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 Registerina titles to land. ,A,..f,^|5iS?.||,9|t 
 
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 3 1924 032 428 496 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924032428496 
 
EEaiSTEKING TITLE TO LAND. 
 
 A SERIES OF LECTURES DELIVERED AT YALE 
 
 BY 
 
 JACQUES DUMAS, LL. D., 
 
 PBOOmiBUS DE LA Bt^PUBLiqUE AT RSTHEL (FRAHCB). 
 
 STOBBS LECTtXBES FOB 1899-1900. 
 
 CHICAGO: 
 
 CALLAGHAN AND COMPANY. 
 
 1900. 
 
 TATW 
 
H 'O 
 
 COPYKIGHT, 1900, 
 BY 
 
 CALLAGE AN & CO. 
 
 STATE JOXmNAL PRINTING COMPANY, 
 
 Peihtkrs and Ster^Sotvpers, 
 
 madison, wis. 
 
TO THE 
 
 HONORABLE SIMEON E. BALDWIN, 
 
 JUDGE OP THE SUPREME COURT OP EREOBS OP CONNECTICUT, 
 
 AND PROFESSOR OF CONSTITUTIONAL LAW IN 
 
 YALE UNIVERSITY, 
 
 THIS WORK IS RESPECTFULLY DEDICATED, 
 
PUBLISHERS' NOTE. 
 
 The system of registering title, originally introduced in 
 Germany in 1722, and afterwards (1857) independently worked 
 out into practical form by Sir Robert Torrens for South Aus- 
 tralia, has been now adopted by three of the United States — 
 Illinois, Ohio and Massachusetts. Some of its features have 
 already become, and others soon must be, the subject of judi- 
 cial decision in our courts. (See People v. Chase, 165 IlL 527 ; 
 State V. Guilbert, 56 Ohio St. 575; People v. Simon, 176 lU. 165; 
 Tyler v. Judges, — Mass. — , 55 N. E. R. 812.) The purpose of 
 this work is to state the general history of public registration 
 of land titles in other countries, and the merits of this system 
 as compared with that of recording the conveyances under 
 which title may be claimed. 
 
 The author has made the subject a special study for years, 
 and the results were summarized in a course of lectures de- 
 livered on the William L. Storrs foundation before the Law 
 Department of Yale University, in April, 1900. These are given 
 in this volume substantially in their original form. 
 
 Dr. Dumas has also published on this subject a brief article 
 in the Revue Politique et Parlementaire for September, 1898, 
 entitled " Le Nouveau Regime de Publicity des Droits Reels en 
 Angleterre," and other articles on the same subject in the 
 Mevue d' Eoonomic Politique. 
 
 Chicago, August, 1900. 
 
TABLE OF CONTENTS. 
 
 LECTURE L 
 
 Page. 
 
 General View of the Subject of Registration . 9-28 
 
 Land registration in various countries . . 10 
 
 Creditors 13 
 
 Ownership SO 
 
 LECTURE IL 
 
 Countries Where Registration is Carried Out 
 
 IN A Complete Way 29-44 
 
 German-speaking states 33 
 
 LECTURE IIL 
 
 The English System op Registration . . . 45-65 
 
 LECTURE IV. 
 
 The French System of Registration . . . 66-83 
 
 Donations 68 
 
 Mortgages ...;.«.. 69 
 
 LECTURE V. 
 
 Other Countries, and General Review of the 
 
 Subject 84^102 
 
 Tunis 84 
 
 Canada 85 
 
 Canton of Vaud 88 
 
 Belgium 89 
 
 Scotland 93 
 
EEGISTERING TITLE TO LAND. 
 
 LECTURE I. 
 
 A GENERAL VIEW OF THE SUBJECT OF REGISTRA- 
 TION. 
 
 Gentlemen: 
 
 My first duty in occupying this chair to-day 
 must be to express my deep gratitude to the corpo- 
 ration of your celebrated University, for appoint- 
 ing me this year as Lecturer according to the 
 WilUam L. Storrs foundation. I must sincerely 
 confess that I feel quite unworthy of the great 
 honor bestowed on me, and at the same time quite 
 unequal to assuming the responsibilities of such 
 an appointment. I beg, therefore, the indulgence 
 of all who shall gather here to attend these lec- 
 tures; and I plead quite guilty of an imperfect and 
 defective knowledge of your language. We are 
 much too severe in France on foreigners who at- 
 tempt to speak our tongue, and we only realize 
 when we go abroad ourselves how very difficult it 
 is for us to express correctly an idea in any other 
 than our native tongue. 
 
10 REGISTERING TITLE TO LAND. 
 
 The subject of my lectures is, as you are already 
 informed — 
 
 Land Registration in Yarious Countries. — As 
 
 you know, registration of title to land is nothing 
 more or less than the entering of titles into public 
 books, with this two-fold object: 1st, that he whose 
 title is registered should have no cause whatever 
 to apprehend ejectment; and 2d, that he alone 
 who is registered as an owner of right should 
 be able to give to a third person title to any part 
 of the same immovable property. The first ques- 
 tion to be answered on such a subject is this: Why 
 should land be registered at all ? That is to say: 
 Why should titles or deeds relating to land un- 
 dergo the formalities of registration, with all the 
 expense and inquiry that registration may re- 
 quire ? 
 
 This primordial question, which in former times 
 remained unthought of, even among lawyers, has 
 now a more and more considerable place in the 
 minds of every class of people: of all those who 
 may have to deal with land as sellers or as pur- 
 chasers; as creditors or as debtors; as entitled to 
 real property by legacy or by inheritance; or as 
 having to do with it as members of the legal pro- 
 fession, or simply because of their theoretical inter- 
 est in problems of legislation. Such a growing 
 interest is not merely accidental. It is owing to 
 the services that registration can render not only 
 
GENERAL VIEW OP SUBJECT. H 
 
 to owners of land, but to all those having rights of 
 mortgage, easement, way or water, or any other 
 servitude on real property. As I have said, the 
 main principle of registration is to make registered 
 titles indefeasible, whereas unregistered titles are 
 open to contest. This principle of indefeasible 
 rights could not but be appreciated as soon as com- 
 mercial transactions concerning landed property 
 began to be frequent and important. Civil law is 
 very often, in spite of the eternal type of its class- 
 ical features, subordinate to economical life. It is 
 clear that land registration would have seemed a 
 superfluity in times when social situations and 
 rights were fixed forever, or seemed to be; when the 
 whole extent of usable land was tied up, by settle- 
 ments or otherwise, so as to form separate estates 
 which were never sold or divided, and which passed 
 after death to the eldest son without any doubt 
 as to the ownership. He who never buys or sells 
 has little care for the best methods of convey- 
 ancing. But when the centuries passed and liberty 
 began to shine on the old world ; when land, instead 
 of being tiedup, was declared free and became the 
 object of the same contracts as movable goods, 
 then those who had rights in it manifested their 
 chief need and desire: that need which is ex- 
 pressed by the single word "security." And as 
 the indefeasible right provided by registration ap- 
 peared the best condition of security, registration 
 came to the front among desired reforms. 
 
12 EEGISTERING TITLE TO LAND. 
 
 A general view of the subject of registration 
 may be useful before undertaking a detailed ex- 
 amination of different methods of legislation. 
 Speaking from a theoretical standpoint, it may 
 be said that registration is usually framed so as 
 to meet two different purposes — it secures own- 
 ership, and it secures priority among' creditors. 
 Each of these purposes deserves special considera- 
 tion. Let us first look at creditors' rights. 
 
 Creditors. — It is a fact that for a long time a 
 creditor's security was not at all grounded on his 
 debtor's property. Many historical considerations 
 have proved that, in former days, a creditor found 
 a much better guaranty in personal than in real 
 bailments. For instance, in Roman law, we find 
 that collateral promises such as those of "fide 
 jussores," "fide promissores," Tpveceied any insti- 
 tutions of mortgage. It seemed that an agree- 
 ment to answer for the payment of a debt, or the 
 performance of any other duty, was, in the event 
 of failure by the debtor, a far better guaranty 
 than any right more or less eventual on the debt- 
 or's property. To explain such an appearance of 
 anomaly we must allude to the reasons, both psy- 
 chological and practical, which made such a sys- 
 tem preferable. 
 
 In the first place it must be remembered that 
 the awe which ancient people had for a simple 
 oath made a man feel quite sure that whosoever 
 
GENERAL VIEW OF SUBJECT. 13 
 
 had pledged himself under such a sanction would 
 faithfully keep his promise. Civil law was, at 
 that time, quite subordinate to religious forms; 
 the profession of the law was a part of priesthood, 
 and he who bound his conscience did more than 
 he who bound his property. I am not sure that 
 we of modern times, however proud of our progress 
 we may be, ought not to have some regret for 
 that "keeping to one's word" which character- 
 ized the ancients. We must add that the penal- 
 ties of any false promise were such that no one 
 was likely to bind himself beyond his power to ful- 
 fill. The man who did not keep his promise could 
 be taken as a slave by the creditor, and such a 
 threat was of a nature to prevent aU rash promises. 
 And as the agreements of that time only had re- 
 gard to smaU sums, such as could be recovered by 
 a few months or years of the promisor's labor, the 
 creditor was pretty sure to be paid by that, if the 
 mere threat of slavery did not produce its full 
 effect. Eemember, also, that in such times social 
 and family bonds being very strong and close, one 
 was always sure to get a collateral promise from 
 his parents or neighbors. Here, also, was a relig- 
 ious duty which no one overlooked; and it is easy 
 to understand how under such circumstances 
 verbal agreements should have had and kept so 
 great importance. » 
 
 But besides those reasons which made collateral 
 promises quite reliable, there were others which 
 
14 REGISTERING TITLE TO LAND. 
 
 prevented creditors' rights from being grounded 
 on landed property. Land was neither alienable 
 nor seizable. It was the joint property of the 
 whole family. No one of the members, not even 
 the chief himself, could say that, to this or that 
 extent, a part of the domain belonged to him. 
 
 In ancient Eome the private property, ager pri- 
 vatus, was the burial place of the dead, and it 
 would have been a sacrilege to grant any right on 
 it to a stranger. However, we know that as time 
 went by, people understood little by little that 
 property was no less a title to credit than friend- 
 ship, and that if they asked of a parent or neigh- 
 bor a collateral promise, it was quite as natural to 
 derive the guaranty from their ability to respond 
 as property owners. But how were they to pledge 
 the land ? Here appears the practical meaning of 
 registration. Had the owner of the land been able 
 to grant to his creditor a registered title, this se- 
 curity would have saved him from any other 
 trouble. But as this practical institution had not 
 yet been dreamed of, the owner of land knew that 
 he could only obtain a loan from the creditor by 
 giving away the land itself ; and this is exactly 
 what was done in Eome by the old contract of 
 fiducia. The creditor became proprietor of the 
 debtor's land, but at the same time obliged him- 
 self to give back the land as soon as the debtor 
 should pay the amount of the loan. This was but 
 a moral obligation, and the origin of it can only 
 
GENERAL VIEW OF SUBJECT. 15 
 
 be found in the improved habits of the more hon- 
 est class of men. If the creditor refused to give 
 back the land when he was paid, no civil action 
 could force him to. He had been made proprietor 
 according to law, and remained so as long as he 
 would. But if he did act so meanly, public repro- 
 bation was sure to pursue him, and the censor, 
 who was the keeper of the morals of the city, 
 noted him as a man unworthy of any trust. But 
 in the meantime the debtor was deprived of his 
 land, and his situation caused him a double injury. 
 First, he lost not only the property, but also the 
 possession of his land, and could not cultivate and 
 improve it ; and second, as he had exhausted, by 
 his loss of possession, the whole credit he could 
 get from it, there remained no practical possibility 
 for him to use the same land as a guaranty for a 
 second loan. Since credit meant possession, and 
 without possession there was no credit, the man 
 who disposed of a large property for a small loan 
 thus lost his right to the remainder of his title of 
 credit. 
 
 This case deserves consideration, for it keeps its 
 meaning to this day. It is the logical consequence 
 to which communities are driven which have no 
 system of registration. The creditor who cannot 
 obtain an indefeasible title or priority by registra- 
 tion, necessarily requires possession of the land; 
 and we may say of this subject as of so many 
 others: "Learn from the past." 
 
16 REGISTERING TITLE TO LAND. 
 
 But let US go on with our reminiscences of 
 Eoman law. The lawyers of the old Italian re- 
 public were far too wise not to understand the in- 
 conveniences I have just pointed out, and skilfully 
 contrived to escape from them, A remedy was 
 found at first in an intelligent practice of the in- 
 stitution called precarium. 
 
 You know that the precarium was a mere right 
 of possession obliging him who withheld a thing 
 to give it up to the true owner as soon as he 
 claimed it. It was clear that the creditor would 
 not run a great risk if, while he remained proprietor 
 of the mortgaged land, he agreed to allow the debtor 
 to keep a mere right of precarium on the same 
 property. It would suffice for him, if he thought 
 it useful, to go before a magistrate whenever he 
 wished, who would apply in his favor one of the 
 individual statutes known under the name of in- 
 terdictum de precario, and with such a power in 
 hand he was sure to recover immediately the land 
 if the debtor did not pay him. But, in the mean- 
 while, the debtor had the benefit of keeping his 
 property by the effect of the precarium. He had 
 the joy of dwelling on it, ha could cultivate and 
 improve it. It gave him satisfaction to feel that 
 his neighbors did not look upon him as a poor 
 man who, for want of money, had lost possession 
 of his land. This was indeed a remarkable re- 
 form, but it did not prevent the principal incon- 
 venience of the preceding system, since it still 
 
GENERAL VIEW OF SUBJECT. 17 
 
 deprived the debtor of all means of mortgaging 
 the same property a second or third time. And 
 it has always been true that no system of mort- 
 gaging can be called good which does not enable 
 the proprietor to get from his land the whole 
 amount of credit for which the value of the land 
 can answer. 
 
 The necessity was then felt of finding a way of 
 proceeding which would leave the debtor the pro- 
 prietor as well as the possessor of his land, while 
 conveying at the same time to the creditor a spe- 
 cial right of priority in the same thing. In those 
 early times analysis of abstract principles was al- 
 ready subtile enough for the lawyers to be able to 
 devise a second method of progress. They already 
 knew that one can have, without being either 
 proprietor or possessor, certain definite rights on 
 another man's land. They knew about easements 
 and servitudes, which confer upon any citizen 
 legal rights in his neighbor's property. This ex- 
 ample could lead them to a legal notion of a mort- 
 gagee's rights. But it was not one of those ab- 
 stract considerations which enforced at that time 
 the progress of Eoman law. An example was 
 taken from a practice already existing between 
 country landlords and their farmers. It was ad- 
 mitted that, when the farm rent was not paid, the 
 Eoman landlord could pay himself by seizing a 
 part of the farmer's goods; for instance, his cattle. 
 "Well," said the lawyer to the creditor, "Do 
 
 2 
 
18 REGISTERING TITLE TO LAND. 
 
 just the same to your debtor as to your farmers — 
 agree that if you are not paid at the date of pay- 
 ment you will seize the debtor's goods." A spe- 
 cial action called serviana actio sanctioned the 
 farmer's duties and responsibilities; and a simi- 
 lar action called quasi serviana actio came to 
 sanction the debtor's obligations. This action 
 served to obtain the jus possidendi, by which the 
 creditor prevented all further wasting of the debt- 
 or's goods; and then the jus distrahendi, by 
 which, if the debtor did not pay him so as to get 
 back possession, the creditor could sell the mort- 
 gaged property. All those among you who are 
 familiar with English law will have noticed the 
 likeness between this old Eoman custom and the 
 English practice called "distress for rent," accord- 
 ing to which the landlord, if not paid by the 
 farmer, can seize whatever is found on the land. 
 Such a way of proceeding had allowed the 
 debtor to get as many creditors as he could, and 
 in that sense the economical requirements were 
 satisfied. But at the same time this very prog- 
 ress of Eoman law showed that registration could 
 not be had without ranking creditors according 
 to the date and priority of their agreement with 
 the debtor ; but if the accuracy of the date could 
 be proved by word or by writing, the priority it- 
 self of each creditor remained a secret from the 
 others, and no one knew, when making a loan 
 with a covenant for mortgage, whether rights 
 
GENERAL VIEW OF SUBJECT. 1& 
 
 prior to his own had not ahead y been agreed 
 upon. This secrecy was a cause of dispute as 
 well as of confusion. Each creditor could sue 
 upon his claim to obtain the jus possidendi; and 
 if he did not happen to be first in rank, any pre- 
 vious creditor could oppose to his action the ex- 
 ception whose formula is known to be, "si non 
 sibi res ante fuerit ohligata. " 
 
 We must add that, to complete the confusion, 
 some among the creditors were privileged; that 
 is to say, were deemed to be preferred to all pre- 
 vious rights. Such was the condition, for in- 
 stance, of liens established by law. A married 
 woman always came first for the payment of her 
 matrimonial portion, and the public treasury had 
 in like manner special rights. 
 
