divided into sections, eight in all, and numbered from one consecutively upward (Sees. 3, 4) ; and that the section and block num- bers shall be permanent (Sec. 15). The object of the block index is to reduce the area of search for instruments recorded from the county to the block, applying to the block area with its fixed and permanent boundaries, the same law of recording which was previously applied to the county area. That is to say, the law must not only direct such indexing to be done, but it must also declare its legal effect, precisely the same as was done by the statute applicable to county indexing. The act under which block indexing has been carried on in the New York County Clerk's Office for liens filed since January 1, 1894 (as I have been informed by the Comptroller of the city), and also in the Kings County Clerk's Office, does neither. It neither directs such indexing to be done, nor does it declare its legal eifect, nor is it carried out " upon the block plan of index- ing," as such method is understood, and it is therefore worth- less. I have several times called attention to this defect in the law, but so far without avail. (See Chap. 536 of the Laws of 1893, applicable to New York County, and Chap. 365 of the Laws of 1894, applicable to Kings County.) 308 REFORMS IN LAND TRANSFER. The block system requires the diagram of a block, showing the bounding streets, to form the heading of each index, and also that whoever files an instrument for record shall indorse it with its block number, and take the risk of its correctness. The diagram of the block at the head of each index is of itself a most effectual protection against erroneous indexing, and the indorsed notice is a stiU further protection. The following forms of indexes Were devised by me in 1884, and were annexed to my report to the Legislature made April 17, 1885. They were copyrighted by me May 29, 1884, in order to prevent unauthorized changes in them. They were not, however, the ones afterward adopted, but more simple ones of like general form, providing for index- ing deeds and mortgages only. The method of block indexing is simple. The first map following this general explanation is a portion of the sec- tion map which itself serves as an index to the block map, and the second map is a copy of a part of the block map. I^ow suppose the owner of a lot of land situated on the N^orth side of 120th Street, between the Boulevard and Am- sterdam Avenue, wishes to examine the title to his property, he looks first at the section map and' sees that the property lies in Section 7,. and is among the blocks from ITos. 1901 to 2005, which are to be found on page 20. He turns to page 20 of the land map (which shows the blocks) and finds that his property is in Block ISTumber 1975. He then goes to the printed block indexes and turns to the page of his block (which for greater certainty is headed with both the dia- gram and number of the block), and on the conveyance index he finds entered all the recorded deeds, and on the mortgage index all the recorded mortgages; and were there a block index of special liens kept he would find on that index an entry of all other liens (called caveats) filed against his property. If a Certificate of Search should be in use. DWIGHT H. OLMSTEAD. 309 the searcher has only to ask the Kegistrar for the last certifi- cate filed to see at a glance on it an official statement of all dealings with the property up to the date of the certificate. The system of block indexing should now be carried out so as to include the indexing of all specific liens on real estate as well as mortgages, according to my original plan. It is true the adoption of this "entire scheme would end offi- cial searching, not only for deeds and mortgages, but for all other liens except the General Lien of Judgments, which should be abolished. Its effect would be to benefit the real estate owner and increase the value of his property, for what- ever cheapens and renders more expeditious and convenient the transfer of land, obviously enhances its market value. The system of block indexing has now been sufficiently tried to warrant its extension to all recorded liens, which would complete the indexing reform and leave the way open to other desirable improvements in Land Transfer. SUGGESTIONS FOR AEEAl^GEMENT OF UsT- DEXES BY SECTIOlSrS AND BLOCKS TO ACOOM- PAISTY BILL PREPAEED BY DWIGHT H. OLM- STEAD FOR BLOCK INDEXING IN THE CITY OF NEW YORK. SECTIONS. I II III IV V VI VII VIII IX X XI XII Blocks Blocks Blocks Blocks Blocks Blocks Blocks Blocks Blocks Blocks Blocks Blocks 1 251 601 751 1,001 1,851 1,501 1,751 8,001 2,851 2,501 2,751 to to to to to to to to to to to to 850 500 750 1,000 1,350 1,500 1,750 8,000 2,850 8,500 2,750 3,000 There are about 3000 blocks below the Harlem River, to be divided into 12 Sections. 250 Blocks in each section. 250 Pages in each Index Book. 25 Blocks in each Index Book. 10 Pages assigned to each block (average). 10 Index Books of Conveyances to each section. 10 Index Books of Mortgages to each section. 120 Index Books of Conveyances for the 12 sections. 120 Index Books of Mortgages for the 12 sections. DWIGHT H. OLMSTEAD. 