(Snrnpll ICavu i>rl|nnl ICibrary Cornell University Library KFG 127.P88 Manua on land realstration : 3 1924 024 649 091 Cornell University Library The original of tiiis 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/cu31924024649091 A MANUAL ON LAND REGISTRATI0N WITH A FULL. COMPLETE ANNOTATED COPY OF THE LAND REGISTRATION ACT of the STATE OF GEORGIA By ARTHUR GRAY ^ WELL, LL. D. Atlanta. Georgia, Bar ; formerly a Judge of the Court of Appeals of the State of Georgia ; Author of Powell on Actions for Land ATLANTA THE HARRISON COMPANY Law Book PubIvIShers 1917 Copyright iloPYRIGHT 1917 BY Arthur G. Powbll Personal Foreword^S tte I have written this book as a duty, not as a pleasure; for, while it might have been a pleasure to have written a book on this subject, if I had had the time, the fact is I didn't have the time. In the first place, the time between the passage of the Land Registration Act and the date set by the publishers whereon the printers should have the manuscript was too short a period in which to write on the subject in a way which would have given pleasure. And, then, I have long since sold myself into the slavery of a law practice ; and that takes time. I say it was my duty to write the book, because I owe so much to my brothers of the bar that when they make a demand of me I ought not to let my personal convenience prevent my compliance — and they have asked me to write this book. It happens this way: Some years ago a commission was ap- pointed to study and put into the form of a bill a system of land registration for this State. ^ I served on the commission and gained some knowledge of the then existing systems. The death of the brilliant chairman of that commission, Hon. Washington Dessau, prevented its labors from coming to fruition. In the year 1914 the General Assembly authorized the appointment of a similar commission,^ and the Governor named me on it. This commission devoted several weeks to public hearings and to a study of the subject, and then drew the bill which was enacted into law at the last session of the General Assembly. Owing to the fact that the two other members of this commission (Hon. R. N. Holtzclaw and Hon. S. M. Turner) resided away from Atlanta, where the hearings of the commission were had, the larger part of the preparation of the bill fell upon me. Hence, I was supposed to know more about the subject than any one else upon whom the bar might have called to write the book; therefore, the demand and the duty that I should write it. 1. See Georgia Laws, 1903, p. 689; Georgia Laws, 1904, p. Georgia Laws, 1905, p. 1256. 2. Georgia Laws, 1914, p. 1348. [m] 758; IV peesonai, foreword. I decided that my labors would prove most useful if I at- tempted to write a practical, rather than a learned treatise on the subject. While the subject is one that might bear much fruit under learned treatment, still what the present moment most demands is a practical handbook which will inform the pro- fession and the officers who are to administer the law what to do and how to do it, when a landowner comes seeking to reg- ister his land. There has been no effort at style, except that I have striven to state matters in a plain understandable way and in language that a layman can understand. I have not hesitated to use repe- tition, either of words or of ideas, where I felt that the same would give either greater clearness or greater emphasis. But few cases are cited. On the immediate subject, naturally there are no local cases to cite, since the Act has not yet gone into effect. A few cases have arisen in other states involving the constitutionality of similar statutes, and the leading of these cases have been cited. Most of the other cases which might be cited on the general subject relate to points of practice, depend- ent for the most part on the construction of the peculiar lan- guage of local statutes, and I have not thought it worth while to cite them. However, any one desiring to examine these cases will find them briefed in L. R. A., 1916D, pp. 14 et seq. Many of them are cited in the notes accompanying the American Uni- form Land Registration Act which is reproduced in the Ap- pendix. I have not hesitated to express an opinion here and there as to the proper construction or as to the effect of the various sec- tions of the Act. These opinions may be taken for what they are worth. I put them forth without recourse or warranty, ex- cept that they are genuine and delivered in good faith. I trust that the Act will prove to the bar and to the people of this State the great blessing which its friends, I among its num- ber, believe it will be. If this book shall help to make it so, I shall feel repaid for all the labor I have bestowed upon it. A. G. P. Atlanta, September, 1917. TABLE OF CONTENTS. CHAPTER I. Introduction. § 1. Historical Sketch — Torrens System — Other Systems. § a. The Dual Meaning of the Word "Title"— Registration Af- fects Title Only in the Adjective Sense. § 3. Title in Its Substantive Sense Not Affected by Registration. § 4. General Object of the Land Registration Act. § 5. The Various Methods Used to Evidence Title — Objections to Common Modern Methods. § 6. Registration as Synchronizing Title in Evidentiary Sense With Title in Abstract Sense. § 7. Registration as lyocalizing Title in Point of Space. § 8. Land Value Increased by Registration — Land as a Liquid Security. § 9. Safety and Certainty of Landownership Assured. § 10. Settling Doubtful Matters as They Arise — Advantages. § 11. Registered Lands Subject to the Ordinary Jurisdiction of the Courts — Equities, How Enforced and Protected. § 13. Same Continued. § 13. The Act a Remedial Statute— To Be Liberally Construed. § 14. The Practicability and Simplicity of the System. § 15. General Outline of the Act. CHAPTER II. Thb Constitutionality of ths Law. § 16. Earlier Acts Declared Unconstitutional as Conferring Ju- dicial Powers on Non-Judicial Officers. § 17. Earlier Act Declared Unconstitutional Because No Provision For Service of Process. § 18. Later Acts Sustained. § 19. Constitutional Questions Avoided in the Georgia Act. § 20. Estoppel against Raising Constitutional Questions After Land Is Once Registered. CHAPTER III. Definitions. § 21. Certain Words and Phrases Defined. [V] VI TABI,E OP CONTENTS. CHAPTER IV. Pl^EADINGS ON INITIAL REGISTRATION. § 2S. Equitable Procedure But Not Equitable Jurisprudence Applies. § 23. Venue of Petitions for Registration. § 24. Filing and Docketing. § 25. Who Are Proper Petitioners for Registration. § 26. The Character of Ownership Required — Grantor and Grantee in Security Deed — Vendor and Vendee in Executory Sale. § 27. Persons or Corporations Having the Power of Appointing or Disposing of the Fee Simple. § 28. Corporations as Petitioners — Unincorporated Associations. § 29. Infants and Other Persons under Disability as Petitioners. § 30. How Far Those Owning Less than Fee Simple May Invoke the Act § 31. The Petition for Initial Registration. § 32. Suggestions as to Filling the Blanks in Prescribed Form of Petition. § 33. Same Continued — Appointment of Local Agent or Attorney by Non-Resident Petitioner. § 34. Same Continued — Description of the Land. § 35. Same Continued — Including Several Parcels in Same Applica- tion. § 36. S'ame Continued — Dividing a Single Tract into Parcels for Separate Registration. § 37. Same Continued — Allegation as to Value and Last Assessment for Taxation. § 38. Same Continued — Allegation as to Estate or Interest. § 3®. Same Continued — Allegation as to Source of Ownership. § 40. Same Continued — Alleging Title by Prescription. § 41. Same Continued — Information as to Title Papers. § 42. Same Continued — Information as to Homestead, Dower, etc. § 43. Same Continued — Statement as to the Occupancy. § 44. Same Continued — Listing Adverse Claimants, Known and Un- known — Taxes. § 45. Same Continued — Listing Adjoining Owners and Occupants. § 46. Same Continued — Easements. § 47. Same Continued — Age of Applicant — How Stated in Case of a Minor. § 48. Same Continued — Husband or Wife to Be Named as Defend- ant. § 49. Same Continued — Naming the Defendants. § 50. Same Continued — The Abstract of Title. § 51. Verification of the Petition. § 52. Defensive Pleadings — Who May File. § 53. Cross Petitions. TABLE Olf CONTENTS. VII § 54. Verification of Defensive Pleadings. § 55. Demurrer — Slackness of Pleading Not Allowed. § 56. The Time within Which Defensive Pleadings May Be Filed. § 57. Right of Amendment. § 58. Severance. § 59. The Effect of a Severance. § 60. Appearance and Pleading by Those Who Deal with the Land Pending Registration Proceedings. ^ CHAPTER V. Process and Notice. § 61. Relation between Provisions as to Service and the Object of Suit. § 63. The Process. § 63. Copies and Second Originals. § 64. Service by Publication — Service on Non-Resident and Un- known Defendants. § 65. Additional Service — When and How Ordered. § 66. Defendants by Representation — Service on Some as Repre- sentatives of Numerous Class. § 67. Service upon the State, Counties and Municipalities. § 68. Acknowledgment of Service. § 69. Waiver by Appearance or Pleading. § 70. Perfecting Service on Persons under Disability. § 71. The Constructive Seizure of the Land. § 73. Notice to the Occupants of the Land. § 73. The Return of Seizure, Service and Notice — Traverse, How Far Allowable. § 74. No Denial of Service after Judgment. § 75. Adverse Claimants Disclosed by Examiner's Reports — Check- ing up Returns of Service by Examiner's Reports. § 76. Provisions for Service Not Unduly Onerous — Effectiveness of the Provisions. CHAPTER VI. Examiners — Reports — Exceptions. § 77. Examiners, General and Special — Considerations Influencing the Number to Be Appointed. § 78. Term of Office, Eligibility and Official Oath. § 79. Order of Reference. § 80. Examiner's Preliminary Report — When to Be Filed. § 81. Contents of the Examiner's Preliminary Report. VIII TABLE OF CONTENTS. § 83. Same Continued — Examiner's Abstract of Title. § 83. Same Continued — Schedule B. § 84. Same Continued — Schedule C. § 85. Same Continued — History of the Possession. § 86. Same Continued— Where the Examiner Finds the Description InsufKcient. § 87. How Far the Preliminary Report is Prima Facie Evidence. § 88. Bringing the Case to Hearing before Examiner — Notice of the Hearing. § 89. Functions and Duties of the Examiner on the Hearing. § 90. Special Powers of the Examiner — Independent Investigation. § 91. S'ame Continued — Power of Examiner as Court Commission- ers to Take Depositions. § 93. Introduction of Evidence before the Examiner. § 93. Employment of Stenographer. § 94. Burden of Proof — Methods of Proof. § 95. Examiner's Final Report. § 96. Exceptions to the Examiner's Report. § 97. Hearing on Exceptions — Jury Trial on the Facts. § 98. Same Continued — Procedure and Evidence on the Trial be- fore Jury. § 99. Recommitment — New Trial. § 100. Survey — When Ordered — How Made — Trial of Protest to Surveyor's Return. CHAPTER VII. Final Judgment and Decree op Title. § 101. Decision of the Cause by the Court. § lOa. No Judgment by Default. § 103. Voluntary Dismissal of the Petition — When Allowable, When Not — Involuntary Dismissal. § 104. Right to Amend, Instead of Dismissing Where Plaintiff Shows Title to Less than Fee. § 105. Dismissal Where Petitioner Proves Only an Undivided In- terest. § 106. Judgment Authorizing Registration — Decrees of Title — Sev- erance For Purpose of Rendering Separate Decrees. § 107. Tract Divided Into Parcels — Separate Decrees — Advantages of This Privilege. § 108. Form of the Decree — Necessity for Adherence to Prescribed Form. § 109. Preparation of the Decree of Title — Suggestion as to Filling in the Blanks in Prescribed Form — Description of the Land. TABLE OF CONTENTS. IX § 110. Same Continued — Filling in Names of the Owners — Descrip- tion of Their Respective Estates. § 111. Same Continued — Declaring Limitations and Conditions. § 112. Same Continued. § 113. Same Continued — Declaring Liens and Encumbrances. § 114. Same Continued — The "Residuary Clause" in the Blank Form — Easements — Building Restrictions — Cautionary State- ment of the Possibility of Appeal. § 115. No Issue as to Mesne Profits or Set-OflE of Improvements — Statement in Decree as to Improvements. § 116. Recording the Judgment or Decree. § 117. Conclusiveness of the Decree of Title — A Covenant Running With the Land. § 118. Writ of error to Supreme Court — Fast Writ — Supersedeas. § 119. Enrolling the Decree of Title — The Register of Decrees of Title. § 120. Same Continued — Suggestions as to the Enrollment of De- crees — Decrees, How Numbered. § 121. Same Continued — Outside Recording of Plats and Lengthy Details. § 122. Same Continued. § 123. Indexing Decree — Full Individual Indexing Required. CHAPTER VIII. Certificate of Title. § 124. Completing Initial Registration — The Title Register. § 125. Preparing and Registering the Certificate of Title — How Numbered. § 126. Same Continued — Filling the Blanks — Description of the Land. § 127. Same Continued — Names and Description of Owners. § 128. Same Continued — Designation of the Owner's Estate. § 129. Same Continued — Declaring Limitations, Conditions, En- cumbrances, Etc. § 130. Same Continued — Dating, Signing and Sealing. § 131. Same Continued — Right, and Method of Asking Direction From Judge in Case of Doubt. § 132. Indexing the Certificate of Title. § 133. The Owner's Certificate — Issuance — Attaching Certified Copy of Outside Records. § 134. Same Continued — Form — Suggestions as to Design. § 135. Established Duplicate of Owner's Certificate. X TABI,E OP CONTENTS. CHAPTER IX. Subsequent Registration Genijrally. § lae. Preliminary. § 137. Ownership of Registered Lands Subject to Same Rights and Burdens as in Case of Unregistered Lands. § 138. Same Continued— How Registration and General Law and Equity Work Together— The Sphere of Each. § 130. Analysis of the Various Kinds of Transactions Dealt With in the Act — -Voluntary Transactions — Involuntary Trans- actions. § 140. Voluntary Transactions Executed in Prescribed Form Ac- companied by Owner's Certificate. § 141. Voluntary Transfers and Mortgages Not Accompanied by Owner's Certificate. § 143. Voluntary Cancellation of Liens and Encumbrances. § 143. Voluntary Transactions Not in Prescribed Form. § 144. Involuntary Transfers — Registered Only on Order of the Judge. § 145. Involuntary Transactions Not Involving a Transfer of Title. CHAPTER X. Methods of Registration — Voluntary Transactions. § 146. Preliminary. § 147. Voluntary Total Transfer in Standard Form. § 148. Voluntary Transfer of Undivided Interest in Standard Form. § 149. Procedure Where Co-Owner Refuses Possession of Owner's Certificate for Registering Partial Transfer. § 150. Voluntary Transfer of Estate Less than fee — Leases — Tim- ber and Mineral Rights. § 151. Voluntary Transfer of a Divided Portion of a Tract, Exe- cuted in Standard Form. § 153. Transferring the Certificate as Security for Debt. § 153. Creditor's Certificate § 154. Same Continued — Negotiability. § 155. Same Continued — Foreclosure. § 156. Same Continued — Registering the Transaction. § 157. Same Continued — Transfer to Secure Debt, Not Executed in Standard Form. § 158. Same Continued — When the Clerk Is to Retain the Instru- ment of Transfer and When Not. § 169. Cancellation of Creditor's Certificate. § 160. Transferring Title to Purchaser on Foreclosure of Creditor's Certificate. TABIvE Olf CONTENTS. XI § 161. Mortgages — Standard Form. § 162. Mortgages Not in Standard Form — When Mortgagee Retains Original — When Not — Foreclosure. § 163. Voluntary Transfers Not Executed in Standard Form — Trans- fers in Trust or upon Conditions or Special Terms. § 164. Voluntary Transfers by Corporations. CHAPTER XL Methods of Registration — Involuntary Transactions. § 165. Preliminary. § 166. Involuntary Transfers — Registered Only under Direction of Judge after Notice and Hearing — Order of Transfer. § 167. Summary Jurisdiction of the Judge as to Involuntary Trans- fers. § 168. Method of Applying for Involuntary Transfers — Execution Sales — Tax Sales — Receiver's Sales — Bankruptcy. § 169. Cancellation of Owner's Certificate on Involuntary Transfer — Cancellation by Publication. § 170. Directions to the Clerk in Connection with Judge's Order of Transfer. - § 171. Dtities of the Clerk in Registering Involuntary Transfers. § 173. Advertising Cancellation When Owner's Certificate Not Pro- duced. § 173. Notation of Liens, Encumbrances and Special Rights. § 174. Notation of Judgments and Similar Liens — Necessity and Effect of Notation. § 175. Same Continued — Method of Notation. § 176. Notation of Sundry Other Liens. § 177. Taxes and Public Assessments — Necessity for Notation — - How Noted — When Noted — Duty and Liability of Tax Officers. § 178. Lis Pendens — Necessity for Registration — How Registered. § 170. Adverse Entries — How Removed from Register. § 180. Same Continued — Voluntary Cancellation. § 181. Same Continued — Cancellation by Order of Judge. § 183. Same Continued — Procedure to Compel Cancellation — Sum- mary Jurisdiction of the Judge. § 183. Summary Jurisdiction for Correction of Errors on Register. § 184. Summary Jurisdiction over Forged or Fraudulent Registra- tion. § 185. Distinction between Summary Jurisdiction of the Judge and General Jurisdicton of the Courts. § 186. Notation of Tax Lien, How Cancelled. § 187. Entries and Notations to Be Brought Forward. XII TABLE OF CONTENTS. CHAPTER XII. Speciai, Cases. § 188. Status and Disposition of Registered Land on Owner's Death. § 189. Same Continued — Sales by Executors and Administrators- Objections by Heirs or Other Interested Persons. § 190. Same Continued — Dower. § 191. S'ame Continued — Causing the Title to Be Registered in the Name of the Personal Representative. § 193. Same Continued — Where the Decedent Held Only an Undi- vided Interest. § 193. Same Continued — Transfer from Executor or Administrator. § 194. Same Continued — Transmission of Title by Descent — Judg- ment Establishing Heirship. § 195. Same Continued — How Heirs Obtain Transfer — Procedure to Establish Heirship. § 196. Same Continued — Registering Transfer to the Heirs — Volun- tary Partition among Heirs. § 197. Same Continued — Method of Registering Transfer to Heirs. § 198. Same Continued — Proceedings by Personal Representatives and Other Trustees to Determine Who Are Heirs or Bene- ficiaries. § 199. Same Continued — Rights of Administrator Appointed after Transfer to Heirs. § 200. Guardian's Sale. § 201. Transfer from Husband to Wife and Vice Versa. § 302. Eminent Domain — Condemnation Proceedings. § 203. Registering Change of Owner's Name — Marriage — Charter Amendment. § 304. Transfer of Land Held in Trust or under Conditions or Un- usual Limitations — Powers. § 205. Transfer as the Result of Judicial Proceedings. § 206. S'ame Continued — Partition — Equitable Actions — Specific Per- formance. § 307. Transfer to Hinder, Delay and Defraud Creditors. § 308. Procedure to Effectuate Transfers Resulting from Judicial Proceedings. § 209. Title by Year's Support, How Registered— Sales by the Widow. § 210. Homestead or Exemption — How Registered — Sales of Home- stead Property. TABLE OF CONTENTS. XIII CHAPTER XIII. Conci,usivi;ne3s of Registration. § 311. The Extent of the Conclusiveness. § 212. Same Continued. § 213. Conclusiveness of Registration Where Transfer Forged. § 214. Same Continued. § 215. Same Continued — Safeguards of the Act. § 216. Registration Procured by Fraud — Protection of Innocent Persons. § 217. Attacking Registration For Fraud or Forgery — Summary Proceedings — Regular Court Action — Limitations. § 318. Same Continued — Burden of Proof. § 219. Fraud in Initial Registration — Failure to List Known Ad- verse Claimant. § 330. The Four Matters Excepted From the Conclusiveness of Registration. § 221. Same Continued — Liens and Rights Under Federal Statutes. § 233. Same Continued — Rights of Trustee in Bankruptcy. § 333. Same Continued — Taxes and Assessments For the Current Calendar Year. § 224. Same Continued — Leases For Less Than Three Years. § 335. Same Continued — Highways and Railways. § 336. Diflference Between Certificate of Title and Owner's Cer- tificate as to Conclusiveness. § 327. Same Continued — When Owner's Certificate Can Be Relied On— Entry of "Valid With All Entries Noted." § 228. How Far Summary Jurisdiction of Judge Over Registration Affects Conclusiveness. § 329. Twelve-Months' Limitations For Correction of Registration — When Applicable — When Not. § 230. Same Continued — Matters Adjudicated on Original Regis- tration. § 331. Cancellation of Entry — Conclusive in Twelve Months — When —When Not. § 333. Registered Land Not Aflfected by Adverse Possession or Pre- scription. § 233. Effect of Reversal of the Judgment Authorizing the Regis- istration. CHAPTER XIV. Freeing Land from Registration. § 234. General Statement of the Privilege — When Advantageously Used. § 235. Method of Freeing Land from Registration. XIV TABLE OF CONTENTS. § Z3&. Effect on Future Transactions. § 237. Same Continued— Benefits of Registration Endure — Last Cer- tificate as a Source of Title. § 238. Unanimous Action of Cotenants Required to Free Land From Registration. CHAPTER XV. Registration as Evidence. § 239. Certified Copy of Certificate of Title — Conclusive and Ex- clusive Evidence — Owner's Certificate. § 340 Duplicate Owner's Certificate — When Admissible. § 241. Certified Copy of Certificate of Title or Any Entry Thereon, How Obtained — ^Canceled Certificate — Canceled Entries. § 242. Where Plat or Other Detail Is Contained in Outside Record. § 243. Certified Copy of Decree of Title as Evidence. § 244. Proof of Registered Mortgages, Creditor's Certificates and Transfers. § 245. No Aliunde Proof of Notice — Rule, That Possession Is No- tice, Abolished. § 246. Last Certificate of Title and Owner's Certificate Where Land Has Been Freed from Registration — Same Evidentiary Rank as Grant from the State. § 247. Certified, Copy from the File of Registration Papers. CHAPTER XVI. The Assurance Fund. § 248. Assurance Fund Not an Essential Feature of Land Registra- tion. § 249. Assurance Fund, How Created and Invested^ — Who Liable For Assessment — Cross-Petitioners. § 250. Who May Have Recourse on the Assurance Fund — Generally. § 251. Same Continued — Detailed Discussion. § 252. Limitation of Actions against the Fund — Disabilities. § 253. Measure of Damage. § 254. No Action against Fund for Injury Caused by Breach of Trust. § 255. Defendants in Actions against the Fund — Attorney-General's Duties. § 256. Other Remedies to Be Exhausted' — Subrogation in Favor of the Fund. § 257. Suit against Assurance Fund a Cumulative Remedy. TABI,E OF CONTENTS. XV CHAPTER XVII. Offenses. § S58. Detailed Statement of Ofifenses. CHAPTER XVHI. Costs of Officers. § 259. Clerk's Fees and Costs. § 360. Examiner's Fees. § 261. Sheriff's Fees. § 262. Services Not Expressly Provided For. § 363. Deposit For Costs. § 364. Costs, How Taxed. CHAPTER XIX. Miscellaneous. § 365. Courts Always Open. § 366. Judges in Convention to Make Rules. § 367. Who Acts Where Clerk Is Disqualified, Dead or Cannot Act. § 368. Deputies — Powers of. § 269. Duty of Clerk to Guard against Improper Registration — Li- ability of Clerk. § 370. Clerk's Duties Purely Ministerial — Suggestions to the Clerk. § 271. Books and Filing Cases to Be Provided. § 272. Method of Filing Papers Relating to Registered Land. § 273. All Entries to Be Dated to the Minute. § 274. Power of the Attorney-General as Ex-Officio Supervisor of County Records. § 275. Extraordinary Cases. The Land Registration Act — Annotated, page 231. Appendix — The Uniform Land Registration Act, page 333. Index, page 387. Special Notice. Throughout the foot-notes, annotations and index, in order to prevent confusion between references to sections of the text and to sections of the L,and Registration Act, the following abbrevi- ations have been adopted: "A. § — ," meaning the designated section of the Act, and "T. § — ," meaning the designated sec- tion of the text. Manual of Land Registration CHAPTER I. Introduction, § 1. Historical Sketch — Torrens System — Other Systems. § 3. The Dual Meaning of the Word "Title"— Registration Af- fects Title Only in the Adjective Sense. § 3. Title in Its Substantive Sense Not Affected by Registration. § 4. General Object of the Land Registration Act. § 5. The Various Methods Used to Evidence Title — Objections to Common Modern Methods. § 6. Registration as Synchronizing Title in Evidentiary Sense With Title in Abstract Sense. § 7. Registration as Localizing Title in Point of Space. § 8. Land Value Increased by Registration — Land as a Liquid Security. § 9. Safety and Certainty of Landownership Assured. § 10. Settling Doubtful Matters as They Arise — Advantages. § 11. Registered Lands Subject to the Ordinary Jurisdiction of the Courts — Equities, How Enforced and Protected. § 13. Same Continued. § 13. The Act a Remedial Statute— To Be Liberally Construed. § 14. The Practicability and Simplicity of the System. § 15. General Outline of the Act. § 1. Historical Sketch — The Torrens System — Other Systems. — In popular speech, it is common to call practically any system of registration of land titles a Torrens system; however, this is not altogether accurate, especially as to the land registration acts in force in the American states. The enrollment or registration of land titles has been em- ployed in certain European countries from time immemorial ; and, at least since the time of Queen Elizabeth, the origination and development of systems for that purpose have engaged the at- tention of the English speaking people, as scattered throughout the four comers of the earth. However, it was Sir Robert Rich- 2 LAND REGISTRATION. [§ 2 ard Torrens, a business man, the Collector of Customs at Port Adelaide in South Australia, who prepared and put through the local parliament a statute which took effect in that province in 1858 and which proved successful and became the model upon which similar laws have been enacted in England, in Canada, and in many British dependencies. In more than a fourth of the states of the United States and in Hawaii and the Philippine Islands there are land registration systems which resemble and which are in the main designed to attain the same end as the original Torrens system, but which differ from it in many essential respects. Under the original Torrens system and under many of the systems modeled on it, the settling and registration of land ti- tles and of transactions relating thereto are under the jurisdic- tion of official bureaus or departments, while in this country they are under the jurisdiction of the courts. The Torrens systems proper are not judicial systems of land registration; the Ameri- can systems are. The reasons for these differences will be dis- cussed in the course of this work. § 2. The Dual Meaning of the Word "Title"— Regis- tration Affects Title Only in the Adjective Sense.— "The word 'title' is used in two senses ; the one referring to the ab- stract right of ownership in property, the other referring to the means by which that abstract right is evidenced." ^ Modern land registration acts are not intended to affect title in its abstract sense otherwise than incidentally; they are intended to afford a simpler, more certain, more practical means of evidencing title than obtains under any other method. § 3. Title in Its Substantive Sense Not Affected by Registration. — The Land Registration Act ^ does not divest ownership of any of its ordinary incidents, benefits or burdens.^ Title may still be held subject to trusts, conditions, equities, en- cumbrances and all else with which the common law and statute allow the necessities, the wishes, or even the whims of land [§ 2] 1. Powell, Actions for Land, § 133. [§ 3] 1. The Act of the General Assembly of Georgia, approved Aug. ai, 1917. See T. § 81. 2. See T. § 12 and A. § 73. § 4] INTRODUCTION. 3 owners to complicate it. The title when registered is merely the title as it is ; not as some theorist might ibelieve it ought to be. The right to deal with one's own as one pleases, subject of course to those restraints which the law has found necessary to impose for the common good', is one of the charms of owner- ship. It may be foolish for a man to encumter his title with trusts, conditions or limitations running into the future as far as the law against perpetuities will permit, still it is not the ob- ject of land registration to impose any obstacle to such matters which the law has not already imposed. § 4. General Object of the Land Registration Act. — The object of the Land Registration Act is to afiford a simple, certain, practical method by which every interested person, the owner of the land and every one dealing with him, may know at any given time just who owns a particular piece of land, and subject to what conditions, limitations, encumbrances or claims; and also incidentally to furnish a means by which the title to the land may be handled with greater ease and facility in commer- cial transactions than exist under other systems of evidencing title. § 5. The Various Methods Used to Evidence Title- Objections to Common Modern Methods. — ^People have, in the history of the race, found various methods of evidencing ti- tle. Primaevally, might was right ; possession with sufficient per- sonal physical force to maintain it was the best evidence of own- ership. At early common law, land passed by livery of seizin; that is, by a symbolic manumission in analogy to the passage of title to a chattel by sale and physical delivery. Under both of the systems just mentioned the methods of evidencing owner- ship were comparatively simple and reasonably certain, but were suited only to the transactions of a primitive people. Later, deeds and other documents aided or superseded livery of seizin. Under this system, the strength of a man's title, consid- ered from an evidentiary standpoint, is determined usually by inspection and construction of a successive chain of documents, often running back through a long period of time. Still, at no time in the history of our law has possession failed to influence the question of title; and in practically every investigation in- 4 LAND REGISTRATION. [§ 6 stituted, in court or out of court, for the determination of where the title is at any particular time, not only must the evidence contained in the chain of documents be considered, .but also the evidence respecting the corporeal possession of the land itself. Furthermore, in modern times expediency has forced the en- actment of elaborate legislative schemes of requiring transac- tions relating to land to be filed or recorded in public offices. Therefore, under the common modern method of evidencing title, the proof of title is usually to be found in a combination of all the things which have been mentioned, that is to say, of docu- mentary chain, corporeal occupancy, public files and records, and oftentimes in parol matters in addition. Under this com- mon method of evidencing title, while the true legal title to the land (using the word "title" in the sense of ownership) is, theo- retically at least, at every moment fixed in some person or per- sons, still the title, in the sense of the means 'by which that right of ownership is evidenced and is to be recognized, proved and protected, is neither fixed nor permanent. Whenever title in the sense of ownership passes from John to James and from James to William, the connection of John and James with that ownership, so far as the right of ownership which we call title is concerned, ends; but under the common method of evidencing title, William's title (using now the word "title" in the sense of means by which his ownership is evi- denced) has no such independence. The deed or will or right of inheritance or other means by which the title passed from John to James is as much a part of William's title as is the deed or will or right of inheritance or other means by which the title passed from James to William; and this dependence runs back through all the transmissions which have taken place since the title first departed the original source of title (usually the State) or until a point is reached where principles of law, based on convenience, such as statutes of limitation or prescription, close the door to further legal inquiry. § 6. Registration as Synchronizing: Title in Eviden- tiary Sense With Title in Abstract Sense. — The various land registration acts and the Torrens system are based on the proposition that title in its evidentiary sense may be made as § 7] INTRODUCTION. 5 fixed to the present moment as is title in its sense of ownership. When the cave-dweller held his cave by force of arms there was no need to inquire who his predecessor in ownership was; title and evidence of title abided side by side. It is the boast of jurisprudence that it has substituted the strong arm of the law for the strong arm of the individual. Under the Land Regis- tration Act, the law through a single court record declares at every moment of time the exact ownership of every tract of land brought under its provisions; and the registered owner, with his title thus declared, can no more be questioned as to who his predecessors in title were than could the cave-dweller in the days gone by. Under this system, the evidence of title does not depend on any chain of documents, or on ability to preserve such a chain intact as against the danger of loss or destruction, or on proof of possession, or on parol facts resting in the mem- ories of men, subject to the treacheries of human recollection and to loss forever by the destructive force of death. § 7. Registration as Localizing Title in Point of Space. — The Land Registration Act localizes the evidence of title in point both of time and of space. Under it the only evi- dence of title is a duly registered certificate contained on a sin- gle folio of a single book, declaring the exact state of the title as it may be at any particular moment. With but few and practically unimportant exceptions, all inquiry as to predeces- sors in title is shut off, is unnecessary and unimportant; all the need of examining a multitude of records, files, dockets, etc., is gone. The one folio, speaking always in the present tense to the exactness of a minute,^ and speaking with all the conclu- sive authority possessed by the most solemn judgment of a su- perior court, tells the whole story. § 8. Land Value Increased by Registration — Land as a Liquid Security. — The permanency of land gives special value to the ownership of it; but the common methods of evi- dencing transactions relating to it are such as to detract from that value by impairing what may be called its commercial liquidity. Jones who owns ten shares of stock worth a thou- 1. See A. § 29. 6 LAND REGISTRATION. [§ 9 sand dollars finds that it is much easier for him to pledge his stock certificates as security for a loan than it is for Smith who owns ten acres of land worth a thousand dollars to borrow money with his land as security. Yet the land is more perma- nent than the corporation issuing the stock, and the value of the land is likely to be more stable than the value of the stock. The main difference is that the stock certificate is a liquid se- curity which can easily be pledged as collateral while the title to land cannot thus be used. Under any system of evidencing title where every transaction affecting the title becomes a part of the history of the title and, therefore, to 'be taken into ac- count in determining the status of the title from time to time as the years go by, it would be very inexpedient if landowners were permitted to complicate the title chain with transactions so informal as those which take place in ordinary hypothecations of stock as collateral security ; hence efforts to make land titles liquid commercial securities have not been encouraged by the courts or the law makers. But under a system of evidencing title where the past is blotted out as it expires, where a single certificate rep- resents the whole evidence of ownership just as fully as the stock certificate evidences the ownership of the stock, there is no diffi- culty in making the title to land a liquid security ; and this is one of the features of the Land Registration Act. § 9. Safety and Certainty of Landownership Assured. — Not only is it a burden on the landowner to be required to hold his land under a title that depends for its enforcement and value on his ability continually to trace it back through the successive transactions of years, but it is even a greater hardship that under the common system of evidencing title he can rarely be sure that his title is perfect. Many a man goes to bed at night with the fear haunting him that he may awake in the morning to find, that through some unsuspected flaw in his chain of title, he does not really own the land he has paid for and believed to be his. The landowner is entitled to demand greater certainty than this from the government under which he lives. Not only is the land- owner interested in this matter, but the general public, especially those likely to deal with the landowner, are also concerned. The Land Registration Act not only relieves the landowner and those § 10] INTRODUCTION. 7 dealing with him of the cumbersome burden of keeping up with a chain of title and its history, but it also makes the ownership declared by the registered certificate sure, certain and indisput- able. § 10. Settling Doubtful Matters as They Arise— Ad- vantages. — ^The Land Registration Act not only provides a means by which certainty is established as to titles which under the ordinary systems would be unquestioned, but it affords a means by which those doubtful things which so often complicate the history of a title may be cleared up as they arise. '^ To eluci- date what is meant: A complete abstract showing the full and true history of a title is presented to a competent attorney. He finds that the title rests in A unless a tax deed in favor of B is valid, and that the validity of this tax deed depends on whether the levy was excessive — a question which cannot be answered, except as a mere matter of opinion, in advance of a decision by court or jury; or that there is a deed from a wife to her husiband which, on its face, is apparently void because made for valuable consideration without the approval of the judge of the superior court as required by statute, but which may be shown to be valid by parol evidence that it is a gift ; or there is a deed by an execu- tor purporting to act under power contained in a will and the language of the power is ambiguous ; or there is a deed of doubt- ful construction which may or may not give an estate in remain- der to persons yet unborn. In such a case, the least that can be said is that the title is neither safe nor certain. In some of the cases supposed and in many others which might easily be sup- posed, as in case where there is doubt as to whether a remainder- man will or will not take an estate in future, there is no way of settling the doubt, even by present litigation; the doubt must cloud the title until the time arrives when the actual or supposed remainder becomes vested, and often even longer than that. Un- der the Land Registration Act such things as these are not al- lowed to haunt the title and overshadow the future; they are cleared up as they arise. In the first place, at the initial registration all conflicting claims 1. See T. § 167. 8 LAND REGISTRATION. [§ 10 of title are taken into consideration, all doubtful propositions are before the court for decision, and the court thereupon, once for all, adjudges among these conflicting titles and by a solemn con- clusive judgment declares which is the true title, and what limi- tations, if any, exist in relation to it, thereby excluding all other titles and claims of title. If the court adjudges that A holds the fee simple but that it is subject to be divested in favor of the heirs of B upon his dying childless, then not only A, but all per- sons dealing with him on the faith of his certificate of title know that his title is not indefeasible — there is no longer any doubt as to whether the contingent remainder exists in favor of B's heirs or not. On the other hand, if the court declares the uncondi- tional fee simple to be in A, then he knows and all persons deal- ing with him are assured that there is no possibility of his title being defeated by the claims of B's heirs or any one else. The Land Registration Act provides not only for the settling of these doubts as to the title at the date of the initial registra- tion, but also for keeping them out thereafter. Let us suppose that the registered title stands in A. The land is sold at tax sale, and B becomes the purchaser. Under the Act before B can get title under his tax sale, unless A voluntarily surrenders his cer- tificate, B must cite A before the judge who will then and there determine, once for all, whether B's tax sale is valid or not. If the court determines that it is valid the title is registered in B's name ; on the other hand if the court determines that it is invalid A's title is forever freed from the cloud which might otherwise hang over it. Again, let us suppose that the registered title is in Mrs. Emma Smith and she undertakes to convey it to her husband, John Smith. Before a certificate of ownership can be obtained by John he and his wife must present the matter to the judge with a full statement as to the true consideration of the transaction, and thus disclose whether it is a gift or a sale.