 The Eoman Empire did not last long enough 
 for the Eoman lawyers to themselves correct the 
 inconveniences that have just been stated. And 
 as evil does not always bear its remedy within it- 
 self, the reform did not work itself out very rap- 
 idly in those countries where, after the decline of 
 the empire, the Roman law was maintained. The 
 best example of the survival of Eoman law is that 
 of France, or at least part of France, throughout 
 the medieval age, and even during the later cen- 
 turies up to 1789, when, as the result of the great 
 Eevolution, a new system was enacted, as will 
 be shown in our fourth lecture. It is familiar 
 to all law students that before the great revo- 
 
20 REGISTERING TITLE TO LAND. 
 
 lution France had not one single system of leg- 
 islation, but was divided by south and north — 
 the northern provinces having no other rule than 
 custom, with great differences between one prov- 
 ince and another, and the southern provinces re- 
 maining bound to Eoman law, as if they were 
 still under the rule of Eome. In all these south- 
 ern provinces secrecy of mortgages survived as a 
 principle ; but in the northern provinces mort- 
 gages were subject to registration, and had no 
 effect as regards third persons, unless registered 
 by order of a magistrate. Under Louis XIV., in 
 1673, the prime minister, Colbert, induced the 
 king to sign an edict according to which regis- 
 tration was made general throughout the whole 
 country. But this reform displeased the aristo- 
 cratic families, who did not care to see the incum- 
 brances weighing on their properties completely 
 disclosed, so that before one year had elapsed the 
 beneficial edict of 1673 was repealed. And for 
 two centuries more the principle of secrecy was 
 preserved with all its inconveniences. 
 
 Ownership.— But it was not only in the matter 
 of real securities that registration had to prove its 
 usefulness. The title of the owner himself receives 
 no less benefit from registration than that of a 
 creditor. It is easy to understand that if a pro- 
 prietor is allowed, where his title is registered, to 
 oppose any claim arising from a third person pre- 
 
GENERAL VIEW OF SUBJECT. 21 
 
 tending to be entitled to the same ownership, this 
 simple fact will give to landed property the most 
 sohd basis that can be conceived. Two special ben- 
 efits of such a principle deserve consideration. 
 
 (A) In the first place, the registered proprietor 
 will no longer have reason to fear that he may be 
 evicted because his vendor had, unknown to him^ 
 already sold the land to a third person. It is suffi- 
 cient for him to ascertain that there has been no 
 registration previous to his, and, if so, he has 
 nothing to fear from any one whose rights have 
 been kept secret. 
 
 (B) la the second place, the registered proprietor 
 may feel himself protected against any defect in 
 his vendor's title. It is not a common case for a 
 vendor to sell property in which he never had 
 any right at all. But it frequently occurs that a 
 vendor is ignorant of some capital defect in his 
 ownership. He may have been a victim of de- 
 ceit, error or fraud; he may have purchased the 
 property from an insane man, or from a minor 
 without his guardian's legal assistance, or from a 
 married woman deprived of any right to sell with- 
 out her husband's consent. In all these cases the 
 defect may be unknown when the property is sold 
 for the second time; but by the effect of registra- 
 tion, this last purchaser can be sure that his own 
 right can suffer no prejudice from any litigation 
 between the vendor and other persons. 
 
 However clear these consequences of the prin- 
 
22 REGISTERING TITLE TO LAND. 
 
 ciple of registration may appear now, they were 
 not understood for a long time. Eegistration is 
 a modern institution. In primitive societies, land 
 being inalienable owing to communistic institu- 
 tions, there was no need of protecting deeds of 
 sale. And when transactions concerning land be- 
 came feasible, deeds of sale were accompanied by 
 such an amount of formalism, and so many wit- 
 nesses were required, that there was not much risk 
 of any cause of ejectment remaining unnoticed. 
 Yet as far back as the Eoman empire, registration 
 of deeds appears to have been felt useful, and to 
 have been started under the shape of an institu- 
 tion named ^' insinuatio." This consisted in the 
 reading of the contract {recitatio, professio, say 
 the Eoman laws) before any public authority hav- 
 ing the right of authenticating deeds {jus acta con- 
 ficiendi). This authority kept a complete copy 
 of the contract in his books, and the name of in- 
 sinuatio finds its etymology, as well as its mean- 
 ing, in this duty of copying the deed. Insinuatio 
 was made obligatory by the Emperor Constantius 
 Chlorus, and his son, the famous Constantine, en- 
 forced the obligation by additional rules. It is 
 believed by Eomanists that the main object of this 
 institution was much less to procure security than 
 to prevent deeds of donation, and these deeds 
 alone, from escaping, by the effect of secrecy, the 
 provisions of the well-known lex cincia, which 
 prohibited most donations, unless the grants 
 
GENERAL VIEW OF SUBJECT. 23 
 
 should be in favor of certain exceptcz personce. 
 The fact is that subsequent laws, instead of mak- 
 ing insinuatio general, as would have been the 
 case if its object had been security of title, re- 
 strained its application. The Emperors Theo- 
 dore II. and Valentinian III. exonerated all dona- 
 tions ante nuptias from insinuatio when not 
 exceeding two hundred pieces of gold. Justinian 
 extended the same allowance to any kind of dona- 
 tion beneath five hundred pieces of gold, and pro- 
 vided that no insinuatio at all should be required 
 for grants made in favor of matrimonial establish- 
 ments or freedom of slaves. So, by that time, 
 registration had come to be nothing more than a 
 kind of barrier preventing exaggerated donations. 
 But such are the merits and uses of registration 
 that it survived throughout the medieval centu- 
 ries and up to the French Eevolution, and was 
 embodied in the Civil Code with a new meaning, 
 concerning which it will be necessary to give some 
 details in one of my next lectures. 
 
 At the close of this nineteenth century, all civ- 
 ilized nations are coming to registration of title to 
 land, because immovable property is becoming 
 more and more a matter of commercial dealing, 
 and there can be no trade without security. Just 
 as shareholders in every business require to be 
 entered in the manager's office as nominative 
 partners in the joint undertaking, so land-own- 
 ers know it to be necessary for them to have 
 
24: REGISTERING TITLE TO LAND. 
 
 nominative rights, proved by public writings and 
 against which there can be no claim. Security 
 can no more, as in the feudal times, depend on 
 private force. When land was a sign of nobility, 
 and nobility meant unquestionable power of de- 
 fending one's ownership by war, landlords were 
 indeed the lords of the land, and put more trust 
 for their protection in their retainers than in any 
 document they would have been too ignorant to 
 read or understand. But time has sped on. The 
 unity of each state requires that its citizens should 
 not rely on physical force to settle their claims. 
 No other protection than legal protection can be 
 available; and that is why such moral strength 
 is being acquired by this principle that ownership 
 belongs to him who, after inquiry, has been de- 
 clared by public authority the proper person to be 
 registered as land-owner. It depends on him who 
 claims ownership to have it registered, after satis- 
 fying the inquiry. So much the worse for those 
 who neglect such means and allow themselves, 
 by mere carelessness, to be registered out of their 
 property by a stranger. 
 
 It is to be observed that modern nations, though 
 they aU contrive to reach the same point, are not 
 yet equally near to it. For a nation to be able to 
 boast of a complete system of registration, extend- 
 ing to the whole area of the country, it is not 
 enough that there should be registers confirming 
 an absolute right to owners entered in them. It 
 
GENERAL VIEW OF SUBJECT. 25 
 
 is necessary that every owner should be entered; 
 and this result can only be obtained if registration 
 is compulsory, and if, that the principle of com- 
 pulsion may not be objectionable, compensation 
 is provided for mistakes caused by registration. 
 
 We would therefore say that registration is 
 qualified by three essential features: 
 
 (a) The grant of an absolute title. 
 
 (&) Compulsion, 
 
 (c) Compensation for errors. 
 
 These three features are, at the present time, 
 to be found only in Germany and Austria, in 
 some parts of Switzerland, in the Australian col- 
 onies, in the greater part of Canada, and in the 
 small regency of Tunis on the north coast of 
 Africa. However, it must be observed that one 
 or another of them, especially that of compulsion, 
 is the subject of more or less exception in some of 
 the above countries. 
 
 It must not be understood that in all other 
 countries there is no registration at all. Many 
 other nations have a system of registration, which, 
 though it may be very imperfect, still is of some 
 use, and is a step on the path of daily progress. 
 This imperfect system can h& called registration 
 of deeds, as opposed to the preceding one, which 
 may be called registration of title. Where deeds 
 alone are registered, the owners entered on them 
 are not entitled to say that they have an inde- 
 feasible right. They are only allowed to claim a 
 
^Q REGISTERING TITLE TO LAND. 
 
 right of priority against any third party whose 
 right has not been made public before their own. 
 In spite of registration they remain exposed to the 
 consequences of any defect which may be found 
 in their title. The deeds being simply made pub- 
 lic, without any inquiry as to their accuracy, the 
 registered owner is only assured that, if valid, his 
 title will stand preferable to any other; but if 
 it be not valid, it will acquire no validity by 
 the fact of registration. This second system is 
 that of France, England, Scotland, Ireland, Bel- 
 gium, Italy, Spain, part of Switzerland, the re- 
 publics of South America, and I may add, as you 
 know, of your own great republic. 
 
 Before we enter upon any detailed examination 
 of these different systems, I will only venture 
 to mention for those among you who may be in- 
 terested in this subject, some of the books where 
 further knowledge may be acquired. 
 
 One of the first, and up to this day one of the 
 best, is a little pamphlet written for the Cobden 
 Club by Sir Eobert Torrens, wlio, as you know, 
 was the first to substitute, in the Australian col- 
 onies, registration of title for registration of deeds. 
 This pamphlet beai's the title: "An essay on the 
 transfer of land by registration." The Cobden 
 Club has also issued a compendious volume under 
 the title: "System of land tenure in various coun- 
 tries," full of interesting information concerning 
 different nations. 
 
GENERAL VIEW OF SUBJECT. 27 
 
 Among other English authors I will name Mr. 
 Dill, who wrote in 1893 an " Essay on transfer of 
 land by registration of title;" Mr. Morris, whose 
 book on "Land and mortgage registration" ap- 
 peared in 1895; and especially Mr. Oh. Fortescue 
 Brickdale, now assistant registrar in London, who, 
 indeed, has taken a most effective part in the 
 framing of the English system. His successive 
 books or pamphlets are the following: "Eegis- 
 tration of title to land" (1886), " Eegistration 
 of title in Prussia" (1888), "The practice of land 
 registry " (1891). " Eegistration in Middlesex " 
 (1892), "Notes on land transfer in various coun- 
 tries " (1894), "Eeport on the system of registra- 
 tion of title now in operation in Germany and 
 Austria-Hungary " (1897), and a still larger book 
 on the new English system, published the pres- 
 ent year. 
 
 As to Ireland I would point out Mr. Madden's 
 book on "Land transfer and registration of title 
 in Ireland " (1892). Other valuable books on Eng- 
 lish land laws deserve to be mentioned, but they 
 are rather out of the special line of registration 
 of title, so that, in spite of my regard for them, 
 I do not give them. 
 
 Among the French books, far the best one would 
 be, I dare say, that of Emmanuel Besson, bearing 
 the title of "Les livres fonciers," published in 
 1892. Thoughtful suggestions are to be found in 
 various articles on the same subject published. 
 
28 REGISTERING TITLE TO LAND. 
 
 during the past thirty years, by the Societe de 
 legislation comparee, in its special monthly bul- 
 letin. Very good literature is also that of the 
 papers read in 1889 and in 1892 before the Paris 
 Eeal Property congresses. I may, perhaps, be al- 
 lowed to add that I have myself written a good 
 deal on this subject. 
 
LECTUEE II. 
 
 COUNTRIES WHERE REGISTRATION IS CARRIED OUT 
 IN A COMPLETE WAY. 
 
 We have said in our last lecture that there are 
 no more than five or six countries where trans- 
 fers and other dealings relating to land are con- 
 ducted under a logical method of conveyancing 
 by registration; that is to say, where registration 
 meets its purpose by being both compulsory and 
 indefeasible. We will examine to-day the systems 
 of the most important of these — Australia, Ger- 
 many, and Austria- Hungary. In our fifth lecture 
 we will speak of the minor states where registra- 
 tion of title is absolute, such as the regency of 
 Tunis, Canada, and the canton of Vand. 
 
 Australia deserves to be mentioned first as hav- 
 ing been the birthplace of the Torrens system, 
 and this system cannot be better defined than by 
 the words of its originator, Sir Eobert Torrens, 
 who wrote as follows: " The person or persons in 
 whom singly or collectively the fee-simple is 
 vested, either at law or in equity, may apply to 
 have the land placed on the register of titles. The 
 applications are submitted for examination to a 
 barrister and to a conveyancer, who are styled 
 
30 REGISTERING TITLE TO LAND. 
 
 'examiners of titles.' These gentlemen report to 
 the registrar: 1st. Whether the description of land 
 is definite and clear. 2d. Is the applicant in un- 
 disputed possession of the property? 3d. Does he 
 appear in equity and justice rightfully entitled 
 thereto? 4th. Does he produce such evidence of 
 title as leads to the conclusion that no other per- 
 son is in position to succeed against him in an 
 action for ejectment." 
 
 When the report of the examiners of titles is 
 received the registrar may, according to the case, 
 choose from three determinations: He may re- 
 ject the application when it has not been found 
 satisfactory; he may register the title at once if 
 the applicant has fuUy satisfied the examiners; or 
 he may postpone registration for a time until bet- 
 ter information is gathered. In this case notices 
 are served upon any person likely to be interested, 
 and also upon occupiers of contiguous properties, 
 and, according to the result of this inquiry, regis- 
 tration may be granted as soon as evidence of title 
 is produced. 
 
 The technical mechanism of registration is most 
 simple. It consists of the issue of a certificate 
 setting forth the nature of the estate of the appli- 
 cant, and this certificate of title is sufficient to 
 vest the estate indefeasibly in the applicant. 
 
 A duplicate of every certificate of title is kept 
 by the registrar, and the register is nothing more 
 than the binding together of these duplicates. 
 
COUNTRIES WHERE SYSTEM COMPLETE. 31 
 
 When the certificates have been issued the reg- 
 istered owner enjoys two special benefits: 
 
 1. As his title is declared to be indefeasible, no 
 one can raise any adverse claim against it. If in 
 fact it were proved that he was not, before the 
 registration, entitled to make an application for 
 a certificate, the rightful owner nevertheless re- 
 mains deprived of any means of recovering the 
 land. But for the sake of justice a money payment 
 is made to him out of a compensation fund. The 
 compensation fund is raised by a contribution of 
 one-half pence irj the pound sterling — say one - 
 fifth of one per cent. ,— and this contribution is lev- 
 ied upon the value of the land when first brought 
 under the operation of the Torrens act. This fund 
 has been found more than sufficient to meet the 
 very few claims caused by errors. I do not think 
 such a system can be charged with causing the 
 exclusion of the rightful owner from his property, 
 for, if you will remember that an applicant is regis- 
 tered only when he is in occupation, the rightful 
 owner is never turned out from what he actually 
 possesses; he receives compensation in lieu of a 
 property he was not caring for when the inde- 
 feasible title was vested in the applicant. 
 