311 All books to be indorsed with the number of the sections to which they belong. The Index Books are to be kept in the sections to which they respectively belong. The Libers of Conveyances and Mortgages the same. Also all other books the same. In the City of New York the conveyances average about five to each block yearly. The same as to mortgages. The Index Books for the several sections will therefore, it may be assumed,, last for at least 30 years and upwards. When full, another set can be commenced. The Libers of Conveyances and Mortgages should be num- bered consecutively, commencing with No. 1, and the blank record books be supplied to the sections as needed. Thus the 12 sections will commence with only one blank record book for conveyances and one for mortgages for each section ; and the system will be put in opera- tion with only 24 blank Record Books of Conveyances and Mortgages for the 3000 blocks to commence with south of the Harlem Kiver, instead of 6000 blank rec- ord books as provided for by the present Block Indexing Act. (Act of 1889.) Under the above method each section will have its own alcove, containing its own Indexes and Record Books of Con- veyances, Mortgages and Maps. There will be at the outset 10 Index Books of Conveyances and 10 of Mortgages in each alcove. Note. — The books for New York were printed according to the above suggestions, and are to be kept in separate sections and alcoves in the new Hall of Records now being erected, on the plan proposed, which will prove of great con- venience to those examining titles. !---3fiM3AV ^ ^-SnflWfl^OO— ' — XUVd 3aiSil3AliJ UJ CD < Q_ o o I- CD O O C\J o Q STREET in o o o CJ CM t- UJ o o < Dl o Z 111 o z 111 CD STREET 314 J REFOEMS IN LAND TEANSFEK. anNHAV KvaHaxsMV w o o 1^ o O a 9 ■ s d s s ^ (M in CD 3 ■SmpioDsa ^ CO « -m' °° joat^a fss* s § <,j m - P ,.■ s «^ 1 -2 H . O i a 13 a ^^ fc a h a 1 , Francis abeth B. , Charles ^^1 ^.5 s 3:2 1 g^y ^ B 1 a'avAancnoa r tn P3 DWIGHT H. OLMSTEAD. 315 Form of Local Block Index foe Indexing Teawsfeks OF Land and Certificates of Title. Section IV, Block 1420. < NINTH STREET. 1420. EIGHTH STREET. Parties. Book. Vol. Fol. Date of Registration and of Certificate. Ward or Lot No. John Doe to Eichard Doe. Transfers Certificates. 1 2 4 6 1886, January 2. 3 Richard Doe, by Geo. Sharp, Sheriff, to William Black. Transfers Certificates. 10 8 1866, March 1. 3 James White to Robert Moore. Transfers Certificates. 21 16 9 62 1887, April 20. 10 William Black, by oel Toiing, Executor, to John Jones. Transfers Certificates. 40 11 1890, September 19. 3 Robert Moore, by Mary Moore, Heir, to Frank Hart. Transfers Certificates. 77 84 3 34 1891, May 1. 10 Frank Hart to Thomas Scott. Transfers Certificates. 101 112 5 86 1892, November 1. 10 Henry Erown to Ira Smith. Transfers Certificates. 200 140 10 7 1892, November 5. 6 Ira Smith, by Charles Clute, Attorney, to Lewis Green. Transfers Certificates. 220 145 8 3 I803, March 4. 6 316 EEFORMS IN LAND TRANSFER. FoEM OP Local Block Index foe Indexing Liens on Land and Caveats. Section IV, Block 1420. > < X NINTH STREET. 142 O. % a: eighth street. Parties Nature of lien or claim Book Vol. Fol. When Regis- tered Ward or Lot No. When Dis- charged Vol. Fol. Registered Owner Caveator Richard Roe to James Dunn Mortgage Mortgages 4 3 1886 Jan. 6 3 1887 March 8 10 8 Registered Owner Caveator Robert Moore to Emil Smith Lease Leases 30 4 1888 April 1 10 Registered Owner Caveator William Blacli ads. Amos Wright Attachment Caveats 5 12 1889 Oct. 8 3 1890 Mayl 14 1 Registered Owner Caveator Frank Hart ads. Sam. Jones Notice of Action Caveats 6 4 1891 June i. 10 Registered Owner Caveator Ira Smith to Charles Clute Power of Attorney Powers 1 8 1892 Nov. 7 6 Registered Owner Caveator Ira Smith ads. Henry Bnrke Execution. Caveats 14 8 1893 Feb. 2 6 1893 March 1 18 9 Registered Owner Caveator Thomas Scott ads. John Flint Mechanic's Lien. Caveats 15 8 1893 March 4 10 MEMOKANDUM. The Books of Transfer are intended to contain only trans- fers of freehold interests by deed or decree, and all such transfers are to be indexed upon the Index of Transfers. Liens and notices affecting land are to be entered in books separate from the transfers, and indexed upon the Index of Liens. Entries in the indexes are to be made in the order of registration. The title to any lot may be traced on the Index of Transfers, either by the names of the owners or the lot numbers. The liens may be ascertained in like manner by reference to the Index of Liens. All persons filing liens or notices are called Caveators. A Certificate of Title will amount, substantially, to a Cer- tificate of Search, on which will be noted the last transfer and all subsisting liens; or, if required, all previous regis- tered transfers and liens up to its date; the original to be kept in the Registrar's Office in permanent form for the bene- fit of succeeding owners. It will be found convenient to divide cities into sections, numbering all the blocks seriatim from one upward, and arranging the records, maps and in- dexes so as to keep those relating to the different sections dis- tinct from each other. The advantages of this plan of index- ing are: 1. It enables transfers of any lot of land, and the liens on the same, to be readily found in the Registrar's Office. 2. It keeps the liens separate from the chain of title, and shows when they are discharged. 3. Searchers against any lot are confined to a single block. 4. It lessens the labor and expense of searching. 5. It reduces the bulk of the indexes. 6. AVith ordinary care, errors in indexing are impossible. ISTew York, May 1, 1884. '•'"'>^-'-i'''t-