^ If the judge finds that it is a gift and that it is free from fraud or other infirmity he orders the certificate to be issued to the husband; if he finds that it is a sale and that it is such a sale as he should approve he 2. See T. § 201, and A. § 48. § 11] INTRODUCTION. 9 gives his approval then and there and orders the certificate to is- sue to the husband; otherwise he refuses it. The result is that the legal effect of the transaction is settled then and there and not left to cloud the title in future. Instances might be multiplied but these are sufficient to illus- trate the proposition, that the Act is so designed as that every dispute as to where the legal title reposes is settled promptly and finally. § 11. Registered Lands Subject to the Ordinary Juris- diction of the Courts — Equities, How Enforced and Pro- tected. — It must not be supposed, however, that ownership of registered land is so insulated as to make it immune from the processes of courts of law and of equity. Broadly speaking, ev- ery equity, every encumbrance which may exist at law or in eq- uity against unregistered land may exist against registered land; and the meahs of enforcing all such rights are amply protected.^ While no equity or encumbrance will bind the land or affect the title as against any one dealing with the registered owner unless such equity or encumbrance is noted on the certificate of title on the Title Register, still such matters may be freely noted. Sor example, the land is registered in the name of John Jones, and his wife, Mary Jones, claims that it was bought with her money. She has the right to require the clerk to enter her claim of this equity on the Title Register ; but until she does so any one deal- ing with John Jones as the owner of the land will be protected against her equity. Furthermore, in the event she notes her claim, the Act makes provision by which John Jones may through a summary proceeding before the judge have his certificate cleared of the notation of the wife's claim of equity, if there is no 'basis for her claim and if she fails promptly to prosecute her suit in equity to have her equitable title declared.^ If she files suit and succeeds, the court of equity as a part of its decree can compel her husband to execute a transfer, whereupon the certificate standing in his name will be cancelled and a new certificate is- sued in favor of his wife. He cannot affect this result, provided 1. See T. § S05, and A. § 73. 2. See T. § 182, and A. § 60. 10 LAND REGISTRATION. [§ 12 the wife's equity is duly noted, by selling or transferring the land in the meantime. He may sell and may cause a new certificate to be issued to his transferee, but the new certificate standing in tTie name of the transferee will show on its face that it is subject to the claim of equity in favor of Mary Jones, and, therefore, subject to whatever decree the court of equity might render; and upon the court giving judgment in favor of this equity there is provision in the Act whereby the transferee's certificate may be cancelled and the title registered in the name of Mary Jones. § 12. Same Continued. — While there are some exceptions to the generality of the proposition that registered lands may be dealt with by the owners and by the court as if they were unreg- istered lands — exceptions imposed to effectuate the. general scheme of the system and in the interest of certainty — still these are not numerous. The Act itself declares in Section 73 : "Ex- cept as otherwise specially provided by this act, registered land and ownership therein shall be subject to the same rights, bur- dens and incidents as unregistered land, and may be dealt with by the owner, and shall be subject to the jurisdiction of the court in the same manner as if it had not been registered. But regis- tration shall be the only operative act to transfer or affect the ti- tle to registered land, and shall date from the time the writing, instrument, or record to be registered is duly registered on the Title Register. Subject to the provisions of Section 63, no volun- tary nor involuntary transaction shall affect the title to registered land until registered or noted on the Title Register, in accord- ance with the provisions of this Act." The scheme of the Land Registration Act, therefore, is not to change the quality of own- ership in lands or to relieve them from any of the ordinary inci- dents of ownership or to put registered lands beyond the reach of the remedial processes of the courts. It substitutes a different method of settling controversies as to ownership, of proving ownership, and of making public the limitations or encumbrances, actual or asserted, which may exist against such ownership. § 13. The Act a Remedial Statute — To Be Liberally Construed. — While the Land Registration Act is to be adminis- tered and construed as creating a complete system, the spirit of § 14] INTRODUCTION. 11 which must be sought and, as far as may be, conserved in every interpretation of the Act, still it is not to be considered as some- thing apart from the rest of our system of jurisprudence. In a sense, it enacts a special proceeding somewhat similar to our stat- utory method of validating municipal bonds, still, except where the context or the spirit of the Act forbids, none of the ordinary rules of law or procedure are thereby repealed. As the Supreme Court of North Carolina has declared ^ in re- spect of the statute of that state which is very similar to the one adopted in Georgia, the Act "is not in derogation of common right, but is a remedial statute, and to be liberally construed ac- cording to its intent 'so as to advance the remedy and repress the evil.' " § 14. The Practicability and Simplicity of the System. — One of the beauties of the land registration system is its prac- ticability and relative simplicity; Any new piece of machinery, legal or mechanical, seems complicated at first view. No system of dealing with land titles can be absolutely simple; abstract ti- tle itself presents too many complexities for that. However, perhaps ninety-nine out of any hundred transactions are uncom- plicated; and as to these — the ordinary transactions which daily arise in relation to buying, selling and otherwise dealing with land — the system is extremely simple and easily workable. The details of the Act which make it appear complicated are those which relate to unusual situations or to transactions which are inherently of such a nature as that they must be handled spe- cially under any system. As soon as novelty shall have given place to familiarity, it will be seen that the new system is not only surer, safer and more adequate than the old, but that it en- ables the handling of all transactions with greater ease and prac- ticability. At first there will be a tendency on the part of offi- cials, the bar and the public to "complicate simplicity," but a lit- tle time will remedy this. § 15. General Outline of the Act. — The preliminary state- ment here given as to the broader outlines of the Act is for the 1. Cape Lookout Co. v. Gold, 167 N. C. 63, 83 S. E. 3. 12 LAND REGISTRATION. [§ 15 benefit of those who wish to know in a general way something of the workings of the Act without being concerned with all the details that may enter into the technical operations that are in- volved. The first step is the settling of the title for the purpose of reg- istration. This is accomplished by a suit filed in the superior court by the applicant "against the world", as well as against the land in rem. The defendants are "all persons who, by the peti- tion are disclosed to have any lien, interest, equity or claims, ad- verse to the petitioner or otherwise, vested or contingent, upon said land or any interest therein" and all other persons "whom it may concern." All known defendants, resident in the state, are served as in ordinary actions. Unknown adverse claimants and non-residents are served by publication. The court also ob- tains jurisdiction of the rem by the Sheriff's going on the land and posting a notice thereon; also by service of notice upon every occupant of the land above the age of 14 years. There are other details as to the service, which will be omitted in this context, as they will be matters of full discussion elsewhere in the course of this work. The judge refers the petition to an auditor or master, who, for the purposes of the Act, is called an examiner, and whose functions and duties conform to those of auditors under the Code. However, in addition to the duties usually performed by auditors, the examiner also makes an independent examination of the public records and reports to the court whether there is any reason to suspect other adverse claimants than those dis- closed in the petition. Any person adversely interested, whether named as a defendant or not, may file defensive pleadings. The examiner sets the case down for hearing and proceeds to take the testimony and reports to the court, in like manner as an auditor in an ordinary case. This hearing usually begins about 50 days after the petition is filed. Exceptions to the examina- iner's report may be filed as in ordinary equity cases, except that any interested party may obtain a jury trial as a matter of right on any contested issue of fact. Even though no objections are filed, no judgment by default can be taken, and the court must be assured from the report of the examiner and the evi- § 15] INTRODUCTION. 13 dence submitted that the petitioner has the true title; else regis- tration will be refused. If no objections are filed, or, if filed, the petitioner succeeds in overcoming them, and it appears that the petitioner has a title good against the world, the court en- ters a decree establishing his title. If the applicant is the owner of the fee simple, he is entitled to the decree, although his title may be subject to liens, encumbrances, or lesser estates, but in that event the court sets out in the decree these liens, encum- brances and lesser estates, thereby establishing them also. The clerk records the decree and, thereupon, proceeds to register the certificate of title in a book specially prepared for that purpose, called the Title Register. A folio of the Title Register is set apart for each certificate. On one of the leaves the certificate proper is transcribed. This certificate conforms to the decree, certifies to the title of the owner, but also states every limitation, condition or encumbrance, established thereon. The rest of the page on which the certificate is transcribed and the whole of the opposite page are reserved for the entry of future transfers, liens, encumbrances, and other notations. A certified duplicate of the certificate and all notations thereon is delivered to the registered owner. This completes the initial registration. Everything thereafter which affects the title to the land must be noted on the certificate on the Title Register, to be valid. The act does not stop, however, with providing for the initial settling and registration of the title ; it is contemplated that reg- istration shall be continuous. If the registered owner desires to sell the land, he endorses on his duplicate certificate a simple transfer, in a prescribed form, causes his signature to the transfer to be attested as if the transfer were an ordinary deed, and delivers it to his ven- dee. Upon this being presented to the clerk, he notes the fact of the transfer on the certificate on the Title Register, cancels that certificate and the owner's certificate, makes out a new certificate in the name of the new owner on the Title Register and gives him a new certified owner's duplicate. All uncan- celed encumbrances and other notations on the original cer- tificate are brought forward and entered on the new one. The 14 LAND REGISTRATION. [§ 15 certificate thus entered on each successive registration is as con- clusive as the original certificate. Provision is made for transfers of undivided or partial inter- ests in the land, hut these details need not be elaborated here. If the holder of the certificate desires to mortgage the land, he states so on a simple form prescribed for that purpose, gives the name of the creditor and a full description of the debt -to be secured. He takes this along with his owner's duplicate to the clerk, who notes the mortgage on the certificate on the Title Register and also on the owner's duplicate, prepares a certified copy of the instrument of mortgage for the creditor and retains the original in his file. However, if the owner desires, or the creditor requires, the owner can transfer the land to the creditor as if he were an or- dinary vendee, taking back a bond for title, which too, to be effectual, should be noted on the certificate. Transactions of this character which take place with the con- sent of the holder of the certificate are called voluntary trans- actions. If a third person claims some lien against or interest in the land adverse to the certificate holder, he can have the same noted on the certificate of the Title Register, on application to the clerk. Such notations are not conclusive as to the validity of the liens or other rights, encumbrances or interests, thus claimed by the third persons causing them to be noted, but they operate to give notice to anyone thereafter dealing with the land. Such matters, if they are not noted, are not binding against the land. Provisions are made by which registered land may be levied on and sold, or by which the title may be transferred under ju- dicial process without the consent of the owner. In such cases, the transfer, the cancellation of the old certificate and the issu- ance of the new take place under the direct order of the judge. These are called involuntary transfers. It is thus to be seen that there may be notations on the orig- inal certificate on the Title Register which are not on the own- er's duplicate or that an owner's duplicate may be outstanding uncanceled although the original on the Title Register may have § 15] INTRODUCTION. 15 been canceled by order of the judge as the result of some invol- untary transfer. In case of conflict between the original cer- tificate of title on the Title Register and the owner's duplicate, the former prevails. Hence, one about to deal with the land on the faith of the owner's duplicate should take the caution of seeing that it corresponds with the original and that it has not been canceled. For this purpose, it is provided in Section 118 of the Act that the holder of an owner's certificate may at any time present it to the clerk, and if the original on the Title Reg- ister has not been canceled, the clerk shall thereupon enter on the owner's duplicate all entries and notations of every kind not already entered thereon, and shall thereupon endorse on the owner's certificate the words "Valid, with all entries noted to this date," dating the same with the year, month, day and hour, and signing the same officially. By this means, the owner's duplicate can be brought down to the minute. This provision which appears in the Georgia Act is new, this being the first state to adopt it. However, it is believed that it performs a very valuable function in the practical operation of the system. The foregoing presents a rough outline of the general scheme of the system. The Act itself makes provision for the handling of many transactions which may occur and which are not men- tioned above. The intention of the Act is to make provision, either specifically or by general rules, for every exigency that may arise. In most of the American states it is optional with landown- ers whether they will register their land or not, but land once registered remains registered always thereafter. In this State, not only is initial registration optional, but there is a provision whereby any subsequent owner of the certificate may take the land out of the system and restore it to the status of unregis- tered land. CHAPTER II. The Constitutionai^ity of the Law. § 16. Earlier Acts Declared Unconstitutional as Conferring Ju- dicial Powers on Non-Judicial Officers. § 17. Earlier Act Declared Unconstitutional Because No Provision For Service of Process. § 18. Later Acts Sustained. § 1&. Constitutional Questions Avoided in the Georgia Act. § 20. Estoppel against Raising Constitutional Questions After Land Is Once Registered. § 16. Earlier Acts Declared Unconstitutional As Con- ferring Judicial Powers on Non-Judicial Officers. — Ref- erence has been made in an earlier part of this book ^ to the fact that the present American systems of land registration are ju- dicial systems in contrast to the original Torrens system and the other British systems which are modeled thereon and which are administered through bureaus or departments. In England and in other parts of the British Empire there are no constitu- tional limitations such as there are in this country against the conferring of judicial powers on executive officers. The settling of land titles is a judicial matter and, hence, in this country is a matter exclusively within the jurisdiction of the courts. One of the earliest, if not the earliest act on the subject in this country, the Illinois Act of 1895, was declared unconstitutional because this constitutional limitation was overlooked. The act conferred upon the registrar, or recorder of deeds, an officer corresponding to the clerk of the superior court in this State, the duty of in- vestigating and settling the title for the purposes of initial regis- tration and the ibringing of the land under the provisions of the act. The Supreme Court of Illinois held ^that there was a del- egation of judicial powers in violation of the state constitution. In 1896, an act was adopted in Ohio for the registration of 1. T. § 1. 2. People V. Chase, 165 111. 537, 46 N. E. 464, 36 L. R. A. 105. [16] § 16] THE CONSTITUTIONALITY OF THE LAW. 17 land titles. Though original registration was through a court proceeding, that act conferred on the recorder, who was charged with the keeping of the records, the power of hearing evidence and of determining when liens and like matters were discharged and of making conclusive entries in respect thereto. Though the act provided for an appeal from the action of the recorder to the court, the Supreme Court held the entire act unconstitu- tional upon grounds which will presently be referred to, but also specifically held it unconstitutional as to the feature in which the foregoing powers were conferred on the recorder.^ The court held that since the Act sought to confer the power to de- termine justiciable controversies upon the recorder, it thereby made a grant of judicial power to a ministerial officer, and that no such grant was permissible under the Constitution of Ohio. The court noticed the provision for an appeal from the re- corder's decision, but held that this did not cure the constitu- tional objection, since under the precedents in that state it had been decided that there could be no appeal except from one court to another. The framers of the Georgia Act took no chances on this question. Section 2 of the Act provides that, "the superior court of the county in which the land lies shall have exclusive original jurisdiction of all petitions and proceedings had there- upon." Nowhere in the Act is power given to the clerk to de- cide any justiciable controversy, even provisionally.* He can- not make any transfer or any conclusive entry or notation on the register in any involuntary transaction without direction from the judge.^ While in cases of ordinary voluntary trans- fers and in the making of merely clerical entries such as clerks commonly make upon filing and execution dockets, he may act without the immediate direction of the judge to do so; still it is provided, at the conclusion of Section 59 of the Act, that, in all matters required of the clerk under this Act, he shall be sub- ject to the direction and orders of the court. Ample provision 3. State V. Guilbert, 56 Ohio St. 575, 47 N. E. 551. 4. See T. § 370. 5. See A. § 41, T. § 166. 18 LAND REGISTRATION. [§ 17 is made by which an entry or notation of the clerk may be brought under the review of the court at any time within the statute of limitations of twelve months set in Section 59 of the Act.6 § 17. Early Act Declared Unconstitutional Because No Provision for Service of Process. — The other ground on which the Ohio statute was declared unconstitutional was that it was violative of the "due process of law" clause of the Con- stitution.i That act provided for no service of process on ad- verse claimants and attempted to substitute notice by publication for service upon known residents of the state as well as upon unknown or non-resident parties. This point seems to be well taken; and all the subsequent American acts have taken care to guard against it. § 18. Later Acts Sustained. — The test cases made as to the two earliest American acts paved the way for the framing of the subsequent statutes in which these constitutional objec- tions were obviated. The subsequent American acts have been before the courts a number of times on constitutional questions and have been uniformly sustained.^ § 19. Constitutional Questions Avoided in the Georgia Act. — The framers of the Georgia Act had before them at the 6. See A. § 60, T. § 179-185. [§ 17] 1. State V. Guilbert, 56 Ohio St. 575, 47 N. E. 551. [§ 18] 1. The leading case on the subject is Tyler v. Judges, 175 Mass 71, 55 N. E. 812, 51 L. R. A. 433, the decision being delivered by Chief Justice Holmes, now "Mr. Justice Holmes of the United States Supreme Court. An attempt was made to take this case to the United States Supreme Court, but the writ of error was dis- missed on a technical ground. See also People v. Simon, 176 111. 165, 5a N. E. 910, 44 L. R. A. 801; State v. Westfall, 85 Minn. 437, 89 N. W. 175, 57 L,. R. A. 297; National Bond Co. v. Hopkins, 96 Minn. 119', 104 N. W. 175; Robin- son V. Kerrigan, 151 Cal. 41, 90 Pac. 129; People v. Crissman, 41 Colo. 450, 92 Pac. 949. There are a number of other cases to the same conclusion, especially in Illinois and Minnesota. See 34 Cyc. 598. The subject is completely annotated in L. R. A. 1916 D. 14. The case of American Land Co. v. Zeiss, 219 U. S. 47, 55 L. § 19] THE CONSTITUTIONALITY OB' THi? LAW. 19 time they drew it, the acts of the other states and were aware of the constitutional objections that had been raised against them from time to time. It is apparent from the Act as adopted that extra cautions was taken to enact a system as to which no such objections could plausibly be made. In many of the states the only notice given, in addition to the constructive seizure of the land by the entry of the sheriff and the posting of a notice on it, is by publication and by the mailing of notice to known claimants even though they are within the state and subject to personal service of process. This is the effect of the Massa- chusetts statute, the constitutionality of which has been sus- tained. The Georgia statute not only provides for such a seiz- ure of the land, through the sheriff's physically entering thereon and posting notice, and by his notifying every occupant thereon above the age of fourteen ^ as, in connection with notice by pub- lication, to give a well recognized jurisdiction in rem, or quasi in rem, such as authorizes the court to render a decree fixing the status of the land conclusively as to all persons ^ ; but it also Ed. 82, while not involving what was called a L,and Registration Act, sustained an act designed to the same end and resting on the same constitutional basis as the land registration acts. 1. See A. § 14 and T. §§ 70, 71. 2. "There is no difficulty in making an actual seizure of personal chattels; but owing to the difficulty of making such a seizure of land, the law has invented the fiction of constructive seizure, which may be accomplished in many ways. For instance, the officer, armed with the process, may enter upon the land, exhibit his war- rant of authority to the owner or the tenant in possession, at the same time declaring his intention of levying the writ in his hands, and thereby reducing the possession of the property to the custody of the court. Or, as is sometimes provided by statute, when the land sought to be seized is vacant, the officer may enter and pro- claim his act by posting notices of seizure upon each separate par- cel. These illustrations are by no means exhaustive, for the stat- utes of several of the States of the Union provide various other methods of accomplishing the constructive seizure of land." Smith V. Brown, 96 Ga. 274, 23 S. E. «49. In United States v. Fox, 94 U. S. 315, 320, 24 L. Ed. 19'2, it is said: "The power of the State to regulate the tenure of real prop- erty within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It 20 LAND rh;gistration. [§ 19 provides for such service of process as is thoroughly estabUshed to 'be adequate (independently of the jurisdiction in rem) to confer jurisdiction on a court to quiet the title, through the pro- vision that all known resident adverse claimants shall be served with process as in other actions and that all unknown and non- resident claimants shall be served by publication.^ While a is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated." In the case of Pennoyer v. Neff, »5 U. S. 714, 737, 734, 25 h. Ed. 565, 570, 573, in which the question of jurisdiction in cases of serv- ice by publication was considered at length, the court, by Mr. Jus- tice Field, thus stated the law: "'Such service may also be suffi- cient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such serv- ice may answer in all actions which are substantially proceedings in rem . . It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants, but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, fore- close a mortgage or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned.' " "It is also argued that the decree in the action to quiet title, set forth in the special finding, is in personam and not in rem, and that the court had no power to render such decree on publication. While it may be true that such decree is not in rem, strictly speaking, yet it must be conceded that it fixed and settled the title to the land then in controversy, and to that extent partakes of the nature of a judgment in rem." Essig v. Lower, 129 Ind. 239, quoted approv- ingly in Arndt v. Griggs, 134 U. S. 316, 33 L. Ed. MS. 3. "The question is not what a court of equity, by virtue of its general powers and in the absence of a statute, might do, but it is, what jurisdiction has a State over titles to real estate within its limits, and what jurisdiction may it give by statute to its own § 20] THE CONSTITUTIONALITY OF THE LAW. 21 much less elaborate and perfect scheme of service might have been, and probably would have been adequate to shield the Act against constitutional objections for lack of due process of law stilU the framers of the Georgia Act have taken no chances whatever on this subject. § 20. Estoppel against Constitutional Questions after Land Is Once Registered. — ^The provisions in the Act i whereby the owner upon registering the land thereby is con- strued as having attached to his title a covenant running with courts, to determine the validity and extent of the claims of non- residents to such real estate? If a State has no power to bring a nonresident into its courts for any purposes by publication, it is impotent to perfect the titles of real estate within its limits held by its own citizens; and a cloud cast upon such title by a claim of a nonresident will remain for all time a cloud, unless such non- resident shall voluntarily come into its courts for the purpose of having it adjudicated. But no such imperfections attend the sov- ereignty of the State. It has control over property within its limits; and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subject to its rules concerning the holding, the transfer, liability to obligations, private or public, and the modes of establishing titles thereto. It cannot bring the per- son of a nonresident within its limits — its process goes not out be- yond its borders^but it may determine the extent of his title to real estate within its limits; and for the purpose of such determination may provide any reasonable methods of imparting notice. The well-being of every community requires that the title to real estate therein shall be secure, and that there be convenient and certain methods of determining any unsettled questions respecting it. The duty of accomplishing this is local in its nature; it is not a matter of national concern or vested in the general government; it remains with the State; and as this duty is one of the State, the manner of discharging it must be determined by the State, and no proceeding which it provides can be declared invalid, unless in conflict with some special inhibitions of the Constitution, or against natural justice." Arndt v. Griggs, 134 U. S. 316, 33 L. Ed. 918. "The legislature may provide for determining and quieting the title to real estate within the limits of the state and within the jurisdiction of the court, after actual notice to all known claimants and notice by publication to all other persons." Hamilton v. Brown, 161 U. S. 356, 40 L. Ed. 691. See also Tyler v. Judges, 175 Mass. 71, 55 N. E. 812, 51 L. R. A. 433. 1. A. § 64. 22 LAND REGISTRATION. [§ 20 the land, that thereafter the land shall be dealt with in accord- ance with the provisions of the Act, is adequate to estop the owner at the time of the initial registration and his privies, that is persons subsequently buying the land or acquiring rights therein, from questioning the constitutionality of the features of the Act by which proceedings subsequent to initial registra- tion take place, even if there should be constitutional objection to any of them.^ 8. See T. § 117. CHAPTER III. Definitions. § SI. Certain Words and Phrases Defined. § 21. Certain Words and Phrases Defined.— The Act, approved August 21, 1917, on the subject of land registration in Georgia entitled "An Act to provide for the assurance, registra- tion and transfer of land titles, and interest therein, and for other purposes," in the first section of the Act, names itself thus : "This Act shall be known as 'The Land Registration Act' and may be cited or referred to by that name." In the course of this work where the word "Act" is used, unless the context indicates otherwise, it refers to the Land Registration Act. In Section 3 of the Act certain further definitions are given which should be kept in mind in the various contexts in which the defined words or phrases are used in the Act and in the course of this book. These definitions, which are to apply un- less the context plainly indicates otherwise, are as follows : The words "registered land" shall include any estate or in- terest in the lands which shall have been registered under the provisions of the Act. The words "the court" shall mean the superior court of the county wherein the land lies.^ The word "clerk" shall mean the clerk of the superior court of the county wherein the land lies, and shall include his lawful deputies, and any person lawfully acting as clerk under the pro- visions of the general laws of this State or of this Act.^ The words "judge" or "judge of the court," or "judge of the superior court," or "judge of the superior court of the county where the land lies," or words of similar import, shall be held and construed to mean, embrace and include any judge of the superior courts of this State presiding in the superior court of 1. See A. § 2; T. § 23. a. See A. §§ G9 and 85; T. §§ 367-8; Civil Code, §§ 4881-4888. [23] 24 LAND REGISTRATION. [§ ?l the county where the land lies ; and while it is intended that, as a usual matter, the judge of the superior courts of each circuit shall be the judge who shall act upon and sit in the various mat- ters arising in that circuit with which the judges of such courts are charged under the provisions of this Act, still as to such mat- ters any judge of the superior court shall have the jurisdiction to perform the functions of judge under this Act; and in the event that the judge of the superior courts of the circuit in which the transaction or matter arises is disqualified, absent from the circuit, ill, dead, or from any other cause cannot act in the matter, it shall be the duty of any other judge of the superior court of the State, to whom the matter is presented, to act in the matter to the same extent as if the same arose in one of the counties of his own circuit; and, furthermore, any judge of the superior court may in any matter arising under this Act, upon the request of the judge of the superior court of the circuit in which it arose, act upon it as if it arose in his own circuit. The words "voluntary transactions" ^ shall be construed to embrace and mean all contractual and other voluntary acts or dealings (except by will) * by any registered owner of any es- 3. As to voluntary transactions generally see Chapter X. See also T. § 139 et seq. For the standard forms of voluntary trans- fers see A. § 107, and for the standard form of mortgage see A. § 111. As to the voluntary cancellation of mortgages, creditor's certifi- cates, liens, equities, encumbrances, lis pendens, etc., see A. §§ 62, lie, and T. §§ 142, 180. As to the voluntary transfer the owner executes to free the land from subsequent registration see Chapter XIV; also A. § G5. Requirement that owner's certificate must accompany the reg- istration of all voluntary transactions (except voluntary cancellation of liens, and other adverse claims): A. §§ 37, 117; T. §§ 140, 141, 270. Voluntary transfers, involving trusts, powers, unusual limitations or conditions, are dealt with very much as if they were involuntary transfers. See A. § 56; T. § 304. Voluntary transactions between husband and wife: A. § 48; T. §§ 10, 201. 4. As to how the executor obtains and holds the registered title of the testator, and other matters relating to the disposition of the land after the owner's death see T. §§ 188-198, and A. §§ 42-47. § 21] DEFINITIONS. 25 tate or interest in land with reference to such estate or inter- est and any right of homestead or exemption ^ therein. The words "involuntary transactions" « shall be construed to embrace and mean all other transmission "^ of registered land or any interest therein and all other rights or claims, judicial proceedings, liens, charges or encumbrances not created directly by contract with the registered owner,^ but arising by operation of law or of equitable principles, dower,* the exercise of the right of eminent domain,^" delinquent taxes and levies,^^ and all like matters affecting registered land or any interest therein. Certain other definitions may also be given, here in advance, with profit: "The certificate of title" is the certificate and all accompany- ing notations and entries which are entered on the Title Register to declare the ownership of the land and all the limitations, con- ditions, lesser estates, liens, encumbrances or other claims to which the title may be subject, whether entered at the time of the initial registration of the land or at the time of any subse- quent change of ownership.^^ It is the conclusive evidence of the ownership and of the fact that nothing affects the title ex- cept what is thereon noted. ^^ The "owner's certificate" is the duplicate of the certificate of title, at the time of its issue, which is issued and delivered to the registered owner.i* Owing to the fact that the certificate of title may be affected, after its issue, by matters entered on it and 5. See T. § 210. 6. As to involuntary transactions, generally, see Chapter XI. As to involuntary transfers see A. § 41; T. § 144. As to involuntary transactions other than transfers see T. § 145. 7. All involuntary transmissions require order of judge to be reg- istered; A. §§ 41, 50; T. §§ 144, 370. 8. As to how such rights, claims, judicial proceedings, liens, charges, encumbrances, etc., are to be registered, see A. §§ 49, 51, 54, 61, 112, 113 and 114; T. §§ 173-8, 187. 9. See A. § 42; T. 190. 10. See T. § 202. 11. See A. §§ 57, 112; T. 177, 223. 12. See Chapter VIII; Also A. § 28. 13. See Chapter XIII; also A. § 63. 14. See A. § 28; T. §§ 133-4. 26 LAND REGISTRATION. [§ 21 not entered on the owner's certificate, the owner's certificate is not conclusive evidence of the ownership or of the fact that nothing except what is contained thereon afifects the title ; ^^ 'but it may be given this effect by an entry, provided for in the Act, whereiby its conformity to the certificate of title is verified by the clerk.^® A "total transfer" is a transfer wherein all of the title of the registered owner of the fee to all of the land contained in a cer- tificate of title is conveyed, voluntarily or involuntarily, out of him and into another who in turn becomes the owner. A "partial transfer" is a transfer wherein only a fractional undivided interest in the title of the registered owner or only a divided portion of the tract of land contained in a certificate of title is conveyed. 15. See T. § 226. 16. See A. § 118; T. 237. CHAPTER IV. Pleadings on Initial Registration. § 23. Equitable Procedure But Not Equitable Jurisprudence Applies. § 33. Venue of Petitions for Registration. § 24. Filing and Docketing. § 35. Who Are Proper Petitioners for Registration. § 26. The Character of Ownership Required — Grantor and Grantee in Security Deed — Vendor and Vendee in Executory Sale. § 27. Persons or Corporations Having the Power of Appointing or Disposing of the Fee Simple. § 28. Corporations as Petitioners — Unincorporated Associations. § 39. Infants and Other Persons under Disability as Petitioners. § 30. How Far Those Owning Less than Fee Simple May Invoke the Act § 31. The Petition for Initial Registration. § 33. Suggestions as to Filling the Blanks in Prescribed Form of Petition. § 33. Same Continued — Appointment of Local Agent or Attorney by Non-Resident Petitioner. § '34. Same Continued — Description of the Land. § 35. Same Continued — Including Several Parcels in Same Applica- tion. § 36. Same Continued — Dividing a Single Tract into Parcels for Separate Registration. § 37. Same Continued — Allegation as to Value and Last Assessment for Taxation. § 38. Same Continued — Allegation as to Estate or Interest. § 3®. Same Continued — Allegation as to Source of Ownership. § 40. Same Continued — Alleging Title by Prescription. § 41. Same Continued — Information as to Title Papers. § 42. Same Continued — Information as to Homestead, Dower, etc. § 43. Same Continued — Statement as to the Occupancy. § 44. Same Continued — Listing Adverse Claimants, Known and Un- known — Taxes. § 45. Same Continued — Listing Adjoining Owners and Occupants. § 46. Same Continued — Easements. § 47. Same Continued — Age of Applicant — How Stated in Case of a Minor. § 48. Same Continued — Husband or Wife to Be Named as Defend- ant. § 49. Same Continued — Naming the Defendants. [37] 28 LAND REGISTRATION. [§ 22 § 50. Same Continued— The Abstract of Title. § 51. Verification of the Petition. § 52. Defensive Pleadings — Who May File. § 53. Cross Petitions. § 54. Verification of Defensive Pleadings. § 55. Demurrer — Slackness of Pleading Not Allowed. § 56. The Time within Which Defensive Pleadings May Be Filed. § 57. Right of Amendment. § 58. Severance. § 59. The Effect of a Severance. § 60. Appearance and Pleading by Those Who Deal with the Land Pending Registration Proceedings. § 22. Equitable Procedure, but Not Equitable Juris- prudence Applies. — Except as otherwise provided in the Act itself, suits for the registration of land are subject to the gen- eral rules of equity pleading and practice. ^ However, the ac- tion is not a suit in equity and is not governed iby the principles of equity jurisprudence. This is an essential distinction, for if the suit were in equity, an applicant would be required to do equity in favor of every defendant; for instance, if it developed that there was outstanding a security deed which had been ex- ecuted iby the applicant, but which was void because made to secure a usurious debt, the applicant would 'be required to pay the debt, before he could demand registration of his title as against the usurious deed. However, the Act specifically de- clares that the action is in rem ^ ; and, of course, it is compe- tent for the legislature to declare that general rules of equity pleading and practice shall apply in actions at law or in any other class of actions. § 23. Venue of Petitions For Registration. — The suit is to be filed in the superior court of the county where the land lies.i If it should be held that the suit is such a case "respect- ing titles to land" as is contemplated by Article 6, Section 16, [§ 2a] 1. A. § 5. 2. A. § 4. However, it is more accurate to say quasi in rem or sub- stantially in rem. See notes to T. § 19. [§ 23] 1. A. § 5 merely provided that the suit shall be filed in the court, but A. § 3 defines the word "court" to mean the superior court of the county where the land lies. § 24] PLEADINGS ON INITIAL REGISTRATION. 