 2d. The second benefit can be defined as ' ' the 
 greatest facility for any future dealing with the 
 registered land." Suppose it is sold; this is the 
 most simple of dealings. It is only necessary that 
 a fresh certificate of title bearing the purchaser's 
 
32 REGISTERING TITLE TO LAND. 
 
 name should be made out by the registrar, who 
 cancels the transferrer's certificate. This can be 
 done in a few minutes without any great expense, 
 and requires none of the legal assistance which, 
 in other countries, consumes so much time and 
 money. If the holder transfers part only of the 
 fee, notice of this partial transfer need only be 
 stamped on the transferrer's certificate. If the 
 transferrer prefers that the memorandum of the 
 sale be not stamped on his title, he is allowed to 
 take out a fresh certificate, and in that case the 
 transferee gets another title of his own for the 
 portion he has acquired. It is permitted in any 
 case to separate a certificate into two or more, or 
 to combine several certificates into one, where 
 several freeholds are acquired by a single owner. 
 As to mortgages and leases, they are stamped on 
 the title and canceled after payment as any other 
 cause of surrender, and, in the meantime, the in- 
 dorsement notifies any one who wishes to know 
 the charges on an estate, before making a loan to 
 the holder. As to equitable mortgages, the cred- 
 itor proceeds by lodging a caveat in the registry. 
 This noticie involves the prohibition to register any 
 dealing with the land during the period of the 
 loan. At any moment the creditor may turn his 
 equitable mortgage into a registered charge. Pro- 
 visions of the same kind enable dii-ect settlements 
 and entails to be created. 
 AH this legal work is rapid and cheap. The ap- 
 
COUNTRIES WHERE SYSTEM COMPLETE. 33 
 
 plication fee is no more than 5s. , and the cost of a 
 land certificate is £1. For a freehold once regis- 
 tered, future dealings only involve a fee of 5s. in 
 the cheapest colonies and £1 in the most expen- 
 sive ones. When examination of title is neces- 
 sary, the cost varies with the value of the property 
 concerned ; but this ad valorem cost is moderate 
 and never rises above one-third of one per cent. 
 
 The general working of the system is most sat- 
 isfactory, and though compulsion applies only to 
 land granted by the crown since the system was 
 established, most holders have come under its 
 operation. Very few exceptions can be found in 
 Queensland; and in other countries where the 
 greater part of crown grants preceded the estab- 
 lishment of the system, alienated land has been, 
 to a great extent, voluntarily registered since 
 then. 
 
 These advantages were, at first, only experienced 
 in South Australia, where the first "Eeal Prop- 
 erty Act " was passed in 1857, being introduced, 
 as you know, by Sir Eobert Torrens, who had 
 drafted it. In 1861 the system was introduced in 
 Queensland, Tasmania and Victoria, and in 1862 
 in New South Wales. A few years later, in 1870, 
 it was adopted in New Zealand, and in 1874 by 
 Western Australia ; spreading since that date over 
 the whole of the British Australian colonies. 
 
 German-speaking States. — Among German- 
 speaking states Prussia holds the foremost rank 
 3 
 
34 REGISTERING TITLE TO LAND. 
 
 in respect to registration of title to land. Two 
 dates deserve to be remembered as those when 
 registration made its first and its final step in this 
 state — 1722 and 1872. The first was that of the 
 establishment by Frederick William I. of a system 
 of district registries of mortgages. The second 
 was that of the conversion of those registries 
 which formerly only gave evidence of the deeds 
 into registries giving evidence of title. 
 
 Since this last law of 1872 — or rather since these 
 last laws, as four acts on the same subject were 
 passed at one time — the Prussian system has been 
 like that in Australia, a system of compulsory and 
 indefeasible title. But Prussia is not the only Ger- 
 man state where registration is practiced. In 
 Baden the system dates from 1809; in Saxony it 
 has existed since 1843. Hesse has also had a sim-" 
 ilar system for a long period. As to the minor 
 states, the dates of the adoption of registration by 
 them are given as the following in M. Morris' re- 
 cent book on "Land and Eegistration:" 
 
 Sondershausen 1850 Gobourg Gotha 1877 
 
 Altenburg 1853 Anbalt 1877 
 
 The towns of the two Brunswick 1878 
 
 Mecklenburg 1857 Lubeck (amended) 1879 
 
 Reuss (younger branch). 1858 Waldeck 1881 
 
 Meiningen 1863 Lippe Detmold 1883 
 
 Reuss (elder branch) 1873 Schaumburg Lippe 1884 
 
 Oldenburg 1876 Alsace Lorraine 1891 
 
 It must be added that, in two other German 
 states (Bavaria and Wurtemberg), registration of 
 mortgages is kept in a very similar way, though 
 
COUNTRIES WHERE SYSTEM COMPLETE. 35 
 
 registration of title does not exist. But, as to 
 antiquity, Austria- Hungary stands before the 
 states belonging to the German Empire. In Bo- 
 hemia registration dates from the twelfth century. 
 The Austrian Civil Code, enacted in 1811, pro- 
 vided that in those states where registration al- 
 ready existed, indefeasible titles should continue 
 to be conferred so far at least as third persons 
 were concerned. This did not, however, bring 
 uniformity to Austrian legislation. But in 1871, 
 an act passed on the 25th of July established a 
 uniform system for all the states where registra- 
 tion already existed, and provided that the other 
 states might adopt the same system if they chose. 
 This was optional compulsion, like that practiced 
 under the new transfer act in England. Only, 
 whereas in England it is each county council's 
 business to decide whether registration shall be 
 compulsory or not in its area, in Austria it is the 
 parliament of each confederated state which has 
 to vote on the same subject. In fact, excepting 
 Tyrol, all the Austrian states have accepted the 
 system. In Hungary registration of title dates 
 from 1855, when a decree, still in force, was passed 
 during the temporary Austrian dominion. But 
 in all these states the mechanism of the system 
 is in many respects different from that of Aus- 
 tralia. 
 
 1st. First, it must be noticed that the power of 
 vesting an estate indefeasibly in an applicant is 
 
36 REGISTERING TITLE TO LAND. 
 
 not, as in Australia, conferred upon a single reg- 
 istrar, sometimes assisted by one or two exam- 
 iners of titles. The power of investment belongs 
 to a magistrate chosen, for each registr}'', from 
 among the members of the district tribunal. This 
 magistrate must ascertain the applicant's rights, 
 and examine for that purpose the following 
 points: Is the applicant favored with legal capac- 
 ity and right to acquire ? Is the land alienable ? 
 Is the transferee capable of selling the property ? 
 Subject to these conditions the conveyance is ef- 
 fected by two oral declarations made at the same 
 time before the magistrate. The registered owner 
 declares that he sells the land to the transferee, 
 and the transferee declares that he applies for reg- 
 istration. As soon as it is registered the owner's 
 title becomes conclusive, and cannot even be af- 
 fected by adverse occupation (art. 6). Any further 
 creation of a charge or mortgage is registered as 
 in the Australian system, in the same way as a 
 transfer. But it must be noticed that no regis- 
 tration is required for general rights of pre-emp- 
 tion, nor for easements and servitudes (this is 
 certainly a deficiency in the Prussian system), 
 nor for leases and tenancies, nor for certain rights 
 of entry and user for mining purposes. The ex- 
 ception of leases and tenancies arises, in great 
 part, from the fact that, under the influence of 
 Eoman law, most of the European legislatures 
 have been led to consider that a lease does not 
 
COUNTRIES WHERE SYSTEM COMPLETE.' 37 
 
 confer a real right in land, but only a personal 
 right against the lessor. It must be added that 
 the registration of easements and servitudes is re- 
 quired in Austria-Hungary. 
 
 2d. Another difference from the Australian sys- 
 tem is that in Prussia, whenever registration has 
 been obtained by fraud, error or compulsion, or 
 when one of the parties is incapacitated, rectifica- 
 tion can be obtained. This is subject, however, 
 to the rights of third parties, when acquired for 
 value and in good faith in reliance on the correct- 
 ness of the register. 
 
 3d. A third difference to be noticed is that, 
 whereas in the Australian system the registers 
 are public, the principle of secrecy prevails in the 
 German states. Baden is the only one where the 
 registers are not absolutely private. In Austria 
 and Hungary any one is likewise free to search the 
 records. 
 
 4th. A fourth difference concerns occupation. 
 We have already remarked that under the Prus- 
 sian as well as under the Australian system, pos- 
 session cannot serve as a title against a registered 
 ownership. This exists also in the English sys- 
 tem (section 21 of the English land transfer act 
 of 1875). But occupation is maintained in Austria, 
 where the old Eoman theory of usucapio has been 
 kept up. According to this theory, any possessor, 
 after the time for acquiring property by occupa- 
 tion has passed, may avail himself of his posses- 
 
38 EEGISTERING TITLE TO LAND. 
 
 sion by requiring his rights as occupier to be 
 entered in the register. In such a case the regis- 
 tered owner, in spite of registration, is completely 
 registered out of his property. (The Austrian 
 Civil Code, sees. 1457 to 1500, and Law of 1871, 
 sees. 70 and 71.) According to section 1468, occu- 
 pation must have been continued for thirty years 
 before it confers a right of property on a regis- 
 tered occupier. Occupation also has its effect in 
 the case of one who has obtained registration in 
 spite of some defect in his title. Such an one need 
 only occupy the land three years more for his title 
 to be completed by possession. As in Eoman law, 
 occupation, to be lawful, needs to have a legal be- 
 ginning, such as gift, loan or purchase; to be bona 
 fide, and to be of right {nee vi, nee clam, nee pre-, 
 carlo). Sees. 1461, 1463, 1464. On the other hand, 
 it must be noticed that whereas the Austrian acts 
 maintain occupation and its effect even against 
 the registered owner, the Saxony system abolishes 
 occupation in a complete way, even against an 
 owner having neglected to seek the protection of 
 registration. (Civil Code of 1863, sec. 279.) 
 
 5th. A fifth difference is to be found in the ab- 
 sence of a compensation fund to provide for acci- 
 dental errors. This has not seemed to be needed 
 in the German system, as it is in the Australian, 
 and for these reasons: In the first place, rectifi- 
 cation of errors may be obtained in the German 
 system, as we have already seen, except when 
 
COUNTRIES WHERE SYSTEM COMPLETE. 39 
 
 registration would cause any injury to a bona fide 
 purchaser for value. And, in the second place, 
 errors were expected to be — and in fact have 
 been — immaterial in Germany, where the origin 
 of property was thoroughly known everywhere, 
 and where, it must be added, registration is not 
 conducted by a mere recorder of titles, as in Aus- 
 tralia, but is submitted to the approval of a mag- 
 istrate. 
 
 Moreover, it may be said that errors are or 
 would be ultimately compensated for by the state, 
 throughout all the Grerman system, and the lia- 
 bility of the person, private or official, who caused 
 the mistake is also certain. (See Land Eegister 
 Ordinance of 5th of May, 1872, part II, sees. 20- 
 29, amended by law of 24th of April, 1878.) 
 
 6th. We now reach a sixth difference, due to 
 the connection of the land registry with the co" 
 daster, under the German system. 
 
 We know that the cadaster is nothing more 
 than a land-tax register, but as, in consideration 
 of an equitable establishment of the land-tax, the 
 assessed parcels of land must be determined as 
 exactly as possible, it has been deemed conven- 
 lent in most countries to describe the properties, 
 when put on the register, according to the bound- 
 aries they appear to have on the cadaster. This 
 relationship is by no means a necessary one, and 
 we have seen that in Australia the physical de- 
 scription of land is only derived from the plans 
 
40 REGISTERING TITLE TO LAND. 
 
 that applicants must produce before obtaining 
 registration. But in the German states, as well 
 as in Austria- Hungary, where the cadaster plans 
 are accurate and kept up to date, the land-registry 
 officers, instead of requiring private mapping, 
 simply fefer to the cadaster descriptions, of which 
 every parcel has its number. This reference is 
 more or less complete, according to the peculiar 
 registration of each state. In Prussia it is neces- 
 sary that the land register should relate all the 
 particulars of the cadaster as to area, value, 
 quality, etc. ; whereas in Austria it only gives the 
 number of the parcel; and those who want to as- 
 certain the economical condition of the property 
 are easily led by this simple reference to a copy 
 of the cadastral map, which is kept in the land 
 registry. On account of this double use of the 
 cadaster, it is essential that its accuracy should 
 be under continual control. Periodical revisions 
 are therefore established, and take place every 
 ten or fifteen years, according to the place. The 
 books which accompany the cadastral plans, to 
 show the owner and state of cultivation, are like- 
 wise kept up to date. These cadastral plans not 
 only show the physical features of the land, but 
 are specially made to show the boundaries of each 
 property, as defined by the owner's title, and 
 these boundaries, which may consist in a meie 
 abstract line, only occasionally coincide with phys- 
 ical features. 
 
COUNTRIES WHERE SYSTEM COMPLETE. 4-1 
 
 Having thus determined the points in which, in 
 spite of their great analogy, the Australian and 
 German systems of registration differ, it may be 
 interesting to see how the German system has 
 been enforced in the Ehine provinces, where it was 
 suddenly made compulsory after the German an- 
 nexation. Before this political event, — painful as 
 you know to the feelings of all Frenchmen, includ- 
 ing myself, — the Ehine provinces were subject 
 to the French system of land transfer, such as we 
 shall describe it. That is to say, mortgage registers 
 and the land-tax cadaster were the only evidence 
 of ownership in land, and a very incomplete evi- 
 dence, as you know. 
 
 The first step of the German reform was to de- 
 clare, by an act of 1885, that all transfers should 
 be made before a public notary. This advance, 
 similar to the provisions of the Belgian law, 
 secured, if not a better proof of titles, at least a 
 complete preservation of them, since all transfers 
 made before the public notary are kept in their 
 original form in his office. And as the notary 
 would be liable for neglecting to have the contract 
 transcribed in the office of the keeper of mort- 
 gages, the same reform prevented any transfers 
 remaining secret, as they did when transfers could 
 be effected under private seal. 
 
 But if this reform made titles public — at least 
 inter vivos titles, for all devolutions by inheritance 
 or by legacy kept out of reach — it did not make 
 
42 REGISTERING TITLE TO LAND. 
 
 the titles absolute, which was the aim of the Ger- 
 man government. 
 
 It was necessary to pass a new local act enacted 
 on the 22d of June, 1891, in order to secure for- 
 mation of land registries involving indefeasible 
 rights for the registered owners. 
 
 The public authority relied upon for the ex- 
 amination of applications is the local tribunal of 
 first instance {Amtsgericht). It would have seemed 
 rather rash to oblige the provinces to accept a single 
 magistrate's determination, as they had always 
 been accustomed to having their lawsuits settled 
 by the magistrates, at least. Where an order has 
 been given by the ministry of justice in Berlin 
 that registration shall be begun in an Amtsgericht 
 district, notice is sent to all the district occupiers 
 requiring them to appear before the tribunal and 
 produce: 
 
 1st. An extract from the cadaster office showing 
 the parcels they are believed to own in any par- 
 ticular township. 
 
 2d. All their personal documents serving as 
 proofs of their claim. 
 
 On the appointed day each applicant is cross- 
 examined by the tribunal, and a statement is 
 drawn up of his declarations. This statement con- 
 tains: 
 
 (a) The name of the applicant's predecessor, 
 
 (6) The legal nature of the last transfer concern- 
 ing the land (sale, grant, legacy, inheritance, auc- 
 tion, contract, etc.). 
 
COUNTRIES WHERE SYSTEM COMPLETE. 43 
 
 (c) A reference to any document produced by 
 the applicant. 
 
 (d) A list of mortgages charged upon the land. 
 A copy of this statement is sent to the mayor 
 
 of the township where the parcels claimed are sit- 
 uated, as well as to the keeper of mortgages, who 
 must both give advice of their personal belief con- 
 cerning the accuracy of the claim. Notice is also 
 sent to all the known incumbrancers. Each case 
 in a township is dealt with in the same way, and 
 as soon as information is collected as to all the 
 cases in a township, notice is sent to the president 
 of the court of appeal, on which all the local tri- 
 bunals are dependent, and which for the Ehine 
 provinces sits in Cologne. The president of the 
 court of appeal obtains from the minister of jus- 
 tice a rescript fixing a preclusive term of six 
 months for objections, if any, to be produced, and 
 possible opponents are warned of the proceeding 
 by advertisements in the local papers requesting 
 them to send in their claims. As soon as the six 
 months have elapsed the registers are engrossed 
 according to the claims received. After this en- 
 grossment is accomplished there is still a final 
 delay of eleven days for actions to be commenced 
 by opponents before the registers come into oper- 
 ation. This procedure has proved satisfactory. 
 A few mistakes, but no cases of intentional fraud, 
 have been observed. 
 The main conclusion to be drawn from this ex- 
 
44 REGISTERING TITLE TO LAND. 
 
 ample of the Rhine provinces is that registration 
 was applicable in a land where the French system 
 had previously worked out its whole effect; and 
 no experience could be better calculated to con- 
 vince French lawyers that in France, as well as 
 in every other country, the same reform could be 
 adopted. We shall see in our fourth lecture that 
 the scheme proposed to establish registration of 
 title in France has a close connection with that 
 which has succeeded so well in Alsace Lorraine. 
 
LECTUEE III. 
 
 THE ENGLISH SYSTEM OF REGISTRATION. 
 
 It has often been said that the whole of Eng- 
 lish law was anomaly, and, if I dare utter such 
 an opinion, it is because Englishmen themselves 
 agree to it. English legislation is made out of 
 local customs and particular statutes which have 
 never been codified, so that there is no lack of 
 confusion about them. On the same subject there 
 may be two principal laws to rely upon, and one 
 of them may be of the twelfth century, while the 
 other is of the last year. Scarcely different is 
 the case of land transfer, and we must be pre- 
 pared to meet with surprises as we attempt to 
 study its rules. 
 
 It is a familiar thing to you that landed prop- 
 erty has kept, up to this century, certain of the 
 feudal characteristics of the past. Besides the 
 freehold estates requiring no kind of seizin when 
 acquired by sale or inheritance, there still remain 
 copyhold tenures, which can only be transferred 
 with the agreement of the lord of the manor. 
 These two kinds of property remain on a differ- 
 ent footing as regards registration. We may be 
 very brief as to copyholds, for they are dying 
 
46 REGISTERING TITLE TO LAND. 
 
 away. Since the middle of this century copy- 
 hold enfranchisement has been an article on the 
 programme of liberal politicians. It is easy to 
 understand why. The lord of the manor having 
 a right to personal duties at each transfer, the 
 owner never knew whether he would not be 
 ruined out of the estate in a mere spirit of vexa- 
 tion on the part of the lord. If this lord was an 
 old man who had made up his mind to trouble- 
 some settlements, and should contract with an- 
 other old man as tenant for life, and with a third 
 old man as tenant in tail, it might happen that 
 the owner of the copyhold would be obliged to 
 pay the private duties of succession several times. 
 Besides this pecuniary inconvenience, copyholds 
 had many others. The copyhold confers a dur- 
 able right, but as this right is subject to the pay- 
 ment of a rent, this rent is as durable as the right 
 itself, and weighs as a perpetual charge on the 
 property. Moreover, the copyholder is limited in 
 his possession by various other incumbrances, 
 such as prohibition of digging wells or mines, or 
 subjection to all kinds of servitude. The object of 
 the liberals, therefore, has been to enfranchise 
 copyholds by allowing the copyholder to redeem 
 the incumbrances by the payment of a definite 
 sum to the lord of the manor. Statutes with that 
 object were passed in 1841, 1862 (15 and 16 Vict., 
 ■c. 51), and 1887 (50 and 51 Vict., c. T3). Official 
 commissioners, forming the board of copyhold and 
 
ENGLISH SYSTEM OF REGISTRATION. 4^ 
 
 tithe commissioners, were appointed by those acts 
 to estimate the amount of money representing 
 the capital value of the rent and other incum- 
 brances weighing on each copyhold whose re- 
 demption was sought. These statutory measures 
 have led to the enfranchisement of as many as 
 three hundred copyholds per annum. There still 
 remain many. New ones are even now and then 
 created. But copyholds are gradually passing 
 away before the salutary invasion of freehold 
 property. 
 
 Though this reform is of great economical and 
 social interest, inasmuch as it realizes freedom of 
 land, it has brought some special inconveniences 
 into methods of conveyancing. Copyholds were 
 up to these last years the only property which es- 
 caped the unfavorable secrecy which was the rule 
 in British transfers of land. This was the bene- 
 ficial effect of feudal survival. A copyhold re- 
 quiring a regular investiture from the lord of the 
 manor could not be secretly bought and sold as a 
 simple freehold. The lord of the manor, wishing 
 to preserve his rights, invested the copyholder by 
 entering his name in his books, and a formality 
 known by the name of "surrender and admit- 
 tance " then took place. The vendor being deemed 
 to surrender the copyhold to which the purchaser 
 was admitted, symbolized his resignation by giv- 
 ing to the lord, or more commonly to the lord's 
 steward, a branch or leaf out of the estate, and 
 
48 REGISTERING TITLE TO LAND. 
 
 this same object was at once presented to the 
 purchaser as a proof of his investiture. It is said 
 that, fiction being reduced to its most simple form, 
 the copyholder is never presented with anything 
 more than a pencil taken up from the steward's 
 desk. But the important thing to notice is the 
 fact of the purchaser's name being immediately 
 entered in the lord's books. Here is the true and 
 efificacious formality. It suffices to prevent the 
 vendor from selling the same property several 
 times consecutively to different persons who all, 
 except one, must be ejected. As this guaranty is 
 the main object of registration, its disappearance 
 with the copyhold would have been a matter of 
 regret, if fortunately freeholds were not gradu- 
 ally coming under the rule of publicity which for- 
 merly was characteristic only of copyholds. 
 
 It must be explained how, for so long a time, 
 such a practical people as the English could allow 
 the complete secrecy of all transactions relating 
 to freeholds. One must not judge too severely 
 land laws which seem most strange before per- 
 fectly understanding the reasons for their insuffi- 
 ciency. 
 
 I have tried to discover those reasons in this case, 
 and the following is the result of my investiga- 
 tion : 
 
 1. In the first place, one excellent reason whj^ 
 secrecy of transfer should be of little importance 
 was the fact of the very few sales of land which oc- 
 
ENGLISH SYSTEM OF REGISTRATION. 49 
 
 curred in England. This was owing partly to the 
 small number of freeholds existing in a country 
 where land has been monopolized by the aristoc- 
 racy. In France it is believed that there are nearly 
 eight hundred thousand sales of land per annum. 
 But in England the landed propi'ietors are no more 
 than two hundred thousand, according to the esti- 
 mate made in 1871 in the New Domesday book. 
 So that it would be necessary for each English 
 proprietor to sell his estate four times in a year 
 for the inconvenience of secrecy of sale to be felt 
 in England as strongly as in France. And not 
 only has such not been the case, but it is a fact 
 that the few English proprietors contract concern- 
 ing land much less frequently than continental 
 proprietors. There are the best reasons for this, 
 in the fact that most of the English freeholds are 
 inalienable by virtue of remote agreements. No 
 custom is more persistent than that of tying up 
 land by settlements. In some cases the owner can- 
 not sell the land at all; this occurs when he has 
 only an estate for life. In other cases the owner 
 has an estate tail, and then he may confer some 
 of his rights, or all of them, on the heirs of his 
 body, but he cannot contract with any one else. 
 AU these intricacies not only made registration 
 nearly useless because of the few contracts relat- 
 ing to land; they also made it of no account as 
 being, in any case, a slighter guarantee of in- 
 alienability. 
 4 
 
60 EEGISTEEING. TITLE TO LAND. 
 
 2. A second reason for registration being super- 
 fluous in England proceeded from the absence of a 
 regular system of real securities founded on land. 
 I will explain in my fourth lecture the legal fea- 
 tures of hypotheques as practiced in France. Such 
 a kind of security does not exist in England, and 
 as its existence would have made registration in- 
 dispensable, one cannot say whether the absence 
 of registration has been the cause of the absence 
 of hypotheques, or the absence of hypotheques has 
 been the cause of the absence of registration. It 
 is certain that now that registration is estab- 
 lished, as we shall soon see, there is no good rea- 
 son why hypotheques should not be introduced in 
 England. When a debtor has been obliged to 
 give a real security to his creditor, his only re- 
 source till now has been to give a mortgage. By 
 this covenant the creditor becomes proprietor of 
 such an extent of land as is agreed upon, and it 
 becomes for him a true estate in fee simple, at 
 least in law if not in equity. The debtor has only 
 a right of redemption when he offers the money 
 secured by the granted property. It is easy to 
 understand that with such a system, hardly, if 
 at all, better than that of ancient Rome, the serv- 
 ices of registration should not be appreciated. 
 As one creditor only can be guaranteed, he cares 
 very little about a system intended to preserve 
 priority among several creditors; and as that 
 single creditor is in possession, or can at least, by 
 
ENGLISH SYSTEM OF REGISTRATION. 51 
 
 an action of ejectment, get possession as soon as 
 needed, he has no fear of the debtor mortgaging 
 a property already mortgaged to some one else. 
 
 3. To these reasons, so very unfavorable to reg- 
 istration, I must add another, not the least per- 
 haps, which may be found in the way the legal 
 profession opposed any progress of English law 
 in the direction of registration. People whose 
 only work and living were furnished by convey- 
 ancing, and who already found alienable estates 
 to be very few, dreaded exceedingly the very idea 
 of a reform which might make the transfer of 
 land rapid, easy and inexpensive. Their obstruc- 
 tion must be held responsible for the backward- 
 ness of legislation on this subject. 
 
 In spite of all these difficulties it was necessary 
 that a time should come when registration would 
 win its victory. New events prepared its way. 
 First it should be observed that a gradual work 
 has been going on to convert the old inalienable 
 tenures into estates in fee simple, free from all 
 incumbrances. We have already mentioned the 
 redemption of copyholds. We must also mention 
 a series of settled land acts whose aim has been 
 to render alienable, under certain conditions, many 
 of the tied-up estates. Moreover, it should be 
 said that small estates, which are those which 
 change hands most frequently, have become more 
 and more numerous of late. The allotment acts 
 have caused the establishment of many small 
 
52 REGISTERING TITLE TO LAND. 
 
 holdings cut out from the commons by county 
 councils or by the sanitary authorities, and some 
 great landlords, urged by the agricultural crisis, 
 have divided their large domains into smaller 
 pieces, which could be sold at a better price. 
 
 All this made the advantage of registration 
 most desirable. The tenants of small holdings 
 could not afford to pay the bills of conveyancers, 
 and the owners of large estates began to appre- 
 ciate registration from the time that falling prices, 
 caused by the agricultural crisis, made money 
 matters touch them closely. At the same time 
 English legislators, who would never have been 
 convinced by the examination of the continental 
 systems, were impressed by the example of Eng- 
 lish colonies; and the success attained in Austra- 
 lia and other British possessions by the Torrens 
 Act made the people believe that, without any 
 lack of patriotism, those same principles could be 
 adopted and acclimated on English soil. 
 ' I;. Three different laws have striven to obtain such 
 a result: the Westbury Act, in 1862 (25 and 26 
 Vict., ch. 53) ; Lord Cairns' Act, in 1875 (38 and 
 39 Vict., ch. 87), and the Land Transfer Act of 
 1897, which came into operation on the 1st of 
 January, 1898 (60 and 61 Vict., ch. 65). This last 
 act alone has worked its way to full success. 
 
 In 1830, for the first time, the real property com- 
 missioners concluded that a general system of reg- 
 istration would be a desirable thing. But thif 
 
ENGLISH SYSTEM OF REGISTRATION. 53 
 
 conclusion had no effect, and all the bills proposed 
 with it were rejected. This was the fate of Sir 
 John Campbell's bill in 1835, and of a government 
 biU in 1853. When the Westbury act was at last 
 passed in 1863, it hardly fulfilled its purpose, since 
 its only principle was to allow — note this word 
 "allow," which includes no kind of obligation, 
 moral or legal — proprietors to have their title reg- 
 istered. The application was to mention whether 
 an indefeasible title or one not indefeasible was 
 sought. In the first case, great complication of 
 time and inquiry ensued, and in both cases the 
 expense and procedure were out of proportion to 
 the benefit obtained. It must be noticed that all 
 the expense and trouble undergone were unavoid- 
 able for those who applied for registration, whereas 
 the benefit derived from the ease with which the 
 owner could sell the registered property to another 
 purchaser remained merely eventual. The result 
 was that no more than thirty-two applications a 
 year were received at the Land Eegistry. After a 
 few years of this discouraging practice a new ef- 
 fort was made which led to Lord Cairns' transfer 
 act in 1875. This time matters of procedure and 
 expense were considerably simplified. It was no 
 longer necessary, in order to obtain a possessory 
 title — that is to say, one not indefeasible, — to pro- 
 duce a title drawn up by a solicitor whose fees had 
 previously to be added to those of the registry. It 
 was declared to be sufiicient that the owner should 
 state the simple fact that he was in possession, 
 
54r REGISTERING TITLE TO LAND. 
 
 without any attempt to prove his right of property. 
 He was entered on this simple declaration as the 
 registered possessor, and this registration gave 
 him a priority he could oppose to any one who 
 might claim a right derived from a title more re- 
 cent than his registration. Moreover, the legal 
 aid of limitation transformed his possessory title, 
 after the required lapse of time, into a qualified 
 one. So that no one had any longer a very strong 
 interest to apply for an indefeasible title. Those 
 who knew their rights were beyond dispute and 
 who only cared to enjoy the benefit of the law, 
 asked to be registered merely with a possessory 
 title, and they were then able to profit by the re- 
 duced rates of the registry for any future transac- 
 tions concerning their property. In the meantime, 
 even before they could avail themselves of tlie ef- 
 fects of limitation, they were permitted, whenever 
 they chose, on the simple proof of their right, to 
 ask that their possessory title be changed into an 
 absolute one, and such a change became all the 
 easier and less expensive the longer the possessory 
 title had been registered. The economy of cost 
 for contracts made under Lord Cairns' act is suffi- 
 ciently shown by the following figures: 
 
 Value of the Cost if Conducted Cost Under Cost Under 
 
 Transaction, by a Solicitor. Lord W. Act. Lord Cairns' Act.. 
 
 50£ 3£ 6s. 6d. 5s. 
 
 100£ 3£ 12s. 10s. 
 
 200£ 5£ 19s. 15s. 
 
 400£ 6£ l£5s. 1£ 
 
 1000£ 10£ 3£ 15s, 3£ 
 
ENGLISH SYSTEM OP REGISTRATION. 55 
 
 The expense mentioned for the operation con- 
 ducted by a conveyancing solicitor is stated ac- 
 cording to the rates of the Solicitors Eemunera- 
 tion Act of 1881. It was much greater before 
 that time. And I must add also that the same 
 costs applied only to transfers by sale. For trans- 
 fers by donation, the cost under Lord Cairns' act 
 could be reduced by three-quarters. 
 