29 paragraph 2, of the Constitution, which provides that "Cases respecting titles to land shall be tried in the county where the land lies, except when a single tract is divided by a county line, in which case the superior court in either county shall have ju- risdiction," it is probable that it would also be held that a peti- tion for the registration of a tract divided by a county line could be filed in either county. However, it would be safer in such case, in advance of an authentic ruUng on this point, to file separate applications in each county. § 24. Piling and Docketing. — The method of instituting the suit is Iby a petition ^ the substance of which is set forth in Section 7 of the Act and the form of which is prescribed in Sec- tion 86. Upon the petition being lodged with the clerk of the superior court, he should mark the same filed in office and should proceed to docket the same upon the issue docket as other cases are docketed. The forms prescribed in the Act in- dicate that in docketing and entering the cause the usual ar- rangement of plaintiff vs. defendant is not to be followed, but that, supposing the applicant to be John Smith, it should be docketed thus : t Application to Register Land. In re John Smith No specific provision of the Act declares the duty of docket- ing the proceedings, but the general law and the general rules of equity practice would seem to require it. It is proper, among other reasons, that it should be docketed so that the docket en- try may operate as notice of the lis pendens. In the land reg- istration acts of a number of the states, there is specific provi- sion for docketing. § 25. Who Are Proper Petitioners for Registration. — Leaving out of present consideration the exceptional case pro- vided for in Section 6 of the Act, those who are authorized to apply for registration of land are "the person or persons or cor- poration, claiming singly or collectively, to own or to have the 1. A. § 5. 30 LAND REGISTRATION. [§ 26 power of appointing or disposing of an estate in fee simple, whether subject to Hens, encumbrances or lesser estates or not." 1 It is not necessary or appropriate that, where the ap- plication is made by the owner or owners of the fee simple, the owners of lesser estates, such as life estates, estates for years, dower, homestead, etc., or the holders of liens or encumbrances such as mortgages, mechanic liens, etc., should be joined as plaintiffs or applicants. They are normally defendants and should appear as such.^ However, if the plaintiff discloses their existence in the petition or if their existence is discovered by the examiner, or otherwise, it will be the duty of the court in rendering the decree to protect their rights. If the fee be held by tenants in common, all must join in the application. An undivided interest is not the subject of initial registration, though provision is made for the transfer of undivided inter- ests subsequently. Ivikewise, lands owned by tenants in com- mon, brought under registration, cannot be freed from the pro- visions of the Act except upon the unanimous action of all the co-tenants.^ The fact that the applicant's title to the fee simple may be de- feasible does not prevent his having it registered, the fact of its being defeasible and under what circumstances being stated in the decree and in the Certificate of Title. The fact that the Act makes such elaborate provision for setting forth, in the de- cree of title, the conditions, etc., that attach to the fee clearly constrains the construction that the word "fee simple" is not used in the Act in its narrowest and most technical sense, but in its broader sense of ownership capaible of descending to one's heirs. See Civil Code, § 3657. § 26. The Character of Ownership Required — Grantor and Grantee in Security-Deeds — Vendor and Vendee in Executory Sale. — The Act describes the relation of the ap- plicant to the estate in fee simple by the word "own." In the 1. A. § 5. 2. A. § 9; T. § 49. 3. A. § 65; T. § 238; see also T. § 105 as to dismissal of the peti- tion if the petitioner proves title to only an undivided interest in the land he seeks to register. § 26] PLEADINGS ON INITIAL REGISTRATION. 31 form of decree prescribed in Section 97 of the Act the language is that the fee simple "belongs to," etc. ; and the language of the certificate of title is equally unlimited as to the quality of the ownership; that is, as to whether the ownership shall be legal or equitable. This much is prefatory to the statement that a landowner may register his land notwithstanding the legal title has been conveyed by security deed to secure a debt. The holder of the security deed, of course, should be named as a de- fendant and his rights under the security deed carefully set forth in the decree and certificate of title. Among the reasons for the construction that an owner with security deed outstanding, and, therefore, with only equitable title to an estate in fee simple, may cause the land to be regis- tered is that the word "own" is similarly used in most of the acts in other states from which the Georgia statute has been adopted; and under these acts, in other states, the owner who has given a mortgage on the land may register it notwithstanding that in those states a mortgage passes legal title. The security deed in Georgia is sui generis, but it is substantially the legal equivalent of the common-law mortgage.^ It is also sulbmitted that a vendee in possession under bond for title is a competent petitioner for the registration of the land, even though the purchase money is not paid in full. The vendor's rights and legal title are, of course, to be set forth and fully protected in the decree and on the certificate of title. The vendee in an executory sale is the true owner against all per- sons except the vendor; and the vendor merely holds the legal title as security for his unpaid purchase money. ^ Undoubtedly with the consent of the vendor, the vendee in an executory sale can cause the land to be registered, for the two, "collectively" at least, are the owners. The same is true when the holder of the security deed joins with the owner of the equity redemption. If there is no default as to the indebt- edness in the case of the security deed, or as to the purchase money in the case of the executory sale, the debtor or vendee 1. Powell, Actions for Land, § 3»6. 2. Powell, Actions for Land, § 374; Fulton County v. Amorous, 89 Ga. 614 (3), 16 S. E. 201; Widincamp v. Insurance Coi, 4 Ga. App. 759, 760, 62 S. E. 478. 32 LAND REGISTRATION. [§ 27 (considering the quality of the right of enjoying and control- ling the land which they respectively possess prior to default) ought to he allowed to register the land despite objections from the creditor or vendor, as the case may be. On the other, hand, after default, the court should dismiss the application if the vendor or creditor, as the case may be, objects to the registra- tion. Prior to default, at least, the vendor in executory sale or the creditor holding security deed ought not to be allowed to register the land over the objection of the vendee or the holder of the equity of redemption, as the case may be. It may be added that these are mere questions of procedure, which must be raised prior to judgment and which are therefore concluded by the decree. § 27. Persons or Corporations Having the Power of Appointing or Disposing of the Pee Simple. — Not only the owner of a fee simple estate is a proper applicant for the reg- istration of land, ibut such an application may be made by any "person or persons or corporations claiming singly or collect- ively to have the power of appointing or disposing of an estate in fee simple." ^ Hence any one who has been granted the power of appointment, by deed or will, as to such an estate may cause the land to be registered at any time prior to the ap- pointment taking effect. Likewise, any trustee (including an ex- ecutor who is the donee of a power of sale under the will) upon whom the power of selling the fee is conferred may cause the land to be registered. In all such cases, the decree and certifi- cate of title must be moulded so as fully to disclose the trusts or limitations to which the title is subjected. When a trustee holds the title but has no power to sell, the cestui que trust should join in the application. However, a power to sell is suf- ficient to authorize the application, though it is not a power to sell at a private sale. § 28. Corporations as Petitioners — Unincorporated As- sociations. — ^Corporations are competent petitioners for reg- istration, whether claiming as owners or as having the power of 1. A. § 5. § 29] PLEADINGS ON INITIAI, REGISTRATION. 33 appointment or of disposing of the fee. The Act requires no further evidence of the fact that the corporation has authorized the apphcation by proper corporate action than that the petition must be sworn to by some officer of the corporation.^ How- ever, it is quite appropriate that the judge before granting the decree should require proof by duly certified transcript from the minutes of the corporation, or otherwise, that the board of directors or other governing body of the corporation has in fact authorized the application. ^ Unincorporated bodies or associa- tions cannot register lands in their names, though the individ- uals comprising such bodies or associations may do so as the collective owners of the property. § 29. Infants and Other Persons under Disability as Petitioners. — Infants and other persons under disaibility may sue by guardian, guardian ad litem, next friend or trustee, as the case may be.^ However, the principle announced in Sec- tion 5524 of the Civil Code that "A suit commenced and pros- ecuted by an infant is not void" is applicable to suits for the registration of lands. The 23rd paragraph of the form of peti- tion contained in Section 86 of the Act requires the petitioner to state his age. If, in answer to this question, it develops that the petitioner is a minor, the Court should appoint a guardian ad litem. Furthermore, if it is disclosed in the course of the proceeding that the title or any interest in the land rests in a minor or person under disability, the facts should be made to appear in the decree and in the certificate of title (in the case of a minor stating his exact age), so that persons dealing with the land may be made aware of the disability and, in the case of a minor, will know when the disability will end. § 30. How Par Those Owning Less Than Fee -Simple May Invoke the Act. — Any person claiming an interest or es- tate less than the fee may, provided he is in possession of the land, have his title to such interest or estate established by like [28] 1. A. § 7. 2. Under § 24 of the Act the judge or examiner may compel the petitioner to state facts additional to those prescribed in the Act. [29] 1. A. § 5. 34 LAND REGISTRATION. [§ 31 procedure to that in the case of the owner of the fee, but in such cases the decree is not to ibe registered and no certificate of title is to be issued. By this provision, appearing in Section 6 of the Act, persons who are in possession of lands and have estates or interests therein, but who are not authorized to file petitions for registration because they do not own an estate in fee simple, and who wish the assurances of the Act as to their title or interest, so as to conclusively establish it according to its true extent and quality, may do so. Furthermore, if a peti- tion were filed by one claiming as owner in fee and it should de- velop in the course of the proceeding that he did not own the fee simple, but only some lesser estate, it would be permissible for him to prevent a dismissal of his petition by filing an amend- ment, setting up his possession and lesser estate and praying for its establishment under this Section of the Act.^ While one, whose title is thus established, cannot have it registered so as to be able to convey it or pledge it under the provisions of the Act, and while his estate continues as an estate in unregis- tered land, still the decree rendered in his favor is conclusive evidence of his rights as therein established. § 31. The Petition For Initial Registration. — ^Since Section 7 of the Act states the matters to be set forth in the pe- tition and Section 86 prescribes the form in which they shall be set forth, these two sections are to be construed together, and in consonance with all the other provisions of the Act. Hence there is no reason why the form should not be varied to meet the exigencies of any particular case. For example, the form is designed for use in a case wherein the applicant is a person entitled to bring the land under registration and, therefore, the language is "The petitioner applies to have the land hereinafter described brought under the provisions of the Land Registra- tion Act, and his title thereto confirmed and registered," etc. ; but since, in case the application is made by one having a lesser estate than a fee simple, registration is not permitted, in such a case the form should be varied by omitting the words "and registered" in the clause just mentioned. 1. See T. § 104. § 32] PLEADINGS ON INITIAI, REGISTRATION. 35 In the immediately succeeding paragraphs suggestions will be made as to what is deemed to be the appropriate method of pre- paring the petition and of filling in the blanks in the form of initial petition prescribed in Section 86 of the Act. § 32. Suggestions as to Filling the Blanks in Pre- scribed Form of Petition. — The information required in par- agraphs 1, 2, and 3, of the form prescribed in Section 86 of the Act, viz., the full name of such applicant; residence of each ap- plicant; post office address of each applicant, seem sufficiently simple to require no extended commentary. It may ibe noted, however, that paragraph 2 calls for residence and paragraph 3 for post office address. In filling paragraph 2, the applicant should state his legal residence, giving state and county, as well as city or town, if any; while in paragraph 3 he should give the full post office address to which he desires the notices, to which he may be entitled under the Act, to be sent. § 33. Same Continued — ^Appointment of Local Agent or Attorney by Non-resident Petitioner. — -If the sole peti- tioner, or any one or more of a numher of petitioners, be non- residents of the State, such non-residents, and each of them, must appoint an agent or attorney residing in this State, upon whom process and notices may be served ; and it is in paragraph 4 of the petition that the designation of the local agent or at- torney should be made and his address given. § 34. Same Continued — Description of the Land. — The requirement of the Act ^ as to the description of the land is that "it shall be in such terms as shall identify the same fully, and shall be such a description as shall tend to describe the same as permanently as is reasonably practicable under the circum- stances; and if it be in a portion of the state in which the land is by State survey divided into land districts and lot numbers, in the petition there should be stated the number of the land district and of the lot numiber or numbers in which the tract is contained The acreage or other superficial contents of the tract shall be stated with approximate accuracy." It is also 1. A. § 7. 36 LAND REGISTRATION. [§ 34 required that, where it is reasonably practicable to do so, the metes and 'bounds are also to be stated. The court may re- quire fuller description and may require a survey. The ele- ment of description of the land is all important in any system of land registration.2 Indeed, while the rendition of the de- cree will cure many delinquencies of description, still if the de- scription is so wholly deficient as not to identify the land the decree would be void; and, consequently, the registration. It may be said that the description is the connecting link be- tween the land and the title to the land, or between title in the sense of evidence of the right to own and title in the abstract sense of the ownership itself. Whatever may be true in an ab- stract or metaphysical sense, there can be no such thing in a le- gal and practical sense as title to an undefined and unidentified parcel of land. To sell a man an indefinite hundred acres of a two-hundred acre tract, without giving him any means of identifying which hundred acres he is to have, would be, in practical efifect, to sell him nothing. In law, a deed, or a judg- ment, or a decree,^ or a certificate of title, in which the only de- scription is, say "100 acres off of lot of land No. 400 in the 6th district" of a named county, where that lot of land contains 250 acres, would not describe or bring within the operative force of the deed, judgment, decree, or certificate of title, as the case may ibe, any land at all. The books are full of cases deciding what descriptions are and what descriptions are not void for lack of certainty; and it may be said that a decree or certificate of title containing a description, which, though meagre, would be definite enough to satisfy the demands of the law if it were contained in a deed or an ordinary judgment or decree, would not be void. However, the Land Registration Act contemplates that those administer- ing it shall not be content with such descriptions as merely at- tain to legal certainty, and are yet loose and meagre in practical effect. For example, a deed containing the description, "the 2. The descripion, by being inserted in the published notice, aids the seizure for purposes of jurisdiction. See T. §§ 19, 64, 71. 3. As to necessity of adequate description for purposes of the de- cree of title see T. § 109. § 35] PIvEADINGS ON INITIAI^ REGISTRATION. 37 plantation in Early County, known as the Jack Gay place" is legally sufficient and parol evidence is competent to identify what particular lands are included in what is called the "Jack Gay" place. But when the court registers the title to a tract of land, the language by which that land is identified, set apart and segregated from every other piece of land, should be such, if possible, that the words used would be as clear and definite and as informative to all interested persons a hundred years from now as they are today. It would be extremely desirable if every landowner, before offering his tract for registration, should set at every corner permanent monuments of stone or other enduring material. The Act provides that the judge, or the examiner with the con- sent of the judge, may cause the land to be surveyed by some competent surveyor (after notice to all adjoining owners) and may order duraible bounds to be set and a plat to be filed among the papers of the suit.* Although this will entail some addi- tional expense, and is not necessary where the location and ex- tent of the land is already identified by things permanent in their nature, still in most cases the landowner will do himself and those who come after him a distinct service by demanding such a survey; for when such a survey is made, it not only causes definite and durable landmarks to be set, but it conclusively es- tablishes the extent and boundaries of the applicant's tract. A land-line dispute is worse than a night-mare; it should be avoided, by every precautionary means, as if it were a plague. § 35. Same Continued — Including Several Parcels in Same Application. — ^The Act provides in Section 8: "Any number of separate parcels of land, claimed by the petitioner, under the same general claim of title, and lying in the same county, may be included in the same proceeding." The word "parcel," though not always synonymous with the word "tract," is manifestly so used in this context, and means a defined area of contiguous land. In case more than one tract or parcel is included in the same application, each should be described with the same completeness as if it were the only one involved. The 4. See A. §§ 7, 22; T. § 100. 38 LAND REGISTRATION. [§ 36 limitations upon the inclusion of more than one tract in a single application are (1) that all shall He in the same county; (2) that all must ibe claimed by the petitioner; (3) that all must be claimed ''under the same general claim of title." Notice here that the limitation is not to lands held under "the same title" or "under the same chain of title," as some of the other Acts pro- vide, but that the present language is broader. For example, if a person claims two plantations which, though not contiguous, he bought at the same time and under the same deed, he may be said to hold both "under the same general claim of title." If it develops that there is such dissimilarity as to the petitioner's title to the two or more tracts contained in the same application as that it is likely to confuse the issues or bring about delay or otherwise work injustice, the court or the examiner may order an amendment or severance ^ under Section 24 of the Act, upon such terms as may be just and reasonable. § 36. Same Continued — Dividing a Single Tract Into Parcels for Separate Registraton. — Furthermore, it is pro- vided ^ that "any one tract may be established in several parts, each of which shall be clearly and accurately described and reg- istered separately." Since the right given in Section 26 of the Act, to have the court render separate decrees (so as to author- ize the issuance of separate certificates of title) for the sub-di- visions or parcels into which the tract may be divided, is de- dependent upon the petitioner's having "accurately described each parcel for separate registration," it is necessary that this requirement be met in connection with the description to be given under paragraph 5 of the prescribed form or in an amend- ment to be filed as provided in Section 24 of the Act. There- fore, if the petitioner desires to register his tract in parcels he must give not only an accurate description of the tract as a whole, but also of each parcel into which he undertakes to sub- divide it. [§ 35] 1. See T. §§ 57-9. As to the duty of the court to order a sev- erance where it appears that the petitioner has included in his peti- tion two or more tracts not held under the same general claim of title, see T. § 106. [§ 36] 1. A. § 8. § 37] PLEADINGS ON INITIAL REGISTRATION. 39 § 37. Same Continued — Allegation as to Value and Last Assessment for Taxation. — Paragraphs 6 and 7 of the form require the giving of information as to the value of the land.^ Many of the fees and the assessment for the insurance fund are determined in accordance with the value of the land. The court is not bound by the value of the land as given by the applicant or as contained in his tax returns, still it is evidentiary on the question. It is to be noted also that, while paragraph 7 of the form does not disclose what assessment is referred to (i. e. whether county or city). Section 7 of the Act names "the last assessment for county taxation" as the one to be given. § 38. Same Continued — Allegation as to Estate or In- terest. — ^The question propounded in the 8th paragraph of the petition as to what interest or estate the applicant claims in the land is, of course, important and should be answered with legal accuracy, and shouuld clearly disclose whether the applicant claims to "own or to have the power of appointing or disposing of an estate in fee simple" or whether he is merely seeking to establish his title to a lesser estate.^ The question asked in paragraph 9 of the petition as to the value of the interest or estate claimed by the applicant has spe- cial pertinence when the applicant claims less than a fee simple, though it is appropriate to answer it in all cases. § 39. Same Continued — Allegation as to Source of Ownership.— In filling in paragraph 10 of the form, the ap- plicant should give not only the name of the person from whom he acquired the land, but also the date, since this information as to date is required by Section 7 of the Act. The date, how- ever, may appear from the information furnished by the ab- stract accompanying the petition. § 40. Same Continued — Alleging Title by Prescrip- tion. — If the applicant claims title by prescription, the infor- mation given in filling in paragraph 11 of the form should be [§ 37] 1. As to the examiner's fee, see A. § 120; T. § 360. As to the assessment for the assurance fund, see A. § 74 and T. § 349. [§ 38] 1. A. §§ 5, 6; T. §§ 25, 27, 30. 40 Iiall be guilty of any wilful malpractice in his office, shall be guilty of a felony and be punishable by imprisonment in the penitentiary for not less than one nor more than ten years." ^ § 96. Exceptions to the Examiner's Report. — As soon as the examiner's report is filed, it becomes a public record and open to the inspection of any interested person, under the rule of court contained in Section 6322 of the Civil Code. "Any of the parties to the proceeding may, within twenty days after such report is filed, file exceptions to the conclusions of law or of fact or to the general findings of the examiner." Or, within the same time, any party at interest may move to re-commit the report for indefiniteness, lack of fullness, failure to properly sep- arate and classify his findings of law and of fact or other like clauses. 1 The right of filing exceptions or of moving to re-commit is not confined to those who have appeared before the examiner, but any party to the cause has this privilege subject to the limi- tation that one who did not appear before the examiner and, therefore, who did not invoke any ruling on such procedural incidents of the trial as the admission or rejection of evidence, the allowance or disallowance of amendments, and other mat- ters of that kind, cannot make use of exceptions to raise the points for the first time.^ "In all matters not otherwise provided for, the procedure upon the examiner's report and the exceptions thereto shall be in accordance with procedure prevailing in this State as to audi- 3. See T. § 258. 1. Civil Code § 513®. As to power of court to recommit on his own motion, see concluding sentence of § 20 of the Act, also T. §§ 56 and 99. 2. Mass. Bonding & Ins. Co. v. Realty Trust Co., 139 Ga. 180, 77 S. E. 86. § 97] EXAMINERS REPORTS — EXCEPTIONS. 77 tor's reports in equity and exceptions thereto." ^ This practice is set forth in Sections 5135, et seq., of the Civil Code. Cer- tain exceptions to this practice are made in Section 20 of the Act, and these will be presently noticed. § 97. Hearing on Exceptions — Jury Trial on the Facts. — As soon as the twenty days within which the parties may ex- cept has expired, the clerk is required to notify the judge that the record is ready for his determination. ^ If no exceptions or motions to re-comit have been filed, the matter is ready for the final consideration of the judge, under Section 26 of the Act, to the end of determining what judgment or decree is proper to be rendered. However, if the exceptions or motions to re- commit have been filed, these should be taken up and deter- mined by the judge as speedily as possible, after notice to the parties. The court is always in session for this purpose.^ "Ex- ceptions of law are for the exclusive consideration of the judge." 3 The right to jury trial on exceptions of fact is broader under the Act than it is in the general equity practice in this State ; for it is provided in Section 20, as follows : "If the petitioner, or any contestant of petitioner's right, shall demand a trial by jury upon any issue of fact arising upon exceptions to the ex- aimner's report, the court shall cause the same to be referred to a jury either at the term of court, which may then be in ses- sion, or at the next term of the court, or at any succeeding term of the court, to which the case may be continued for good and lawful reasons; but it shall be the duty of the judge to expedite the hearing of the case and not to continue it unless for good cause shown, or upon the consent of all parties at interest. The issue or issues of fact shall be tried before the jury, in the event jury trial is requested, upon the evidence reported by the examiner, except in cases where, under the provisions of law in this State, evidence other than that reported by the auditor 3. A. § 20. 1. A. § 20. 2. A. § 67; T. § a65. 3. Civil Code § 5140. 78 LAND REGISTRATION. [§ 98 may be submitted to the jury on exceptions to an auditor's re- port, and except further, that in the case the examiner has re- ported to the court findings of fact based on his personal exam- ination either party may introduce additional testimony as to such facts, provided that he will make it appear under oath, that he has not been fully heard and given full opportunity to present testimony on the same matter before the examiner. The verdict of the jury upon the questions of fact shall oper- ate to the same extent as it would in the case of exceptions to an auditor's report in an ordinary case in equity." Of course, unless one of the parties demands jury trial, the judge has the power to pass on exceptions of fact as well as of law. § 98. Same Oontinued — Procedure and Evidence on the Trial before the Jury. — On the trial before the jury, the report shall be taken as prima facie correct, and the burden of proof is upon the party making the exceptions, who shall have the right to open and conclude the argument.^ If both parties have filed exceptions of fact, the party against whom judgment would be rendered if the report were approved shall be entitled to open and conclude the argument.^ In submitting to the jury the evidence reported by the examiner, if he has admitted tes- timony over objections and these objections are sustained by the judge, the objectionable testimony is excluded from the jury; on the other hand, if he has rejected evidence, and excep- tions are sustained to his rejection of it, then, this evidence is also submitted to the jury.^ However, only so much of the re- port as relates to the issue raised is necessary to be read to the jury.* The examiner cannot be made a witness for the purpose of adding to or subtracting from his report; but if the phrase- ology of the report is doubtful in its meaning, he may be heard to explain it.^ Under Section 5145 of the Civil Code, it is pro- vided : "No new testimony shall be considered, except in those 1. Civil Code § -5141. a. Civil Code § 5143. 3. Civil Code § 5144. 4. Civil Code § 5146. 5. Jackson v. Johnson, 67 Ga. 167 (6). § 99] EXAMINERS REPORTS EXCEPTIONS. 79 cases where, according to the principles of law, a new trial would be granted for newly discovered evidence. Application to introduce such original and newly discovered evidence shall be made to the judge before the argument on the exceptions, if the same be then known, with a statement under oath of the party and his attorney, setting out the expected testimony and facts authorizing it to be admitted as newly discovered evi- dence. The opposite party shall be served with notice of such application; and if the same is admitted, the opposite party shall be entitled to a continuance, and on the trial to introduce original testimony in rebuttal of such newly discovered evi- dence." Not only may such additional testimony as comes within the purview of the statutory provision just quoted be admitted, but it is further provided in the Act,® that if the examiner has re- ported to the Court findings of fact based on his personal ex- amination either party may introduce additional testimony as to such facts, provided he will make it appear under oath that he has not been fully heard and given full opportunity to present testimony on the same matter before the examiner. § 99. Recommitment — New Trial. — "The right to grant a new trial upon any issue submitted to a jury and right of ex- ception to the supreme court are preserved. The judge may re-refer or re-commit the record to the examiner in like manner as auditor's reports may be recommitted in any equity cause ; or he may, on his own motion, recommit it to the same or any other examiner for further information and report." ^ The judge, therefore, is not limited or restricted by the exceptions which parties have made or by their failure to except. He is, however, bound to give due eflFect to the verdict of the jury on the issues of fact submitted to them, unless a new trial is granted. It is to be kept in mind that, under Section 82 of the Act, the procedure to obtain any review of the action of the 6. A. § 20. 1. See A. § 20 and T. § W.- As to recommitment to hear new de- fense presented subsequently to the filing of the examiner's report, see T. § 56. 80 LAND REGISTRATION. [§ 100 judge, should be by what is known as fast writ of error, such as obtains in injunctions and criminal cases. ^ § 100. Survey— When Ordered— How Made— Trial of Protest to Surveyor's Return. — It is provided in Section 22 of the Act, as follows : "While the cause is pending before the examiner of titles, or at any time before final decree, the judge, or the examiner with the approval of the judge, may require the land to be surveyed by some competent surveyor, and may order durable bounds to be set and a plat thereof to be filed among the papers of the suit. But before such survey is made all adjoining landowners shall be given at least five days' notice. The petitioner, or any adjoining owner, dissatisfied with the survey, may file a protest with the court, within ten days from the time the plat is filed, and thereupon an issue shall ibe made up and tried as in case of protest to the return of land proces- sioners." ^ The practice as to protest to the return of land processioners is set forth in Civil Code, Section 3823, but it should be kept in mind that the section of the Code just referred to applies only to the making up and trial of the issue and not as to how or when the protest is to be filed, since the Act itself prescribes as to these matters. When a survey is authorized, the issue relat- ing to the boundaries is taken out of the jurisdiction of the ex- aminer and goes directly to the court and jury for trial. The Act does prescribe the manner in which the five days' no- tice is to be given to the adjoining landowners, but the judge in ordering the survey is authorized to provide for this under the provisions of Section 71 of the Act. 2. T. § 118. 1. See T. §§ 34 and 86. CHAPTER VII. Final Judgment and Decree of Title. § 101. Decision of the Cause by the Court. § 103. No Judgment by Default. § 103. Voluntary Dismissal of the Petition — When Allowable, When Not — Involuntary Dismissal. § 104. Right to Amend, Instead of Dismissing, Where Plaintiff Shows Title to Less than Fee. § 105. Dismissal Where Petitioner Proves Only an Undivided In- terest. § 106. Judgment Authorizing Registration — Decrees of Title — Sev- erance For Purpose of Rendering Separate Decrees. § 107. Tract Divided Into Parcels — Separate Decrees — Advantages of This Privilege. § 108. Form of the Decree — Necessity for Adherence to Prescribed Form. § 109. Preparation of the Decree of Title — Suggestion as to Filling in the Blanks in Prescribed Form — Description of the Land. § 110. Same Continued — Filling in Names of the Owners — Descrip- tion of Their Respective Estates. § 111. Same Continued — Declaring Limitations and Conditions. § 112. Same Continued. § 113. Same Continued — Declaring Liens and Encumbrances. § 114. Same Continued — The "Residuary Clause" in the Blank Form — Easements — Building Restrictions — Cautionary State- ment of the Possibility of Appeal. § 115. No Issue as to Mesne Profits or Set-OflF of Improvements — Statement in Decree as to Improvements. § 116. Recording the Judgment or Decree. § 117. Conclusiveness of the Decree of Title — A Covenant Running With the Land. § 118. Writ of error to Supreme Court — Fast Writ — Supersedeas. § 119. Enrolling the Decree of Title — The Register of Decrees of Title. § 130. Same Continued — Suggestions as to the Enrollment of De- crees — Decrees, How Numbered. § 121. Same Continued — Outside Recording of Plats and Lengthy Details. § 122. Same Continued. § 123. Indexing Decree — Full Individual Indexing Required. —6 [ 81 ] 82 LAND REGISTRATION. [§ 101 § 101. Decision of the Cause by the Court.— After the record shall have been perfected and settled, that is to say, if no exceptions have been filed to the examiner's final report, or, if filed, the questions raised thereby have been settled finally, and if the report has not been re-committed or, if re-committed, all matters arising therefrom have been finally determined, and if there is no protest to a survey under Section 22 of the Act, undisposed of, in fine, if the matter is ripe for final action the court shall thereupon proceed to decide the cause. ^ Before do- ing so, however, the judge must make a personal investigation of the file in the case and satisfy himself that all the require- ments of the Act as to publication of notice and the service of process have (been fully complied with. The judge's finding in this respect is final and conclusive.^ § 102. No Judgfiuent by Default. — In considering the record, the court must keep in mind the provisions of Section 21 of the Act that "No judgment or decree shall be rendered by default, so as to authorize any decree to be rendered, without the necessary facts being shown." This is especially pertinent in uncontested cases, but is equally pertinent and somewhat more likely to be overlooked in cases where there has been a contest over some incidental interest such as the existence of a lien, encumbrance or lesser estate, and no contest over the title itself. § 103. Voluntary Dismissal of the Petition— When Allowable, and When Not— Involuntary Dismissal. — If, upon the review of the record, the court is of the opinion that 1. § 26 of the Act. 2. § 13 of the Act. This duty should be carefully performed by the judge in the interests of justice and public safety, since under this section of the Act, his decree reciting that service has been perfected is final and cannot be inquired into. As to the consti- tutionality of such a provision it is to be remembered, that the doc- trine, that records import their own verity and cannot be contra- dicted, is a common-law doctrine, and that any contrary rule exists only by statute. As to the proposition that official return of service is not subject to traverse in the absence of statute, see the notes to T. § 73. § 103] FINAL JUDGMENT AND DECREE 01^ TITLE. 83 the petitioner's title is not and cannot be made proper for reg- istration, the court, under the provisions of Section 23 of the Act, should give him the privilege of dismissing, unless, of course, some one has filed a cross-petition and has proved the right to have his title registered as the true title. This excep- tion to the right of dismissal is not mentioned in the Act, but it is so well settled a limitation upon the right of dismissal, ac- cording to our general scheme of jurisprudence that, it is sub- mitted that it must exist. Ordinarily the mere filing of a cross- petition is sufficient to prevent the original plaintiff from dis- missing, but, when the cross-petitioner also fails to make a case, there is no reason why either or both the petitioners should not be dismissed. It should be kept in mind that the sole object of the action is the settling of the title from an evidentiary stand-point, and that it is not an attempt to enforce a title against some oppo- site party alleged to have trespassed upon it by adverse pos- session or otherwise.^ Many a title which is not perfect against the world, so as to be capable of registration, is still sufficient to maintain the possession of the holder, or even to enable the holder to dispossess the person who is in possession. Since the holder of a title which is only relatively good cannot be ac- corded the privilege of registering it under the Act, the court ought not to penalize an unsuccessful attempt to register it by a formal judgment which may tend still further to cloud it, un- less the court has before it the true owner demanding that his title be registered. If the petitioner refuses to dismiss voluntarily and the court is of the opinion that the petitioner has merely failed to pre- sent an adequacy of proof, and it does not affirmatively appear that his title is not the true title, the court may order a dis- missal in the nature of an involuntary non-suit. Indeed this would seem to be the proper judgment where the plaintiff de- sires to prosecute a writ of error to test the question. ^ It is submitted that this is the correct construction to be given to 1. See T. § 115. a. Proctor & Gamble Co. v. Blakely Oil & Fertilizer Co., 128 Ga. 606, 57 S. E. 879. 84 I^AND REGISTRATION. [§ 104 the language of Sections 23 and 26 of the Act relative to the contingency, dealt with in both sections, of the court's finding that the petitioner is not entitled to register his title. § 104. Right to Amend, Instead of Dismissing Where Plaintiff Shows Title to a Less Than Fee. — However, cases may arise in which the court finds that the plaintiff's title is not the proper subject of registration because it does not cover the fee simple, but that the plaintiff is the true owner of a lesser es- tate or interest. In such a case, the petition should not be dis- missed over the plaintiff's objection, but the court, upon the pe- titioner's tendering an appropriate amendment, should enter a decree establishing the title but refusing it registration, as out- lined by Section 6 of the Act.^ Furthermore, if in such a case the owner of the fee-simple has established his title under a cross-petition, the court may enter judgment and decree regis- tering the fee simple in the cross-petitioner and also setting forth the original petitioner's lesser estate. § 105. Dismissal Where Petitioner Proves Only an Undivided Interest. — Since one or more of a number of ten- ants in common cannot register the title without the unanimous consent of all,i it follows that, if it should develop that, though the petitioner or petitioners own a fractional undivided interest in the fee simple, they do not own the entire estate, the court should dismiss the petition, unless the other co-tenants are be- fore the court by cross-petition, or otherwise, and join in ask- ing that the entire fee be registered. § 106. Judgment Authorizing Registration — Decree of Title — Severance For the Purpose of Rendering Sepa- rate Decrees. — If, upon consideration of the record, the ti- tle be found in the petitioner or in a cross-petitioner, the judge shall enter a decree to that effect, ascertaining all limitations, liens, encumbrances, etc., and declaring the land entitled to reg- istration, accordingly as he shall find.