 As to the. expenses of the first registration — I 
 mean of the entry of the title on the books — there 
 was and could be no scale of prices under Lord 
 Cairns' act. The cost depended on the length 
 and difficulty of the inquiry pursued to ascertain 
 the merits of the applicant's declaration. But it 
 may be said that for a possessory title the cost 
 was only half of that of an ordinary transfer; 
 whereas for an absolute title it could reach a 
 much higher sum. Nevertheless it was stated 
 that for a property worth £40,000 the cost of an 
 absolute title had only been £53, and for a prop- 
 erty worth £700, £5 13s. In spite of all these ad- 
 vantages registration did not spread in the United 
 Kingdom with satisfactory speed. More than one 
 deficiency still remained to be removed. For in- 
 stance, it was a fault to allow possessory titles to 
 be registered without an exact description of the 
 estate. I do not speak of the legal description 
 existing in the proof of the ownership. This 
 would have been superfluous for a possessory 
 title. But I speak of the physical and geomet- 
 
66 EEGISTERING TITLE TO LAND. 
 
 rical description, involving an exact and precise 
 statement of the situation of the land and its 
 boundaries. Without believing, though it seems 
 to be true, that it often happened that a purchaser 
 could not find the land he had bought, we may 
 say that many owners could not say where their 
 estate exactly began and ended. The boundaries 
 were only described by the indication of the neigh- 
 bors' names; but this could not suffice, and neces- 
 sarily caused some litigation, not to speak of the 
 risks of inclosure by one neighbor against another. 
 But the registration acts were constrained by the 
 absence of any accurate map of the land. The 
 English do not have a tithe map like the French 
 cadaster. Their best is the ordnance map kept in 
 Southampton, and gradually brought up to date 
 by the ordnance survey. One copy of that map 
 is of one inch in the mile, another of five inches, 
 and the best and last of twenty- five inches in the 
 mile. But the marks of those maps can never 
 be claimed as authentic boundaries of any prop- 
 erty. 
 
 Besides this serious and still existing defect, 
 the system of registration, as it was understood 
 by the Westbury and Lord Cairns acts, had two 
 other inconveniences with which the last act, of 
 which we now have to speak, has fortunately 
 been able to deal. One of these inconveniences 
 was the absence of any compensation in case of 
 eviction or error. And the other inconvenience 
 
ENGLISH SYSTEM OF REGISTRATION. 57 
 
 was to be found in the optional character of reg- 
 istration. 
 
 Eegistration can only be popular if it is admitted 
 that the errors committed confer some right to 
 compensation. But this principle, even when ac- 
 knowledged, is susceptible of two different appli- 
 cations. It may be decided that any one who 
 shall have been clever enough to get himself reg- 
 istered in regard to property belonging to another 
 person shall, unless he be convicted of forgery, 
 be deemed the real owner of the registered estate. 
 Under such a system, the compensation funds are 
 given to the man who has been deprived of his 
 land by an error he could not prevent. We al- 
 ready know this system as the Australian, and it 
 is true that the title registered with so complete 
 an effect is an indefeasible one. But it may also 
 be decided that registration will not, when the 
 true owner comes to be known, be any hindrance 
 to an honest claim, and that the man who has 
 been obliged to surrender registered land will only 
 receive pecuniary compensation. In this case 
 registration is said to confer not an indefeasible 
 title, but a guarantied one, the guaranty being in 
 the fact that by registration one is sure to get, 
 in the worst case, if not the land itself, its value 
 in money. 
 
 This is the system enacted by the law of 1897, 
 and we may consider it as providing a sufficient 
 security for all land-owners to find great benefit in 
 
58 REGISTERING TITLE TO LAND. 
 
 registration. The seventh section of the act runs 
 as follows: " When any error or omission is made 
 in the register, or when any entry in the reg- 
 ister is made or procured by or in pursuance of 
 fraud or mistake, and the error, omission or entry 
 is not capable of rectification under the principal 
 act, any person suffering loss thereby shall be en- 
 titled to be indemnified in the manner in this act 
 provided: Provided, that where a registered dis- 
 position would, if unregistered, be absolutely void, 
 or where the effect of such error, omission or 
 entry would be to deprive a person of land of 
 which he is in possession, the register shall be 
 rectified and the person suffering loss by the rec- 
 tification shall be entitled to the indemnity." 
 
 For the purpose of providing the indemnity 
 which may in such cases be payable, section 21 
 of the act provides that an insurance fund shall 
 be raised by setting apart, every year, a variable 
 portion of the receipts from fees taken in the Land 
 Eegistry. 
 
 It is the Lord Chancellor and the Treasury who 
 determine the portion to be raised. If ever the 
 insurance fund were not sufficient the state would 
 meet the deficiency. 
 
 It is to be added that these provisions for com- 
 pensation have the merit of conciliating in some 
 measure the sympathy of solicitors, for the legal 
 profession may still help those who have their 
 titles registered to draw them up in such a per- 
 
KNUL18H SY8T1SM OF RKOISTRATION. 59 
 
 fftot ov skilfvil way that tho owner will be sure 
 to remain in possession instead of being entitled 
 to a mere indemnity, 
 
 Thm on© of the prinoipal deficiencies of Lord 
 Cairns* act has been very cleverly done away with. 
 I hasten to say that the Land Transfer Act of 1807 
 has also i^moved the inconvenience ai'ising fmm 
 the optional character of registration. To be quite 
 true, it should bo rather said that the new act has 
 substituted for tlit^ option of individuals tho option 
 of counties. Kogistratiou has not boon juade com- 
 pulsory throughout the whole kingxlotn. It is 
 only on^iotod tlmt, by order ii\ council, the Queen 
 maydoclaiv, *';\s iw^pwts any county or part of 
 IV county montiontnl or defined in the onlor. tliat 
 . . . registration of titlo i$ to l)e compulsory 
 OM ,sy»?f." Thi<? last woixl wquii^es notioo. It sliows 
 that thoiv al\vi\\->< itnnains a now stage of progress 
 to be r^vchoil. Rvon after an onlor in council, r^- 
 istratiou only Ikkhmuos compulsory for scd^^ and 
 all other kinds of trnns^ ms^ remain unregis- 
 tered. 
 
 Such, after foi'ty years* growth, ai-e the prin- 
 ciples of registration in Inland. Let us now 
 glance at its technical management. 
 
 Thei>? is only one r^istry for the whole of Eng- 
 land; and it is to the chief of that otHoo, called 
 tl>e registrai*, that ail those who want their titles 
 registered mast appl5\ He examines tlie titles 
 
60 EEGISTERING TITLE TO LAND. 
 
 produced before him, and may, if not satisfied, 
 require, before entering them on his books, such 
 further proofs as he may deem useful. He may 
 even require evidence from third persons, and ask 
 the appHcant to declare by an affidavit that he 
 conceals no other important writing. The only 
 case where he may neglect such information is 
 where the applicant's possession is confirmed by 
 limitation. As other warranties, it is enacted that 
 any fraud shall expose its author to two years' im- 
 prisonment and a fine of £500, and moreover any 
 person having an interest to do so is allowed to 
 enter a caution in the registry against any regis- 
 tration concerning a definite property 
 
 Subject to these provisions an application may be 
 made for the registration of a leasehold as well as 
 of a freehold. But the copyholds remain under the 
 special system we have already described. When 
 he has got registered, the applicant may receive, 
 simply on demand, a copy of his registered right. 
 This copy receives the name, according to the 
 case, of land certificate, office copy of a registered 
 lease, or certificate of charge. As these copies 
 are issued by the registry, they are no less authen- 
 tic than the registers themselves, and it is easy for 
 the owner to prove his right, to those with whom 
 he may wish to contract, without sending them for 
 information to the Land Eegistry. It is enacted 
 that the certificate must be produced to the reg- 
 istrar on every "entry in the register of a dispo- 
 
ENGLISH SYSTEM OF REGISTRATION. 61 
 
 sition by the registered proprietor of the land or 
 charge to which it relates, and on every registered 
 transmission or certification of the register, and 
 a note of every such entry, transmission or rec- 
 tification shall be officially endorsed on the certifi- 
 cate." 
 
 And now, to have a full view of the mechanism 
 of the system, we need only inquire about the way 
 the different rights of property are entered on the 
 registrar's books. 
 
 1st. Transfers by sale. — "The transfer is com- 
 pleted by the registrar entering on the register 
 the transferee as proprietor of the land trans- 
 ferred," and "until such entry is made the trans- 
 ferror shall be deemed to remain proprietor of the 
 land." (Act of 1896, sec. 29.) The same method 
 is applied to freehold or leasehold land. (Same 
 Act, sec. 34:.) From that moment the transferee 
 is entitled, if an eviction should take place, to the 
 indemnity provided by the insurance fund. He 
 therefore requires no other proof of the transfer- 
 ror's right than the fact that he was registered. 
 The land certificate given by the transferror to the 
 transferee mentions all the charges which weigh 
 on the land, so that the transferee is aware of the 
 rights that may be opposed to his. As, besides 
 legal charges, landed properties are usually sub- 
 ject to traditional intricacies and other easements, 
 it would be a complication for these intricacies to 
 
62 REGISTERING TITLE TO LAND. 
 
 be mentioned on every land certificate, especially 
 owing to the fact of the considerable amount of 
 litigation which could arise from any omission or 
 misunderstanding about the least of these charges. 
 The law has therefore wisely provided that, un- 
 less the contrary be expressed on the register, aU 
 registered land shall "be deemed to be subject to 
 certain liabilities," of which the act of 1875 con- 
 tains, in its eighteenth section, a complete list. 
 Such are rights to mines and minerals, rights of 
 fishing and sporting, rights of common, of sheep- 
 walk, of way and water, as well as obligations 
 to pay land taxes, tithe, rent charge, etc. I must 
 say that in this list certain charges, such as the 
 right of way and water, ought not to find a place. 
 These easements are too important a burden, and 
 their indefinite character is too variable from one 
 property to another. They ought to be mentioned 
 and defined on the register. French and Prussian 
 legislation has taken this view, and after some 
 time the English law will come to understand the 
 matter in the same way. 
 
 2d. Transfer by inheritance. — There is an im- 
 portant difference between the case of a transfer 
 by sale and that of a transfer by inheritance. It 
 may be enacted that so long as a sale is not reg- 
 istered the purchaser acquires no right; but it 
 would be hard to decide that a son should not in- 
 herit his father's property so long as it was not 
 registered in his name. To whom would the prop- 
 
ENGLISH SYSTEM OF REGISTRATION. 6a 
 
 erty belong in the meanwhile ? It would be bar- 
 barous to have it confiscated by the state, and 
 hardly less so to allow some collateral, relative or 
 remote descendant to outstrip the very child of a 
 deceased man in getting registered in his place. 
 So the registration of titles acquired by inherit- 
 ance remains optional, and may be postponed tiU 
 the heir requires to sell or dismember his ances- 
 tor's estate. It is only decided that those who are 
 entitled to any special charge on the inherited 
 land may apply to the register to have it en- 
 tered. 
 
 3d. Mortgages. — The mortgagee gets his title 
 registered as though he had acquii'ed the land by 
 sale; but we already know that he receives, in 
 place of the land certificate which remains in the 
 hands of the mortgagor, another kind of copy 
 called certificate of charge. As the mortgagee 
 has the right to sell the land, the purchaser with 
 whom he contracts requires a copy of his own. 
 The registrar may deliver to him a new land cer- 
 tificate, notwithstanding the other copies which 
 remain in the hands of both the mortgagee and 
 the mortgagor. There is no inconvenience in the 
 thing, as the mortgagor has only a certificate of 
 charge, and as the mortgagee's land certificate 
 bears the mention of the mortgage. It should be 
 added that mortgages may be established as well 
 without as with a power of sale. (Act of 1875, 
 sec. 22.) 
 
64 REGISTERING TITLE TO LAND. 
 
 4th. Liability to succession duty. — It is en- 
 acted by the act of 18T5, section 13, that "on 
 every apphcation to register land, the registrar 
 shall inquire as to succession duty and estate 
 duty," and "if it appears that the purchaser 
 should be liable to the duty, notice of such liabil- 
 ity shall be entered on the register." It is even 
 enacted that a bona fide registered purchaser for 
 fuU consideration in money or money's worth 
 shall not be affected by the duty, unless so noted 
 on the register. 
 
 We must add that a tenant for life may have 
 his title registered, even if the reversioner or re- 
 mainderman is not himself registered. (Act of 
 1897, sec. 6.) - 
 
 The latest information shows that from twenty 
 to thirty properties are being placed on the reg- 
 ister every day, and that the financial conclusions 
 have been very fairly verified, so that the registry 
 pays its way easily, while no misfortunes what- 
 ever have occurred. This leads us to believe that 
 expansion into the provinces will soon come. But 
 up to this time the London county council has 
 been alone in asking for an order of the crown 
 making registration compulsory within its area. 
 Outside of that county, registration depends on 
 the land-owner's option, and this option has not 
 yet been in its favor. It must be added that the 
 rule of secrecy is subject to exception in the three 
 ridings of the county of York, where a system of 
 
ENGLISH SYSTEM OF REGISTRATION. 66 
 
 registration established by Queen Anne has been 
 renewed by two acts in 1884 and 1885. Two other 
 exceptions are to be mentioned, in Kingston-upon- 
 HuU and in Bedford Level. These exceptions de- 
 serve notice, inasmuch as they prove that the ben- 
 efit of registration will break forth of itself even 
 in the midst of the most contrary circumstances; 
 and one may truly say that for England, as for so 
 many other countries, the dawn of progress is fol- 
 lowing the night. 
 
LECTUEE IV. 
 
 THE FRENCH SYSTEM OF REGISTRATION. 
 
 French law has been, during a great part of this 
 century, if not opposed to registration, at least 
 strongly prejudiced against any compulsory sys- 
 tem obliging owners to register their titles. Deeds 
 alone are registered, and up to 1865 there was no 
 provision for deeds of sale, but only for donations. 
 Even since that time registration of deeds of sale 
 is only practiced in a very imperfect way. 
 
 When the Civil Code was promulgated in 1804, 
 it was enacted by its 1138th article that landed 
 property should change hands by the simple and 
 mere effect of contract. This was considered, on 
 philosophical grounds, to be the triumph, the su- 
 preme victory, of the human will. A Frenchman 
 felt proud to say that whereas, before the great 
 revolution, all kinds of formalities were necessary 
 to invest a stranger with private dominion on land, 
 it henceforth needed nothing more than a simple 
 agreement between two persons to accomplish a 
 complete and reciprocal conversion of their re- 
 spective ownerships. No better proof could be 
 given of the power and might of a man's word 
 than such a result. On social grounds there was 
 
FRENCH SYSTEM OF REGISTRATION. 6T 
 
 no less reason for pride. Those who remembered 
 how many incumbrances had tied up land in 
 former days, were full of joy at the thought that 
 conveyancing could now be completed without 
 any appeal to public or private authority. No 
 kind of seizin was now to be requested. The lord 
 of the manor and all feudal interferences had been 
 abolished. "My will is the only measure of my 
 power, " said the proprietor, and all his fresh sense 
 of humanity and its rights swelled within him as 
 he spoke. 
 
 Such a feeling ought to have led to the under- 
 standing that if the human will was worthy to be 
 completely free, it was quite as worthy to have its 
 work protected against fraud or error, and such 
 could only be the case if one were sure that the 
 land, which now changed hands so easily, had not 
 already, through that very facility, passed to an- 
 other purchaser who would oppose his previous 
 contract, as soon as the second purchaser should 
 trouble him in his ownership. And how should 
 such a risk be averted, if not by some formality 
 which would enable any purchaser to publish his 
 rights and so make it known that he would assert 
 his own title as one to be preferred, not only to 
 ulterior titles, but even to previous rights which 
 had been kept secret. Such publishing could, as 
 you understand, only be made by registration, so 
 that in registration was to end the praiseworthy 
 principle of freedom of contract. But registration 
 
68 REGISTERING TITLE TO LAND. 
 
 would have seemed, in those times, a kind of seizin 
 by the state, succeeding to the seizin of the feudal 
 lords, and too much prejudice would have been 
 aroused against it for its benefits to have been 
 understood and desired. 
 
 In fact registration existed, even then, for dona- 
 tions and for mortgages, but it was, as I have 
 already said, a mere registration of deeds, con- 
 ferring no indefeasible title and protecting mainly 
 the registered owner or creditor from having his 
 rights opposed by third persons. 
 
 Donations. — As to donations, the nine hundred 
 and thirty- ninth article of the Civil Code obliges 
 them to be registered before being opposed to any 
 third person. The donor cannot avail himself of 
 the defect of registration. He is tied by the con- 
 tract he agreed to, and his heirs are tied as well. 
 But any other person having received rights from 
 the donor in the same thing can claim priority if 
 he gets registered first. 
 
 Two reasons can be given for this maintenance 
 of registration of donations. In the first place an 
 historical reason. Eegistration appeared as a sur- 
 vival of the old formality of insinuatio, inherited 
 from Eoman law, and preserved through all the 
 medieval changes. The force of custom had a 
 great part in the embodiment of this special kind 
 of registration in the Civil Code. But whereas 
 insinuatio applied to movable as well as to im- 
 
FRENCH SYSTEM OF REGISTRATION. 69 
 
 movable property, the Civil Code only obliged 
 donations of land to be registered, because it is a 
 principle that movable things are presumed to 
 belong to him who is in possession. Concerning 
 them the preferable purchaser will always be the 
 one who has caused himself to be put into pos- 
 session. 
 
 Besides this historical reason, there was a log- 
 ical motive for requiring that a donee, who had 
 gratuitously acquired land, should accomplish 
 some special formality before being allowed to 
 claim priority against a third person who might 
 have spent money for his rights. 
 
 Mortgages.— The Civil Code also established 
 registration for the real security called hypotheques. 
 We have already mentioned this security under 
 its English name; but the security itself is far 
 different from the English mortgage, and it would 
 be better to compai'e it to the security bearing the 
 same Greek name of hypotheques, in Roman law. 
 I speak of Roman law in its last period. The 
 creditor entitled to an hypotheque is not in occu- 
 pation of the land on which his security is set- 
 tled. The debtor remains in possession, and while 
 he remains so there may be any number of cred- 
 itors secured by the same property. Each of them 
 has, when his time to be paid comes, three defi- 
 nite and separate privileges. First, the privilege of 
 seizing the security if the debtor does not pay 
 
70 EEGISTERING TITLE TO LAND. 
 
 otherwise. The seizure leads to a sale by auction 
 of the bailment, and the creditor is paid out of the 
 cash produced by this compulsory sale. The sec- 
 ond privilege of the creditors is the right to follow 
 their- security wherever it may have been trans- 
 ferred by the debtor. The debtor may have tried 
 to make money out of it by selling it to a pur- 
 chaser who has been imprudent enough to pay 
 the price at once. In whosoever hands the land 
 may be found, it remains subject to the hypoiheque, 
 and the creditor may seize it as readily as if the 
 debtor were still in possession. The third privi- 
 lege of the creditors entitled to an hypoiheque 
 consists in a right of priority for the creditors 
 whose claim is first in rank. And it is precisely 
 to secure this third privilege that the Civil Code 
 established registration of deeds. It is clear that 
 the worst confusion would arise if the right of 
 priority could be claimed without any previous 
 publicity. The subsequent creditors may consent 
 to be preceded by him who first lent money to the 
 debtor and received a title, but they must have 
 been able to know, at the moment when they 
 made the loan, that they would be preceded by a 
 previous creditor. If not, it is to be feared that, 
 by fraud, the debtor would obtain money from 
 those who would have made no loan had they 
 known their security not to be entire. In order 
 to give to any one a clear knowledge of the risks 
 to which he might be exposed for such reasons, 
 
FRENCH SYSTEM OF REGISTRATION. 71 
 
 the Civil Code enacted that priority should be ob- 
 served, not according to the date of each loan, but 
 according to the date of registration. For that 
 purpose, district registries were established, and 
 as soon as an hypotheque had been given to any 
 creditor he could hasten to have it entered in his 
 district registry. He knew that, if a subsequent 
 creditor was entered before him, he would only 
 be second in rank, though his loan had been made 
 first. 
 
 Donations and hypotheques were thus regis- 
 tered, but there was no registration for transfers 
 by sale, nor for deeds relating to any other real 
 right than the two we have just mentioned. 
 
 The consequences to which this absence of reg-, 
 istration was to lead were the following; 
 
 (A) If a vendor mortgaged his property after 
 having sold it, the purchaser's right, though not 
 registered, remained opposable to the mortgagee, 
 notwithstanding his right was registered. 
 
 (B) The mortgagee could only avail himself of 
 having contracted with the vendor before the pur- 
 chaser, if his mortgage had been registered be- 
 fore the contract of sale was passed. It might 
 occur that the mortgagor would cheat the mort- 
 gagee by selling his property as soon as it was 
 mortgaged. In such a case the mortgagee would 
 be turned out from his right of priority, whilst 
 the previous owner of the property got twice its 
 value in money; first, by the loan obtained from 
 
72 REGISTERING TITLE TO LAND. 
 
 the mortgagee, and secondly, by the price paid 
 by the purchaser. To prevent such a fraudulent 
 speculation, it was decided by the Code de Pro- 
 cedure Civile some few years after the Civil Code 
 had been enacted, and in the eight hundred and 
 thirty-fourth article of that code, that certain, if 
 not all, of the mortgagee's rights could be se- 
 cured by registration within a fortnight after the 
 fraudulent sale. 
 
 (0) When the same man had sold the same 
 property to two different purchasers, the first con- 
 tract passed was opposable to the second pur- 
 chaser, in spite of his having had no means of 
 ascertaining that the vendor was no longer master 
 of the land when he contracted with him. It 
 might happen that this effect of secrecy would 
 enable a dishonest owner to sell his property sev- 
 eral times and realize its value as many times, to 
 the great prejudice of all the purchasers but one. 
 
 Such were the three main consequences of the 
 absence of any kind of registration for a sale. It 
 must be acknowledged that most of these incon- 
 veniences remained theoretical, and that tribunals 
 and courts were not often called upon to investi- 
 gate frauds of such a kind. But there always re- 
 mained a risk of fraud against which all pur- 
 chasers necessarily felt unprotected; and this risk 
 was sufficient to produce social as well as legal 
 inconveniences, since its least effect was certainly 
 to prevent many useful contracts. 
 
FRENCH SYSTEM OF REGISTRATION. 73 
 
 The want of a reform was therefore felt, but it 
 got no satisfaction before the year 1855. In this 
 year, on the 23d of March, a law was passed com- 
 monly called in France Loi sur la transcription, 
 and which remains, up to now, the leading act in 
 the matter of registration in France. Its prin- 
 ciple is the following: Eegisters are established 
 for the purpose of having entered any contract 
 relating to land; but this principle, instead of 
 being worked out in a general form and way, has 
 only been embodied in a series of special and defi- 
 nite provisions, which, as we shall shortly see, fail 
 to meet the complete purpose of registration. 
 
 The provisions of the law run as follows: 
 Any inter vivos deeds by which real property 
 changes hands are subject, to registration. Such 
 deeds may be contracts, or acts of recognition of 
 adverse rights, or determinations at law. Equally 
 subject to registration are: 1st. Any deed estab- 
 lishing rights of way or water, or any other ease- 
 ment or servitude, and any deed abolishing the 
 same. 2d. Any lease for eighteen years or more. 
 3d. Any deed giving a receipt of three years' rent 
 or more, when the receipt is given for rent which 
 is not yet due. As long as such deeds are not reg- 
 istered, the rights they confer cannot be opposed 
 to any third person who has acquired registered 
 rights on the same land. 
 
 This very enumeration of the provisions of the 
 law points out its deficiencies. 
 
74 EEGISTERING TITLE TO LAND. 
 
 (A) In the first place, the law of 1855 only 
 established registration of deeds and not regis- 
 tration of titles, and we already know that this 
 distinction prevents the registered owner from 
 obtaining an indefeasible right. He only acquires 
 priority against third persons; but if the previous 
 owner was not regularly in occupation, the pur- 
 chaser may be turned out in spite of his being 
 registered. This risk is far from being merely 
 nominal or theoretical, for it may be shown, by 
 several instances, that the loss of priority is not 
 the only danger threatening purchasers. It may 
 happen that the vendor had himself bought the 
 land from a minor who acted without his guard- 
 ian's leave, or from a married woman whose hus- 
 band had not given the legal consent as required 
 by French law, or from an insane person. In all 
 these cases the vendor's title is subject to be an- 
 nulled; and whereas such causes of nullity would 
 not be opposable to a registered purchaser if reg- 
 istration conferred an indefeasible title, they are 
 quite opposable in the French system. 
 
 (B) Another inconvenience comes from the fact 
 that registration is not obligatory in France, and, 
 as many owners are careless, blanks are to be 
 found on the registers. 
 
 (C) A third inconvenience, perhaps the most 
 serious, is caused by the absence of any sort of 
 registration for some kinds of deeds. We have 
 seen that the provisions of the law only spoke of 
 
FRENCH SYSTEM OP REGISTRATION. 75 
 
 inter vivos acts. This excludes wills, so that in 
 spite of his want of security a legatee cannot ob- 
 tain registration. The French law considers that 
 the effect of a legacy must be such that if, at any 
 time, a will is discovered after the testator's death, 
 this will must receive execution, and this demand 
 would not be satisfied if, by any formaHty such 
 as registration, one legatee could prevent the ef- 
 fect of a will not yet brought to light. 
 
 (D) Besides the fact that some deeds are not 
 registered, other rights remain secret. Such are 
 the legal mortgages created, without any docu- 
 ment or agreement of the parties, in favor of 
 married women on their husbands' property, or 
 minors on that of their guardians ; and these in- 
 cumbrances can only be cleared off by means of 
 a special procedure called "purge." This proced- 
 ure consists of an unconditional offer to all per- 
 sons appearing to have claims on the estate. 
 
 All these are inconveniences of a judicial char- 
 acter. Others can be pointed out in the very way 
 the registers are framed and kept. It is clear 
 that as deeds and not titles are registered, there 
 is no way to get, by investigation, an exact no- 
 tion of the incumbrances bearing on a special 
 piece of land. If you ask a French registrar to 
 let you know if such or such an estate is free from 
 all incumbrances, he cannot answer. To get an 
 answer, you must speak to him, not of the land, 
 but of the land-owner, and inquire about the 
 
76 REGISTERING TITLE TO LAND. 
 
 man's credit. He can then search for the deeds 
 registered under that man's name. But there is 
 no grouping of all the deeds relating to one estate, 
 nor any index referring to them otherwise than 
 by the owner's name. Not only do you remain 
 ignorant as to the estate's legal position, but you 
 are exposed to confusion as to the owner's identifi- 
 cation. As the same proper name as that of the 
 owner may be borne by several others on whose 
 account deeds have been registered, confusion may 
 arise between similar names, and this has been a 
 cause of litigation in some cases. 
 
 All these inconveniences, and some others into 
 the details of which I cannot enter to-day, have 
 led French jurists to favor the introduction into 
 France of the Torrens act more or less modified. 
 For thirty years at least serious efforts have been 
 made to that end. The movement began through 
 newspaper articles published on the Australian 
 system, and it was taken up by jurists as soon as 
 a complete knowledge was obtained of the Ger- 
 man and Austrian acts, which appeared to rely 
 on the same principle as the Torrens system. 
 Many valuable articles were then published in law 
 reviews, and, invitations being issued, a congress 
 was held at the Paris exhibition, in 1889, for that 
 purpose; and another congress gathered with the 
 same object in Paris in 1892. But the theoretical 
 results of these two gatherings were paralyzed by 
 the fact that a majority of members of the legal 
 
FRENCH SYSTEM OF REGISTRATION. Y7 
 
 profession joined them as subscribers and opposed 
 all the proposals made by the promoters. So far 
 as reasoning and argument were concerned, these 
 members of the congress remained generally 
 silent, feeling probably that no discourse could 
 help their cause. But when the discussion was 
 closed, and the congress came to votes, these ob- 
 structionists showed their spirit by their opposi- 
 tion, so that after long and enthusiastic reports 
 and addresses in favor of registration, the only 
 resolutions which could be carried were those of- 
 fered against the scheme. 
 
 A far better work seems to have been done by 
 the commissioners appointed to study the reform 
 of the cadaster. This map, if accurate, would 
 enable the land tax to be collected in a more equal 
 way than to-day. As owners of land are assessed 
 according to the cadaster's indications and estima- 
 tions, it is clear that all errors in the map come 
 to be errors in the assessment. But at the same 
 time, the cadaster being the best way to identify 
 the area and boundaries of small parcels of land, 
 it is clear that its accuracy can enable precise state- 
 ments to be made in the deeds intended to be con- 
 verted into indefeasible titles. That is why and 
 how the work undertaken by the commissioners 
 with a fiscal end in view could be combined with 
 the framing of a scheme for establishing land 
 registries in France. This scheme will have to 
 come before both houses of parliament before it 
 
78 REGISTERING TITLE TO LAND. 
 
 can be enacted. But the public expectation about 
 it is considerable and deserves some notice. 
 
 According to this expectation, the land registries 
 would be very similar to the German Grundbuch. 
 The present system of registers, kept by the 
 "keepers of mortgages" and having only refer- 
 ences to the names of ovpners, and not to the land 
 itself, would be done away with. In the new reg- 
 isters, each parcel of land would have its page or 
 folium, and this folium would be divided into two 
 parts. In the first part one could read the phys- 
 ical description of the soil with reference to the 
 revised cadaster, and the indication of all inci- 
 dental rights of way and water. In the second 
 part would be entered the name of the owner and 
 that of any party entitled to a reversion, mortgage, 
 lien or other incumbrance on the same parcel. 
 For convenience, it is admitted that when several 
 contiguous parcels in the same parish belong to a 
 single individual, a single folio may apply to all 
 of them. 
 
 In order to appreciate to what extent such a 
 scheme would substitute registration of title for 
 the existing system of registration of deeds, we 
 must inquire whether the three features of regis- 
 tration of title would be found under the new 
 system; that is to say, if the titles would be inde- 
 feasible, if registration would be compulsory, and 
 if there would be compensation for errors. 
 
 As to indefeasibility the question cannot be ex- 
 
FRENCH SYSTEM OP REGISTRATION. 79 
 
 actly answered by yes or no. It does not seem 
 likely that in old countries, where people have 
 more regard for points of law than for economic 
 considerations, the public mind would be pre- 
 pared for a system preventing any rectification of 
 the registers, as is the case in Australia. Theorists, 
 therefore, propose provisions very similar to the 
 Prussian law, according to which registers can be 
 rectified as long as hona fide purchasers for value 
 are not concerned by the rectification. But this 
 principle itself would receive, in France, various 
 modifications suggested by a minute analysis 
 from the legal point of view. In some cases it 
 may be fair to decide that rectification cannot take 
 place at all if it is to concern third parties, even 
 of an unqualified character; and in other cases 
 that rectification can be opposed to any third par- 
 ties, though they should be hona fide purchasers 
 for value. Some examples are necessary to make 
 this quite clear. Suppose that the rectification 
 should find its legal basis in a right of action which 
 might have been brought to the knowledge of 
 third parties by notice on the register. If this no- 
 tice has not been served, it is clear that third par- 
 ties who have not been warned should not be 
 ejected because of registration, even if they are 
 neither hona fide purchasers nor purchasers for 
 value. This would be the case if the registered 
 owner were one who had acquired the land sub- 
 ject to certain conditions which he does not ful- 
 
80 REGISTERING TITLE TO LAND. 
 
 fill. The action of his vendor could have been 
 made public from the moment the contract vras 
 made. If the terms of the contract have been 
 kept secret, it would not be just to oppose them to 
 third parties who were entitled to believe that the 
 registered owner was not bound by any special 
 condition or covenant for charge. A restriction 
 would be made to the German principle in such a 
 case. Suppose, on the contrary, that the regis- 
 tered owner has received the property as a gift 
 from a person having no children. If the giver 
 has a child born a few years later, the property 
 must, according to French law, come back to him. 
 It is a kind of legal and necessary reversion. But 
 in the meanwhile the donee may have sold the 
 land for a money consideration to a third person 
 ignorant of these circumstances. The case of this 
 third party is surely interesting, but not more so 
 than that of the donor who did not foresee the 
 birth of his child when he generously deprived 
 himself of his property. To such a case it would 
 be understood that the rectification should take 
 place in spite of the third party's rights. But some 
 theorists only admit that this effect should take 
 place if there has been a caution lodged in the reg- 
 istry by the giver himself. 
 