^ If he finds that title [§ 104] 1. See T. § 30. [§ 105] 1. See A. § 5; T. § Z5. [§ 106] 1. A. § 26. § 107] Final judgment and decreje of title. 85 to a portion of the land included in the petition is entitled to registration and that the title to the rest of it is not, he should order a severance under Section 24 of the Act and should then enter decree in the plaintiff's favor as to the portion which he is entitled to register, and should separately deal with the ac- tion relating to the rest of the land by dismissal or otherwise, accordingly as may be appropriate.^ Likewise, a severance should be ordered where the original petitioner establishes right of registration as to a part of the land included in the petition and a cross-petitioner establishes right of registration to the remaining portion; and separate decrees should then toe ren- dered accordingly. If separate parcels are involved, the court shall render a sep- arate decree as to each parcel.^ If, however, it appears that the petitioner does not hold all the separate parcels under the same general claim of title, as provided in Section 8 of the Act, the court should order a severance as to the tracts held under the dissimilar titles and, as one of the terms of the severance, should require the plaintiff to pay full costs in all the cases into which the original case shall have been severed. Under Section 24 of the Act, all amendments and severances may be ordered or allowed by the court upon terms that may be just and rea- sonable; and it seems but just and reasonable that, if the peti- tioner has attempted to impose on the officers of court the la- bors incident to several distinct causes of action in a single case, so as to escape the payment of the legitimate costs which he would be required to pay if he had filed separate causes, as contemplated by the Act, he ought not to complain if the court instead of dismissing his entire action for disobedience to the Act allows him to sever his causes of action on condition that he pay the legitimate costs which the several cases would have borne if they had originally been brought separately.* § 107. Tract Divided into Parcels — Separate Decrees — Advantages of This Privilege. — When the petitioner has 2. T. §§ 57-8. 3. A. § 26. 4. T. §§ 359, 360. 86 LAND REGISTRATION. [§ 108 divided a tract into separate parcels and has given a particular and accurate description of each, the court should, upon find- ing the title to the whole tract eligible to registration, enter a separate decree as to each parcel. ^ When a landowner has divided his tract into lots for the purpose of sale, he will generally find it expedient to have a separate decree rendered as to each lot, as he thereby gets a sep- arate certificate as to each lot, and will not be. under the neces- sity of having his certificate to the rest of the tract cancelled and re-issued every time he sells off a lot, as would be the case if he took a single decree and therefore a single certificate for the entire tract.^ Furthermore, considering the ease with which certificates of title may be used for commercial purposes, such as pledging them as security for debt, etc., the owner of a large tract is likely to find it much more convenient to have his own- ership represented by several separate certificates, each repre- senting a divided part of the tract and each capable of being separately used without relation to the others, than to have only one certificate representing the whole tract. The additional cost of having separate decrees issued for the various parcels of a single tract is slight — only one dollar extra for each decree after the first one.^ § 108. Porm of the Decree — Necessity for Adherence to Prescribed Porm. — The form of the decree is set forth in Section 97 of the Act. Since this form is also to ibe printed in the book known as the Register of Decrees of Title ^ in which all decrees must be recorded, it should not be varied from. The case ought to be brought to such a degree of definiteness before the decree is rendered as that this form can be used, without change, in order to express all that is necessary to be set forth in the decree. Incidental matters such as the taxing of the costs should be included in a separate judgment. [§ 107] 1. A. § 26. a. A. § 31; T. § 151. 3. A. § 120; T. § 250. [§ 109] 1. A. § 98; T. § 119. § 109] FINAL JUDGMENT AND DECREE OF TITLE. 87 § 109. Preparation of the Decree of Title — Sugges- tions as to Filling in the Blanks in Prescrbed Form — De- scription of the Land. — In the first blank in the form of de- cree is to be inserted the description of the land. This descrip- tion is not merely to be copied blindly from the petition, though of course in many cases the description in the petition and in the decree will be the same. As has been explained in another context,^ the description in the title papers by which land is held is an essential part of the title itself; and one of the ob- jects of the registration is to settle all uncertainty or ambiguity in the description and to fix upon terms that will, as far as practicable, permanently identify the land. To this end, the Act has conferred various broad powers on the court by which he can obtain the necessary details by which to give such a de- scription in the decree. ^ In case there has been a severance, or in case separate tracts are involved, or in case any single tract is divided into parcels for the separate registration of each, the court should, of course, insert into each of the separate decrees so to be rendered, not a dscription of the original tract or tracts, but only of the partic- ular parcel which is to be registered under that decree. It being recognized that cases are likely to occur in which the description in the decree is to be aided by a plat or in which it may be too long to transcribe in the blank left on the Register of Decrees of Title, the framers of the Act were unwilling to put before the court the necessity or the temptation of shorten- ing or limiting the description so as to enable it to be copied in full on the register, hence provision is made in Section 102 of the Act whereby the clerk in transcribing the decree may record the plat and, of course, such descriptive details as may go with it, on one of the public record books in his office, and omit this part of the description from the register, except by reference to the book and page where the plat and the additional descrip- tion accompanying the same is recorded.^ 1. T. § 34. a. A. §§ 7, 22 and 24. 3. T. § 131. 88 LAND REGISTRATION. [§ HO § 110. Same Continued— Filling in Names of the Own- ers — Description of Their Respective Estates. — In filling in the next blank in the prescribed form of decree the court should, of course, insert only the names and descriptive desig- nations of those who own the fee simple, except that, if the ownership of the fee is divided into legal and into equitable es- tates, as where security deed is outstanding, and one person therefore owns the legal fee and the other the equity of re- demption, or where bond for title has been given with the result that one person is the legal owner and another the equitable, the court may, in this blank, insert the names of both the legal and the equitable owners, accurately describing the relation be- tween the two. 2 This may be done by the court's either stating all essential details and the full tenor and effect of the security deed or bond for title in the decree itself, or, if the security deed or bond for title be recorded in some public record of the county, iby the court's describing the instrument by general de- scriptive terms and making reference to the public record, book and page, for further details. In addition to the name of the owner, it is expedient that the court should also give his residence or address. If the name be that of a minor or person under disability, that fact should 'be stated; and, in the case of a minor, the court should state the date of his birth or the date on which he will become of age, so that persons dealing with the title may be informed accord- ingly.^ If the fee simple is registered in the name of several persons as collective owners of the title, the court should state what un- divided interest each is to hold, though the decree would probably be construed as giving each an equal interest if no spe- cific statement on the subject were made. § 111. Same Continued — Declaring Limitations and Conditions. — In filling in the next blank, in the form of the decree if there are no limitations or conditions, the word "none" should be inserted; if there are limitations or conditions, they 1. See T. § 26. 8. See T. § 47. § 112] FiNAIv JUDGMENT AND DECREE OF TITLE. 89 should be stated accurately. If there ibe outstanding any lesser estate of any kind (except a lease for a term not exceeding three years under which the land is actually occupied ^ ) such as life estate, dower, right to cut timber or to take minerals, or an estate for years; or, if the fee, though vested, is subject to any condition or is defeasible, the terms of the same should be ac- curately and fully set forth, and the names or, if it be impossi- ble to give names, a legal description of those who hold such lesser estates or to whom the title may pass under the condition or in case the defeasance takes place, should be given.^ When bond for title has been given or other executory sale has been made, so that the vendor holds the legal title and the vendee is the equitable owner, the court has the choice of treating this transaction as a collective ownership of the fee and of including both as owners in the manner stated in the im- mediately preceding section or of naming the vendee as the owner and of considering the Jjayment of the purchase money as a condition upon his title. It matters very little which way this choice is exercised, just so the transaction and the nature of the rights of the respective parties are made fully and ac- curately to appear. § 112. Same Continued. — In the next blank, in the form of decree, following the words "and the title of the said," if no lesser estates, or contingent remainders or reversions, have been disclosed in the blank following the words, "subject to the fol- lowing limitations and conditions," the court should merely in- sert the name of the owner of the fee ; but, if such lesser or con- tingent estates have been disclosed, the court should include in this blank not only the name of the owner of the fee simple but also of the holders of the lesser or contingent estates, followed by the words "accordingly as their respective rights have been herein declared." § 113. Same Continued — Declaring Liens and Encum- brances. — In the next blank, in the form, all liens and encum- 1. A. § 63, and T. §§ 230, 234. a. A. § 26. 90 LAND REGISTRATION. [§ 114 brances which have been found to be valid and to aifect either the fee simple or any lesser estate (with the exception of taxes and levies assessed thereon for the current calendar year) ^ should be set forth. If the lien or encumbrances affects only the lesser estate, that fact should be stated. For the purposes of the decree, easements are not classed as encumbrances but are dealt with separately; but unexpired homesteads, charges upon the land, special equities, and matters of that nature are so con- sidered. Of course, the word lien includes every form of lien known to our law. § 114. Same Continued — The Residuary Clause in the Blank Form — Easements — Building Restrictions — Cau- tionary Statement of the Possibility of Appeal. — ^The next blank, in the form, following the words "subject also to," is left as a residuary clause, so to speak, in which any matter not al- ready fully dealt with may be set forth. It is, however, the ap- propriate space in which to set forth easements (except high- ways in public use and railroads in actual operation, which are exempted from the operation of the Act).^ Private ways and alleys are easements of the class that should be noted. One thing which should always be inserted in this part of the decree is a statement substantially as follows: "subject to the result of such appellate proceedings or exceptions as may be presented on or before (a day 20 days from the date of the de- cree) 2 to set aside this decree." Many states in their registra- tion acts specifically require some such statement to be included; and the spirit of the Georgia Act requires it. This exception should be included in the decree, and should appear on the cer- tificate of title until the statutory period has expired if no ap- pellate proceedings have been prosecuted, and, if appeal has been taken, until the same is fully disposed of ; otherwise an ap- peal to the Supreme Court might be taken which might result in the decree being set aside and yet the certificate of title would be outstanding with no notice of its possible defeasibility on this [§ 113] 1. A. § 63; T. §§ 320, 283. [§ 114] 1. A. § 63; 8. §§ 220, 325. 2. A. § 82; T. § 118. § 115] PINAL JUDGMENT AND DECRgE OF TITLE. 91 account.^ The suggestion in the proposed protective clause that the day certain be stated instead of some such expression as "twenty days from this date" is made because the date of the decree does not appear on the certificate of title, and this clause is to be copied on each issue and reissue of the certificate of ti- tle until the time of appeal shall have expired without any ap- peal being prosecuted or until such appellate proceedings as shall have been filed are finally ended. Building restriction and matters of that kind should also be set forth in this part of the decree. § 115. No Issue as to Mesne Profits or Set-Off of Im- provements — Statement in Decree as to Improvements. — ^Even though an application is contested by a defendant who is an occupant and adverse claimant of the land, the petitioner, though he succeeds in obtaining a decree of registration as against such adverse claimant, is not entitled to a writ of eject- ment or other final process to oust him from the possession. The decree of registration merely settles and fixes the evidence of title. If the adverse occupant does not thereupon yield the possession, it is incumbent on the owner to bring a separate suit for it, using his certificate of title as conclusive evidence ; ^ or, if suit in ejectment or other similar action is pending at the time he may use his decree of title as a judgment estopping the ad- verse claimant from denying the title therein established-.^ It follows that in the suit for registration the court should take no cognizance of any issue as to mesne profits or as to the right of set-off of improvements.* All these should be postponed un- til some suit is brought to recover the possession of the land. However, to preserve this equity of setting off improvements against the recovery of the land the same should be noted in the decree of title and, correspondingly, on the certificate of title. [§ 114] 3. How far rights of third persons will be protected against appellate proceedings not noted in the certificate of title. See T. § a33. 1. T. § 339. 2. T. § 243. [§ 115] 3. Civil Code §§ 5575 and 5587 at seq.; Powell, Actions for Land, Chapter XVII. 92 LAND REGISTRATION. [§ 116 This does not mean that the court should undertake to settle the particulars and details of such a matter in advance, but should, in the blank in the decree of title, following the words, "and subject also to," insert the words, "the right of A. B. to set off, accordingly as he may prove, such improvements against recov- ery of the land as he may have made thereupon while in bona fide possession under claim of right." § 116. Recording the Judgment or Decree. — Whatever judgment or decree is rendered, whether it be a judgment dis- missing the action, or a judgment establishing the title to an es- tate less than in fee simple, or a decree entitling the title to reg- istration, is to be entered on the minutes of the superior court and becomes a part of the records thereof.^ If it is a judgment dismissing the action or a judgment under Section 6 of the Act, merely establishing title to an estate less than the fee simple, without privilege of registration, no further recordation of the judgment is required. If the decree be in favor of the registration of the title, in ad- dition to its being recorded on the minutes of the court, it is to be enrolled, registered and indexed, in a book to be kept in the office of the clerk of the superior court and known as the "Reg- ister of Decrees of Title." ^ This completes the steps necessary for the settling of the title and preliminary to initial registra- tion, which is fully accomplished by the registration in the other book called the "Title Register" of the certificate of title, as to which more will be said hereinafter. § 117. Conclusiveness of the Decree of Title — ^A Cov- enant Running With the Land. — The conclusiveness and ef- fect of the decree of title is stated thus in Section 27 of the Act : "Every decree rendered, as herein provided, shall bind the land and bar all persons claiming title thereto, or interest therein, quiet the title thereto, and shall be forever binding and conclu- sive upon and against all persons, including the State of Georgia, whether mentioned by name in the order of publication or in- 1. A. §§ 26 and 98. 2. A. § 98; T. § 119. § 117] FINAL JUDGMENT AND DECREE OE TITLE. 93 eluded under the general description whom it may concern.^ It shall not be an exception to such conclusiveness that the person is an infant, lunatic, or is under any disability." This is in con- sonance with provisions of Section 4 that the proceedings for the registration of land shall be proceedings in rem against the land and that the decree of the court shall operate directly on the land and vest and establish title thereto in accordance with the provisions of the Act, as well as upon all persons who are parties to the proceedings, whether by name or under the gen- eral description of "whom it may concern." ^ Furthermore, it is provided in Section 64 of the Act that the act of the owner of the land in obtainnig a decree of registra- tion and the entry of the certificate of title shall be construed as an agreement running with the land, that subject to the excep- tion in the Act stated the same shall remain registered land sub- ject to the provisions of the Act and all amendments thereof. The effect of the covenant running with the land, voluntarily attached thereto by the owner, is to estop him and all those afterwards dealing with the land through him or under him from question- ing the validity of the original registration or of any subsequent transaction that may be had in accordance with the provisions of the Act, and from successfully asserting that anything that shall be thereafter omitted or done shall not be given the effect prescribed by the Act. In other words, the owner thereby makes the provisions of the Act a part of his title to the land and binds himself and his privies to it as a covenant running with the land. This eliminates certain objections that have been sug- gested (though so far not sustained by the courts) as to the constitutionality of certain of the details in connection with sub- sequent registration — that they constitute the taking of property without due process of law.^ Section 63 of the Act which states 1. As to the conclusiveness of the judgment on the question of service see T. § 74 and A. § 13. 2. As to use of the decree as conclusive evidence, see T. § 243. As to the difference in conclusiveness between liens, encumbrances and other adverse claims established by the dcree of title and those noted in the certificate of title subsequently to initial registration, see T. § S30. 3. See also T. § 20. 94 LAND REGISTRATION. [§ 118 the efifect of registration, whether initial or subsequent, will be dealt with more fully in another context,* though it is also ger- mane to the consideration of the legal effect of the decree itself. § 118. Writ of Error to Supreme Court — Past Writ — Supersedeas. — The final judgment rendered upon a petition for registration, whether it be a judgment of dismissal (unless it be a voluntary dismissal) or a judgment establishing a lesser estate than the fee, or a decree of title is subject to review by the Supreme Court upon writ of error. The procedure to obtain such a review is by what is known as fast writ of error, such as obtains in injunctions and criminal cases. ^ The bill of excep- tions must be tendered within twenty days from the rendition of the decision, and should be served, filed and transmitted in compliance with Section 6153 and the cognate sections of the Civil Code.2 If the necessary steps are taken to obtain a supersedeas be- fore the clerk executes the decree by entering it on the Reg- ister of Decrees of Title and by registering the certificate of title on the Title Register he should suspend the execution of the judgment (by not registering the decree or certificate of title) until the appeal to the Supreme Court has been finally disposed of.3 If the registration is completed, the party excepting to the decree should cause a notation of the pendency of his writ of error to be made on the certificate of title, in the manner pre- scribed in Sections 51, 61 and 114 of the Act.* The effect of failure to do this will be discussed in another context.^ § 119. Enrolling the Decree of Title— The Register of Decrees of Title. — Every decree of title, in addition to being recorded on the minutes of the court, must be enrolled, regis- [§ 117] 4. Chapter XIII, post. 1. A. § 82. 2. As to necessity for separate writs of error and as to separate records in case of a severance, T. § 59. 3. As to the duty of the judge to mention the right of appeal in the decree of title, see T. § 114. [§ 118] 4. See T. §§ 174, 178. 5. See T. § 333. § 120] FINAt JUDGMENT AND DECREE OF TITLE. 95 tered, and indexed on the "Register of Decrees of Title." ^ This book is described in detail in Section 98 of the Act.^ It should be of such size as that each page may contain a full copy of the decree of title; therefore, in order to meet the require- ments of all cases, it should be a large book. On each page is printed the form prescribed in Section 97 in which decrees of title are to be rendered. At the top of the page, and preceding the decree is the printed heading "Registered Title No. — ." At the bottom of the page, following the decree, are printed the words "Entered and registered, this the day of , 191 — , at o'clock, ■ M., and certificate of title No. issued thereon. ■ Clerk." A part of this register is an alphabetically arranged index, which, however, may be under the same binding with the reg- ister proper or may be under separate cover.^ § 120. Same Continued — Suggestions as to the En- rollment of Decrees — Decrees, How Numbered. — In enroll- ing the decree on the Register of Decrees of Title, the following matters should be observed. First, the registered title number should be inserted in the blank left for that purpose at the top of the page. The first decree entered in the book is numbered "Registered Title No. 1 ;" the second, "Registered Title No. 2 ;" and so on in continuous, consecutive order, until the book is filled up; and, when the old book is filled and a new one opened, the first decree entered in the new book will take the next number that follows the last number in the old book, and so on. Every tract or parcel separately registered is given its registered title number, which is the number of the decree as entered in the "Register of Decrees of Title," and this registered title number follows the tract or parcel, unchanged, throughout its history. Whenever the court renders separate decrees, whether as to separate tracts, or as to a single tract divided into parcels, the 1. A. §§ 28, 97 and 98. 2. As to the duty of the county authorities to provide this book, see A. § 28 and T. § 271. As to the duties of the Attorney-General, as supervisor of county records, over it see T. § 274. 3. A. § 98. 96 IvAND RBGISTRATION. [§ 121 clerk should number and enroll each decree separately, and in accordance with its own particular terms.^ § 121. Same Continued — Outside Recordation of Plats and Lengthy Details. — The form of the decree as it is printed, in the book, corresponds exactly with the form of the de- cree as rendered iby the judge; therefore, all that must be done is to copy this accurately. However, if the clerk finds that, by reason of a plat being made a part of the description or to aid the description, the description as contained in the decree can- not be conveniently transcribed in the blank space left for that purpose on the register, he should record the plat and the de- scriptive matter relating to it on one of the public records in his office (usually a deed book, unless a regular plat book is kept in the office as one of the public records), and then, after tran- scribing in the blank on the register the other descriptive matter set out in the decree, should add : "A plat more fully describing the premises and made a part hereof is duly recorded in this office in Book , Page ." ^ § 122. Same Continued. — ^When the clerk shall have com- pleted the copying of the decree on the register, he should then fill in the blanks at the bottom of the page, giving the year, month; day, hour and minute upon which he makes the entry.^ signing the same. He should also examine the Title Register and see what number the certificate of title to be entered on the decree will bear, and insert that in the blank space intended for that purpose; or he may insert this number after he has com- pleted the filling-in of the certificate of title on the Title Reg- ister. § 123. Indexing the Decree — Full Individual Indexing Required. — The work of registering the decree of title is not completed until it has been indexed. This should not be post- poned ; it is to be done concurrently with the registering of the decree. The name of every person in whom the court decrees [§ 120] 1. A. § 98. [§ 121] 1. See A. § 102. [§ 122] 1. A. § 29; T. § 273. § 123] PINAI, JUDGMENT AND DECREE Of TITLE. 97 any part of the title to be, whether the fee simple or some lesser estate, should be inserted in its proper alphabetical place in the index, followed by the registered title number of the decree. The clerk must remember that if the decree is in favor of a number of persons it is not sufficient to index it under the name of one of them followed by "et. al." or some similar abbrevia- tion. Each name must be inserted in the index and it must be inserted in its own appropriate alphabetical order.^ It may seem to some persons that it would hardly be necessary to stress so strongly the requirement of full individual indexing. Any abstractor who has had any very wide experience in the exam- ination of the indexes, execution dockets, etc., as they are kept in many counties in this State, can easily give testimony to the need of stressing this requirement, the neglect of which may not only occasion injury to members of the public but also sub- ject to liability the clerk and the sureties on his official bond. 1. A. § 98. —7 CHAPTER VIII. Certificate of Title. § 134. Completing Initial Registration— The Title Register. § 125. Preparing and Registering the Certificate of Title — How Numbered. § 126. Same Continued — Filling the Blanks — Description of the Land. § 127. Same Continued — Names and Description of Owners. § 128. Same Continued — Designation of the Owner's Estate. § 129. Same Continued — Declaring Limitations, Conditions, En- cumbrances, Etc. § 130. Same Continued — Dating, Signing and Sealing. § 131. Same Continued — Right, and Method of Asking Direction From Judge in Case of Doubt. § 132. Indexing the Certificate of Title. § 133. The Owner's Certificate — Issuance — Attaching Certified Copy of Outside Records. § 134. S'ame Continued — Form — Suggestions as to Design. § 135. Established Duplicate of Owner's Certificate. § 124. Completing Initial Registration — The Title Register. — The final step in initial registration is the enter- ing of a certificate of title corresponding to the decree,^ in the large book called the "Title Register." Section 99 of the Act gives a description of this book and prescribes its form.^ It is to be well-bound, with pages not less than 18 inches' wide and deep enough to carry the matter indicated in the form. On the back, it carries appropriate descriptive labels. It is so ar- ranged that the two pages of the folio, which face each other, may both be used in full for the purposes of registering the certificate and such notations and entries as are to be placed thereon. A part of this register, also, is an alphabetically ar- ranged index, which, as the Act, suggests, may most conven- 1. T. § 108, et seq. 2. As to the duties of the county authorities to provide this Book see A. § 28; T. § 271. As to the duties of the Attorney-General, as supervisor of county records, in respect of it see T. § 274. [98] § 125] CERTIFICATE OF TITLE. 99 iently be kept in a separate book. At the top of each page is the heading: Title Register County. Registered Title No. Certificate of Title No. Immediately following this, on the first of the two pages, is the blank printed for the certificate of title proper. This does not take up the entire page, so the rest of this page and all of the opposite page is devoted to blanks designed for the registering of such entries and notations as are to be made from time to time. For fuller descriptive reference is had to the form itself, which is shown in full in Section 99 of the Act. § 125. Preparing and Registering the Certificate of Title — How Numbered. — The clerk, having enrolled the de- cree on the Register of Decrees of Title, should then proceed to enroll, register and index the certificate of title in the Title Register. He first inserts the registered title number in the blank left for that purpose. This is the same number as that of the decree upon which the certificate is being issued. He then inserts the certificate of title number in the blank left for that purpose. The first certificate of title entered in the book should be numbered 1, the second 2, and so on, consecutively throughout the book and so on throughout all subsequent title registers that may prove necessary in the course of time.^ On the first few certificates of title issued in a given county, the registered title number and the certificate of title number are likely to be the same ; but, as soon as ever in the course of time a certificate is cancelled and a new one is issued for the same land, this identity between the two numbers will cease, and there- after the registered title number and the certificate of title number will always be different. Every certificate of title, which may at any time be issued as to any single registered tract or parcel of land, whether it be the one first issued on a decree of title or whether it be one subsequently issued as the result of cancellation and re-issue, al- ways bears the same registered title number, the number that is 1. A. § 99. 100 LAND REGISTRATION, [§ 126 borne on the Register of Decrees of Title by the decree under which the particular piece of land in question was brought un- der registration. The object is that the owner of a certificate of title may always be able to go at once to the original decree un- der which the title to his land is registered, without having to trace back through a series of transfers. § 126. Same Continued — Filling the Blanks — Descrip- tion of the Land. — The next step is to fill in properly the blanks in the certificate of title. In the first blank in the cer- tificate is to be inserted the description of the land, which should be in the same language as it appears in the registered decree of title. If, in registering the decree, it has been found necessary to record a plat in some other book, under the provi- sions of Section 102 of the Act, and in the manner and with the form of reference described in Section 121 ante, then, in filling in the certificate, make the same reference, using the same lan- guage.i § 127. Same Continued — Names and Description of Owners. — The next blank following the words "vested in," is to be filled in with the respective names, address and other des- ignation (such, for instance, as "a minor who will be 21 years of age on Aug. 25, 1920"), ^ of each person, accordingly as it is set forth in the blank, in the decree of title, following the words, "The fee simple belongs to"; and, if in filling in that blank in the decree, the court has used other language descriptive of the nature of the holding (for instance, that one of the owners holds the legal title and the other the equitable title, or that the several owners own each some specified undivided interest, or anything of that kind),^ using the same language in full that the court has used. The next blank, following the words, "The estate owned by said," should be filled in with the names of those whose names have been set forth in the immediately pre- ceding blank, but omitting the addresses, special designations and other particulars already given. t§ 126] 1. See also A. § 103. [§ 137] 1. See T. §§ 47, 110. 2. See T. § 110. § 128] CERTIFICATE OF TITLE. 1 ■S-'. 101 § 128, Same Continued — Designation of the OWber's Estate. — If only one person is registered as the owiier, that is to say if only one person's name appears in the blank fol- lowing the words "vested in," then in filling in the blank fol- lowing the words "in said land is as follows," it is proper to write only the words "a fee simple;" but, if more than one per- son's name appears in the preceding blank, the proper phrase to use is "a fee simple, in the manner set forth above." § 129. Same Continued — Declaring Limitations, Con- ditions, Encumbrances, etc. — The blank following the words "limitations, conditions, encumbrances, etc., viz:" should be filled in by copying all the language which the court has used in the decree in filling in the blank therein following the words "limitations and conditions" ; ^ also all the language used in the decree in the blank therein following the words "subject to." ^ If room is still left in this same blank in the certificate to do so, then the clerk may also copy into it the language used by the court in the decree following the words "liens and encum- brances, viz." 3 But, if room is lacking to copy the liens and encumbrances in the body of the certificate, the clerk should enter them in the blanks on the other page of the certificate un- der the heading there found of "Liens, encumbrances, and other Matters Affecting This Certificate." If this is done, then, under the head of "Remarks" should be written the words "En- tered under the authority of the decree of title." Or, if the reason that all the liens and encumbrances mentioned in the de- cree cannot be copied in full in the body of the certificate of ti- tle is that the details of some transaction as there set forth is too lengthy, the clerk, instead of copying the description of such matter in full may brief it, stating it in general terms fol- lowed by the words "for further details, see registered title No. on the Register of Decrees of Title." * § 130. Same Continued — Dating, Signing and Seal- ing. — The clerk should then date the certificate and the entry 1. See T. § 111. 2. See T. § 114. 3. See T. § 113. 4. Adapted from A. § 103. 102 Ier in which the sheriff's sales of the county are published, and upon satisfactory proof having been exhibited before it that said certificate has been lost or de- stroyed, the court may direct the issuance of a duplicate certifi- cate, which shall be appropriately designed and take the place of the original owner's certificate.^ Provided, that the court may in any case order additional notice to be given, either by publication or otherwise,^ before directing the issuance of a du- plicate certificate, and provided further that in case the appli- cation is made by personal representative of a deceased person claiming that the certificate was lost or destroyed while in the possession of the decedent * the notice of the petition shall be published once a week for eight successive weeks, instead of four, as required in other cases. 1. General discussion of provisions of this section, T. § 135. 2. Compare A. § 73. 3. Discussion of these provisions as applied to executor or admin- istrator, T. § 191; as applied to heirs at law, T. § 197. § 59. Duties of Clerk as to Registration — Supervisory Powers of Judge — Caveat to Entry or Transfer — Twelve Months' Limitation. — The clerk of the superior court is charged with the primary duty of determining whether any in- strument, writing or record or other matter is in proper shape for registration,! and with the duty of correctly and legally making the registration, including all formal incidents thereto, and shall be liable to any injured person for any failure of duty in this respect.* All registrations of title and all entries and notations made by him upon the Title Register of transfers or of the cancellation or discharge of liens or encumbrances, shall be prima facie conclusive;* and unless a caveat be filed, as pro- vided for in this Act,* seeking to set aside, modify or otherwise affect such entry, notation or registration within twelve months ^ from the date of the making of the same upon the Title Regis- § 59] LAND REGISTRATION ACT. 283 ter the same shall become absolutely conclusive upon all per- sons;® this to be considered and construed as a statute of limi- tations against the questioning of the correctness of the clerk's action, and is to be without exception on account of disabilities but shall not operate as a limitation in favor of the clerk as to any action against him for wrongdoing or neglect of dutyJ In the event application is made to a clerk to have any transfer or other transaction registered or noted, and he shall be in doubt as to whether the same should be registered, entered or noted, or shall be in doubt in regard to any detail thereof, either the clerk or any party at interest may petition the judge of the court for direction,* and such judge, after it shall have appeared that the parties at interest have had reasonable notice,* may proceed to hear the matter and to give directions and instructions to the clerk, whose duty it shall be to follow the directions and in- structions of the court. In all matters required of the clerk un- der this Act, he shall be subject to the direction and orders of the court.i" 1. Duty and liability of clerk as to verifying correctness of attesta- tion, A. § 106; T. §§ 269, 270. 2. Clerk must not relax safeguards of the Act against fraud and forgery, T. § 215. General discussion of the duty and liability of the clerk, T. §§ 269, 270. 3. As affecting the burden of proof in attacks on registration, T. § 218. Meaning and effect of this provision, T. § 228. Does not apply to all entries, T. § 229. 4. See A. § 60 and notes thereunder. 5. When this limitation is applicable and when not, T. § 229. Matters adjudicated on original registration not within the purview of this provision, A. § 27; T. § 230. How far this affects conclusiveness of registration, T. § 228. 6. Cancellation of entries, how affected by this provision, T. § 231; see also T. § 181. 7. Compare A. § 84; also T. §§ 256-7, 269. 8. Method of asking instructions of the judge, T. § I3i. Suggestions on this subject, T. §§ 270, 275. When clerk has doubt as to authority of person purporting to act for corporation to do so, T. § 164. 9. Judge's authority as to prescribing method of notice, A. § 73. 284 I^ND REGISTRATION ACT. [§ 60 10. Judge is general supervisor of registry; clerk is purely Minis- terial officer, T. §§ 228, 270, 275. Relation of this provision to constitutionality of the Act, T. § 16. Powers of Attorney-General as ex-officio supervisor of county rec- ords, T. § 274. Judge's power to give direction in every extraordinary situation, see T. § 275. § 60. Proceedings to Correct, Modify or Cancel Reg- istration — Summary Powers of Judge. — If any person at interest shall object to any entry, registration or notation ^ made by the clerk upon the Title Register, he may, unless such entry, registration or notation shall have become conclusive by lapse of time under the provisions of this Act,^ file with the clerk of the court a caveat, setting forth the entry, notation or registration to which he objects; setting forth what interest he fias in the subject matter, and setting forth the ground of his objection and praying for such relief as he desires and deems appropriate in the premises.