 Subject to such modifications as these, titles 
 will be made indefeasible in the German sense of 
 the word. We come now to our second question, 
 AVould registration be made compulsory? The 
 
FRENCH SYSTEM OF REGISTRATION. SI 
 
 answer is Yes. It seems to be proposed that, as 
 soon as the registries shall have been established 
 in one district, all agreements relating to land, as 
 ■«-eU as all devolution of land mortis causa, shall 
 be required to be registered. But how would the 
 registers be established in each district ? It is pro- 
 posed that, as soon as the cadaster has been re- 
 vised in each district, the registrar himself should 
 be ordered to draw up the registers. For this 
 purpose he would send a private letter to aU the 
 owners whose names appear on the cadaster that 
 they should send up their documents so that the 
 folio concerning them might be drafted. Eeason- 
 able delay and notice would be given to aU who 
 might have objections to make, for bringing them 
 forward. 
 
 A special feature of the French system would 
 be that titles once registered would still remain 
 for two years subject to the existing system, 
 which only gives them a possessory character. 
 This would give opportunity for the production 
 of aU objections before the titles should become 
 indefeasible. 
 
 A third question remains to be answered. What 
 compensation for mistakes would there be under 
 the proposed system ? It is not certain that there 
 would be a special compensation fund, and we 
 must acknowledge that, since rectification would 
 be allowed whenever it would cause no injury to 
 third parties, there would be much less reason 
 
 6 
 
82 REGISTERING TITLE TO LAND. 
 
 for compensation than under the Australian sys- 
 tem. The principle accepted by most theorists is 
 that errors should be paid for by the officials who 
 have made the mistake. Ultimately the state 
 would be held responsible if the officials were not 
 solvent. But this cannot be passed without some 
 objection from all those who believe that the state 
 should never be declared responsible for what its 
 agents and public servants have done. And this 
 opinion would be supported by those who consider 
 that the liability of the state would involve any 
 amount of financial complications. But, perhaps, 
 if the responsibility of the state were not admitted 
 as a principle, a compensation fund might never- 
 theless be created by some amendment passed in 
 parliament. 
 
 Two more remarks deserve to be made. In the 
 first place, theorists do not consider that the reg- 
 istries ought to be kept secret. It is believed in 
 France, on the contrary, that the registrar should 
 answer all applications concerning the legal in- 
 cumbrances charging any definite property. In 
 the second place, it is admitted that prescriptio 
 and usucapio ought to produce their legal effects 
 against a registered owner who should happen 
 not to be in occupation. This effect of adverse 
 possession has already been stated as one of the 
 features of the Austrian system, whereas it does 
 not appear in Prussia nor in Australia. 
 
 To stand on existing ideas for introducing the 
 
FRENCH SYSTEM OP REGISTRATION. 83 
 
 Torrens system into France, I may venture to say 
 that in all countries legislation is a work of pa- 
 tience, and that some more years may elapse be- 
 fore the preceding proposals will be accepted. 
 But, sooner or later, the substitution of absolute 
 for possessory titles wiU certainly be realized in 
 France. 
 
LECTUEE V. 
 
 OTHER COUNTRIES, AND GENERAL REVIEW OF THE 
 SUBJECT. 
 
 Tunis. — We must add to the list of countries 
 where registration of titles is established the small 
 but prosperous regency of Tunis, on the North 
 African coast. This regency submitted to the 
 French protectorate soon after 1880, and in 1885, 
 on the 5th of July, an act was passed in the French 
 parliament granting Tunis a Land Registry. The 
 manner in which titles are entered in this reg- 
 istry is somewhat different from that in Aus- 
 tralia and in the Grerman states. The applicant 
 has to draw up three copies of his demand, and 
 the recorder of titles, to whom he delivers them, 
 sends one to the French district magistrate and 
 one to the mussulman caid. These copies are 
 given desirable publicity, and after three months* 
 delay the property for which registration is sought 
 has its boundaries controlled and ascertained by 
 the French magistrate. This operation once con- 
 cluded, the official report of the proceeding is pub- 
 lished, and two months' more delay are awarded 
 for objections, if any, to be presented. As soon 
 as this time is passed, the local tribunal decides 
 concerning the application before the recorder of 
 
OTHER COUNTRIES — GENERAL REVIEW. 85 
 
 titles can enter it on his books. The local tribu- 
 nal is formed by seven magistrates — three French, 
 three native, and a French president; and one of 
 the members is always appointed to act and stand 
 for those who, because of absence or legal inca- 
 pacity, cannot defend their rights. 
 
 When the tribunal has, after suitable investiga- 
 tion, allowed the apphcant to be registered as 
 owner of the property applied for, registration has 
 the following effects: 
 
 1st. It is the only way to claim and secure a 
 right in immovable property against third parties. 
 
 2d. Against a registered ownership no adverse 
 claim whatever can prevail. If it happens that 
 some one has, by mistake or for any other cause, 
 suffered injury by undue registration, he can only, 
 as under the Australian system, receive a money 
 compensation. For that object a compensation 
 fund is raised by a contribution of one per cent, 
 on the value of the registered property. Any one 
 held responsible for the error is also liable. 
 
 As to compulsion, it has not been deemed neces- 
 sary, and every owner is free to apply or not for 
 the benefits of the system. 
 
 Canada. — Another state in which registration 
 of title has been introduced with success is Canada. 
 The system was started there in Vancouver as 
 early as 1861, and gradually extended to the greater 
 part of the Dominion, beginning in British Colum- 
 
86 REGISTERING TITLE TO LAND. 
 
 bia in 1870, and passing, in a space of fifteen years 
 more, to the Northwest territory. But though the 
 principle of registration is alike in these different 
 provinces, the practical application of the system 
 difi;ers from one province to another. 
 
 Mr. Brickdale, assistant registrar in London, 
 compares the British Columbia system to that 
 which was enacted in England by Lord West- 
 bury's act in 1862, and prevailed there till Lord 
 Cairns' act in 1875. The Ontario system is hardly 
 less than a copy of this last English act, while the 
 Northwestern system follows closely the Austra- 
 lian legislation. For this reason we may say noth- 
 ing more of the Northwestern system than to refer 
 to what has already been said (in our second lec- 
 ture) about the Torrens acts, adding only that in 
 the Canadian provinces the success of this registra- 
 tion has been as great as in Australia. This fact 
 was brought out in 1893 at the Chicago Eeal Prop- 
 erty Congress by Mr. Mason, manager of the 
 Canada Permanent Loan and Savings Company, 
 when he said: "The new system is now univer- 
 sally admitted to be a vast improvement of the 
 old system." 
 
 As to the Ontario system, it is somewhat better 
 than that of Lord Cairns, since it secures compen- 
 sation for error, thus realizing the principal im- 
 provement which English legislation only obtained 
 twenty-two years later. In Ontario the insurance 
 fund is being raised by a contribution of one-fourth 
 
OTHER COUNTRIES — GENERAL EEVIEW. 87 
 
 per cent. Owing to this means of repairing mis- 
 takes, title is indefeasible, as it is in all states 
 where errors are provided for, compensation and 
 absolute title being the inseparable elements of 
 registration. When these two elements meet it 
 is easy to make legislation compulsory, and this is 
 indeed the fact for all titles granted in Ontario 
 since 1887, the date when the statutes of Ontario 
 were revised. The registries in that province have 
 no limited number; they may be multiplied wher- 
 ever the municipal bodies guarantee the cost of 
 establishing a new office. 
 
 The fees are moderate and hardly different from 
 those adopted in other states. A first registration 
 costs £1 ($5), including the price of the applicant's 
 land certificate, but subject to such augmentation 
 as may be justified by the examination of the 
 title. As to subsequent transfers and mortgages, 
 they cost no more than $2. British Columbia's 
 system remains, as we have already ventured to 
 say, rather beneath this standpoint. Eegistration 
 is only understood there as conferring possessoiy 
 title at first, and seven years' registration is re- 
 quired, after public notice, to have a possessory 
 title converted into an absolute one. Though 
 the security is less than in Ontario, the fees are 
 rather higher, owing to the fact that besides the 
 ordinary fee, which is only $1, there is an ad valo- 
 rem duty of one-fifth per cent, on transfers and 
 one-tenth per cent, on mortgages. 
 
88 EEGISTERING TITLE TO LAND. 
 
 Canton of Taud. — Last, but not least, among 
 countries where absolute title is conferred on land, 
 we must mention the small C^antoa of V'aud in 
 Switzerland. This is indeed the only place in the 
 world where one finds at the same time registra- 
 tion of titles and accurate aufastral plans both 
 working for the better evidence of ownorsliip in 
 land. The system rests on two laws pawsed in 
 the same year, 1882: one concerning real-property 
 registration and the other the radaslcr. 
 
 As in Germany, registration is coinjiulsory; no 
 right in land being transferable if the land is not 
 first registered. As in Oermany, also, occupation 
 has no effect against a registerwl owner. But the 
 German system is left behind by this small part 
 of Switzerland on one point at least, since icg- 
 istration applies not only to ownernliip and mort- 
 gages, but also to easements, incidental rights and 
 other servitudes wliich are not comprehended by 
 registration in Germany. 
 
 There is no special fee for registration in the 
 Canton of Vaud, the expense of the business bdiiig 
 paid out of the advaJoi-evi. tax on sales of land. Tlio 
 registrar himself is paid out of that duty, and is 
 held responsible for mistakes to those who suffer 
 damage. This may occur in the same instances 
 as in Germany, as it is likewise ostabli.sliod that 
 the registers cannot be rectified against bona fide 
 purchasers for value. 
 
OTHEK OOUNTRIKS— fiENEEAL EEVIEW. fi',) 
 
 l{r^lj;ium — Wn must give some attention to one 
 or two minor states where registration of title to 
 land has not been established, but where registra- 
 tion of (leeds is practiced in a relatively perfect 
 way. I point to Belgium and Scotland. 
 
 In Belgium the system of guarantying security 
 of title was, up to 1S51, t?ie same as in France, 
 owing to the enforcement of the Code Napolecm 
 in that country at the beginning of the present 
 century. But since an act of the 16th of Decem- 
 Ijer, 1852, most of the inconveniences i>ointed 
 out in our lecture on the French system have 
 disappeared from Belgium; and though registra- 
 tion of title has not been altogether established 
 there, at least in the shape understood to be the 
 best, it may be said that sufficient protection has 
 been given to land-owners for them to be able to 
 fear no ejectment. 
 
 In the first place, all transfers are executed be- 
 fore a public officer, the notary, who is responsible 
 for the legal form and would be liable for any 
 personal negl igence. This notary keeps in his own 
 office the original of the deed, so that the pur- 
 chaser has no chance of losing it. If the notary's 
 office hapi^ened to be burnt or blown uj), there 
 would be two ways of verifying the contents and 
 statements of the deed: a proof could be obtained 
 in the first jjlace from the authenticated copy de- 
 livered by the notary to the purchaser, and, in the 
 second place, from that other abstract of the title 
 
90 REGISTERING TITLE TO LAND. 
 
 which exists in the pubhc treasury, where the 
 deed is stamped on payment of the ad valorem 
 duty. It must be remembered that these two 
 guaranties, though often secured in France, are 
 not always found there, because French law allows 
 transfers to be executed by deeds under private 
 seal as weU as before a notary, and a deed under 
 private seal has no original kept anywhere, not 
 even at the public treasury, as the main object of 
 acting under private seal is to escape the ad va- 
 lorem duty. 
 
 Execution of deeds before a notary is the first 
 essential feature of the Belgian system. Then 
 conies the second, which is called "obligatory 
 transcription of the deed in the keeper of mort- 
 gages ofSce." When the document is transcribed 
 a statement is made of the mortgages, if any, on 
 the estate so transferred. The previous incum- 
 brances are therefore known by the purchaser, 
 who may ascertain under what responsibilities he 
 acquires the land. And all incumbrances which 
 have not yet been entered remain out of his way, 
 as his own right on the land appears before theirs. 
 We know that "transcription" exists likewise in 
 the French system, but the protection is not the 
 same, for the following reasons: 
 
 1st. Whereas the Belgian notary always tran- 
 scribes the deeds executed under his care, most of 
 the French deeds escape transcription when exe- 
 cuted under private seal. 
 
OTHER COUNTRIES — GENERAL REVIEW. 91 
 
 2d. Whereas the Belgian purchaser, when his 
 title is transcribed, has no fear of any secret in- 
 cumbrance on the land, the French purchaser may 
 still be ejected by virtue of those legal mortgages 
 which are opposable to him in spite of their not 
 having been made public. It is a merit on the 
 part of Belgium to have entirely done away with 
 secret incumbrances. 
 
 We now come to the third feature of the Bel- 
 gian system. Each township (commune) has its 
 plan, describing the boundaries of each parcel, the 
 area of the same, the annual value and other par- 
 ticulars; and as each citizen can claim an extract 
 of the plan and refer to it in the deeds of trans- 
 fer, the identification of land contracted about 
 can be ascertained, if not completely, at least by 
 close approximation. But here appears the prin- 
 cipal deficiency of the Belgian system. The ca- 
 daster, however well kept up to date, is not a 
 sufficient reference, and even when perfectly exact 
 can only be a reference instead of being evidence, 
 as would be necessary for titles of property to be- 
 come truly absolute. Because of this deficiency 
 it is true that the Belgian as well as the French 
 system does not give notice of the credit of prop- 
 erties, but only of the credit of proprietors. The 
 " keeper of mortgages," when applied to, can give 
 no answer about the incumbrances charging such 
 or such land; he can only answer questions con- 
 cerning land-owners. He can tell you that a man 
 
92 REGISTERING TITLE TO LAND. 
 
 bearing such or such a name has four or five 
 or even more creditors who have entered mort- 
 gages against him. One of these creditors may 
 have a mortgage on one parcel only of the land, 
 and another creditor may have a mortgage on 
 another parcel. But as to the legal situation of 
 the whole land, it requires personal calculation, 
 if not guesswork, to know it. And it must be 
 added that much confusion may arise, and does 
 sometimes, from the occurrence of similar names. 
 The keeper of mortgages, in answer to your in- 
 quiry, will give you the account of all inscriptions 
 marked under the name you give him, and if this 
 name is borne by several persons, you must make 
 out for yourself which of the inscriptions men- 
 tioned concerns your own debtor. 
 
 Another inconvenience to be remembered is 
 found in the fact that the books of the "keeper 
 of mortgages " contain no information as to the 
 caus.es of nullity which may affect the deed of 
 transfer. The transferee who has ascertained that 
 no third parties had better rights than his own, 
 still remains ignorant as to the circumstances 
 which may make the grant void. 
 
 These inconveniences have been so well under- 
 stood in Belgium that within the last few years 
 several lawyers of that country have declared 
 themselves favorable to the establishment of a 
 system of registration of titles. 
 
OTHER COUNTRIES — GENERAL REVIEW. 93 
 
 Scotland is, as I have already said, only pro- 
 vided with registration of deeds, but this system 
 has existed there for nearly three hundred years 
 and has contributed to create a state of security 
 hardly less perfect than if she were provided with 
 absolute title. Since the institution in 1617 of 
 the record book, which has the name of register 
 of seisins, and up to 1868, every deed was en- 
 tirely copied in the books, and though it was per- 
 mitted, in 1868, to omit certain avoidable portions 
 of the acts, the practice of the full copy is still kept 
 up by most purchasers. It must be noticed that 
 one of the principal inconveniences of the regis- 
 tration of deeds, "that is to say, the inconven- 
 ience arising from the fact that deeds are kept 
 under the purchaser's name instead of being kept 
 under the property's name," is not found in Scot- 
 land, at least since 1876. In that year an index 
 table was established giving to each property a 
 search sheet, on which are noted, in a concise way, 
 references to every deed concerning that property. 
 This reminds us of the German Orundhuch and 
 its advantages, and prevents any confusion aris- 
 ing from similar names among land-owners. 
 