^ Thereupon the clerk shall note upon the Register of Titles the fact that paveat has been filed, and by whom, and to what entry, notation or act of registration it applies. Thereupon the matter shall be presented to the judge, who shall order all persons at interest, to show cause on a day named why the relief prayed for in the caveat should not be granted, and upon proof being made that due notice * has been given to all parties at interest the judge shall proceed to hear ^ the matter and shall render a judgment of the court, giving di- rection to the matter,^ and may thereupon require such entry, registration or notation to be canceled or modified, and may re- quire the outstanding certificate of title and owner's certificate to be modified accordingly. To that end the court may require the outstanding owner's certificate of title to be brought into court by subpoena duces tecum, or other process, including at- tachment for contempt, and if the court finds that production of the certificate cannot be compelled, then he shall provide for publication of notices '' of the court's action thereon for a period of time not less than once a week for four weeks in the paper in which the sheriff's sales of the county are advertised, the ex- pense * of making the publication to be provided for in such manner as the court shall »rder. § 61] LAND REGISTRATION ACT. 285 1. This language is broader than the language of the cognate provi- sion of A. § 59. That language refers only to registrations and en- tries of transfers and cancellations; this language includes "any entry registration or notation." See T. § 329. The clerk is such a person at interest as that he may take the bene- fits of this section, T. § 183. 2. Reference is to the twelve-months' limitation set in A. § 59. See T. § 229. Does not apply to regular court action attacking registration for fraud or forgery or affect the limitation set in A. § 63; T. § 317. 3. This is the appropriate method of obtaining correction of regis- trations and entries erroneously made. T. § 183. May be used within the twelve-months to attack a transfer for fraud or forgery, T. §§ 184, 317. Suggestion as to form of caveat and procedure thereunder, T. §§ 181-5. 4. Judge's power as to prescribing mode of notice, A. § 72. 5. The summary nature of the hearing, T. §§ 183, 185, 328. 6. Discretion of the judge as to what direction he shall give, T. § 185. Conclusiveness of registration not to be affected by any direction so given, T. § 338. Matters adjudicated on original registration not to be disturbed,, T. § 330. 7. Compare A. § 52 and notes. 8. Discretion as to taxing the costs, A. § 120; T. § 364. General Note— Entries thus canceled or discharged are not to be brought forward on subsequent issues of the certificate of title A § 39. § 61. Liens, Encumbrances and Other Adverse Claims —Method of Noting.— The method of causing notations of judgments, Hens, encumbrances or special rights of any kind,i other than voluntary transactions 2 claimed by any person against registered land, shall be as f ollovifs : The person desir- ing the notation to be made shall, by himself, his agent or at- torney, file, upon a form substantially in compliance with that herein provided for,^ a request for the notation to be made, giving the particulars, and in case the lien or special rights re- late to any other matter of record or court proceeding, he shall state the book and page where recorded, and if it relates to any special right, shall succinctly give the details of such right so claimed. In case the notation is for the purpose of protecting 286 LAND REGISTRATION ACT. [§ 62 the lien of a judgment* the person making the application for the notation shall produce and exhibit to the clerk the execution or a certified copy of the judgment, except in cases where the judgment is rendered in the superior court of the same county where the registration is made, in which event production of the execution or certified copy of the judgment shall not be re- quired, but the clerk may act upon inspection of the original judgment on the minutes of his own court. 1. Among other things to which this section applies are the nota- tions allowable under A. § 51. Taxes and assessments are specially dealt with in A. § 57. This section also applies to notation of lis pendens, which is spe- cially dealt with in A. § 54. General discussion of the provisions of this section, T. §§ 145, 173-6. 2. In addition to the provision relating to voluntary transfers, transfers to secure debt and mortgages, see A. § 117 as to the regis- tration of other voluntary transactions such as homestead and ex- emption rights. This section applies only to notations adverse to the ovraier. For definition of "voluntary transactions," see A. § 3, T. § 21. 3. The general form for requesting the notation of an adverse entry is prescribed in A. § 114. 4. The notation of judgments is specially dealt with in A. § 54; the form of noting a judgment is given in A. § 113. § 62. Voluntary Cancellation of Mortgages, Liens and Other Adverse Notations. — Voluntary cancellations ^ may be made of any mortgage, certificate of indebtedness or any lien, equity, encumbrance, lis pendens or other similar matter relat- ing to registered land or any interest therein, and may be en- tered by the clerk upon the Title Register and the owner's cer- tificate. The entry, notation or registry of such cancellation may be made upon the written authority of the person for whose benefit the original registration, notation or entry was made, or his personal representative, or lawful assignee, in a form substantially in compliance with that herein prescribed,^ attested by any officer authorized to attest deeds; or upon order of the judge.3 In case of a creditor's certificate* the same shall also be surrendered and canceled. Notations of delin- § 63] LAND REGISTRATION ACT. 287 quent taxes or assessments may be canceled upon the produc- tion of a certificate of the proper tax officer showing that such taxes or assessments have been paid.^ 1. As to how involuntary cancellation may be compelled, A. § 60 and notes. 2. The form is prescribed in A. § 116. The form there set forth omits the attesting clause required by this section. 3. If a judgment or other lien is satisfied but the owner refuses to execute the necessary formal request for its cancellation on Title Register, the judge may nevertheless order it canceled. 4. See A. § 33, T. § 159. 5. See T. § 186. General Note — General discussion of the provisions of this section, T. §§ 142, 180. After an entry is canceled under this section, it is no longer to be brought forward on subsequent issues of the certificate of title, as re- quired by A. § 39. How far an incorrect entry of a cancellation can be corrected, T. § 231. § 63. Conclusiveness of Registration — Exceptions — Attacks for Fraud or Forgery. — Every registered ovsmer of any estate or interest in land brought under this Act shall, ex- cept in cases of fraud or forgery i to which he is a party, or to which he is a privy without valuable consideration paid in good faith,2 hold the land free from any and all adverse claims, rights, or encumbrances not noted on the certificate of title in the Title Register,^ except: First. Liens, claims or rights arising or existing under the laws or Constitution of the United States which the statutes of this State cannot require to appear of record under registry laws.* Second. Taxes and levies assessed thereon for the current calendar year.^ Third. Any lease for a term not exceeding three years, un- der which the land is actually occupied.® Fourth. Highways in public use and railroads in actual op- eration.'^ No proceedings to attack or to set aside any transaction for 288 I,AND REGISTRATION ACT. [§ 63 such fraud or such forgery as is referred to in this section shall be brought or be entertained by any court unless the same shall have been brought within seven years from the date of the transaction or of the registration to which the same relates.* Nothing herein shall conflict with the provisions of this Act allowing attack for good cause to be made upon a registration made by the clerk at any time within twelve months from the date of such registration.^ 1. Attacks for fraud or forgery generally, T. §§ 217-8. Fraud in initial registration, T. § 219. 2. New registered owner purchasing in good faith and for value holds against old owner when transfer results from fraud or forgery, T. §§ 213-6. 3. The certificate of title and not owner's certificate is what con- trols, T. § 226. This includes entries and notations brought forward, under A. § 39. Every voluntary or involuntary transaction noted on the register operates to its own lawful extent, A. §§ 40, 51, and notes thereunder. Judgments though not noted are binding between the original parties, A. § 54; but not as to third persons dealing with the land whether with or without aliunde notice, T. § 245. The same is true as to lis pendens, A. § 54; T. §§ 178, 245. The same is also true as to liens for delinquent taxes, A. § 57; with or without aliunde notice, T. § 245. 4. Generally, T. § 230. Liens under federal statutes or as the result of proceedings in United States courts, T. § 221. Rights acquired through bankruptcy proceedings, T. § 222. 5. Discussed, generally, T. § 220; particularly, T. § 223. 6. Discussed, generally, T. § 220; praticularly, T. § 234. 7. Discussed, generally, T. § 220; particularly, T. § 335. 8. See T. §§ 217-8. 9. Reconcilement between the provisions of this section and the provisions of A. § 60 giving the judge summary supervisory pow- ers over register, T. §§ 185, 228. General Note — This section does not, in any wise, militate against the provisions of A. § 73, that registered lands are subject to the or- dinary jurisdiction of the courts. For the reconciliation between the two sections, see T. §§ 11, 205-6. The conclusiveness of registration is in no wise affected by adverse possession, A. § 66; T. § 232. Effect of reversal of judgment authorizing registration, T. § 233. § 64] LAND REGISTRATION ACT. 289 § 64. Obtaining a Decree of Registration as a Cove- nant Running with the Land. — The obtaining of a decree of registration and the entry of a certificate of title shall be con- strued as an agreement running with the land, and except as hereinafter provided, the same shall remain registered land sub- ject to the provisions of this Act and all amendments thereof. General discussion, of this section, T. § 117. The exception mentioned relates to an owner's freeing his land from registration, A. § 65; T. §§ a34-8. Eflfect of this section on the constitutionality of certain provisions of the Act, T. § 30. § 65. Freeing the Land from Registration. — If the person who is the registered owner of the fee simple title to the land shall at any time so desire, he may cause a transfer of the title to be registered to himself, "his heirs and assigns, free from further registration." Thereupon the land and the title thereto shall be free from the necessity of subsequent registra- tion, and shall as to subsequent transactions be exempt from the provisions of this Act, so far as the interest of the person thus freeing it from registration and subsequent holders under him are concerned; but as to such interest the certificate of ti- tle and owner's certificate registered and issued on the last transfer shall stand as a conclusive source of subsequent title to the same extent as if it were a grant from the State. How- ever, if the interest thus freed is, according to the Title Regis- ter, subject to liens, exceptions, encumbrances, trusts or limi- tations of any kind, such liens, exceptions, encumbrances, trusts or limitations shall not be affected, but shall be noted on the owner's certificate as issued on the last transfer and shall be efifective against the same as long as they shall subsist. If the fee simple be registered undividedly in the name of more than one person, as tenants in common or other like relation- ship of joint or common interest, it shall not be freed from reg- istration except upon the unanimous action of the owners of the entire fee. Discussed, T. §§ 334-8. Certificate issued on last registration as evidence on behalf of sub- sequent owners, T. § 346. —19 290 LAND REGISTRATION ACT. [§ 66 § 66. Registered Title Not Affected by Prescription or Adverse Possession. — No title to nor right nor interest in registered land in derogation of that of the registered owner shall be acquired by prescription or adverse possession. Discussed generally, T. § 332. Rule, that possession is notice, abolished as to registered land, T. § 245. Statute against administrator or executor selling pending adverse possession, how affected, by this section, T. § 189. § 67. Courts Always Open for Purposes of Registra- tion. — For the purposes of this Act, the superior courts of the various counties of this State shall be considered as being open and in session at all times, except on Sundays; and every offi- cial act of the judge on any matter shall be considered as hav- ing been rendered in open court; and no recess or adjournment of the court taken generally or for any other particular pur- pose shall be considered as having recessed or adjourned the court so far as the purposes of this Act are concerned; and any limitations existing, either under general law or special acts as to the length of time in which the various superior courts of this State may sit in the various counties shall not be construed as affecting the provisions of this Act. Discussed, T. § 265. Applies also to summary proceedings before judge, T. § 167. § 68. Free Access to Public Records by Examiner.— Every clerk of the superior court, every ordinary and every other officer in this State having charge of public records shall allow each and every examiner appointed by any court in this State, for the purposes of this Act, free inspection of all the public records relating to his office and in any wise appertaining to any matter under the investigation of such examiner. § 69. Disqualification of Clerk— Special Clerk.— In case any clerk is disqualified by reason of relationship or interest, or from any other cause, or in case of the death or other disability of the clerk of the superior court to act in any matter arising under this Act, the duties [required] of such clerk may be per- § 70] LAND REGISTRATION ACT. 291 formed either by the ordinary of the county or by a special clerk appointed by the judge for that purpose, the entry of appoint- ment of such special clerk and of the purpose for which he is appointed being duly entered and recorded upon the minutes of the court. All officers so acting fall within the purview of the word "clerk" as used throughout the Act, A. § 3; T. § 21. All the penalties imposed on the clerk apply also to the special clerks, T. § 358. General subject discussed, T. § 267. Deputies, A. § 83; T. § 368. § 70. Rules of Court to be Prescribed by Judges in Convention. — The judges of the superior courts in convention may from time to time make general rules and forms for pro- cedure relating to the subjects in this Act dealt with, and may modify the forms herein prescribed, but such rules and forms shall be uniform throughout the State, and shall be subject to the provisions of this Act and the general laws of this State. Discussed, T. § 266. Suggestion as to making provision for issuance of special certificate in favor of holder of a lesser estate than the fee, T. § 150. § 71. Employment of Stenographer. — In any case, by consent of the parties or upon order of the judge, the examiner may procure the services of a stenographer to report the testi- mony taken before him, and the compensation of such stenogra- pher, unless agreed on by the parties, shall be fixed by the judge and taxed as costs. See T. § 93. Compensation, A. § 120; T. § 360. § 72. Power of the Judge to Provide for Notice. — Wherever notice is required by this Act and no provision as to how notice shall be given is made, or wherever, in the dis- cretion of the judge, additional notice to that provided for in this Act, should be given to any particular person or persons, or to the public generally, the judge may order such notice to be given, and provide the manner in which it shall be given. 292 LAND REGISTRATION ACT. [§ 73 Discussed generally, T. §§ 65, 166. For instances in which the judge may be called on to exercise this power see A. §§ 10, 50, 58, 59, 60; T. §§ 53, 166, 182. § 73. Ordinary Rights, Incidents and Burdens Attach to Registered Land— Necessity of Registering Such Mat- ters—Jurisdiction of the Courts. — Except as otherwise spe- cially provided by this Act, registered land and ownership therein shall be subject to the same rights, burdens and incidents as unregistered land,i and may be dealt with by the owner, and shall be subject to the jurisdiction of the courts in the same man- ner as if it had not been registered.^ But registration shall be the only operative act to transfer or affect the title to regis- tered land,* and shall date from the time the writing, instru- ment or record to be registered is duly registered on the Title Register. Subject to the provisions of Section 63, no voluntary nor involuntary transaction shall affect the title to registered land until registered or noted on the Title Register, in accord- ance with the provisions of the Act.* 1. Title in its substantive sense of ownership is not affected by registration; only the means of evidencing it and the burdens on it are affected, T. § 3. 2. As to how the ordinary jurisdiction of the courts is made ef- fective against registered, lands, T. §§ 11, 12, 205-6. The harmony between the Act and the general rules of substantive law and equity, T. § 138. Reconciliation between this section and A. § 6Z; T. §§ 205-6. Procedure to enforce rights against registered lands, A. §§ 49, 50, 55, and notes thereto. Necessity of noting lis pendens to make judicial action effective, A. § 54 and notes thereto. 3. The certificate of title is conclusive and exclusive as to what rights attach to and what burdens may affect registered land. T. § 239. But any adverse claim may be noted so as to be made effective, A. § 51 and notes thereto. No aliunde proof of notice, T. § 245. 4. Cog;nate provision, A. § 40. Reversal of judgment authorizing registration does not affect the conclusiveness of the registration unless notice of the pendency of the writ of error is noted on the register, T. § 233. § 74] lAND REGISTRATION ACT. 293 § 74. Assessment for Assurance Fund. — ^Upon the orig- inal registration of any land under this Act there shall be paid to the clerk one-tenth of one per centum of the value of such land, to be determined by the court, as an assurance fund, which shall be subject to the trusts and conditions hereinafter declared for the uses and purposes of this Act. Assurance fund not an essential feature of land registration, T. § 248. Who liable for the assessment, T. § 249. § 75. Deposit in State Treasury. — All moneys received by the clerk under the preceding section shall be kept in a sepa- rate account and be paid promptly into the State Treasury upon the special trust and condition that the same shall be set aside by the Treasurer in trust as a separate fund for the uses and purposes of this Act, to be known as the "Land Registration Assurance Fund," which said fund is hereby appropriated to the uses and purposes set forth in this Act. See T. § 249. § 76. Investment and Use of Assurance Fund. — Said moneys, in so far as the same may not be required to satisfy any judgment certified against the assurance fund under Sec- tion 79 of this Act, shall be invested by the Treasurer of the State in State bonds, or validated county or municipal bonds in trust for the uses and purposes set forth in this Act until said fund amounts to the sum of five hundred thousand dollars; but the income, or so much thereof as may be required therefor, may be applied towards the payment of the expenses of the ad- ministration of this Act and the satisfaction of any such judg- ment. Whenever and so long as the face value of the bonds purchased as aforesaid equals said sum of five hundred thou- sand dollars, other moneys thereafter coming into said fund, to- gether with any income not required for the purposes afore- said, shall be transferred from the land registration assurance fund to the general Treasury. § 77. Actions against Assurance Fund — Limitations — Measure of Damage, — Any person entitled to notice and who 294 LAND REGISTRATION ACT. [§ 77 had no actual notice i of any registration under this Act by which he may be deprived of any estate or interest in land,^ and who is without remedy hereunder,^ may, within two years * next after the time at which the right to bring such actions shall have first accrued to him, or to some person through whom he claims,^ bring an action of assumpsit against the Treasurer of the State * in the Superior Court in the county where such land is lo- cated for the recovery, out of the assurance fund, of any dam- ages to which he may be entitled by reason of any such deprivation. The Treasurer shall be served by second origi- nal copy of proceedings so filed, which service shall be suffi- cient. The assurance fund shall be defended in such action and in any appeal by the Attorney-General for the State.'^ The measure of damages in such action shall be the value of the property at the time the right to bring such action first accrued, and any judgment rendered therefor shall be paid as herein [before] provided.* If any person entitled to bring such action be under the disability of infancy, insanity, imprisonment or ab- sence from the State in the service of the State or of the United States at the time the right to bring such action first accrued,* the same may be brought by him or his privies within two years after the removal of such disability, but, provided, neverthe- less, that all persons non-resident of the State, all persons who are described in the proceedings as being unknown, or of un- known address, or as to whom it appears from the record that they could not be found so as to be served, shall be considered as having had actual notice where notice has been published in accordance with the provisions of this Act.^<* 1. Under A. § 14, any method of notice prescribed by the Act stands as if it were actual notice, T. §§ 74, 251. 2. Mere lien-holders not protected hereby, T. § 251. 3. Does not exclude persons having remedy against officers for breach of duty, T. §§ 251, 257. 4. Discussed, T. § 252. 5. This provision extends the right of action to privies, T. § 251. 6. Compare A. § 78; T. § 255. 7. See T. § 255. 8. Discussed, T. § 253. The enrolled act uses the word "herein- after." Demand bears interest after judgment if not paid for lack of suffi- cient funds, A. § 81; T. § 253. § 78] I* EH !zi O o I— I ej P4 o o EH <1 s *i r'^ ■a. 13 !> S3 Si iB tn o is MH o "a ' ' V < g S s ° S _o " S CI 3 -^ u ci n! V J3 I s s-s en O a a o •a 0) rt ^ -t-j _ 'S >> 3 O be .S rt o S3 *-• o " o o i« o *■+-» e Eh ID ^ ■ rt o ^ O cn cd O Q .-^ W Pi w in o w Q Iz; < o w iz; ? :» 3 ^i Q d 1^ < a: o C S S ^2 .1 ? V a >^ S O H ■rr E « « ^ S B ,9 ca,3 « a = .S S - K 8.S 3 = IS ° g - « S S a: en r* Z < OS inO 61^ be B 5X o o o O < u h-t n H O Eh 02 I— I El o Z Q H O o« 1 1 *. o ,"• «*a 111 Ko sa * § i « w <; ffi s Eh cc o ^ -'S-l ^ gl .§ < urn ness to I w" ■R -2 - o-^ W = f-ss3 u »ulSS pel ire of th DTtgage or describe i 1, give rei ford pq § Natl (If M, cate, special P u ^ ■g w 1 „ <| tn •z S W l-H 6 ^ of their respective courts, and pursuant to rules and regulations established for such courts, and shall be governed by the same general laws as clerks of (circuit and municipal) courts in so far as the same may be applicable. (2). Their official designation under this act shall be regis- trar of title for their respective counties or cities. (3) They shall qualify and give bond in accordance with law for the faithful performance of their duties as such. Cal. §1, 4. N. Y. §373, 406. Colo. §9. Ohio §1, 2. III. §1. Ore. §1. Mass. §8, 73. Wash. §9. Minn. §3398, 3400. Sec. 15. [Duties and Powers of Registrars of Title.] Reg- istrars of title and their deputies shall be authorized and re- quired, under the direction of their respective courts (1) To issue process and to enter the decree of the court touching lands in their respective counties or cities; (2) To enter and issue certificates of title as provided herein ; (3) To affix the seal of the court to such certificate and their duplicates; 10. Under this provision registration is the act of the court. Tyler v. Judges, 175 Mass. 68. See also People v. Simon, 176 111. 165 and State v. Westfall, 85 Minn. 437. Fierce battles have raged over the duties of registrars. The first Illinois act of 1895 was successfully assailed and declared unconstitutional because it conferred judicial powers on the registrars. People v. Chase, 165 111. 526; and the same fate befell the first Ohio act of 1897. State v. Guilbert, 56 Ohio St. 575. Subsequent acts have, however, been upheld over such objec- tions. To avoid any difficulty or doubt in this regard Art. II of the Constitution of Ohio has been amended by the addition of Section 40 for the establishment of a land registration system and especially providing that "Judicial powers with right of appeal may by law be conferred upon county recorders or other officers in matters arising under the operation of such system." The provisions of the above section are believed to be suffcient to avoid any constitutional ques- tion. UNIFORM LAND REGISTRATION ACT. 347 (4) To make entries and memoranda and perform all acts of registration affecting the title to such lands; (5) To keep a separate account of all moneys with which they may be chargeable under this act, and to make a special return thereof in accordance with the general laws and the special provisions of this act. (6) And generally to perform such other acts as the court may prescribe. Cal. §1, 4. N. Y. §373-4. Colo. i§9, lOi 11. Ohio §2. 111. §2, 3, 6, 29. Ore. §3. Mass. §8. Wash. §9, 10, 11. Minn. §3899, 3401. Sec. 16. [Examiners of Titles.] The courts of land regis- tration shall appoint,!^ subject to removal at any time, one or more attorneys at law in their respective counties or cities to be examiners ^^ of titles, or the court may, in any case on mo- tion, appoint special examiners. (2) Their duty shall be to search the records and investi- gate all facts stated in the petition or otherwise brought to their notice in any case referred to them. (3) They shall have the powers of (commissioners in chan- cery) and may hear the parties and receive evidence. ^^ 11. Cal: Referee appointed by court in each case; $10,000 bond. Colo, and Wash.: one attorney in each county appointed by court; bond. ///. and Oire.: two or more attorneys appointed by registrar in each county; bond fixed by court. Mass.: one or more attorneys in each county appointed by judge; removal by Supreme Judicial Court. Minn.: one or more attorneys appointed by judges; no provision for removal. Miss, and N. C: three attorneys in each county appointed by clerk for two years; removal at will of clerk or court. N. Y.: Attorneys or corporation authorized to guarantee or insure titles qualified under rules of Court of Appeals; bond fixed by court. Ohio: one or more attorneys appointed by court; bond $1,000 to $10,000. 12. Examiners of title not county officers but court officers. State V. Westfall, 85 Minn. 437. Examiner acts as a master in chancery. Gage V. Consumers' Co., 194 111. 30. 13. Objections to testimony must be made before examiner of titles. O'Laughlin v. Covell, 323 111. 163. Examiner must not make ex parte examinations of abstracts and other evidence of title. Glos v. Grant 348 APPENDIX. (4) They shall make report to the court, in the form re- quired by it, with a certificate of their examination of the title and their findings of fact. Cal. §16, 18, 19. N. C. §3. Colo. §13, 24. N. Y. §377, 380. 111. §5. Ohio §3. Mass. §11. Ore. §5. Minn. §3381. Wash. §13, 34. Miss. §3. PART IV. Proceedings to Obtain Registration. Sec 17. [Petition for Registration.] Suit for registration of title shall be begun by a petition i* to the court, by a person or persons claiming, singly or collectively, Bldg. Assn., 339 111. 387. Objections to admissibility of evidence be- fore examiner must be made at the time it is offered, or will other- wise be excluded. Exceptions to examiner's report must not be general but specific, and must point out the evidence objected to and give reasons for the objections. Bjork v. Glos, 356 111. 447. 14. Complaint in action for registration need not set out the stat- ute. It is sufficient to plead facts showing the right to registration. Duffy V. Shirden; 139 N. Y. App. Div. 755. Applicant for registration must prove fee simple title either by the production of a regular chain of conveyances from the general government, or by proof of the creation of a title by adverse, open, continuous and hostile pos- session under claim of title for the period of twenty years, or by the acquisition of a good tax title. Glos v. Kingman, 307 111. 26; Glos v. Holberg, 230 111. 167. It is not incumbent on applicant to affirma- tively establish the invalidity of tax deeds held by parties defendant. McMahon v. Rowley, 238 111. 31. The filing of application for regis- tration stops the running of statute limitations and prevents holder of tax title from mending his hold. Woods v. Glos. 357 111. 135. Any "owner" of land, whether his title be of record or not, may main- tain proceedings for registration. A case in which title under an unrecorded deed was registered. National Bond Co. v. Alderson, 99 Minn. 137. A party not in possession may bring suit for registration of title against party in possession. "The purpose of the statute is to provide a speedy and summary remedy to clear up title to land. Reed v. Sid.dall, 94 Minn. 316. The remedy provided is not a sub- stitute for an action of ejectment. . . . Moreover, the relief in UNIifORM LAND REGISTRATION ACT. 349 (1) To own, (2) Or to have the power of appointing or disposing of, an estate in fee simple in any land ^^^ whether subject to liens or not. Sec. 18. [Petition by Representative.] Infants and other persons under disability may sue and defend by guardian, com- mittee, or trustee, as the case may be, and corporations by an ofificer duly authorized. (2) But the person in whose behalf the petition is made shall always be named as petitioner. (3) A non-resident petitioner shall appoint a resident agent upon whom process and notices may be served. Sec. 19. [Equity Practice.] Except ^^ as otherwise pro- ejectment is not co-extensive with that which may be had upon an application to register ... it needs no argument to show that a title could never, in ejectment, be settled as against the whole world, as can be done in an application to register." The several pieces of land must form one compact body or must have the identical chain of title; must not be in different blocks separated by a street, nor in the same block separated by other lots owned by others. Culver v. Waters, 248 111. 163. Objection to registration, by holder of tax title, overruled, provision being made to reimburse him for taxes paid by him. L,oehde v. Glos, 365 111. 401. Objections to registration by holder of tax titles over- ruled. Teninga v. Glos, 366 111. 94. Application for initial registra- tion must show title against all the world. Teninga, Receiver, v. Glos, 366 111. 94. The act authorizing registration is not a substitute for a bill in equity to remove a cloud from title, and. only authorizes initial registration of a title good against everyone. Glos v. King- man, 207 111. 26; Teninga, Receiver, v. Glos, 266 111. 94; Teninga v. Glos, 366 111. 131. Title by adverse possession under color, registered without regard to whether claimant can trace back to government by an unbroken chain. Goetz v. Glos, 266 111. 238. Several tracts with substantially the same chain of title may be registered in one pro- ceeding. Gibson V. Glos, 271 111. 368. 14a. In some jurisdictions renewable lease-hold estates for long terms are in common use and often constitute a title practically equivalent to the fee. Under such conditions the following words may here be added, to-wit: ''or any lease hold exceeding years." 15. Procedure under the act is same as in chancery practice unless as otherwise provided. O'Laughlin v. Covell, 232 111. 162. "All rules 350 APPENDIX. vided, the suit shall be subject to the general rules of pleading and practice in equitable actions. Cal. §5, 8, 9. N. C. §4, 5. Colo. §1-3, 5, 6, 66. N. Y. §370, 378. 111. §7-10, 18. Ohio §4-7, 90. Mass. §18. Ore. §5-8, 11. Minn. §3372-3, 3377. Wash. §1-3, 5, 6, 65. Miss. §4, 5. Sec. 20. [Signature and Oath to Petition.] The petition and any amendment thereto shall be signed and sworn to by each petitioner, or in the case of a corporation or person under disability by the person authorized to file the petition. Sec. 21. [Contents of Petition.] The petition shall set forth (1) A full description of the land, and any improvements thereon, with the description and valuation in its last assess- ment for taxation; (2) When, how, and from whom it was acquired; (3) Whether or not it is occupied ;i8 (4) An enumeration of all known " liens, interests, and claims, adverse or otherwise, vested or contingent. and principles of law applicable to equitable actions and proceedings, and rules of practice with respect to trial, introduction of evidence, findings and order of judgment, should, so far as not clearly inap- propriate or otherwise provided for by the act, be followed and ap- plied." Owsley V. Johnson, 95 Minn. 168. It is well settled that proceedings to register title to land are of an equitable nature. Brown v. Hagadorn, 119 Minn. 491; Amundson v. Glos, 271 111. 209. 16. If applicant alleges lot is unoccupied, he must prove it, other- wise title cannot be registered. Jackson v. Glos, 243 111. 280. Title cannot be registered without proof of occupancy or vacancy. Brooke V. Glos, 243 111. 392; Mihalik v. Glos, 247 111. 597; Strebel v. Glos, 271 111. 65; Miller v. Glos, 271 111. 285. Is "occupancy" equivalent to ■'possession"? Miller v. Glos, supra; Harts v. Glos, 271 111. 376; Foulkes V. Glos, 272 111. 364; Harty v. Glos, 272 111. 395. 17. If applicant asks for tax deed to 1 vigintillionth of the lot to be set aside as a cloud on the title, he must reimburse tax-holders. Jack- son V. Glos, 243 111. 280. Applicant for registration not chargeable with constructive notice of any encumbrance not in his chain of title. Tomczak v. Bergman, 269 111. 330. UNIFORM LAND REGISTRATION ACT. 351 (5) And the full names and addresses,^* if known, of all persons that may be interested by marriage or otherwise, in- cluding adjoining ^^ owners and occupants. (6) The petition shall be accompanied by a plan made in accordance with the rules of court. Cal. §6. N. C. §5. Colo. §4. N. Y. §379, 384. 111. §11, 14, 16. Ohio §8, 10, 11. Mass. §20. Oie. §9, 13, 13. Minn. §3374, 3375, 3378. Wash. §4. Miss. §5. Sec. 22. [Petition to be Filed and Docketed.] The petition shall be filed with the registrar of titles, and shall be forthwith docketed, numbered and indexed by him in a book to be known as the land registration docket of his county or city. Sec. 23. [Notice of Lis Pendens.] The registrar shall also forthwith cause to be recorded and indexed in the proper record book of such county or city a notice, such as is required by law for notice of lis pendens, which shall be filed with the petition, and which shall have the full force and effect of a notice of lis pendens. Sec. 24. [Memorandum of Other Papers.] A memorandum of all other pleadings and papers filed with said registrar shall in each case be entered upon his registration docket under the proper number as aforesaid, and the papers in the cause and all writings, instruments and records filed with him shall be safely kept by him in his office, duly numbered, dated, and indexed. Oal. §11. N. Y. §370, 383. Colo. §15, 16, 43. Ohio §7, 36, 3S, 92. 111. §16, 17. Ore. §15, 16. Mass. §12, 48. Wash. §15, 16, 42. Minn. §3380. 18. Street address of applicants should be given, but may be sup- plied later. Creger v. Spitzer, 244 111. 208. 19. An abutting owner claiming interest in land, to be registered cannot attack constitutionality of act, nor can he plead that complaint fails to state a cause of action; and if not shown by examiner's report to have any interest in tract to be registered and not designated by 352 APPENDIX. Sec 25. [Reference to Examiner of Titles.] Upon the fil- ing 20 of a petition for the registration of any land, the court shall refer the same to one of the examiners of title provided for by the act, to examine and report thereon. Sec. 26. [Report of Examiner.] Such report 21 shall include: (1) An abstract of title to the land, made from the records order of court as a party to be served, he is not a necessary party; if made a party by complaint, it is subject to demurrer. Duflfy v. Shir- den, 139 N. Y. App. Div. 755. 20. In Miss, and N. C. no reference is made to the examiner until after the publication of notice and service of process. In other States reference is made as soon as the application or petition is filed. In Illinois, however, the examiner does not report until after expira- tion of the time specified in the order of publication for the appear- ance of defendants, and until opportunity is given them to contest the rights of the applicant. An abstract of title is required to be filed in Mississippi and North Carolina. In other States the examiner is required to report his opinion, and sometimes to report the facts on which it is based. Such a report as is contemplated by this sec- tion will probably disclose the name and addresses of all persons hav- ing any interest in or claim against the land. If any should be omitted or overruled, they will be discovered under subsequent proceedings. In New York an examiner's certificate must accompany the complaint, and it is for the court to decide whether that is sufficient. It seems better to have an impartial examiner appointed by the court. As he has the powers of a master in chancery, he can compel the testimony of witnesses. He is required, to make a report with full extracts from the records, so that the court can judge for itself of the condition of the title. 21. It will be presumed that the examiner considered only competent evidence in making his findings, if the report contains sufficient com- petent testimony to support such findings. McMahon v. Rowley, 338 111. 31. Substance of proofs need only be reported by examiner, unless otherwise required by some party. If evidence be not returned, party complaining should ask trial judge for rule on examiner. Creger v. Spitzer, 244 111. 308. Procedure where examiner fails to report evi- dence on request. Harmless errors not regarded. Mundt v. Glos, 346 III. 636. If no exception be taken to report of examiner, it is con- clusive. Kenney v. Glos. 258 111. 555. Exceptions to master's report; practice on appeal. Welsh v. Briggs, 204 Mass. 540. Report of examiner, based on copy of abstract of title, sustained. Ivoehde v. Glos, 265 111. 401; Wilson v. Glos, 366 111. 504; Walther v. Glos, 370 111. 390; Bonner v. Glos, 370 111. 567; Harty v. Glos, 873 111. UNIFORM tAND REGISTRATION ACT. 353 and all other evidence ^^ that can be reasonably obtained by the examiner; (2) Full extracts from the records to enable the court to decide the questions involved; (3) The names and addresses so far as ascertained of all persons interested in the land, as well as adjoining owners and occupants showing their several interests, and indicating upon whom 2* and in what manner process should be served or no- tice given in accordance with the provisions of this act. Cal. §6, 18, 19. N. C. §8. Colo. §17, 24. N. Y. §380. 111. §18. Ohio §13. Mass. §29. Ore. §17. Minn. §3382. Wash. §17, 24. Miss. §8. Sec. 27. [Order of Publication in Rem.] Upon the filing of the report of the examiner of titles, the court shall cause no- tice 2* thereof to all persons shown therein to be entitled to the 395. Court may act on evidence taken by an examiner though he dies before returning it. Amansden v. Glos, 271 111. 309. The position of examiner under this law is one of high responsi- bility. Unless the examiner performs his duties fully and thoroughly, the court is liable to be misled, to the substantial prejudice of some property owner. Shevlin v. Fogarty, 133 Minn. 456. 22. Objections to evidence must be made by exceptions to ex- aminer's report Gage v. Consumer's Co., 194 111. 30. Rules for ob- jections to examiner's report. Glos v. Hobane, 212 111. 222; Glos v. Holberg, 220 111. 167. 23. If State holds tax liens, it should be made a party. Nat'l. Bond Co. V. Hopkins, 96 Minn. 119. Persons whose claims are barred are not necessary parties. O'Laughlin v. Covell, 222 111. 162. Court cannot disregard examiner's report nor decline to make defendant any party whom the examiner finds to have such an interest as to require that he shall be so named. Registration is void against any such party and his privies not made parties. Dewey v. Kimball, 89 Minn. 454. 24. When application omits names of parties holding easements, but examiner's report gives names and recommends that they be made parties, if not made parties the registration is void and subject to collateral attack on account of constructive fraud. Riley v. Pear- son, 120 Minn. 210. Title by registration under the Torrens Act of Colorado, by order of publication, is good against a resident of New York. Hunt v. Hay, 214 N. Y. 578. —23 354 APPENDIX. same, and "to all whom it may concern," to ibe published, and to be posted in the county or city where the land lies, in the same manner and with the same effect as an order of publication in other proceedings in rem, subject, however, to the limitation im- posed by section eleven of this act. Cal. §13. N. C. §6. Colo. §17, 19, 20. N. Y. §385-6. 111. §30. Ohio §14. Mass. §30. Ore. §19. Minn. §3383-4. Wash. §17, 19, 20. Miss. §6, 7. Sec. 28. [Notice by Mail.] A copy of the order of pubhca- tion shall in all cases be mailed by registered letter demanding a return, to every person interested, named in the petition or in the report of the examiner of titles whose address is given or known. Sec. 29. [Notice by Posting on Land.] The Court shall also cause an attested copy of said order to be posted in a conspicu- ous place by the sheriff on each parcel of land included in the petition. It shall require such sheriff to go upon the lands and ascer- tain and report to court the names and addresses of any person, or persons, actually occupying the premises under any claim of title. Sec. 30. [Notice to State.] If the petition involves the de- termination of any public rights or interests, the court shall cause a copy of the order of publication to be delivered by the registrar to the proper attorney for the state, county or city. Sec. 31. [Other Notice.] The court may cause other or fur- ther notice to be given in such manner and to such person as it may deem proper. And such personal service of process as is required in equita- ble actions shall also be made upon residents of the state, not under disability who are made known ^b to the court before final 25. When a name of a claimant is known to applicant, he must be summoned and an order of publication does not bind him. "As he UNIIfOEM LAND REGISTRATION ACT. 355 decree and can be reached by its process, unless such service be waived ^^* by appearance or otherwise. Sec. 32. [Effect of Notice.] Notice ^s given under the pre- ceding sections shall be in lieu of. personal service of process, is not an 'unknown party' the concealment of his claim is a fraud on the court, and the decree therein is as to him of no force and effect." Baart v. Martin, 99 Minn. 197. Failure to republish notice after amendment of description of lots in application is not fatal, where all parties having or claiming to have any interest in the lots were personally served by summons or entered their appearance in writing. Tower v. Glos, 356 111. 121. If written consent be given to application for registration, no summons against such party is necessary, nor that he be given an opportunity to be heard. He can- not appeal. Such written consent need not be acknowledged before a notary, and it is immaterial whether the statute expressly provides for such consent. Mooney v. Valentynovicz, 262 111. 355. Defendant served with process cannot complain because others were not properly served by publication or otherwise. McDonnell v. Glos, 366 111. 504; Finn v. Glos, 268 111. 350; Gibson v. Glos, 271 111. 368. 2Sa. Consent of persons other than husband and wife, under 111. Act, § 13, need not be acknowledged. Teninga, Receiver, v. Glos, 266 111. 94. 26. This statute changes the rule of law as to notice, but the Leg- islature has the right to do this, without violating the Constitution. "Even if the proper construction of the provision were that it at- tempted to authorize judgment against a resident notified only by publication, yet the law can be given practical effect, in which event only the particular provision would fail, and not the whole law." People V. Simon, 176 111. 165. By Section 31 service of process is required to be made on all known residents interested. In delivering the opinion of the court in the suit of Tyler v. Judges, 175 Mass. 68, Chief Justice Holmes said: "I am free to confess, however, that with the rest of my brethren, I think the act ought to be amended in the direction of still further precautions to secure actual notice before a decree is entered, and that, if it is not amended,, the judges of the court ought to do all that is in their power to satisfy them- selves that there has been no failure in this regard before they admit a title to registration." Acting on this suggestion the Massachusetts act was amended in 1898 and in 1900 to this effect: "The court shall, so far as it considers it possible, require proof of actual notice to all adjoining owners, and to all persons who appear to have any interest in or claim to the land included in the application. Notice to such 356 APPENDIX. except as provided in section thirty-one, and shall be conclusive and binding on all the world. Cal. §13. N. C. §6. Colo. §30a. N. Y. §385-7. 111. §19, 21. Ohio §15. Mass. §31. Ore. §18, 20. Minn. §3384. Wash. §30a. Miss. §6. Sec. 33. [Certificate of Service.] Certificate from the regis- trar and sheriff, or their deputies, showing the due execution of said order of publication and the mailing and posting of copies thereof, as required by sections twenty-seven to thirty, inclusive, shall be filed among the papers in the cause and be conclusive ^'^ proof of such service. Colo. §203. N. Y. §387-8. Mass. §31, 33. Ohio §16. Miss. §7. Wash. §30a. N. C. §7. Sec. 34. [Time of Hearing.] After the expiration of at least (fifteen) days from the publication and posting of said order of publication as aforesaid the cause shall be set down for hearing. Sec. 35. [Guardian ad Litem.] And thereupon the court shall appoint some discreet and competent (attorney at law) of the county or city in which the land lies, as guardian ad litem for all persons under disability, not in being, unascertained, un- known or out of the state, who may have or appear to have an interest in or claim against the land. person by mail shall be by registered letter." In this section we have gone even further to meet all objections and to insure as far as pos- sible the discovery and notification of all possible claimants. 27. "The Torrens System of registration of land titles is different from the prevalent method of recording; the manner of bringing lands under such system must be provided by statute; the proceeding is of a different nature from an ordinary action at law or suit in chancery; and we cannot say that the Legislature acted unreason- ably in providing for a rule of evidence applicable to the proceeding without extending it to all other forms of action in which the title of real estate is involved." Waugh v. Glos. 246 111. 604. UNIfOEM LAND REGISTRATION ACT. 357 Sec. 36. [Answer to Petition.] Any person having any inter- est in or claim against the land, whether named in the petition and order of publication or not, may appear and file an answer at any ^^ time before final decree, unless such person shall have been served personally with notice. Sec. 37. [Signature and Oath to Answer.] The answer shall be personally signed and sworn to, by the claimant, or in case of a corporation or a person under disability, by the person au- thorized to file the answer, unless the court, for good cause shown otherwise direct. PART V. Adjudication oe Title. Sec. 38. [Action on Report of Examiner of Titles.] After the expiration of the time as provided by section thirty-four, the court may proceed to take such action as may be proper,^^ upon the report of the examiner of titles and all other evidence be- fore it with reference to the rights ^^^ of all persons appearing to have any interest in or claim against the land, and may refer the cause again or require further proof. Cal. §14, 18. Miss. §8. Colo. §18, 33, 25. N. C. §«. 111. §23, 24. Ohio §18, 19. Mass. §36. Ore. §33, 24. Minn. §3382. Wash. §18, 33', 25. 28. The Colorado and other acts having special provisions on this subject provide that an answer may be filed within the time named in the summons, "or within such further time as may be allowed by the court.'' It is fairer and better to allow an answer at any time before final decree. 29. Under this provision the cause will be taken for confessed as to all persons who have not appeared and answered and the court will proceed to dispose of the claims of those who have not appeared. People V. Crissman, 41 Colo. 450, expressly decides that the court is not bound by the examiner's report. 29a. Rights of intervening parties will be protected. Specific per- formance of contract enforced. Midway Co. v. City of St. Paul, 128 Minn. 135. 358 APPENDIX. Sec. 39. [Order of Survey, etc.] While the cause is pending before the examiner of titles, or at any time before final decree, and whenever after initial registration a tract of land is subdi- vided, the court (1) May require 3" the land to be surveyed, after due no- tice to owners of adjoining land, by a competent surveyor ap- pointed by the court ; (2) Shall order durable bounds to be set and a plat thereof to be filed among the papers of the suit ; (3) Shall enter all necessary decrees for the establishment, declaration and protection of the right and title of all persons appearing to have any interest in or claim against the land. Cal. §14. N. C. §5, 13, 15. III. §25. N. Y. §381. Mass. §35. Ohio §19. Miss. §5, 13, 15. Ore. §24. Sec. 40. [Petition May Be Dismissed.] If in any case the petitioner so desires, or if the court is of opinion that the peti- tioner's title is not and cannot be made proper for registration, the petition may be dismissed ^^ without prejudice, on terms to be determined by the court. Oal. §12. Ohio, §20. Colo. §26. Wash. §26. Minn. §3382. 30. When property is subdivided, for registration of any subdivi- sion there must be proof thereof by plat or other evidence sufficient for conveyance. Glos v. Ehrhardt, 224 111. 532. Decree reversed be- cause no plat was proved before registration, and it was impossible to locate the subdivision from the evidence. Glos v. Bragdon, 229 111. 223; Glos V. Grant Bldg. Assn., 229 111. 387. A survey is of prime im- portance and necessity especially in states in which lands have not been laid off by government survey. 31. Petitioner must comply with terms fixed by court in withdraw- ing petition. McQuesten v. Commonwealth, 198 Mass. 173. After decree for petitioner, when on appeal and trial by jury a ver- dict is given for respondent, petition must be dismissed. Robinson V. Richards, 209 Mass. 295. A provision authorizing a dismissal of application does not violate constitution. Peters v. Duluth, 119 Minn. 96. Court must dismiss application, on motion, without prejudice. UNIFORM LAND REGISTRATION ACT. 359 Sec. 41. [Amendments to Petition and Other Proceedings.] Amendments ^^ to petitions or other pleadings, or the sever- ance ^* thereof, including joinder, substitution of any person or upon such terms as may be fixed by it. "The Torrens Act makes provisions for a special proceeding ... In a special proceeding, it being within the power of the Legislature to limit the jurisdiction of the court, the bounds of the court's jurisdiction are to be found in the limitations of the act under which its jurisdiction is invoked. The Legislature might have provided for a determination of con- flicting interests if it had been so inclined. But it did not do so. . . . There is more or less difference in the Torrens acts as adopted in the several States. Where, as in Illinois, no provision is made for a voluntary dismissal, but the court is put to a final determination of the issue, it has been held that the court may grant relief as to such portion of the land as the evidence shows the title in fee to be in the applicant, and deny it as to the remainder. Glos v. Holberg, 320 111. 167. But our law was drawn upon a different theory." Krutz V. Dodge, 66 Wash. 178. Undoubtedly, under this section, the court may, in the proper case, dismiss or allow dismissal without prejudice, as in any other action, and must, furthermore, dismiss where applicant fails to establish title, whether because a defendant has established title in himself or otherwise; but what court would, after trial on the merits of defend- ant's claim of title, fail to make findings according to the facts proved? Indeed, failure to make such findings to a defendant's preju- dice would be reversible error. (Owsley v. Johnson, 95 Minn. 168.) . . . In short, where defendant establishes title, the court must so find, and thereupon dismiss, not without prejudice as between appli- cant and such defendant, but absolutely. Hence the defendant in a registration proceeding may have all the relief usually available in an action to determine adverse claims wherein he is defendant. Seeger v. Young, 127 Minn. 416. 32. Amendment of petition by substituting name of respondent for petitioner is illegal and void. "If the respondents had wished to become petitioners they should have brought their own petition." Foss V. Atkins, 204 Mass. 337. Court properly permitted answer to be amended. Kuby v. Ryder, 114 Minn. 217. 33. Title to a portion of the property may be registered when properly established. Glos v. Holberg, 220 111. 167. G holding tax title to a portion of land offered for registration, claims ownership. Examiner of titles reported against validity of G's claim, but appli- cant dismissed application as to said portion of land. Held: G. can- not complain because his claim was allowed; also cannot complain of the application, nor because not allowed to make unnecessary 360 APPENDIX. persons, or discontinuance of parties and the omission or sev- erance of any portion or parcel of the land, may be ordered or allowed by the court at any time before final decree upon terms that may be just and reasonable ; and the court may require facts to be stated in an amended petition in addition to those pre- scribed by this act. Cal. §10. 111. §14. Colo. §4. Ore. §13. Mass. §20, 21, 23, 27. Wash. § 4. Minn. §337«. Sec. 42. [Land May be Dealt With, Pending Registration, Subject to Decree of Court.] The land described in any peti- tion may be dealt with pending s* registration as if no such pe- tition had been filed. (1) But any instrument admitted to record under the gen- eral laws in relation to such land pending action, on said peti- tion shall be docketed and indexed as required by section twenty-two of this Act; (2) Any person who shall acquire any interest in or claim against such land shall at once appear as a petitioner, or an- swer as a party defendant, in the proceedings for registra- tion, and such interest or claims shall be subject to the decree of the court. Colo. §32. N. Y. §398. Mass. §32, 28. Ohio §12. Minn. §3395. Wash. §32. Sec. 43. [Certificate of Taxes Paid.] No final decree of registration shall be entered until proof is made by certificate amendments to his answer. Glos v. Murphy, 225 111. 58. See also Tower v. Glos, 256 111. 121. The provisions of this section have been broadened in the interest of business under the act. It covers the amendments to the Massachusetts act and adopts suggestions made by Hon. Charles Thornton Davis, Chief Judge of the Massachusetts Land Court, as to the omission or severance of any portion or parcel of the land. 34. Alienees of claimant pending registration proceedings are not entitled to answer as a matter of right, but answer must be filed in a reasonable time; a delay of six months is unreasonable, and the court did not abuse its discretion in denying the right to answer after such delay. Brown v. Haggadorn, 119 Minn. 491. UNIFORM LAND REGISTRATION ACT. 361 from the proper officer that all taxes and levies assessed on said land and then due or delinquent have been paid in full. Sec 44. [Decree of Registration is iFinal, Quiets Title, and Binds All the World, Subject to Appeal, etc.] If the court, after final hearing, is of opinion that the petitioner has title ^^ proper for registration, a decree of confirmation and registration shall be entered; and every decree of registration entered in accord- ance with the provisions of this Act, (1) Shall bind 3^ the land and quiet the title thereto, ex- cept as herein otherwise provided; (2) Shall be forever binding and conclusive upon all per- sons, resident or non-resident, including the state, whether mentioned by name in the order of publication or included under the general description, "to all whom it may concern;" (3) And shall not be attacked or opened or set aside by reason of the absence, infancy, or other disability of any person afifected thereby, nor any proceeding at law or in equity 35. Applicant must prove fee simple title in himself by tracing back the government grant or by statutory limitations. Glos v. Hol- berg, 330 111. 167. Applicant must show title good against the world; prima facie title not sufficient. Glos v. Wheeler, 339 111. 372. De- fendant to application cannot complain of title to lots in which he claims no interest. Mundt v. Glos, 331 111. 158. A good tax title may be registered. Tobias v. Kaspzyk, 247 111. 80. In a petition for reg- istration of tax title, former owner was made defendant. Time for redemption had not expired when application was filed, but owner failed to take advantage of this and the title was registered in name of claimant after redemption period. Held: a good registry, and that no one but former owner might have complained; State could not. Gates V. Keigher, 99 Minn. 138. Tax title registered subject to lien of city assessments. Gould v. City of St. Paul, 110 Minn. 334. Tax title registered. Hendricks v. Hess, 113 Minn. 353. Title by adverse possession under statute of limitations may be registered; partition decree gives color of title. Peters v. Dicus, 354 111. 379. When one consents to registration, decree is final as to him and cannot be set aside at a subsequent term. Mooney v. Valentynovicz, 255 111. 118. iPetitioner's right to fee in land under R. R. right of way and station may be registered. Battelle v. N. Y. &c. Ry., 311 Mass. 442. Peti- tioner must recover upon strength of his own title, and not upon the weakness of his adversary's title. Owsley v. Jackson, 95 Minn. 168. 36. A decree of registration cannot be collaterally attacked for er- ror or fraud. State v. Ries, 123 Minn. 397. 362 APPENDIX. for rehearing or reversing judgments or decrees, except as herein especially provided. Cal. § 9, 14, 15 17. N. C. §8, 9. Colo. §23, 27. N. Y. §391. Ill- §35 »&. Ohio §22. Mass. §34, 37. Ore. §24, 25. Minn. §3390. Wash. §23, 87. Miss. §8, 9. Sec 45. [Form of Decree and Manner of Registration.] Every decree of initial registration and subsequent memorial shall be made in convenient form for transcription upon the certificate of title, showing the following items: (1) Owners: Name and residence of the owner, and whether married or unmarried, and the name of the consort, if any; If the owner is under disability the nature thereof, and if an infant, his age; Jf a corporation, the place of incorporation and its chief office ; If a personal representative or trustee, the name of de- cedent or beneficiary. (2) Land: Description of the land as finally determined by the court; The estate of the owner therein; Also all the rights and easements appurtenant to said land ; And also a description of all particular estates, ease- ments,^'' liens, or other encumbrances, or rights ^''^ to 37. "There is no provision in the Land Registration Act for an ap- plication by the owner of an easement for the registration of his title ... It seems to us, therefore, that the statute was not intended to afford a remedy by which owners of easements in the same land could have the nature and extent of their rights settled, and should not be so construed." Minot v. Cotting, 179 Mass. 325. Land Court may determine boundaries of highway. First National Bank v. Woburn, 192 Mass. 220. 37a. Title registered subject to possible claims of creditors of a decedent dead for less than seven years. Finn v. Glos, 268 111. 350. UNIFORM I^ND REGISTRATION- ACT. 363 which the land or the owner's estate is subject showing their relative priorities. (3) Other Matters: Any other matter determined in pursu- ance of the provisions of this Act. Sec. 46. [Time of Taking Effect.] Such decree or memorial shall take effect upon the land described therein as of the day, hour and minute it is filed for registration in the office of the proper registrar. Sec. 47. [Registrar's Memorandum.] The registar shall forthwith record the said decree in the proper book of the court, and shall forthwith enter and properly number, minutely date, and index a memorandum thereof on his land registration docket and in the entry book hereinafter directed to be kept by him, and shall cause to be recorded and indexed a like memorandum In the proper deed book of the county or city. PART VI. Certificates of Title. Sec. 48. [Entry in Registry of Titles.] Said decree or me- morial, or so much thereof as may be ordered by the court, shall be copied, numbered signed and sealed with the seal of the court by said registrar and registered in the book hereinafter directed to be kept by him to be known as the register of titles, for his county or city; and when so registered shall constitute the original certificate of title. Subsequent certificates covering the same land shall be in a like form, but shall be designed "transfer certificate No (the number of the next previous certificate covering the same land), original certificate registered (date, volume and page of registration)." New and appropriate numbers shall be adopted for any sub- sequent certificates not covering the whole of said land. Cal. §15, 16, 23, 31, 57. N. Y. §394. Colo. §31, 36, 39, 41. Ohio §23, ,23, 37, 75, 76. 111. §29-33, 38, 56. Ore. §28, 32. Mass. §39, 41, 53, 54. Wash. §31, 35, 38, 40. Minn. §3391. 364 APPENDIX. Sec. 49. [Entry Book Kept by Registrars.] (1) Each regis- trar shall keep an entry book in which he shall enter, in the or- der of their reception, a memorandum of any writing, instru- ment, or record filed with him for registration, and shall note in such book the year, month, day, hour, and minute of such filing. (2) Every such writing, instrument, or record shall be num- bered, indexed and indorsed with reference to the entry thereof and securely kept in the ofifice of the registrar. (3) Every such entry shall be minutely dated, numbered and indexed, and shall refer to the certificate of title hereinafter mentioned, upon which, as well as upon its duplicate or dupli- cates, a memorandum of such entry shall be made. Cal. §22, 51. N. Y. §409. Colo. §47. Ohio §35. 111. §49-51. Ore. §48-50. Mass. §55. Wash. §46. Minn. §3402, 3406. Sec. 50. [Register of Titles Kept by Registrar.] Each regis- trar shall also keep a register of titles book, in which, under the direction of the court, he shall (1) Register, number and index the original certificates of title and all subsequent certificates of title, and all volun- tary or involuntary transactions authorized to be registered under this Act; and (2) Note thereon, and also upon the duplicate certificate thereof, when originally issued or subsequently presented, the day, hour, and minute of registration in each case in con- formity with the date shown by the entry book. Cal. §29. N. C. §10. Colo. §35. N. Y. §395. 111. §35, 98. Ohio §23, 82. Mass. § 55. Ore. §34, 97. Minn. §3402, 3406. Wash. §34. Miss. §10. Sec. 51. [Certificate of Title.] (1) Every certificate of title entered in the register of titles as aforesaid, together with the memorials thereon, if any, shall be known as "the certificate of title." UNII^ORM LAND REGISTRATION ACT. 365 (2) Said certificate shall be conclusive evidence of all mat- ters contained therein, except as otherwise provided in this Act. (3) No erasure, alteration, or amendment of said certificate, or of any memorial thereon, shall be made except by order of court. Cal. §23, 30. Colo. §35, 37, 48, 57. 111. §35-7, 39. Mass. §40, 46, 107. Minn. §3404, 3408, 3439. N. Y. §395-7, 399. Ohio §33, 27, 73, 93, 9». Ore. §34-6, 38. Wash. §34, 36, 47, 50. Sec. 52. [Owner's Duplicate Certificate.] An exact copy of the certificate of title shall be made, except that it shall be conspicuously stamped or marked "owner's duplicate," and shall be delivered to the owner, or his attorney, duly appointed, upon his receipt therefor in writing upon said certificate of title at- tested by the registrar or his deputy. Sec. 53. [Certificates of Title to be Numbered, and Memo- rials Thereon to be Signed and Sealed.] (1) All the certificates of title of land in each county or city shall be numbered consecu- tively. (2) A separate folium, with appropriate spaces for subse- quent memorials, shall be devoted to each title in the register of titles for each county or city. (3) Every certificate and memorial thereon shall appropri- ately conform to the requirements of sections forty-five and forty-eight of this Act as to particulars of form. (4) Every memorial made upon any certificate of title or duplicate certificate under any provision of this Act shall be signed by the registrar and sealed with the seal of the court and minutely dated and numbered in conformity with the date and number shown by the entry book. Cal. §23, 50. Colo. §36, 81. 111. §35, 56. Mass. §40. Minn. §3403. Miss. §11. N. C. §11. N. Y. §394. Ohio §33, 37. Ore. §34, 55. ^^^ APPENDIX. PART VII. Registration of Transfers and Other Transactions. Sec. 54. [Transfers of the Whole of any Registered Es- tate.] Whenever the whole of any registered estate is trans- ferred, the transactions shall be duly noted and registered in accordance with the provisions of this Act. Thereupon the certificate of title and any duplicate certifi- cate relating to such estate shall be cancelled by the registrar of each county or city in which the land, or any part thereof, lies, if desired by the registered owner, and a new certificate or certificates of title shall be entered in the register of titles for such county or city, and a dupHcate or duplicates thereof is- sued, as the case may require. Cal. §25, 26, 48. N. C. §12. Colo. §38, 52, m, 61. N. Y. §413. 111. §34, 47, 57, «4. Ohio §37. Mass. §56. Ore. §33, 46, 56, 63. Minn. §3409, 3417, 3420. Wash. §37, 51, 59, 60. Miss. §1». |.i 'i Sec. 55. [Partial Transfers, Encumbrances, Leases.] If only a portion of such estate is transferred, or in case of an encum- brance or lease for more than one year, the transaction shall be duly noted and registered as aforesaid ; and a new certificate of title shall be entered in the register of titles and new owner's duplicate certificate shall be issued for the portion transferred and the portion untransf erred, or a beneficiary's duplicate or lessee's duplicate may be issued as the case may require. Cal. §25, 26, 49. N. C. §13, 14. Colo. §40, 49, '52, 63. N. Y. §407. 111. §48, 64. Ohio §3, 8, 39. Mass. §47, 57, 59. Ore. §47, 63. Minn. §3417, 3430, 3423. Was'h. §39, 48, 51, 62. Miss. §13, 14. Sec. 56. [Memorials to be Noted.] All registered encum- brances, rights, or adverse claims affecting the estate repre- sented thereby, shall continue to be noted upon every outstand- UNIFORM IvAND REGISTRATION ACT. 367 ing certificate of title and duplicate certificate until the same shall have been released or discharged or terminated. Cal. §43. N. C. §14. Colo. §56, 57. N. Y. §403. 111. §45. Ohio §33. Mass. §58.. Ore. §44. Minn. §3420. Wash. §55, 56. Mrss. §14. Sec. 57. [Registration of Voluntary Transactions.] In vol- untary transactions, the duplicate certificate of title must ibe presented along with the writing or instrument filed for regis- tration; and thereupon, and not otherwise, the registrar shall be authorized to register the transaction, under the direction of the court, upon proof of payment of all delinquent taxes ana levies, if any. Cal. §58-65. N, C. §14, 15. Colo. §50, 58-3, 57-8, 63. N. Y. §406, 415. 111. §54-5, 59^7, 80-81. Ohio §44-4». Mass. §60. Ore. §53-54, SS-C'S Minn. §3419, 3420, 3423. Wash. §49, 51-8. Mtss. §14, 15. Sec. 58. [Registration of Involuntary Transactions.] In involuntary transactions, a certificate from the proper state, county, city, or court officer, or a certified copy of the order, decree, or judgment of any court of competent jurisdiction, or other appropriate evidence of compliance with the statute in relation to such transaction, when filed in the office of the proper registrar, shall be authority for him to register the trans- action under the direction of the court. Provided that any writing or instrument for the purpose of transferring, encumbering, or otherwise dealing with equitable interests in registered land, may be registered with such effect as it may be entitled to have. Cal. §72-3. N. C. §14, 16. Colo. §60-61, 72, 76, 91. N. Y. §417. 111. §80-81, 84-91. Ohio '§43, 50-6, 59-64, 66-7, Mass. §66, 70, 75, 77, 79-'86. 78. Minn. §3419, 3426-7, 3430, Ore. §79-80, 83-90. 3434-5, 3441. Wash. §59, 60. Miss. §14, 16. 368 APPENDIX. Sec. 59. [Production of Duplicate Certificate Required.] Whenever a duplicate certificate is not presented to the regis- trar along with any writing, instrument, or record filed for reg- istration under this Act, he shall forthwith send notice by reg- istered mail to the owner of such duplicate requesting him forthwith to produce the same, in order that a memorial of the transaction may be made thereon; and such production may be required by suitable process of the court, if necessary. Colo. §50, 78. N. €. §14, 17. 111. §60, 64, 88. Ohio §28, 37, 41, 74, 78, 100. Mass. §51, 71, 106. Ore. §59, 63, 87. Minn. §3413, 3419, 3430. Wash §49, 77. Miss. §14, 17. Sec. 60. [Registration of Trusts, Conditions, Limitations and Other Equitable Interests and Estates.] Whenever a writ- ing, instrument, or record is filed for the purpose of transfer- ring registered land in trust, or upon any equitable condition or limitation expressed therein, or for the purpose of creating or declaring a trust or other equitable interest in such land without transfer, the particulars of the trusty condition, limitation, or other equitable interest shall not be entered on the certificates, but it shall be sufficient to enter in the entry book and upon the certificates a memorial thereof by the terms "in trust," or "upon condition," or other apt words, .and to refer by number to the writing, instrument, or record authorizing or creating the same. And if express power is given to sell, encumber, or deal with the land in any manner, such power shall be noted upon the certificates by the terms "with power to sell," or "with power to encumber," or by other apt words. And unless express power be given as aforesaid, no subse- quent transfer or memorial shall be registered on such certifi- cate except by special order of court. Cal. §67, 70. Miss. §10, 19. Colo. §64. N. C §10, 19. 111. §68-9. Ohio §33, 65. Mass. §64-8. Ore. §67-8. Minn. §3429. UNIFORM LAND REGISTRATION ACT. 369 Sec. 61. [Registration of Estates of Decedents.] (1) Lands and any estate or interest therein registered under this act shall, upon the death ^^ of the owner, testate or intestate, go to his personal representative in like manner as personal estate, and shall be subject to the same rules of administration as per- sonalty, except as otherwise provided in this Act. (2) But nothing herein contained shall alter or affect (a) The course of ultimate descent under the statute of descents and distributions and the rights of dower and cur- tesy, when duly registered ; (b) Nor the order in which real and personal assets re- spectively are now applicable in and towards the payment of funeral and testamentary expenses, debts, or legacies; (c) Nor the liability of real estate to be charged with the payment of debts and legacies. Cal. §74-5. N. Y. §433-5. Colo. §74. Ohio §42-3 III. §70-2. Ore. §69-71. Mass. §91. Wash. §73. Minn. §3436. Sbc. 62. [Powers of Personal Representatives.] (1) Sub- ject to the powers, rights and duties of administration, the per- sonal representatives of such deceased owner shall hold such real estate as trustees for the persons by law beneficially enti- tled thereto, (2) But, unless otherwise entitled by law to commissions, shall be entitled to no commissions thereon except in cases of necessary sales in due course of administration. (3) And the heirs at law or beneficiaries aforesaid shall have the same power of requiring a transfer of such estate as if it were personal estate. 111. §70-72. Ore. §69-78. 38. "We are not impressed with the soundness of the objections to those sections of the statute which relate to the descent of lands on the death of a registered owner." People v. Sinion, 176 111. 165. —24 370 APPENDIX. Sec. 63. [Registration of Delinquent Taxes and Levies.] (1) It shall be the duty of the treasurer or other collector of taxes or levies of each county, town, or city, not later than the day of in each year, to file an exact memoran- dum of the delinquency, if any, of any registered land for the non-payment of the taxes or levies thereon, including the pen- alty therefor, in the office of the proper registrar for registra- tion. (2) If any such officer fail to perform said duty, he and his sureties shall be liable for the payment of said taxes and levies with the penalty and interest thereon. Miss. §21. N. C. §31 111. §83. Sec. 64. [Registration of Sales for Delinquent Taxes or Levies.] (1) Whenever any sale of registered land is made for delinquent taxes or levies, it shall be the duty of the treas- urer or other officer making such sale, forthwith to file a mem- orandum thereof for registration in the office of the proper reg- istrar. (2) Thereupon the registered owner shall be required to produce his duplicate certificate for cancellation, and a new du- plicate certificate shall be issued in favor of the purchaser, and the land shall be transferred on the land books to the name of such purchaser, unless such delinquent charges and all penalties and interest thereon be paid in full within ninety days after the date of such sale. (3) But a memorial shall be entered upon the certificate of title, and also upon any such new duplicate certificate, reserv- ing the privilege of redemption in accordance with law. Cal. §77-83. N. C. §33. III. §82-3. Ohio §57-8. Miss. §33. Ore. §«l-2. Sec. 65. [Same: Registration of Redemption.] In case of any redemption under the preceding section, a memorial of the fact shall be duly registered; and if a duplicate certificate has been issued to any purchaser, the same shall be cancelled and a new duplicate shall be issued to the person who has redeemed. UNIFORM LAND REGISTRATION ACT. 371 Sec. 66. [Same: Registration of Final Sale, if No Re- demption.] (1) If there be no redemption under said section in accordance with law, it shall ibe the duty of the treasurer, or other collector of taxes of the county or corporation in which the land lies, to sell the same, at public auction, for cash, having first given reasonable notice of the time and place of sale. (2) The proceeds of sale shall be applied — First, to the payment of all taxes then due the state, and all levies ithen due the county, town, or city, with interest, penalty and costs; Second, to the payment of all sums paid by any person who purchased at the former tax sale, with interest and the addi- tional sum of five dollars; Third, to the payment of a commission to the officer mak- ing the sale of five per centum on the first three hundred dol- lars and two per centum on the residue of the proceeds; Fourth, to the satisfaction of any liens other than said taxes and levies registered against said land in the order of their priorities ; Fifth, and the surplus, if any, to the person in whose name the land was previously sold for taxes, subject to redemption, as provided by sfection sixty-four of this Act, his heirs, per- sonal representatives, or assigns. (3) A memorial of the sale under this section shall be duly registered, and a new certificate shall be entered and a duplicate issued in favor of the purchaser, in whom title shall be thereby vested as registered owner, in accordance with the provisions of this Act. Sec. 67. [Same: Future Interests Not Affected.] Noth- ing in the preceding section shall be so construed as to affect, or divest, the title of a tenant in reversion or remainder to any real estate which has been returned delinquent and sold on ac- count of the default of the tenant for life in paying the taxes or levies assessed thereon. Oal. §77-83. N. C. §33. 111. §82-3. Ohio §57. Miss. §83. Ore. §81-2. ^'^ APPENDIX. PART VIII. Sundry Proceedings After Registration. Sec. 68. [Petitions Concerning Registered Land and Ca- veats and Decrees Thereon.] Any registered owner of any es- tate or interest in land, or any person having any claim against registered land arising from any other cause than fraud or forgery since the land was registered, may, within ninety days after the claim or cause of complaint shall have arisen, petition the court for relief in any matter within its jurisdiction; and it shall be the duty of the proper registrar, upon the request of any such person, to register a memorial that such petition has been or will be filed, which memorial shall serve as a caveat and be notice to all persons. (2) And whenever any registrar is in doubt as to the proper registration to be made in any case, or when any person is ag- grieved by any act or refusal to act by the registrar, the question may be likewise submitted by petition. Sec. 69. [Same: Hearing and Decree.] After notice to the parties interested, the court shall hear the cause, and, with due regard to the provisions of this Act, shall enter such de- cree as justice and equity may require, which shall be regis- tered, and take effect in like manner as the original decree for registration. Sec. 70 [Same: Service of Notice.] Notice in lieu of process under this Act or otherwise in relation to registered land, may be served upon any person by registered mail, and the post office registry return receipt shall be evidence of such service, and shall be binding, whether such person resides with- in or without the state ; but the court may in any case order dif- ferent or further service by publication once a week for four successive weeks in some convenient newspaper or otherwise, which shall be likewise binding. Cal. §39, 97-100. Miss. §35. Colo. §49, 62, 78, 83, 89. N. C. §35. 111. §92-6. N. Y. ,§3«3, 422. Mass. §53, 105, 107. Ohio §40, '68, 70, 79. Minn. §3407, 3436, 3435, Ore. §91-5. 3438-9. Wash. §48, SI, 77, 81, 88. UNIFORM LAND REGISTRATION ACT. 373 Sec. 71. [Proceedings Upon Loss or Destruction of Dupli- cate Certificate.] (1) Whenever a duplicate certificate of ti- tle is lost or destroyed, the owner, or his personal representa- tive, may petition the court for the issuance of a new duplicate. (2) Notice of such petition shall .be published once a week for four successive weeks, under the direction of the court, in some convenient newspaper. (3) Upon satisfactory proof that said duplicate certificate has been lost or destroyed, the court may direct the issuance of a new duplicate certificate, which sTiall be appropriately desig- nated and take the place of the original duplicate. Cal. §27. Miss. §34. Colo. §51. N. c. §34. ; 111. §58. N. Y. §414. Mass. §104. Ore. §57. Minn. §3413. Wash. §50. PART IX. Legal Effects of Registration of TitlF. Sfc 72. [Effect of Registration as Notice to Subsequent Purchasers.] Every voluntary or involuntary transaction which, if recorded, filed, or entered in any clerk's office, would affect unregistered land, shall, if duly registered in the office of the proper registrar, and not otherwise, be notice to all persons from the time of such registration, and operate in accordance with law and with the provisions of this Act upon any regis- tered land in the county or city of such registrar to which it re- lates. Sec. 73. [Effect of Registration Upon Adverse Claims.] Every registered owner of any estate or interest in land brought under this act shall hold the land free ^^ from any and all ad- 39. Registration is good against purchaser at tax sale who fails to take out tax deed, and bars any claim for reimbursement of taxes and special assessments paid by claimant while holding certificate of tax sale, upon which the time for the execution of a deed subse- quently expired without any deed being taken. Snow v. Glos, 358 111. 375. '?74 ^ APPENDIX. verse claims, rights, or encumbrances not noted on the certifi- cate of title, except — First. Liens, claims, or rights arising or existing under the laws or Constitution of the United States*" which the statutes of this state cannot require to appear of record un- der registry laws. Second. Taxes and levies assessed thereon but not delin- quent. Third. Any lease for a term not exceeding one year un- der which the land is actually occupied. Cal. §34, 37^8, 41, 45-6. N. C. §35. Colo. §30. N. Y. §392, 400. 111. §40, 42-4 Ohio §22, Z5, 98. Mass. §37-8, 54, 63. Ore. §39. Minn. §3393. Wash. §30. Miss. §35. Sec 74. [Same: Fraud or Forgery.] The protection of the foregoing section shall not apply to the benefit of a regis- tered owner in cases of fraud or forgery * to which he is a party, or in which he is a privy without valuable consideration paid in good faith. 40. Title registered before land had been patented and granted by U. S. void. Shevlin v. Fogarty, 130 Minn. 456. *The effect of this and the preceding section is to give an absolute and unassailable title to every innocent registered purchaser for value, even though the registration of his title was obtained through fraud or forgery. In other words the theory of this act is that every Certificate of Title imports absolute verity, and that the title passes by registration in like manner as by original government grant of ungranted lands. One of the chief benefits of this registration sys- tem is that it makes land a commercial asset. Those jurisdictions which are unwilling to protect the title of innocent registered pur- chasers for value against forgery, should adopt the following sub- stitute section: Sec 74. [Fraud or Forgery.] The protection of the foregoing section shall not apply to the benefit of a registered owner: (1) In cases of forgery, whether or not he be a party or privy thereto. (2) In cases of fraud, if he be a party thereto, or in which he is a privy without valuable consideration paid in good faith. UNIFORM IvAND REGISTRATION ACT. 375 Sec. 75. [Eifect of Registration Procured Through Fraud or Forgery.] Any registration procured through fraud or forgery may ibe set aside by the court according to the rules of equity; but the rights and title of an innocent intervening reg- istered encumbrancer or purchaser for value and without no- tice shall not be afifected thereby. ** And in all such cases the injured party may pursue all his legal and equitable remedies *<•* against the party or parties to such fraud or forgery. Colo. §46. N. C. §18. 