 Deeds alone, and not titles, being registered, it 
 is clear that registration would confer no value 
 upon a void deed. As the benefits of publicity are 
 alone secured, no authentication is required by the 
 registrar; but it seems that in Scotland authenti- 
 cation would be a superfluity, as deeds have been 
 
94 REGISTERING TITLE TO LAND. 
 
 registered for so loug a time that it is possible for 
 a purchaser to ascertain the vendor's right by a 
 rapid inquiry in the registry. 
 
 And now that we have rapidly run over the 
 systems of these minor countries, as we went over 
 more important legislation in our preceding lec- 
 tures, it is time to come to a conclusion on the 
 general subject of registration. It seems to us 
 that practical experience has proved that registra- 
 tion of title provides people with three universal 
 and permanent benefits: security, simplicity, and 
 economy. 
 
 Security. — Security is an unquestionable fact 
 and may be considered on two sides. We find it 
 provided for the registered owner who is protected 
 against any kind of ejectment; and we find it 
 provided for the rightful owner himself , who may 
 be sure that no third party can register him out 
 of his rights without compensation. These two 
 results seem contradictory and impossible to be 
 obtained simultaneously, and yet they are ob- 
 tained by combining the two following principles: 
 1st, that registration can never be subject to rec- 
 tification; 2d, that where a mistake has taken 
 place, the person suffering injury is entitled to 
 compensation out of public or private funds ac- 
 cording to the fact of liability. 
 
 There is an exception to the first of these prin- 
 
OTHER COUNTRIES — GENERAL REVIEW. 95 
 
 ciples in all other countries than Australia, when 
 it is proved that registration has been obtained by- 
 fraud or by error; but this exception does not 
 weaken in the least the warranty afforded by regis- 
 tration, since it has no effect on a bona fide pur- 
 chaser for value. So whereas our first principle 
 is by no means weakened, the second principle is 
 strengthened, since in this particular case the 
 rightful owner gets not only compensation in 
 money, but recovers the very possession of his 
 property. 
 
 In fact fraud has proved to be an unknown 
 thing, or nearly so, in this matter, and errors have 
 been very few. The only kind of frequent forgery 
 which has been remarked took place in Austria 
 at a time when husbands were induced to act as 
 owners of their wives' property. But this fraud 
 has come to be rare since special precautions have 
 been adopted, namely, under the form of notices 
 served by post, and sometimes personally on the 
 grantor, so as to ascertain whether he is the same 
 person who applied in the registry. Moreover, in 
 some systems, any identification may be required 
 by the registrar, and after this there is still an 
 interval for objections. It is to these precautions, 
 which vary according to countries, but appear 
 everywhere, that security is due, so that the ab- 
 sence of fraud is to be attributed to the merits of 
 the system quite as much as to the honesty of the 
 applicants. Cases of error are and wiU always be 
 
96 REGISTERING TITLE TO LAND. 
 
 somewhat frequent, especially as regards the de- 
 termination of boundaries. But statistics prove 
 that this risk should not be exaggerated. Here 
 are some typical instances to prove what I say : 
 
 (a) In New South Wales there were, in 1889, 
 209,894 registered dealings, and nevertheless the 
 mistakes calling for repair only required a total 
 compensation of £1,172, the average risk of error 
 being only two and one-half cents for each regis- 
 tered dealing. 
 
 (6) In Queensland the risk of error was only one 
 and one-half cents, the number of registered deal- 
 ings being 233,309, and the compensation secured 
 £1,500. 
 
 (c) In Tasmania and in Western Australia not a 
 single farthing was paid for compensation during 
 the whole time of operation. 
 
 Simplicity. — When compared with the practice 
 of countries where conveyancing is still a private 
 business, transfer under the registration system 
 is of wonderful simplicity. Instead of applying 
 to solicitors or to notaries, or to any other sort of 
 business-men who require weeks and months be- 
 fore making the title clear, any man purchasing 
 a registered property can save himself all other 
 trouble than a simple call at the registry, where 
 a few minutes search in the books shows him 
 what right the vendor is really able to grant. 
 After this the two parties need only agree upon a 
 
OTHER COUNTRIES— GENEEAL REVIEW. 97 
 
 notary to draw up the contract, which will serve 
 as a document to be produced with the applica- 
 tion for registration; and before a week is passed 
 the notary may have done the work, and this 
 may be signed and entered at once. Personal at- 
 tendance at the registry is not even necessary, ex- 
 cept in Prussia, and the applicant can rely on a 
 third person if convenient to him, especially in 
 countries where the registers are public and not 
 private. The interference of a notary to draw 
 up the contract can itself be dispensed with in 
 many cases; as, for example, in Prussia, where 
 conveyancing, being completed by two verbal dec- 
 larations made before the registrar, requires no 
 previous agreement. Where a deed is necessary, 
 the same document usually contains the convey- 
 ance and the application for registration. 
 
 Economy. — Saving time and trouble is much; 
 but saving money is still better in such a matter 
 where a trade of land is concerned. Forms of civil 
 law, whenever they are connected with commer- 
 cial requirements, come to be necessarily governed 
 by rules of political economy, of which economy 
 itself is the first. 
 
 It would certainly be interesting to draw up a 
 comparative scale of fees and prices concerning 
 registration of conveyances and of incumbrances 
 in various countries. My attempt to draw up this 
 scale failed to be successful, owing to the great 
 
 7 
 
98 KEGISTERINa TITLE TO LAND. 
 
 differences in the management of duties between 
 one country and another. In Switzerland, for in- 
 stance, the expenses are almost impossible to 
 estimate, as the cost of registration is included in 
 the duty on sales, and the registration is paid 
 partly by a percentage on that duty. In Austria 
 fees vary according to the recency of the preced- 
 ing operation. ]g]lsewhere fees are only part of the 
 costs, because one must add to the ad valorem duty 
 taxes for searches, or for perusing documents on 
 examination of title as well as for noting'the trans- 
 action on the books or on the land certificate or 
 on the certificate of charge, according to the case. 
 But we may say, in a general way, that after hav- 
 ing added up all the different charges existing in 
 the country where registration expenses are high- 
 est, we still remain far beneath the costs to be 
 undergone where registration does not exist. To 
 take an instance, we might compare fees in Prussia 
 with those in England. The fees would be in Eng- 
 land, even where an abatement has been made, 
 
 For 100 dollars 10 dollars. 
 
 3,500 dollars 30 dollars. 
 
 5,000 dollars 50 dollars. 
 
 50,000 dollars 350 dollars. 
 
 whereas in Prussia they would only be 
 
 For 100 dollars 1 dollar and 33 cents. 
 
 2,500 dollars 8 dollars and 2 cents. 
 
 5,000 dollars 15 dollars. 
 
 50,000 dollars 75 dollars. 
 
 All the previous statements verified by expe- 
 rience leave little ground for objections raised 
 
OTHER COUNTRIES — OENEEAL REVIEW. 93 
 
 against registration of title, such as those, for in- 
 stance, which were made at the World's Eeal Prop- 
 erty Congress in 1893. These, if I have well un- 
 derstood them, were mainly the following: 
 
 1st. Eegistration would be unjust because of 
 the risk rightful owners might incur from the 
 registrar's mistake. 
 
 2d. The absence of legal protection for inci- 
 dental rights, such as easements, settlements, 
 vendors' liens or adverse possession. 
 
 3d. The failure of registration of title in Eng- 
 land. 
 
 As to this last objection I scarcely need to reply, 
 as the World's Congress, where it was heard, was 
 followed four years later by the enactment in 
 England of that very satisfactory "Land Transfer 
 Act " whose provisions and practical advantages 
 were recorded in our third lecture. 
 
 Little also remains to be said about the other 
 two objections, as they are refuted by experience. 
 It is certainly true that easements require legal 
 protection and that they must be accounted for 
 under any system of transfer of land. But there 
 is no difficulty in their being recorded under a sys- 
 tem of registration of title; and if they fail to be 
 recorded in Prussia, we have seen that it is only 
 because they are looked upon as being unimpor- 
 tant charges on real property. But we know that 
 in Austria and Hungary all easements and servi- 
 tudes are registered, and there is no reason to pre- 
 
100 EEGISTERING TITLE TO LAND. 
 
 vent their registration being made compulsory 
 wherever it still fails to be. We also know that 
 life estates, estates in remainder and settlements 
 appear on most registers, and can be made to ap- 
 pear where they are not yet provided for. Theo- 
 retically and practically all these incidental rights 
 are no more difficult to register than a simple mort- 
 gage, and it is impossible to say, because in one or 
 another country they have been overlooked, that 
 registration cannot secure the protection of such 
 rights. 
 
 The only objection which may remain rooted in 
 certain minds is that of the injustice of registra- 
 tion, because this objection being of a sentimental 
 character is beyond any kind of reasoning. But 
 it is not true that registration cannot be accepted, 
 both as a principle and as a fact, by those who 
 are most attached to the principles of equity and 
 right, and all the promoters of registration cer- 
 tainly deserve to be numbered as such. Since reg- 
 istration before taking place is preceded by a se- 
 vere examination of titles by serving notices on 
 all those who are connected with the land, and by 
 advei'tisements in pubhc papers, who can doubt 
 that all risks of error, and therefore of injustice, 
 are removed ? We do know that some mistakes 
 have been made; but we also know how very few 
 of these have been made. Forgery on one side, 
 and negligence on the other, may still combine in 
 some cases to deprive a rightful owner of his prop- 
 
OTHER COUNTRIES — GENERAL REVIEW. IQl 
 
 erty; but is it not clear that such a risk cannot be 
 compared to the risk which, under the system of 
 no registration at all, threatens all those who care- 
 lessly enter into rash agreements ? 
 
 To speak the truth, there is only one real hin- 
 drance which prevents registration from spread- 
 ing over the whole world, and that is neither its 
 injustice nor its theoretical or practical deficien- 
 cies; it is simply the obstruction of it by the legal 
 profession. Solicitors, and all those who share in 
 the costs of private conveyancing, find it all the 
 better that the prices are high and the intricacies 
 more complicated. Their objection to registration 
 is really based on their fear of its advantages much 
 more than of its deficiencies. But however great 
 may be the desire of all those connected with the 
 legal profession to secure their pecuniary inter- 
 ests rather than the owner's rights, it is clear that 
 the interests of the community at large must in 
 the end be preferred to private interests, however 
 worthy these may be. This was already clearly 
 understood at the World's Real Estate Congress in 
 1893, when the following resolution was carried 
 with only two dissenting voices: "That it is the 
 sense of the delegates of the World's Real Estate 
 Congress that they should do what lies in their 
 power to call the attention of their various state 
 legislatures to the benefit of the Torrens system, 
 and recommend its adoption, so modified as to 
 suit it to their state constitution and laws." 
 
102 EEGISTEEING TITLE TO LAND. 
 
 This resolution, drafted and carried by promi- 
 nent lawyers sitting in a scientific congress, and 
 after full consideration of the subject, has not 
 ceased to deserve approbation; and coming from 
 a source so much more authoritative than my- 
 self, its value will perhaps not be impaired if I 
 venture to quote it as the best conclusion I can 
 find for my lectures. 
 
INDEX. 
 
 ABSOLUTE TITLE TO LAND — 
 as a principle, 25. 
 
 in Alsace-Lorraine, 43. 
 
 in Australia, 31. 
 
 in Austria-Hungary, 35. 
 
 in Canada, 86. 
 
 in Germany, 34 
 
 in Tunis, 85. 
 
 in Vaud, 8a 
 
 BIBLIOGRAPHY ABOUT REGISTRATION, 26, 27. 
 
 CADASTER— 
 in Belgium, 91. 
 in France, 77. 
 in Germany, 89. 
 in Vaud, 88. 
 
 CAIRNS ACT (1875) — 
 for England, 53. 
 
 COMPENSATION FOR ERRORS — 
 as a principle, 25. 
 in Australia, 81. 
 in England, 58. 
 in German states, 38. 
 in Ontario, 86. 
 in Vaud, 8a 
 
 COMPULSORY REGISTRATION — 
 as a principle, 25. 
 
 in Alsace-Lorraine, 43. 
 in Australia, 31. 
 in Germany, 34 
 in Vaud, 88. 
 
104: UTDEX. 
 
 COMPULSORY REGISTRATION (continued) — 
 according to local option — 
 in Austria, 35. 
 in England, 59, 64 
 
 COPYHOLDS — 
 in England, 47. 
 
 EASEMENTS AND SERVITUDES — 
 must be registered, 37, 88, 99. 
 
 ECONOMICAL IMPORTANCE OF REGISTRATION, 11, 97. 
 
 ECONOMY OF COST — 
 in England, 54 
 as a general rule, 97, 98. 
 
 ENGLISH LAND TRANSFER ACT 1897, 57. 
 
 EXAMINATION OF TITLES BEFORE REGISTRATION— 
 in Alsace-Lorraine, 48. 
 in Australia, 30. 
 in German states, 36. 
 in Tunis, 85. 
 
 FEATURES OF REGISTRATION (three), 35. 
 
 FIDUCIA — 
 
 Roman contract of, 14 
 
 FRAUD — 
 
 its effects on registration, 37, 97. 
 
 GERMAN STATES — 
 
 afforded with registration of title to land, 34 
 
 HISTORICAL REFERENCES TO ROMAN LAW, 13-23. 
 
 HYPOTHEQUES — 
 in France, 69-73. 
 
 INSINUATIO — 
 
 as a precedent of registration, 33. 
 how it survived in France, 68. 
 
 INVESTMENT — 
 
 by magistrate in Germany, 36. 
 
 JOHN CAMPBELL'S BILL (England, 1835), 53. 
 
INDEX. 105 
 
 LEGAL MORTGAGES — 
 in France, 75. 
 in Belgium, 91. 
 
 LEGAL PROFESSION — 
 
 opposed to registration, 51, 58, 77, 101. 
 
 LOI SUR LA TRANSCRIPTION (France, 1855), 73. 
 
 MORTGAGES IN ENGLAND, 50, 63. 
 
 NOTARY — 
 
 must execute deed in Belgium, 89. 
 
 OWNERSHIP IN LAND BEFORE REGISTRATION, 30-23. 
 
 POSSESSION OF LAND — 
 
 how it affects registration, 38, 88. 
 
 PRECARIUM — 
 
 Roman contract of, 16. 
 
 PRIORITY AMONG CREDITORS — 
 
 how secured before registration, 13-30. 
 how secured in France, 74 
 
 PURGE OF LEGAL MORTGAGES IN FRANCE, 75. 
 
 REGISTER OF SEISINS (Scotland), 93. 
 
 REGISTRATION OF DEEDS — 
 Belgium, 89. 
 England, 45. 
 France, 66. 
 Scotland, 93. 
 
 REGISTRATION OF TITLE — 
 
 how it differs from registration of deeds, 35. 
 
 Alsace-Lorraine, 41. 
 
 Australia, 39. 
 
 AustriarHungary, 35. 
 
 Canada, 85. 
 
 Germany, 33. 
 
 Tunis, 84 
 
 Vaud, 88. 
 
 SECRECY OF REGISTERS IN GERMAISTY, 37. 
 
106 INDEX. 
 
 SECURITT AFFORDED BT REGISTRATION, 94. 
 
 SIMPLICITY OF DEEDS AFTER REGISTRATION, 96. 
 
 SURRENDER AND ADMITTANCE, 47. 
 
 TORRENS SYSTEM, 29. 
 
 TRANSCRIPTION — 
 in Belgium, 90. 
 in France, 73. 
 
 WESTBURY'S ACT (England, 1863), 53. 
 
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