111. §43-3, «5. N. Y. §39a, 403, 410. Mass. §59, 70. Ohio §41, 50, 88, 89. Minn. §3416, 3430, 3440-1. Ore. §41-2. Miss. §18. Wash. §45. **If substitute Section 74 be adopted, here add: "except as pro- vided in section seventy-four." 40a. Application to vacate a decree of registration for fraud is governed by general equitable considerations. "The fact that a statute does not expressly provide that fraud shall invalidate acts authorized to be done under it does not deprive the courts of the general power to protect the rights of the parties. . . . The 60- day limitation contained in the statute when these transactions oc- curred (now mad= six months by R. L,. 1905, Sec. 3396) has no appli- cation to the case at bar. If the defrauded party is not guilty of laches, he may attack the decree on the ground that it was obtained by fraud, so long as the land stands registered in the name of the party who was guilty of the fraud." Baart v. Martin, 99 Minn. 197. In this case the court said : "An examination of the Torrens laws of the dififerent states and colonies discloses the fact that those of Minnesota and the Fiji Islands only contain no express exception of cases of fraud. All the original Torrens statutes carefully guard against the possibility of an owner being fraudulently deprived of his property." When applicant omits names of parties holding ease- ments and examiner mentions them and recommends, that they be made parties, registration without making them parties is void and subject to collateral attack for constructive fraud. "Any other con- clusion would go far to remove the safeguards which make the law constitutional. It would make a strong argument for holding that the act was invalid, because the proceedings do not constitute due process of law." Riley v. Pearson, 120 Minn. 310. Decree of regis- tration is not good against claimant whose name, though known, is given incorrectly in application, and who has no actual notice. Ar- nold V. Smith, 121 Minn. 116. The question whether an innocent 376 APPENDIX. Sec 76. [Land to Remain Forever Registered.] The ob- taining of a decree of registration and the entry of a certificate of title shall be construed as an agreement running with the land, and the same shall forever remain registered land, sub- ject to the provisions of this Act and all amendments thereof. Cal. §44. N. C. §26. Colo. §33. N. Y. §404. 111. §46. Ohio §a6, 86. Mass. §44. Ore. §45. Miss. §26. Wash. §33. Sec. 77. [No Rights by Adverse Possession of Prescrip- tion.] No title to, nor right, nor interest in, registered land in derogation of that of the registered owner shall be acquired by prescription or adverse possession. Cal. §35. Miss. §27. Colo. §34. N. C. §27. 111. §41. N. Y. §401. Mass. §45. Ohio §85.^ Minn. §3371. Ore. §40. Sec. 78. [Effect of Subsequent Dealings With Registered Land.] Except as otherwise specially provided by this act, reg- istered land and ownership therein shall be subject to the same purchaser of a registered Torrens title is protected against the fraud of his grantor in failing to disclose in the registration proceedings an unrecorded mortgage, cannot be raised by demurrer to answer pleading innocent purchase and a general denial of all the allegations of the complaint. Henry v. White, 121 Minn. 527. Where owner fraudulently fails to mention unrecorded mortgage in application, and does not make mortgagee a party to proceedings for registra- tion, held that innocent purchaser of registered title takes it free of lien. "It is difficult to see what would remain of the indefeasible character of a Torrens title, if the decree is open to collateral attack as against one who purchases in good faith for a valuable considera- tion, and with nothing to put him on inquiry as to fraud on the part of the applicant. Henry v. White, 123 Minn. 182; State v. Rees, 123 Minn. 397. "Good faith in the acquirement of title, within the mean- ing of the statute, does not require ignorance of adverse claims or defects in the title. Notice actual or constructive is of no conse- quence." So held in a suit for registering title by adverse posses- sion. Peters v. Dicus, 254 111. 379. UNIFORM LAND REGISTRATION ACT. 377 rights, burdens and incidents as unregistered land, and may be dealt with by the owner, and shall be subject to the jurisdiction of the courts in the same ^^ manner as if it had not been registered. (2) But registration *2 shall be the only operative act to transfer or affect the title to registered land, and shall date from the time the writing, instrument, or record to be regis- tered is duly filed and entered in the office of the proper reg- istrar. (3) Subject to the provisions of section seventy-three hereof, no voluntary nor involuntary transaction shall affect the title to registered land until registered in accordance with the requirements of this Act. Cal. §33, 39, 48, 53, 55-6, 58, 111. §38, 42-4, 47, 49, 53, 71, 84-8, 89-97, 101, 104. 54-5, 59-67, 80-1, 84-91. Colo. § 41, 45-7, 53, 54-5, 59, Mass. §49, 50, 55, 56, 59-63, 61, 65, 67-8, 70-1, 76-7. 67, 69, 70, 72-3, 77-90, 103. Minn. §3371, 3411, 3414-15, 59-64, 66-7, 70-1, 77, 81, 3422-5, 3431-3, 3440. 84, 87-97. Miss. §14, 31, 38, 31. Ore. §37, 41-3, 46, 48, 51, N. C. §14, 31, 38. 53-4, 58-66, 79-80, 83-90. N. Y. §403, 405-6, 410, 412, Wash. §40, 44-6, 51, 53-4, 415-21. 58, 60, 64, 66-7, 69-70, Ohio §36, 31, 35, 39, 44-56, 75-6. 41. Mechanic's liens cannot be foreclose4 in registration proceed- ings. This section "shows beyond doubt an intention on the part of the legislature to require all such liens to be foreclosed in the usual manner and under the provisions of the general statutes providing for their foreclosure and enforcement." Reed v. Siddall, 94 Minn. 216. 42. "Our construction of this section is in keeping with the obvious purpose of the Torrens act to create an absolute presumption that the certificate of registration in the registrar's office at all times speaks the last word as to the title, thus doing away with secret liens and hidden equities. . . . This is the distinctive feature, the vital principle of the Torrens System. For the courts to refuse to recog- nize and. enforce it would be to emasculate the law, and by construc- tion make it not the Torrens System of land titles, but a mere change in the form of the record, a mere modification of the recording act." Brace v. Superior Land Co., 65 Wash. 681. A mechanic's lien, re- corded prior to registration but with insufficient description of land, of which applicant had no actual notice, and which was not reported 378 APPENDIX. Sec. 79. [Conflicting Claims Between Registered Owners.] In case of conflicting claims between registered owners, the right, title or estate derived from or held under the older certifi- cate of title shall prevail. Miss. §29. N. C. §29. PART X. Assurance Fund. Sec. 80. [Fee for Original Registration.] Upon (the filing of the petition for) the original registration of any land under this act there shall be paid to the registrar one-tenth of one per centum of the assessed value of such land as an assurance fund, which shall be subject to the trusts and conditions hereinafter declared for the uses and purposes of this act. Colo. §83. N. C. §33. 111. §9. N. Y. §426. Mass. §93. Ohio §102. Minn. §3442. Ore. §98. Miss. §32. Wash. §82. Sec. 81. [Payments Into State Treasury Upon Trust.] All moneys received by the registrars under the preceding section shall be kept in a separate account, and shall be paid into the state treasury upon the special trust and condition that the same shall be set aside by the in trust as a separate fund for the uses and purposes of this act, to be known as the "land registration assurance fund," which said fund is hereby appropriated to the uses and purposes set forth in this act. Cal. §108. N. C. §33. Colo. §84. N. Y. §426. 111. §100. Ohio §103. Mass. §94. Ore. §99. Minn. §3443. Wash. §83. Miss. §32. by examiner, is barred by registration, and does not affect title. "The registration proceedings were regular, and there was no fraud in obtaining the decree. It follows that the plaintiffs were bound by the decree, although it did not recognize or establish their lien." Doyle V. Wagner, 108 Minn. 443. UNIFORM LAND REGISTRATION ACT. 379 Sec 82. [Funds to Be Invested.] Said moneys, in so far as the same may not be required to satisfy any judgment cer- tified against the assurance fund under section eighty-five of this act, shall he invested by the treasurer of the state in state bonds in trust for the uses and purposes set forth in this act until said fund amounts to the sum of (five hundred thousand) dollars ; but the income, or so much thereof as may be required therefor, may be applied towards the payment of the expenses of the administration of this act and the satisfaction of any such judgment. Whenever and so long as the face value of the bonds pur- chased as aforesaid equals said sum of (five hundred thousand) dollars, other moneys thereafter coming into said fund, to- gether with any income not required for the purposes afore- said, shall be transferred from the land registration assurance fund to the general treasury; Colo. §84. N. C. §33. 111. §100. N. Y. §436. Mass. §100. Ohio §103, 111. Minn. §3443. Ore. §99. Miss. §32. Wash. §83. Sec. 83. [Suits Against the Assurance Fund.] Any per- son *2a ^ho had no actual notice of any registration under this act by which he may be deprived of any estate or interest in land, and who is without remedy hereunder, may within two years next after the time at which the right to bring such action shall have first accrued to him or to some person through whom he claims, bring an action against the treasurer of the state in the court of for the recovery out of the as- surance fund of any damages to which he may be entitled by reason of such deprivation. (2) The assurance fund shall be defended in such action and in any appeal by the attorney-general for the state. (3) The measure of damages in such action shall be the value of the property at the time the right to bring such action 42a. Claim against assurance fund sustained. Shevlin v. Fogarty, 130 Minn. 456. 380 APPENDIX. first accrued, and any judgment rendered therefor shall be paid as hereinafter provided. (4) If any person entitled to bring such action be under the disability of infancy, insanity, imprisonment, or absence from the state in the service of the state or of the United States at the time the right to bring such action first accrued, the same may be brought by him or his privies within two years after the removal of such disability. Colo. §85, 88. N. C. §34, 39. 111. §101, 103. N. Y. §437, 429. Mass. §95, 103. Ohio §104, 107-9. Minn. §3444, 3446-7. Ore. §100, 102. Miss. §33, 38. Wash. §84, 87. Sec. 84. [Defendants to Suits Against Assurance Fund.] If such action be brought to recover for loss or damage arising only through the legal operation of this act, then the treasurer of the state shall be the sole defendant. (2) But if such action be brought to recover for loss or damage arising on account of any registration made or pro- cured through the fraud or wrongful act of any person not ex- ercising a judicial function, then both the treasurer of the state and such person shall be made parties defendant. Colo. §86. N. C. §35. 111. §102. N. Y. §428. Mass. §96. Ohio §105. Minn. §3445. Ore. §101. Miss. §34. Wash. §85. Sec. 85. [Judgments Against the Assurance Fund.] If judgment ibe rendered for the plaintiff in any such action, ex- ecution shall issue against the defendants, if any, other than the treasurer of the state. (2) And if such execution be returned unsatisfied in whole or in part, or if there be no such defendants, then the clerk of the court in which the judgment was rendered shall certify to the the amount due on account thereof, and the same shall then be paid by said treasurer out of the assurance fund on warrant from said under the special appropriation hereby made of said fund for that purpose. UNIFORM LAND REGISTRATION ACT. 381 (3) Any person other than the treasurer of the state against whom any such judgment may have been rendered shall remain liable therefor, or for so much thereof as may be paid out of the assurance fund and said treasurer may bring suit at any time to enforce the lien of such judgment against such person or his estate for the recovery of any amount, with interest, paid out of the assurance fund as aforesaid. Colo. §86. Minn. §3445. 111. §102. Ohio §106. Mass. §97. Wash. §85. Sec. 86. [When Assurance Fund Not Liable.] The assur- ance fund shall not, under any circumstances, be liable for any loss, damage, or deprivation occasioned by a breach of trust, whether express, implied or constructive on the part of the reg- istered owner of any estate or interest in land. Colo. §87. N. C. §38. Mass. §101. N. Y. §439. Minn. §3446. Ohio §108. Miss. §37. Wash. §86. Sec. 87. [How Judgments Shall be Satisfied Out of Assur- ance Fund.] If at any time the assurance fund be insufficient to satisfy any judgment certified against it as aforesaid, the un- paid amount shall bear interest and be paid in its order out of any moneys thereafter coming into said fund. Mass. §98. N. C. §36. Minn. §3445. Ohio §110. Miss. §35. PART XI. Fees for Registration. Sec 88. [Fees of Registrar and Other Officers of the Court.] The fees payable under this act shall be as follows: (a) [To Registrars.] For docketing, indexing, and fil- ing any original petition and exhibits therewith and publish- ing and mailing the notices thereof, the postage required, and three dollars. 382 APPENDIX. For docketing, indexing, and filing any other paper, fifty cents. For the entry of the original certificate of title and issuing one duplicate certificate and recording and indexing memo- randum, three dollars. For each additional duplicate, fifty cents. For the registration of any writing, instrument, or record, or any memorial, including every act necessary therefor, one dollar. (b) [To Examiners of Titles.] For examining title and making report to the court, one-tenth of one per centum of the value of the land, and postage, and ten dollars.**' (c) [To Sheriffs.] For ascertaining and reporting to court the names and addresses of the persons actually occupy- ing the premises described in any petition, one dollar. (d) For any service of the registrars, or of any sheriff or or surveyor not specially provided for herein, such fee as may be allowed by law for like services -in other cases. Cal. §114. Miss. §30. Colo. §95-6. N. C. §30. 111. §107-8. N. Y. §433. Mass. §109. Ore. §106-7. Minn. §3449-50. Wash. §94-5. PART XII. Application op Act. * Sec. 89. [Referendum.] This act shall not apply to land in any city or county, except the , until *^ it shall *This section to be used only in states whose constitutions permit such provisions. 42a. Notwithstanding 111., §108, court decreed special allowance for fees to examiner. Tomczak v. Bergman, 269 111. 330. See also Waugh V. Glos, 246 111. 604. 43. The referendum is not unconstitutional. Legislative power is not "delegated," but takes eflfect under certain conditions. People v. Simon, 176 111. 165. Legislature may amend act without a second referendum. Brooke v. Glos, 243 111. 393. And to the same effect is UNIFORM LAND REGISTRATION ACT. 383 be so determined by the votes of a majority of those voting for or against the adoption thereof at any general or special election to ibe held in such city or county, after notices thereof shall have been duly posted for at least thirty days at each voting precinct in such city or county by order of the judge of the court of such city or county upon the petition of one hundred freeholders residing in such city or fifty freeholders residing in such county, the question to be submitted by ballots upon vs^hich the words "For Land Registration" and "Against Land Reg- istration'' shall be printed, and one or the other of said expres- sions being stricken out as the voter may favor or oppose the act. 111. §110. Sec. 90. This act shall be so interpreted and construed as to effectuate its general purpose** to make uniform the law of those states which enact it. Waugh V. Glos, 246 111. 604, and Mihalik v. Glos. 247 111. 597, and Culver V. Waters, 248 111. 163. Illinois act is not unconstitutional as local law because only yet adopted by Cook County. Tower v. Glos, 256 111. 121. 44. The purpose of the statute is to provide a speedy and summary method to clear up title to land. Reed v. Siddall, 89 Minn. 417; Seeger v. Young, 127 Minn. 416. We think the purpose of the statute was to create an indefeasible title in the person adjudged to be the owner, and who thus becomes the original registered proprietor. Baart v. Martin, 99 Minn. 197. Torrens laws have the general pur- pose to clear up and settle land titles, and are nothing more than an enlargement of the remedy to quiet title. The remedy provided is not a substitute for an action of ejectment. Peters v. Duluth, 119 Minn. 96. The purpose of the statute was to create an indefeasible title in the person adjudged to be the owner. The basic principle of the system is the registration of the title to land instead of register- ing only the evidences of such title. A title is created by the decree and certificate of registration. Henry v. White, 123 Minn. 182, Cit- ing; State V. Westfall, 85 Minn. 437; Baart v. Martin, 99 Minn. 197; Riley v. Pearson, 120 Minn. 210. The design of the system is to vest the title holder with a certificate behind which outsiders need not look, as toward them, it is forever binding and conclusive. Lach- man v. Brookfield, 135 N. Y. S. 261. The title registration law is not for the purpose of registering bad titles or by the judgment of the court giving to the plaintifif a title which he does not have. Its ob- 384 APPENDIX. ject is to establish by a judgment of the court a fact once for all that the plaintiff has title so that thereafter the records need not be ex- amined. Crabbe v. Hardy, 135 N. Y. S. 119. The intention of the title registration act is to provide a new system of land registration whereby persons can ascertain by an inspection of the register, in whom the title to a particular piece of property is vested. Parten- felter v. People, 211 N. Y. 355. The principle of the "Torrens Sys- tem" is conveyance by registration and certificate instead of by deed, and assimilates the transfer of land to the transfer of stocks in cor- porations. ... In this country the first states to adopt it were Illinois, California, Massachusetts, Oregon, Minnesota, and Colo- rado. In some of these constitutional defects were at first found by those courts whose judges were not favorable to the innovation. But the act was corrected, in those states to remove the objections found, or succeeding judges held the act to be constitutional. . . . The defendants contend that the act is "in derogation of common right" and should be strictly construed. It is not in derogation of common right, but is a remedial statute and to be liberally construed, according to its intent, "so as to advance the remedy and repress the evil." It seems, however, to be a very plain statute, and was evi- dently drawn with great care and doubtless after consideration of the numerous statutes of this kind in force in the other states and carefully adopting what was thus culled out of our system of law and procedure and to our local conditions. Cape Lookout Co. v. Gold, 167 N. C. 63. This act is a beneficial one for the purpose of settling titles to real estate and to facilitate the transfer of the same with- out the expense of making a new investigation and abstract of the title at each successive conveyance. It has operated most benefi- cially and satisfactorily in the several countries and states that have adopted it. It has not been looked on with favor by some who be- lieve that the act will deprive them of fees for the investigation and making an abstract of titles, but it was passed at the demand of the farmers and owners of real estate to save that very expense. Its adoption was a matter of public policy committed solely to the leg- islative department of the Government, and with which the courts have nothing to do. But we find nothing in the act which can be construed as intending to cut off claimants of adverse titles from a full examination and decision of their claims. On the contrary, the act was intended to give, once for all, the fullest examination into all controversies over the title to the land set out in the petition, be- cause thereafter the order of the court in such cause will be conclu- sive. Manufacturing Co. v. Spruill, 169 N. C. 618. UNIFORM LAND REGISTRATION ACT. 385 ADDENDUM. The verbal changes made by the committee in the text of the foregoing act are as follows: Sec. 2 (5), after "judgment" add decision. Sec. 4, line 6, after "lands" add (or any interest therein, as hereinafter provided). Sec. 11, bracket the words (90 days). Sec. 17 (2), after "land" add (or any leasehold exceeding years). Sec. 20, line 4, strike out "filing" and substitute authorised to file. Sec. 29, after the last word add under any claim of title. Sec. 34, bracket (15). Sec. 35, bracket {attorney at law). Sec. 37, strike out "filing" and substitute authorized to file. Sec 41, after "substitution" add of any person or persons. Sec. 56, after last word add or terminating. Sec 73, make this Section 75 ; and after "thereby," line 6, add exfept as provided in Section 74. Sec 74, make this Section 73. Sec 75, make this Section 74, and, for changes, see Section 74, supra, the words "protection of the" being added, together with a footnote. Sec 78 (3), "74" changed to 73. Sec. 80, bracket {the filing of the petition for). Sec 89, words "be construed liberally for the purpose of ef- fecting its general intent, but shall" stricken out, and a footnote added. —35 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. ABSTRACT OF TITLE:— Examiner's final report on, A. §20; T. §95. In examiner's preliminary report, A. §16; T. §83. Petition for initial registration must contain, A. §86; T. §50. suggestions as to preparation of same, T. §50. To cross-petition, T. §53. ACKNOWLEDGMENT OF SERVICE:— Attestation of, A. §§12, 89; T. §68. liability of officers falsely attesting, A. §13; T. §68. Form of, A. §89. Method of, A. §12; T. §68. No traverse of, after judgment, A. §13; T. §§73-4. ACTIONS:— See Equity; Judicial Proceedings; Lis Pendens; Petition For Initial Registration; Registration; Summary Proceedings. ADJOINING OWNERS AND OCCUPANTS:— Definition of the phrase, T. §45. Examiner's preliminary report as to, A. §16; T. §84. Names and addresses of, to be given in petition for initial reg- istration, A. §§7, 86(21); T. §45. Notice to in case of survey, A. §22; T. §100. Protest to survey, A. §22; T. §100. To be designated as defendants in initial petition, A. §§7, 86(21); T. §§45, 49. ADJOURNMENT:— See Courts. ADMINISTRATORS AND EXECUTORS:— Administration of registered lands, A. §§42-7; T. §§188-198. Appointed subsequently to transfer of title to heirs — right of, A. §46; T. §199. As petitioners for initial registration, T. §37. Assurance fund not liable for breach of trust by, A. §80; T. §254. Certificate of title in favor of, how issued, A. §44; T. §§191-2. [387 ] 388 INDEX. References are to rections. A. §— means section of Act; T. §— means section of text. ADMINISTRATORS AND EXECUTORS:— (Continued). Character of title held by, A. §43; T. §188. Proceedings by, to determine heirs or devisees, A. §47, T. §198. Proceedings by, to obtain duplicate of lost owner's certificate, A. §58, T. §135. Sales by: no order of the ordinary required, T. §189. not prevented by adverse possession, T. §189. objections to, how and when made, T. §§189, 193. transfer upon, how effectuated, T. §193. ADVERSE CLAIMS:— See Involuntary Transacmons, III; Liens and Encumbrancss. Adjudicated by decree of title, A. §26; T. §§111, 113-4, 230. All must be fully disclosed in initial petition, A. §§ 7, 86; T. §§44, 219, Burden of proof as to, on examiner's hearing, T. §94. Cancellation of entry of: involuntary, by order of judge, A. §§60, 62; T. §§181-2. twelve-months' limitation not apply to, T. §229. voluntary, A. §62; T. §§142, 180. form of requesting, A. §116. attestation of, A. §62; T. §142. Clerk's fee for noting, A. §120; T. §259. Effect on, where land freed from registration, A. §65; T. §§236-7. Entry of brought forward on reissue of certificate, A. §§39, 100; T, §187. Examiner's final report as to, A. §20; T. §95. Examiner's preliminary report as to, A. §16; T. §83. Failure to list, as fraud in initial registration, T. §§44, 219. Holders of, to be named as defendants, A. §§9, 86(26); T. §49. Methods of setting out on initial issue of certificate of title, T. §129. Notation of on Title Register: effect of failure to note, A. §§63, 73; T. §§145, 245. effect of noting, A. §51; T. §§145, 174. form of request for notation, A. §114, method of, A. §61; T. §§173, 175-7. right of any interested person to make, A. §51, T. §§145, 173-8. verification of request for, A. §114; T. §173. Phrase "involuntary transaction" includes, A. §3; T. §21. Summary proceedings for removal from Title Register, A. §60; T. §§181-2, 185. Under federal laws, A. §63; T. §§211, 221-2. INDEX. 389 References are to sections. A. § — means section of Act; T. § — means section of text. ADVERTISEMENT :— See Notice; Service of Process. Costs of, how paid, A. §52; T. §263. Form of clerk's certificate as to, A. §91. Form of, on initial registration, A. §88. Of application for issuance of duplicate in lieu of lost owner's certificate, A. §58; T. §135. Of cancellation of owner's certificate not produced on. involun- tary transfer, A. §52; T. §173. Of court's action on caveat to registration, A. §60; T. §181. Of notice of application for involuntary transfer, A. §50; T. §166. Of proceedings to establish heirship, A. §45; T. §195. Of sale under creditor's certificate, A. §35; T. §155. AFFIDAVIT:— See Verification. AMENDMENTS:— See Severance. Additional land not to be included by, T. §57. Asking judgment establishing lesser estate, where plaintiff fails to prove title to the fee simple, T. §104. Allowed or ordered, when, A. §24; T. §57. Examiner's powers as to, A. §24; T. §89. reports action on to court, T. §95. Ordered by court to compel the giving of better description, A. §7; T. §34. Parties, joined, substituted or stricken by. A, §24; T. §57. purchaser of land, pending initial registration, T. §60. Power of court to require additional facts to be stated by, A. §24. Terms, power of judge to impose, A. §24. Verification of, A. §7; T. §57. ANSWER:— See Defensive Pleadings. APPEARANCE OR PLEADING:— By those dealing with the land pending registration proceed- ings, A. §25; T. §60. Waiver of process and notice by, A. §14; T. §69. 390 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. APPELLATE PROCEEDINGS:— See Writ of Error. ASSESSMENT:— See Assurance Fund; Taxes and Assessments. ASSURANCE FUND:— Actions against, A. §§77-8; T. §§250-257. Attorney-General to defend, A. §77; T. §255. a cumulative remedy, A. § 84; T. §257. defendants in, A. §78; T. §255. limitation of actions, A. §77; T. §252. disabilities, A. §77; T. §252. measure of damage, A. §77; T. §253. none for injury by breach of trust, A. §80; T. §354. none for loss by forgery, T. §251. other remedies to be exhausted, A. §79; T. §356. venue of, A. § 77; T. §250. Assessment for, A. §74; T. §349. clerk's duty to collect, A. §74; T. §§349, 359. Created, how, A. §§74-5; T. §349. Cross-petitioner — liability of, for assessment, T. §249. Deposit in State treasury, A. §75; T. §249. Disposition of, A. §76; T. §349. Investment of, A. §76; T. §249. Judgments against, how paid, A. §§76, 79; T. §§249, 256. execution on, how satisfied, A. §79; T. §356. interest on, A. §81; T. §253. Not an essential feature of the Act, T. §248. State Treasurer as custodian of, A. §75; T. §249. Subrogation in favor of, A. §79; T. §256. ATTESTATION:— Of acknowledgment of service, A. §§13, 89; T. §68. As a safeguard against forgery, T. §215. Of bond for title to debtor transferring to secure debt, A. §36; T. §153. Of request to cancel entry of lien, encumbrance or other adverse claim, A. §63; T. §143. Of transfers, A. §30; T. §§147-8, 151. transfer to secure debt, A. §32; T. §153. INDEX. 391 References are to sections. A. § — means section of Act; T. § — means section of text. ATTORNEY-GENERAL :— Defends suits against assurance fund, A. §77; T. §355. Service on when State is party, A. §11; T. §67. Supervisory powers over registration books and files, T. §374. BANKRUPTCY:— Rights arising through, how far subject to the Act, T. §223. Trustee in, transfer of title to, T. §168. BILL OF EXCEPTIONS:— See Writ of Error. BOND FOR TITLE:— To debtor transferring to secure debt, A. §36; T. §153. How rights of holder of are set forth in decree of title, T. §§110-3. When holder of may register land, T. §36. BOUNDARIES:— See Adjoining Owners and Occupants; Description of the Land; Survey. BRIEF OF THE EVIDENCE:— See Evidence. BUILDING RESTRICTIONS:— See Liens and Encumbrances. How declared in decree of title, T. §114. To be set forth in initial petition, if any exists in favor of any ■ adverse claimant, A. §§7, 86(23). how set forth, T. §46. BURDEN OF PROOF:— See Evidence. In attacks for fraud or forgery, T. §218. On exceptions to examiner's report, T. §98. On hearing before examiner, T. §94. On hearing of caveat under A. §60, A. §59; T. §318. CANCELLATION:— I. Voluntary. II. Involuntary. 392 INDEX. References are to sections. A. § — means section of Act; T. §— means section of text I. Voluntary. By transferee of creditor's certificate, A. §115; T. §159. Certified copies of cancelled entries, how procured, A. §101, T. §341. Entry of : prima facie conclusive, A. §59; T. §§238-331. caveat to, A. §60; T. §§182-5. conclusive in twelve-months, A. §59; T. §331. exception in case of fraud or forgery, A. §63; T. §231. Form of request to cancel creditor's certificate, A. §115. attestation of, A. §§62, 115; T. §143. Form of request to cancel liens, encumbrances, etc., A. §115. attestation of, A. §63; T. §142. Limitation on proceedings to set aside entry of, A. §59; T. §231. Of: certificate of title and owner's certificate on total transfer, A. §30; T. §147. certificate of title and owner's certificate on transfer of di- vided portion of tract, A. §31; T. §151. creditor's certificate, A. §§ 33, 62, 115; T. §159. liens and encumbrances, A. §§63, 116; T. §§142, 180. mortgages, A. §§63, 116; T. §§143, 180. notice of lis pendens, A. §§62, 116; T. §§143, 180. notation of taxes and assessments, A. §62; T. §§143, 186. of owner's certifies te not required on transfer of undivided interest, A. §31; T. §148. II. Involuntary. Certified copies of canceled registration, how procured, A. §101; T. §341. Of: adverse entries on Title Register, A. §60; T. §§179, 181-2. creditor's certificate, A. §33; T. §159. liens and encumbrances, A. §60; T. §§179, 181-3. owner's certificate, A. §52, 60; T. §§169, 171-3, 185. advertisement of, A. §52; T. §§172, 185. registration, as result of reversal of judgment authorizing, T. §§ 233. transfer in fraud of creditors, A. §55; T. §207. CAVEAT TO REGISTRATION:— Attack by for fraud or forgery, A. §63; T. §184. Clerk's fees for, A. §120; T. §359. INDEX. 393 References are to sections. A. § — means section of Act; T. § — means section of text. CAVEAT TO REGISTRATION:— (Continued). Limitation on time of filing, A. §59; T. §§229-331. when applicable; when not, T. §§239, 331. Method of filing, A. §60; T. §182. Procedure on A. §60; T. §§182-185. To be noted on Title Register, A. §60; T. §182. CERTIFICATE OF TITLE:— See Creditor's Certificate; Owner's Certificate; Titi,e Register. All matters affecting the land must be entered on, A. §§40, 73; T. §§137, 145, 173-8, 236, 245. Cancellation of: as result of judicial proceedings, A. §§49, 52; T. §§171-2, 208. not require'd on transfer of undivided interest, A. § 31; T. §148. on caveat, A. §60; T. §182. on death of owner or co-owner, A. §§44, 45; T. §§191-3, 194-7. on involuntary transfer, A. §§50, 53; T. §§171-3; 208. on voluntary total transfer, A. §30; T. §147. on voluntary transfer of divided portion of tract, A. §31; T. §151. Certified copy of: as exclusive and conclusive evidence of title, T. §239. fees for issuance of, A. §120; T. §359. how issued, A. §101; T. §341. of plats and matters recorded outside the register, T. §342. where land is freed from registration, A. §65; T. §246. Crimes in relation to, A. §85; T. §258. Conclusiveness of, see Conclusiveness. Dating, signing and sealing, A. §29; T. §130. Defined, T. §21 Effect of, where land is freed from registration, A. §65; T. §§334-7. Embodiment of the conclusiveness attaching to registration, T. §226. Enrolment on 'Title, Register, A. §§28, 99; T. §§124-5. Errors in, how corrected, A. §60; T. §§183-5. Fees for issuance of, A. §130; T. §259. Form and design of, A. §99; T. §§124-132. Enrolment on Title Register, A. §§38, 99; T. §§124-5. Indexing of, A. §§38, 99; T. §133. Issuance of: on initial registration, A. §§38; 99; T. §§134-134. 394 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. CERTIFICATE OF TITLE:— (Continued). on involuntary transfer, A. §§49, 50; T. §§171, 308. on voluntary total transfer, A. §30; T. §147. on voluntary transfer of divided portion of land, A. §31; T. §151. on voluntary transfer of undivided interest, A. §31; T. §148. to heirs at law of deceased owner, A. §45; T. §§196-8. to personal representative of deceased owner, A. §44; T. §§191-2. Minute dating of all entries on, A. §29; T. §373. Numbering of, A. §§98, 99; T. §135. Privilege of noting adverse claims, liens and encumbrances thereon, A. §51; T. §145. See Registration III. Suggestions as to preparation of on initial registration, T. §§125-138. asking directions of judge in case of default, T. §131. description of the land, T. §136. reference to outside record, A. §103; T. §136. designation of the owner, T. §137. designation of the owner's estate, T. §128. setting forth limitations, conditions, encumbrances, etc., T. §139. outside recordation of details, T. §139. Summary control of judge over. See Summary Proceedings. Uncancelled entries to be brought forward on reissue of, A. §§39, 100; T. §187. in case of involuntary transfer, T. § 170. CERTIFIED COPIES:— See Evidence. Fees for issuance of, A. §120; T. §359. How and when issued, A. §101; T. §241. Of mortgage delivered to mortgagee, A. §38; T. §162. CHANGE OF NAME:— How registered, A. §53; T. §303. CITIES AND TOWNS:— See Municipalities. CLAIMS: See Adverse Claims; Liens and Encumbrances. CLASS REPRESENTATION:— See Defendants, Service of Process. INDEX. 395 References are to sections. A. § — means section of Act; T. §^ means section of text. CLERK (OF THE SUPERIOR COURT) :— I. Generally. II. Duties in Relation to the Act. Generally. Action against for wrong or neglect, A. §84; T. §§255-7. A ministerial officer only, A. §59; T. §§16, 270, 275. As defendant in action against assurance fund, A. §78; T. § a55. Criminal responsibility of, A. § 85; T. §258. Costs of: for attaching copy of plat to owner's certificate, A. §102. for attaching copy of outside record to certificate, A. §103. generally, T. §§120, 259, 263. may demand in advance, A. § 120; T. §263. Dead or disqualified, who acts, A. §§3, 69; T. §§ 21, 267. Definition of the word "clerk," A. §3; T. § 21. Deputy-clerk: criminal responsibility of, A. §85; T. §258. duties of clerk performed by, A. §83; T. §§68, 268. included in the definition of the word "clerk," A. §3; T. §31. Entries of registration made by, prima facie conclusive, A. §59; T. §§228-231. caveat to, A. §§59, 60; T. §§183-5. See Caveat. twelve-months' limitation, when applicable, A. §59; T. §§229-231. Examiner entitled to free access to all records of, A. §68; T. §82. Form of certificate by, as to service and notice, A. §91. Instructions of judge to, in ordering involuntary transfer, T. §170. Liability of: for failing to publish or mail notice, A. §§13, 84; T. §§73, 257. for falsely attesting acknowledgment of service, A. §§13, 84; T §§68, 257. for making false entry of notice, A. §§13, 84; T. §§73, 257. for registering instrument not properly attested, A. §106; T. §269. for wrong or neglect in making registrations, A. §§59, 84; T. §§257, 269. Limitations of the Act no protection to, against wrong or neg- lect, A. §84; T. §257. Ordinary acts as, when, A. §69; T. §267. Removal from office for oflfenses against the Act, A. §85; T. §358. Special clerk — included in definition of word "clerk," A. §3; T. §31. appointment of where clerk disqualified, A. §69; T. §267. 396 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text CLERK (OF THE SUPERIOR COURT), I.:— (Continued). Subject to judge's directions in all matters, A. §59; T. §§16, 270, 275. Word "clerk" includes what, A. §§3, 69, 83; T. §§21, 267-8. II. Duties in Relation to the Act. Advertising cancellation of owner's certificate not produced on involuntary transfer, A. §§52, 60; T. §§169, 172, 185. Attestation of acknowledgment of service, A. §13; T. §68. liability for false attestation, A. §§13, 84; T. §§68, 257. Authority to register involuntary transactions, not involving transfer, without prior order of judge, T. §145. See Invol- untary Transactions III. Authority to register voluntary transactions, without order of judge, if owner's certificate presented, A. §37; T. §§140, 270. exceptions, T. §140. transfer by administrator or executor, T. §193. transfer by husband to wife or vice versa, T. §201. transfer by one holding in trust or on condition, or with unusual limitations or with powers, T. §204. transfer of homestead, T. §310. transfer of year's support, T. §209. Bringing forward uncanceled entries on transfer, A. §§39, 100; T. §187. on involuntary transfer, T. §170. Cancellation of creditor's certificate, A. §§33, 115; T. §159. Collection of assessment for assurance fund, A. §74; T. §249. Dating all entries to the minute, A. §29; T. §273. Determining whether transactions in proper shape for regis- tration, A. §§59, 106; T. §369. Docketing petition for initial registration, T. §34. Duplicate owner's certificate, when to issue, A. §58; T. §135. Enrolling decree of title, A. §§28, 98; T. §§130-133. Enrolling and registering certificate of title, A. §§28, 99; T. §§124-132. Filing away registration papers, A. §119; T. §271. method of filing, T. §372. Filing petition for initial registration, A. §10; T. §24. Fixing return day of process, A. §10; T. §62. Forms prescribed by the Act as a guide to, T. § 270; Furnishing sheriff with notices to post on land, A. §14. In case of doubt as to any detail of registration, A. §59; T. §§131, 369, 370, 275. memorandum to be made in such cases, T. §270. method of applying to judge, T. §131. INDEX. 397 References are to sections. A. § — means section of Act; T. § — means section of text. CLERK (OF THE SUPERIOR COURT), II.:— (Continued). In issuing certified copies from Title Register, A. §101; T. §241. In issuing certified copies from registration files, T. §242. In registering: change of name, A. §53; T. §203. guardian's sale, T §200. involuntary transfers, A. §§49, 52; T. §§171-3. judgments, liens, etc., T. §§175-8. mortgages, A. §3S; T. §§161-3. transfer as result of judicial proceedings, A. §49; T. §205. transfer in trust or on condition or unusual limitations or with powers, A. §38; T. §163. transfer to administrator or executor, A. §44; T. §§191-2. transfer to heirs at law, A. §45; T. §197. transfer to secure debt in standard form, A. §§32, 38; T. §§153, 156-8. not in standard form, A. §38; T. §157. voluntary cancellation of entry, T. §180. voluntary total transfer in standard form, A. §§30, 38; T. §147. voluntary transfer by corporation, T. §164. voluntary transfer of divided portion of tract, A. §31; T. §151. voluntary transfer of estate less than fee simple, T. §150. voluntary transfer of undivided portion of tract, A. §31; T. §148. voluntary transfers and mortgages not in standard form, A. §38; T. §163. Indexing certificates of title, A. §§28, 99; T. §133. Indexing decrees of title, A. §§28, 98; T. §123. Issuance of certified copies, A. §101; T. §§341-2. Issuance of creditor's certificate, A. §§32, 108-9; T. §§153, 156-8. Issuance of commission to take interrogatories, A. §20; T. §89. Issuance of owner's certificate, A. §§38, 105; T. §133. Issuing process, A. §10; T. §§63-3. Mailing notice of registration proceedings to non-residents, A. §§10, 17; T. §64. Mailing notice to the occupants of the land, A. §14; T. §72. Making owner's certificate correspond with certificate of title, and making entry on owner's certificate validating it, A. §118; T. §227. Ministerial nature of clerk's duties, A. §59; T. §§16, 238-9, 370, 275. Not to register, involuntary transfer without order of judge, A. §41; T. §§144, 270. exception, transfer to administrator of executor, A. §44; T. §191. 398 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. CLERK (OF THE SUPERIOR COURT), II:— (Continued). transaction by one holding in trust, or on condition or un- usual limitation or with powers without order of the judge, A. §56; T. §204. transaction unless properly attested, A. § 106; T. § 269. transfer from husband to wife or vice versa, without ap- proval of judge, A. §48; T. §201. voluntary transfer unless owner's certificate is presented, A. §37; T. §§140-1, 315, 270. Notifying additional defendants disclosed by examiner's report, A. §17; T. §§75, 84. Notifying interested parties disclosed in course of the proceed- ings, A. §§10, 17; T. §75. Notifying judge of filing of examiner's report, A. §20; T. §97. Notifying judge of filing of petition, A. §16; T. §79. Numbering certificates of title, A. §§98-9; T. §125. Numbering decrees of title, A. §98; T. §120. Of legally and correctly registering all transactions, A. §§28, 59, 106; T. §269. Outside recordation of plats and lengthy details, A. §§102-3; T. §121. Publishing notice on initial proceedings, A. §§10, 88; T. §64. Recording decree of title on the minutes, A. §§36, 97; T. §116. Recording judgment rendered in summary proceedings, A. §50; T. §166. To allow examiners free access to records, A. §68; T. §83. To file caveat where he has made error in registration, T. §183. To suspend, registration when supersedeas obtained, T. §118. When certificate of title not produced on involuntary transfer, A. §52; T. §173. When extraordinary situation arises, T. §275. CONCLUSIVENESS :— Difference as to, between certificate of title and owner's certifi- cate, T. §226. how owner's certificate made conclusive, A. §118; T. §237. Does not attach to registration of adverse claims, A. §51; T. §§145, 212. exceptions as to matters established on initial registration, T. §§230, 243. Of decree of title, A. §§4, 27; T. §§117, 230, 343. Of last certificate of title, as a source of title, when land is freed from registration, A. §65; T. §337. Of recital of service and notice in decree of title, A. §13; T. §§74, 101. INDEX. 399 References are to sections. A. § — means section of Act; T. § — means section of text. CONCLUSIVENESS:— (Continued). Of registration: against adverse possession, A. §66; T. §232. generally, A. §63; T. §§211-233. how far affected by judge's summary jurisdiction over registra- tion, T. §§228-9. by limitation under, A. §59; T. §§238-231. by reversal of judgment, T. §233. matters excepted from, generally, A. §63; T. §§220-5. current taxes and assessments, T. §223. highways and railways, T. §225. leases for less than 3 years, T. §224. liens and rights under federal laws, T. §§221-2. title of trustee in bankruptcy, T. §222. results of fraud or forgery, A. §63; T. §§184, 211, 217-8. in initial registration, T. §§44, 219. innocent persons protected, T. §§213-6. not prevent redress for wrong or neglect, A. §84; T. §257. of entries of cancellation after twelve months, A. §59; T. §231. Prima facie of all registrations, A. §59; T. §§328-231. See Caveat. Twelve-month's limitation, A. §59; T. §§329-231. CONDEMNATION PROCEEDINGS:— Result of, how registered, T. §202. CONSTITUTIONAL QUESTIONS:— Avoided in the Georgia Act, T. §§16-19. Constitutionality of provisions making recital of service final, T. §101 (n. 2). Early acts declared unconstitutional, T. §§16-7. Estoppel against raising subsequently to initial registration, T. §20. Later acts sustained against, T. §18. CONSTRUCTIVE SEIZURE OF THE LAND:— Constitutional sufficiency of the provisions as to, T. §19 (n. 2). Method of, A. §14; T. §§64, 71. Return of, A. §§14, 90; T. §73. CONTEMPT:— Before examiner how dealt with, T. §89. In refusing to produce owner's certificate, A. §52; T. §169. 400 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. CORPORATIONS:— As petitioners for initial registration, A. §5; T. §§27, 28. Change of name of, how registered, A. §53; T. §203. Having power of appointing or disposing of the fee-simple as petitioners for registration, A. §5; T. §37. Transfers by, how registered, T. §164. Verification of petition in behalf of, A. §7; T. §51. COSTS:— Advertising action of court on caveat, A. §60; T. §181. Advertising cancellation of owner's certificate on involuntary transfer, A. §52; T. §172. Assessment for assurance fund, see Assurance Fund. Certified copy of plat or outside record attached to owner's or creditor's certificate, A. §§102-4. Clerk's fee bill, A. §120; T. §§259, 262. Deposit for, A. §120; T. §263. Examiner's fees, A. §120; T. §§260, 262. Judgment for, not to be included in decree of title, T. §108. Power of judge over, A. §120; T. §264. Sale under creditor's certificate, A. §35; T. §155. Sheriff's fee bill, A. §120; T. §§261-2. Stenographer's compensation, A. §§71, 130; T. §§93, 360. Surveyor's compensation, A. §130; T. §262. Taxing of: generally, A. §120; T. §364. in case of severance, T. §§59, 106. where captious objections are filed, T. §§53, 364. Where petitioner has included lands not held under the same general claim of title, T. §106. COTENANTS:— See Undivided iNTgEESTS. All must join in application for initial registration, A. §5; T. §§25, 105. All must join in freeing land from registration, A. §65; T. §338. Respective interests of to be designated in decree of title, T. §§110, 112. COUNTERFEITING:— Penalty for, A. §85; T. §358. COUNTIES:— Liability of tax-collector to, for failure to note delinquent taxes, A. §57; T, §177. Service on, A. §11; T. §67. INDEX. 401 References are to sections. A. § — means section of Act; T. § — means section of text. COUNTY COMMISSIONERS:— Duty to furnish necessary books, A. §28; T. §271. Duty to furnish filing cases, A. §119; T. §271. COURTS:— See Equity; Judgh;; Jumciai, Proceedings; Jurisdiction; Summary Proceedings ; Venue. Always open for registration purposes, A. §67; T. §365. for summary proceedings, T. §167. Definition of the word, "court," as used in the Act, A. §3; T. §21. Examiner's relation to, A. §15; T. §77. Proceedings before judge are court proceedings, A. §67; T. §§167, 365. Retain ordinary jurisdiction over registered lands, A. §73; T. §§187-8, 205-7. registration essential to make same effective, A. §73; T. §§138, 178. COVENANT RUNNING WITH THE LAND:— Created by owner's act in registering title, A. §64; T. §§20, 117. effect on constitutional questions, T. §20. CREDITORS:— Transactions in fraud of, how set aside, A. §55; T. §207. CREDITOR'S CERTIFICATE:— See Transfers, IV. Cancellation of: accomplished, how, A. §§33, 62, 115; T. §§159, 143, 180. attestation of, A. §115; T. §159. clerk's fee for, A. §120; T. §259. by transferee, A. §115; T. §159. involuntary, A. §§ 33, 60, 62; T. §§159, 181-3. Certified copy of outside record attached to, A. §103-4; T. §157. Form: of creditor's certificate prescribed, A. §§108-9. of transfer to authorize, A. §107. partial transfer, A. §109. Issuance of, A §32; T. §§153, 156-8. clerk's fee for, A. §130; T. §259. Negotiability of, A. §33; T. §154. Not in standard form, A. §38; T. §§157-8. Penalty for forging, stealing or counterfeiting, A. §85; T. §258. Sale under, A. §35; T. §155. —36 402 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. CREDITOR'S CERTIFICATE:— (Continued), advertisement of, A. §35; T. §155. disposition of proceeds, A. §35; T. §155. transfer to purchaser, A. §35; T. §160. Use of in evidence, A. §38; T. §244. certified copy, T. §244. CRIMES:— See Offenses. CROSS-PETITIONS:^ See Defensive Pleadings; Petition For Initiai, Registration; Registration II. Abstract of title to, T. §53. Assessment for assurance fund, T. §249. Decree of title on, A. §26; T. §106. Effect of, on original petitioner's right to dismiss, T. §103. Form of, suggestions as to, T. §53. Right to file, A. §18; T. §53. Severance as a result of filing, T. §§58-9, 106. Verification of, T. §53. DATE:— Minute dating of all registrations and entries, A. §29; T. §373. On Title Register, as date when transaction becomes operative, A. §73 T. §§137-8. DEATH OF OWNER:— See Administrators and Executors. Transmission of title on, A. §§42-7; T. §§188-198. DECREES:— See Decrees of Title; Equity; Judicial Proceedings; Judgments AND Decrees. DECREES OF TITLE:— See Judgments and Decrees; Register of Decrees of Title- Binding on the world, A. §§4, 27; T. §§117, 230, 243. Certified copy of, as evidence, T. §243. Conclusiveness of, A. §§4, 27; T. §§117, 230, 243. Covenant running with the land created by, A. §64; T. §117. Easements, how set forth in, A. §26; T. §114. Effect of, A. §§4, 27; T. §§117, 230, 243. Estates less than fee, how set forth in, A. §§26, 97; T. §§111, 114. INDEX. 403 References are to sections. A. § — means section of Act; T. § — means section of text. DECREES OF TITLE:— (Continued). Enrollment on Register of Decrees of Title, A. §§28, 98; T. §§119-133. minute dating of enrolment, A. §29; T. §373. Form of: prescribed, A. §97. prescribed form to be strictly adhered to, T. §108. suggestions as to filling blanks in, T. §§109-114. declaring easements, T. §114. declaring lesser estates, T. §§111, 114. declaring liens and encumbrances, T. §113. declaring limitations and conditions, T. §§111-3. declaring the ownership, T. §§110, 112. description of the land, T. §109. other matters, T. §114. statement as to right of appeal, T. §114. Improvements of possessor — how far noticed in, T. §115. Indexing of, A. §§38, 98; T. §123. Judgment for costs not to be included in, T. §108. Liens, encumbrances, etc., how set forth in, A. §§26, 97; T. §§111-4. effect of, T. §230. Method of filing away papers relating to, A. §119; T. §272. No issue as to mesne profits to be decided by, T. §115. No writ of ejectment issues on, T. §115. None to be rendered by default, A. §31; T. §102. None where petition proves title to undivided, interest only, T. §105. Numberino; of, A. §98; T. §120. On cross-petition, A. §26; T. §106. Punishment for fraud in obtaining or attempting to obtain, A. §85; T. §358. Recital of service and notice in, — conclusiveness of, A. §13; T. §101. Recorded on the minutes, A. §§26, 97; T. §116. Rendition of, A. §26; T. §§106-14. Separate to be rendered where tract divided into parcels, A. §36; T. §§107, 109. advantages, T. §107. Separate to be rendered, where more than one tract included in petition for registration, A. §26; T. §§106, 109. Severance for purposes of, A. §24; T. §§106, 109. Use of, as basis for action of ejectment, T. §§115, 243. Where plaintiff proves title to only a portion of the land included in his petition, T. §106. 404 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. DEFAULT:— No judgment or decree by, A. §21; T. §103. effect of failure to present defenses in time, T. §56. DEFENDANTS:— See Cross- Petitions ; Defensive Pleadings; Service of Process AND Notice. Acknowledgment of service by, See catchword, "Waiver" below. Additional made on cross-petition, T. §53. Adjoining owners and occupants as, A. §§7, 86(21); T. §§45, 49. All adverse claimants of any interest, as, A. §§9, 86(19); T. §§44, 49. "All persons whom it may concern," A. §§4, 9, 86(26); T. §§52, 62, 64. Class representation, when numerous, T. §66. Counties as, A. §11; T. §§44, 67. Examiner's report as to, A. §16; T. §§83-4. notice to additional defendants thus disclosed, A. §17; T. §75. Fraud in omitting, T. §§44, 219. General provisions as to, A. § 9; T. §49. Husband as, in wife's petition, A. §86(25); T. §§48-9. In action against assurance fund, A. §78; T. §255. Infants and persons under disability — guardians ad litem for, A. §10; T. §70. Liens and encumbrances, holders of, as, A. §§9, 86(26); T. §§43, 44, 49. Municipalities, A. §11: T. §§44, 67. Persons dealing with the land pending registration proceedings, A. §35; T. §60. Service of process on. See Service of Process and Notice. The State as, A. §11; T. §§44, 67. Tenants to be named as, when, T. §49. To be named in initial petition, A. §§9, 86(36); T. §§45, 48-9. Unserved persons may become, A. §18; T. §52. Waiver of process and service by, through appearance or plead- ing, A. §14; T. §69. Waiver of process and service, in writing, by, A. §12; T. §68. attestation of, A. §13; T. §68. form of, A. §89. Wife as, on husband's petition, A. §86(35); T. §§48-9. DEFENSIVE PLEADINGS:— Amendment of, A. §24; T. §57. Answer, A. §18; T. §53. INDEX. 405 References are to sections. A. § — means section of Act; T. § — means section of text. DEFENSIVE PLEADINGS:— (Continued). by persons dealing with the land pending registration pro- ceedings, A. §25; T. §60. Demurrer, T. §55. Taxing costs for frivolous filing of, T. §§52, 364. Time of filing, T. §56 Verification of, T. §54. before examiner, T. §54. Who may file, A. §18; T. §52. DEPOSITIONS:— See Evidbnce; Witnesses. Examiner's power to take, A. §20; T. §91. DEPUTIES:— See Ci,Eek; Sheriff. Criminal responsibility of, A. §85; T. §258. Duties of clerk or sheriff, performed by, A. §83; §268. Principal responsibility for acts of, A. §83. The word "clerk" includes deputy-clerks, A. §3; T. §21. DESCENT AND DISTRIBUTION:— See Administrators and Executors. Effect of subsequent appointment of administrator when dece- dent's title has been transferred to heirs, A. §46; T. §199. Partition among established heirs, A. §45; T. §§196-7. Proceedings to establish heirship, A. §§45-47; T. §§194-5, 198. Rights of heirs in case of no administration, A. §45; T. §§194-7. Right of heirs or devisees to compel transfer from personal rep- resentative, A. §43; T. §188. Ultimate rules of not affected by registration, A. § 42; T. §188. Widow as sole heir, A. §45; T. §§194-5. DESCRIPTION OF THE LAND:— Examiner's power to require fullness of, A. §§7, 23; T. §86, 89, 100. Fullness of, required in petitions, A. §7; T. §34. In the certificate of title, T. §126. In the decree of title, T. §109. Judge's power to require fullness of, A. §§7, 22, 24; T. §§34, 100, 109. Petition to contain, A. §7; T. §34. Plat to be made when, A. §32; T. §100. outside recordation of, A. §103; T. §131. 406 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. DESCRIPTION OF THE LAND:— (Continued). Published notice of initial registration to contain, A. §§10, 88; T. §64. Survey and setting of landmarks, when required, A. §§7, 22; T §§34, 89, lOO. Where several tracts included in one petition, T. §35. Where tract divided into parcels, A. §§8, 26; T. §§36, 107. DISABILITIES:— See Infants and Other Persons Under Disability; Limitation OF Actions Suspending action against assurance fund. See Assurance Fund. DISMISSAL:— Of petition for registration, when ordered, or allowed, A. §23; T. §§103-5. Of writ of error where lis pendens not noted, T. §233. Right of, how far affected by filing of cross-petition, T. §103. Terms, power of judge to impose, A. §23; T. §§103-6. When plaintiff fails to prove title, T. §103. When plaintiff proves title less than fee, T. §104. amendment to avoid dismissal, T. §104. When plaintiff proves title to only an undivided interest, T. §105. Writ of error to judgment of, A. §82; T. §118. DISQUALIFICATION OF OFFICERS:— Clerk disqualified; who acts, A. §§3, 69; T. §§21, 267. Judge disqualified; who acts, A. §3; T. §21. DOCKETING:— See Petition for Initial Registration. Re-docketing when severance has been ordered, T. §59. DOWER:— See Administrators and Executors. Allegation as to in initial petition, A. §86(15); T. §42. As an involuntary transaction, A. §3; T. §21. Examiner's preliminary report as to, T. §83. Existence of not prevent sale by personal representative, T. §190. Registered land subject to right of, A. §§42, 45; -T. §§188, 190, 195. Registration of right of, essential to its assertion, A. §42; T. §190. INDEX. 407 References are to sections. A. § — means section of Act; T. § — means section of text. DUPLICATE CERTIFICATE:— See Owner's Certificate. EASEMENTS:— See Estates and Interests Less Than Fee-Simple; Highways; Railways. EMINENT DOMAIN:— See Condemnation Proceedings. Exercise of the right of as an involuntary transaction, A. §3; T. §21. ENCUMBRANCES:— See Liens and Encumbrances. ENTRIES:— See Registration III. EQUITY:— Attack in, for fraud or forgery, T. §317. fraud in initial registration, T. §319. Decrees in, how effectuated against registered land, A. §49; T. §§205-8. Equity pleading and practice in suit for registration, A. §5; T. §22. equity jurisprudence not thereby adopted, T. §32. Jurisdiction over registrations in fraud of creditors, A. §55. Jurisdiction to set aside registration procured by fraud or for- gery, A. §63; T. §§317, 331. Lis pendens must be registered to protect actions in, A. §54; T. §178. Notation of equitable claims on Title Register, A. §51; T. §§173, 3 78. effect of, A. §51; T. §145. effect of failure to note, A. §§63, 73; T. §§137-8, 145. form for noting, A. §114. how canceled, A. §§60, 63; T. §§142, 179-182. form of request to cancel, A. §116. Registration does not prevent existence of equities, A. §73; T. §§3, 137-8, 205. reconcilement between registration and equity jurisprudence, T. §212. Transfer ^s result of proceedings in, A. §49; T. §§166-173, 305-8. Twelve-month's limitation of A. §59 not applicable to suits in, T. §328. 408 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. ERRORS ON TITLE REGISTER:— How corrected, A. §60; T. §183. ESTATES:— See Easements; Estates and Interests Less Than Fee Simple; Registered Land ; Tm.E. Of decedents, see Administrators and Executors; Descent and Distribution. Of infants, insane persons, etc., see Guardians, Infants and Per- sons Under Disability. On conditions or with unusual limitations, how transferred or dealt with, A. §56; T. §204. Phrase, "registered land," includes all kinds of, A. §3; T. §21. ESTATES AND INTERESTS LESS THAN FEE SIMPLE:— See Highways ; Railways. Allegations as to in petition for initial registration, A. §§7, 86(19, 22); T. §§44, 46. Allegations as to value of in petition to establish, T. §38. Amendment asking establishment of, where petitioner fails to prove title to fee simple, T. §104. Burden of proof as to, in initial proceedings, T. §94. Decree of title to set forth, A. §26; T. §§111-2. easements, T. §114. Effect on when land freed from registration, A. §65; T. §§236-7. Examiner's nnal report as to, A. §20; T. §95. Examiner's preliminary report as to, A. §16; T. §83. Existence of, not prevent initial registration, A. §5; T. §25. Grant of, how registered, A. §117; T. §i£0. How set forth in first certificate of title, T. §129. Included in the phrase "registered land," A. §3; T. §21. Included in the phrases "voluntary transactions" and "involun- tary transactions," A. §3; T. §21. Leases for less than 3 years, excepted from registration, A. §63; T. §§211, 224. Liens and encumbances affecting to be shown in decree of title, T. §113. No owner's certificate in favor of holder of, T. §150. Owner of as defendant, A. §9; T. §§25, 49. Owner of may establish but not initially register, A. §6; T. §30. amednment for that purpose when petitioner fails to estab- lish fee simple, T. §§30, 104. Petition for initial registration must disclose, A. §§7, 86 (15, 18„ 19, 22); T. §§42, 44, 46, .49. INDEX. 409 References are to sections. A. § — means section of Act; T. § — means section of text. ESTATES AND INTERESTS LESS THAN FEE SIMPLE:— (Continued). Petition to establish, A. §6; T. §§30, 31. form of suggested, T. §31. Transmission of title to, on death of owner, A. §§48-7; T. §§188-198. EVIDENCE:— See CoNCLUsiveNESs ; Witnesses. Brief of in examiner's final report, A. §30; T. §95. Burden of proof: in attarks on registration, A. §59; T. § 218. on exceptions to examiner's report, T. §98. on hearing before examiner, T. §94. Certificate of title and owner's certificate when land is freed form of suggested, T. §331. Certified copy; from registration files, T. §347. from Title Register, how issued, A. §101; T. §341. of certificate of title, T. §339. of creditor's certificate, A. §38; T. §344. of decree of title, T. §343. of entry or notation, A. §§38, 101; T. §§241, 244. of mortgage, as primary evidence, A. §38; T. §244. of plat or detail recorded outside the register, T. §242. Commission for interrogatories, A. §20; T. §§89, 90. Depositions taken before examiner, A. §30; T. §91. Duplicate of owner's certificate as, T. §339. Examiner's powers as to, §20; T. §§89-94. Examiner's preliminary report as, A. §16; T. §87. Introduction of before examiner, T. §92. Of title, what sufficient to authorize registration, T. §94. On jury trial on exceptions to examiner's report, A. §30; T. §§97-8. Owner's certificate as, T. §339. Production of books and papers before examiner, A. §20; T. §§89, 90. Punishment for offering fraudulent, A. §85; T. §258. Recital in decree of title as to service, A. §13; T. §74. Registration as exclusive method of proving notice, A. §§40, 73; T. §245. Stenographer reports when, A. §71; T. §93. See Stenographer. EXAMINER:— Amendments allowed by, A. §24; T. §§57, 89. Appointment of, A. §15; T. §77. See catchword, "Form," below. As a witness to explain his report, T. §98. 410 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text, EXAMINER:— (Continued). Attestation of acknowledgment of service by, A. §12; T. §68. liability for false attestation, A. §§13, 84; T. §68. Contempt before, how dealt with, T. §89. Crimes by in relation to the Act, A. §85; T. §258. Depositions taken before, A. §20; T. §91. Duties of, generally, A. §§15, 16, 19, 30; T. §§80-95, 166. Duty to prevent slackness of pleading, T. §55. Exceptions to final report of: filed when, A. §20; T. §96. hearing of, A. §20; T. §§97-8. jury trial on, how obtained, A. §20; T. §97. evidence on, A. §20; T. §§97-8. new trial, A. §20; T. §99. procedure on, T. §98. verdict on, effect of, A. §20; T. §97. writ of error, A. §§20, 82; T. §§99, 118. who may file, A. §20; T. §96. Fees of, A. §120; T. §260. Final report of: contents, A. §§20, 96; T. §95. duty of clerk to notify judge of its filing, A. §20; T. §97. filed when, A. §20; T. §95. notice of filing, A. §20; T. §§56, 95. form of, prescribed, A. §96. deductions drawn from this form, T. §95. recommitment, A. §20; T. §99. to investigate objections presented after its filing, T. §56. motion to recommit, T. §96. Form of: final report, A. §96. official oath, A. §93. order of appointment, A. §92. order of reference, A. §94. preliminary report, A. §95. Free access to all public records by, A. §68; T. §82. General or special, A. §15; T. § 77. Hearing before, A. §§19, 20; T. §§88-94. allowance of amendments, A. §24; T. §§57, 89. burden of proof, T. §94. demurrer, T. §89. functions and duties generally, A. §20; T. §89. introduction of evidence, T. §92. methods of proof, T. §94. notice of, A. §19; T. §§56, 88. INDEX. 41 1 References are to sections. A. § — means section of Act; T. § — means section of text. EXAMINER:— (Continued). parties made or stricken, T. §89. place of, T. §88. ruling to be noted, T. §93. severance, A. §24; T. §§58-9, 89. stenographer, used when, A. §71; T. §93. See Stenographer, time of, A. §19; T. §88. Independent examination by, A. §2a; T. §90. report as to, T. §§90, 95. Number to be appointed, A. §15; T. §77. consideration affecting, T. §77. Oath of, A. §§15, 93; T. §78. Power of: as commissioner to take testimony, A. §20; T. §91. to cause commission for interrogatories to issue, A. §20; T. §89. to compel attendance of witnesses, A. §20; T. §89. to compel production of books and papers, A. §20; T. §89. Preliminary report of, A. §§16, 95; T. §§80-7. contents of, A. §16; T. §§81-6. abstract of title, A. §16; T. §82. finding as to service and notice, A. §16; T. §§75, 83-4. finding as to sufficiency of description, T. §§86, 89. history of the possession, A. §16; T. §85. names and addresses of adjoining owners and occupants, A. §16; T. §84. names and addresses of all interested persons, A. §16; T. §83. result of independent examination, T. §87. filing of, A. §16; T. §80. is prima facie evidence of its contents, A. §16; T. §87. limitations on this rule, T. §87. Qualifications of, A. §15; T. §78. Recommendation as to making description of the land more permanent, A. §§7, 22; T. §§34, 86, 89. Reference to, of the initial petition for registration, A. §§16, 94; T. §79. of application for involuntary transfer, A. §50; T. §166. Relation that of auditor or master in chancery, A. §15; T. §§77, 89, 166. Removable from office at pleasure of judge, A. §15; T. §78. Severance, ordered or allowed by, A. §34; T. §§58-9. Stenographer for, how employed,, A. §71; T. §93. compensation of, A. §§71, 130'; T. §§93, 260. 412 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. EXAMINER:— (Continued). Survey, recommendation as to, A. §§7, 23; T. §§86, 89, 100. Verification of defensive pleadings before, T. §54. EXCEPTIONS:— Bill of, see Writ of Error. To examiner's report, see Examiner. EXECUTION SALE:— Procedure to obtain transfer to purchaser at, T. §§168-170. EXECUTORS:— See Administrators and Executors. EXECUTORY SALE:— See Bond for Title. EXTRAORDINARY SITUATIONS:— How dealt with, T. §375. FEDERAL STATUTES:— Liens and rights arising under, how far excepted, A. §63; T. §§311, 321-2. FEES:— See Costs. FEE-SIMPLE:— See Estates and Interests Less Than Fee-Simple; Titee. Defined, T. §35. Ownership of essential to initial registration, A. §5; T. §25. defeasible fee, T. §25. equitable ownership, T. §36. FILING:— Cabinets for, to be furnished clerk, A. §119; T. §371. Certified copies of file-papers as evidence, T. §247. Method of filing away registration papers, A. §119; T. §273. Of examiner's final report, A. §20; T. §95. Of examiner's preliminary report, A. §16; T. §80. Of exceptions to examiner's report, A. §30; T. §96. Of petition for initial registration, A. §10; T. §24. FORGERY:— Attacks for, A. §63; T. §§184, 317, 231. Burden of proof as to, T. §218. Cancellation procured by, T. §231. Punishment for, A. §§85; T. §358. INDEX. 413 References are to sections. A. § — means section of Act; T. § — means section of text. FORGERY :— (Continued) . Registration procured by, effect of, A. §63; T. §§313-5; 317. limitation on court action against, A. §63; T. §§317, 338. by caveat, A. §§59, 60, 63; T. §§183-5, 317, 328-331. protection of innocent holders, A. §63; T. §§313-314. Safeguards of the Act against, T. §315. Victim of, has no action against assurance fund, T. §351. FORMS:— Acknowledgment of service, A. §89. Advantage of using prescribed forms, T. §137. Advertisement cancelling owner's certificate, T. §173. Advertisement on initial registration, A. §88. Cancellation of creditor's certificate, A. §115. Cancellation of liens, encumbrances, etc., A. §116. Certificate of title, A. §99. Clerk's certificate as to service and notice, A. §91. Creditor's certificate, A. §§108-9. Cross-petition, T. §53. Decree of title, A. §97. Entry validating owner's certificate, A. §118. Examiner: appointment of, A. §93. final report of, A. §96. oath of, A. §93. preliminary report of, A. §95. reference to, A. §94. Involuntary transfer, A. §110. Judge's order of transfer, A. §110. Mortgage, A. §111. Notice to be posted on the land, A. §88. Owner's certificate, A. §105; T. §134. Partial transfer, A. §107. Petition for initial registration, A. §86. suggestions as to filling blanks, T. §32-51. Power of judges in convention over, A. §70; T. §366. Prescribed forms, a guide to the clerk's T. §370. Process, A. §87. Register of Decrees of Title, A. §98. Request for, notation of cancellation of liens, encumbrances, etc., A. §116. delinquent taxes and assessments, A. §113. involuntary transaction not involuntary transfer, A. §114. judgment, A. §113. 414 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. FORMS:— (Continued). liens, encumbrances and adverse claims, A. §114. lis pendens, A. §114. registration of homestead or exemption, T. §310. Sheriff's return, A. §90. Title Register, A. §99. Total transfer, A. §107. Transfer to secure debt, A. §107. Use of standard forms not compulsory, T. §137. Verification of petition for initial registration, A. §86. cross-petition, T. §53. FRAUD:— Action for, not prevented by the limitations of the Act, A. §84; T. §257. Attacks for, A. §63; T. §§44, 216-9. Burden of proof as to, T. § 218. Cancellation procured by, T. §231. In failing to list known adverse claimants in petitions for initial registration, T. §§44, 219. Punishment for various forms of, §85; T. §258. Registration procured by, A. §63; T. §§211, 216-8. limitation of attacks for by court proceedings, A. §63; T. §317. by caveat, A. §§59, 60, 63; T. §§182-5, 217, 228-231. protection of innocent persons, A. §63; T. §316. Transactions in fraud of creditors, how set aside, A. §55; T. §207. FREEING LAND FROM REGISTRATION:— Benefits of registration still endure, T. §337. Effect on liens, encumbrances, etc., T. §336. Future transactions, how affected, A. §65; T. §236. General statement of the privilege and its advantages, A. §65; T. §§234-8. Last certificate on as a source of title, A. §65; T. §237. Method of, A. §65; T. §335. Unanimous action of cotenants essential to, A. §65; T. §338. GUARDIANS AND GUARDIANS AD LITEM:— See Infants and Persons Under Disability. Guardians sales, T. §200. HEIRS:— See Administrators and Executors ; Descent and Distribution. INDEX. 415 References are to sections. A. § — means section of Act; T. § — means section of text. HIGHWAYS:— Excepted from registration, A. §63; T. §§311, 235. HOMESTEAD AND EXEMPTION:— Allegation as to in initial petition, A. §86(15); T. §43. Examiner's preliminary report as to, T. §83. Registration of, A. §117; T. §310. Sales of, A. §56; T. §210. Voluntary transaction, A. §3; T. §31. HUSBAND AND WIFE:— Allegation as to in petition for initial registration, A. §86(34-5); T. §48. As defendant in every petition by married person, A. §86(26); T.'§49. Transactions between made certain by registration, T. §§10, 801. Transfers between, how registered, A. §48; T. §301. IMPROVEMENTS :— Right of set-off as to, noticed in decree of title, when, T. §115. INDEX:— See Register of Decrees of Title; Titee Register. INFANTS AND OTHER PERSONS UNDER DISABILITY:— Age of infants, how to be set forth: in certificate of title, T. §137. in decree of title, T. §110. in petition for initial registration, A. §86(23); T. §47. As defendants — guardian ad litem for, A. §10; T. §70. Bound by decree of title, A. §27; T. §117. Disability of should be set forth in detail, in certificate of title, T. §137. in decree of title, T. §110. in petition for initial registration, A. §86(23); T. §47. Exception in favor of in limitation of actions against assurance fund, A. §77; T. §252. Guardian ad litem appointed for, A. §§5, 10; T. §§29, 70. on application for involuntary transfer, A. §50; T. §166. Next friend may represent, A. §5; T. §39. No exception in favor of as to conclusiveness of registration, A. §§37, 59; T. §117. Petitions for initial registration by, A. §5; T. §§39, 47. verification of, A. §7; T. §51. 416 INDEX. References are to sections. A. § — means section of Act; T. § — ■ means section of text. INFANTS AND OTHER PERSONS UNDER DISABILITY:— (Continued). Recourse on assurance fund, A. §§37, 77; T. §§350, 353. Sales of property of, by guardians, T. §300. Service of process perfected on, how, A. §10; T. §70. IN REM:— See Jurisdiction; R6gistration II, III. INSANE PERSONS:— See Infants and Other Persons Under Disability. INTERROGATORIES:— See Evidence ; Witnesses. INVOLUNTARY TRANSACTIONS:— See Adverse Claims; Condemnation Proceedings; Dower; Equity; Estates and Interests Less Than Eee-Simple; Judgments and Decrees; Judiciai, Proceedings; Liens and Encum- brances; Taxes and Assessments; Words and Phrases De- fined. I. Generally. 11. Involuntary Transfers. III. Involuntary Treuisactions Other Than Transfers. I. Generally. All claims adverse to the registered owner are, A. §3; T. §31. See Adverse Claims. Dealings with estates less than fee included in the definition of the phrase, A. §3; T. §31. See Estates and Interests Less Than Fee-Simple. Definition, A. §3; T. §31. Delinquent taxes as, A. §3; T. §31. See Taxes and Assessments. Dower as, A. §3; T. §3L Easements as, see Estates and Interests Less Than Fee-Simple. Eminent domain; exercise of right of as, A. §3; T. §31. See Condemnation Proceedings. Encumbrances as, A. §3; T. §31. See Liens and Encumbrances. Inoperative till registered A. §§40, 73; T. §§137-8. Judicial proceedings as, A. §3; T. §31. See Judicial Proceedings. Liens, as, A. §31; T. §31. See Liens and Encumbrances. To be entered on Title Register, A. §38. Will— transmission of title by,— is, A. §3; T. §31. See Admin- istrators and Executors. INDEX. 417 References are to sections. A. § — means section of Act; T. § — means section of text. INVOLUNTARY TRANSACTIONS:— (Continued). II. Involuntary Transfers. See Transfers, III. General discussion of, T. §§1«6-170. III. Involuntary Transactions Other Than Transfers. Right of any one to note an adverse claim on Title Register, A. §51; T. §145. effect of such notation, A. §51; T. §145. form of requesting notation, A. §114. method of causing notation to be made, A. §61; T. §§173-8. removal of entry of, from Title Register. See Cancellation. JUDGE:— See Courts; Judge's Order of Transfer; Summary Proceedings. Acts of, are acts of the court, A. §67; T. §§167, 265. All registered rights of third persons to be protected by, in all proceedings before him, T. §§183, 185, 228. Decision of the cause by on initial registration, A. §26; T. §101. Definition of the word, "judge," as used in the Act, A. §3; T. §21. Disqualification of, A. §3; T. §21. Duty of: as to approval of transfers between husband and wife, A. §48; T. §201. on hearing of application for transfer to purchaser at sale under creditor's certificate, A. §35; T. §l'60i. to appoint examiners, A. §15; T. §77. to give directions to clerk in issuing order of transfer, T. §170. to instruct clerk in case of doubt, A. §59; T. §§370, 275. to investigate and adjudge as to service, A. §13; T. §§74, 101. to pass on exceptions to auditor's report, A. §20; T. §97. to prevent slackness in pleading, T. §55. Involuntary transfer not to be registered without order of, A. §41; T. §144. Jurisdiction over involuntary transfers, A. §§41, 49, 50, 52; T. §§166-170, 350-8. to provide for notice of hearing on, A. §§50, 72; T. §166. Powers of: as to modification or cancellation of entries or registra- tion, A. §60; T. §§183-5. over all extraordinary situations, T. §275. over correction of errors in registration, A. §60; T. §183. over forged and fraudulent transfers, T. §184. —27 418 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. JUDGE:— (Continued). to compel cancellation of liens, encumbrances and adverse entries, A. §§60, 63; T. §§181-3. to compel more adequate description of the land, A. §§7, 33; T. §§34, 100, 109. to enlarge time of service, A. §10; T. §65. to prescribe methods of service or notice, A. §§10, 78; T. §§65, 166. to recommit examiner's report on his own motion, A. §30; T. §§56, 99. Reference of case to examiner by, A. §§16, 94; T. §79. application for involuntary transfer, A. §50; T. §166. Summary jurisdiction of, see Summary Proceedings. distinction between, and court's general jurisdiction, T. §185. Supervisory powers over all registrations, A. §§59, 60; T. §§139, 270, 275. how exercised, see Summary Proceedings. Survey, when ordered by, A. §§7, 33; T. §§34, 100, 109. JUDGES IN CONVENTION:— Authority to make rules and prescribe forms, A. §70; T. §266. JUDGE'S ORDER OF TRANSFER:— See Judge; Summary Proceedings; Transfers III. Application for, A. §50; T. §168. Conclusiveness of, A. §4; T. §167. Directions to clerk to be included in, T. §170. Essential to registration of involuntary transfer, A. §41; T. §144. Form of, A. §110. Issued without production of owner's certificate, when, A. §52; T. §169. On proceedings to estaiblish heirship, A. §§45, 47; T. §§195-6, 198. On sale of homestead property, T. §310. On sale of year's support, T. §309. Required for registration of transactions by any one holding title in trust or with powers or on condition or unusual limitations, A. §56; T. §304. Required to register transfer from executor or administrator, T. §193. to heirs at law or devisees, T. §198. To eflfectuate involuntary transfers, A. §50; T. §§166-8, 305. limited when lis pendens not noted, T. §178. INDEX. 419 References are to sections. A. § — means section of Act; T. § — means section of text. JUDGE'S ORDER OF TRANSFER:— (Continued). To effectuate transfer to heirs at law, T. §§196-7. To purchaser at sale under creditor's certificate, A. §35; T. §160. When transaction set aside as in fraud of creditors, A. §55; T. §307. JUDGMENTS AND DECREES:— I. Judgments and Decrees in Registration Proceedings. II. Judgments Generally. I. Judgments and Decrees in Registration Proceedings. See Decrep, of Title. Against the assurance fund, A. §79; T. §256. interest on, A. §81; T. §353. Annulling transaction for fraud against creditors, A. §55; T. §307. Are judgments in rem: A. §4; T. §§19, 33, 167. Binding on the world, A. §§4, 37; T. §§117, 330. See Conclu- siveness. Effect of reversal of, T. §333. For costs to be rendered separately from decree of title, T. §108. In initial proceedings: tinding on those dealing with the land pending the pro- ceedings, A. §25; T. §60. covenant attached to title by, A. §64; T. §§30, 117. in favor of cross-petitioner, A. §26; T. §106. none by default, A. §21; T. §102. of dismissal. See Dismissal. recital of service and notice in conclusive, A. §13; T. §§74, 117. See Conclusiveness; Decree of Title; Service of Process and Notice. is no protection to officer in action for false return, A. §§13, 84; T. §§73, 255-7. rendition of by the judge, A. §§101-114. separate in case of severance, T. §§59, 106. separate in case of tract divided into parcels, A. §§8, 2&; T. §107. separate where more than one tract involved, A. §§8, 26; T. §106. to .be recorded on the minutes, A. §26; T. §116. when petitioner proves only on undivided interest, T. §105. when title is not satisfactorily proved, A. §26; T. §§103-4. 420 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. JUDGMENTS AND DECREES, I.:— (Continued). On application for involuntary transfer, A. §50; T. §§166-8, 205-8. conclusiveness of, A. §4, T. §167. to be recorded on minutes, A. §50; T. §166. On caveat to registration or entry, A. §60; T. §§183-5. On proceedings to establish heirship, A. §§45, 47; T. §§194-5, 198. Provisional nature of, in exercise of summary jurisdiction, T. §§183-5. See Summary Proceedings. Punishment for obtaining hy fraud, A. §85; T. §25«. Writ of error to, A. §§»0', 83; T. §118. See Writ of Error. lis pendens to be noted, T. §§178, 333. II. Judgments Generally. See Liens and ENCuMBRANces. Cancellation of: involuntary, by order of judge, A. §60; T. §181-2. voluntary, A. §62; T. §§142,180. form for, A. §116. Clerk's fee for noting on register, A. §120; T. §259. for cancelling notation, A. §130; T. §259. Examiner's report as to, A. §83. Lien of must be registered to affect third persons dealing with the registered land, A. §54; T. §174. aliunde notice of, immaterial, A. §40; T. §§174, 345. effect of failure to register, A. §§54, 63, 73; T. §§145, 174. effect of registering, A. §§51, 54; T. §§145, 174-5. form of request for registration, A. §113. method of registering, A. §61; T. §175. No action against assurance fund for loss of lien of, T. §251. JUDICIAL PROCEEDINGS:— See Courts ; Equity. Effect of registration upon rights asserted in, T. §212. Lis pendens must be registered to affect third persons, A. §54. T. §178. See Lis Pendens. form of requesting notation of, A. §114. Phrase "involuntary transaction" includes, A. §3; T. §31. Transfers as the result of, A. §49; T. §205-7. See Transfers III. JURISDICTION:— See Courts; Equity; Registration; Summary PROcBeMNG; Venue. In rem, conferred by the provisions of the Act, A. §4; T. §§19, 32, 61, 167. INDEX. 421 P.eforences are to sections. A. § — means section of Act; T. §-^ means section of text. JURISDICTION:— (Continued). applies in summary .proceedings, T. §167. efiEect on constitutionality of the Act, T. §19. seizure to confer, A. §14; T. §§71, 72. Of the courts over registered lands, A. §73; T. §§11, 12, 138, 185, 20i5. Of registration proceedings, A. §§2, 5; T. §§16, 23. Of judge over all justiciable registration questions, A. §§59, 60; T. §§270, 275. extraordinary situations, T. §275. how exercised, see Summary Proceedings. JURY TRIAL:— On exception to examiner's report, A. §20; T. §§97-8. See Ex- aminers. On protest lo survey, A. §22; T. §100. LAND REGISTRATION ACT:— A part of our general system of jurisprudence, T. §13. A remedial statute, to .be liberally construed, T. §13. Constitutionality of, T. §§16-20. See Constitutionality of the Act. Distinguished from Torrens Systems, T. §1. Efifective date of, A. §121. General objects of stated, T. §4. General outline of, T. §15. Official designation, A. §1; T. §21. Practicability and simplicity of, T. §14. Purposes stated, A. §2; T. §4. To be construed as creating a complete system, T. §§13, 275. LAND REGISTRATION ASSURANCE FUND:— See Assurance Fund. LARCENY:— Of owner's certificate or other registration paper, punishment for, A. §85; T. §258. LEASES:— See Estates and Interests Less Than Fee-Simple. LESSER ESTATES:— See Estates and Interests Less Than Fee-Simpee. LEVY AND SALE:— See Execution Sai,e. 422 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. LIENS AND ENCUMBRANCES:— See Adverse Claims; Estates and Interests Less Than Fee- Simple ; Judgments and Decrees; Taxes and Assessments. Affecting estate less than fee-simple, T. §113. Arising under federal laws, A. §63; T. §§311, 320, 221. As involuntary transactions, A. §3; T. §21. Burden of proof as to, on examiner's hearing, T. §94. Cancellation of: involuntary, by order of judge, A. §§&0, 62; T. §§181-2. voluntary, A. §62; T. §§142, 180. form of request for, A. §116. attestation of, A. §62; T. §142. Clerk's fees for noting or cancelling, A. §130; T. §259. Decree of title to set forth, A. §26; T. §113. effect of inclusion in decree of title, T. §230. Examiner's final report as to, A. §20; T. §95. Examiner's preliminary report as to, T. §83. Existence of no obstacle to initial registration, A. §5; T. §25. Holders of to be named as defendants, A. §9; T. §49. How set forth in initial petition, A. §§7, 86, (19, 20); T. §44. Method of setting forth in certificate of title on initial issue, T. §129. Notation of, see catchv/ord, "Registration," below. Petition for initial registration must fully disclose, A. §7; T. §44 fraud in failing to disclose, T. §§44, 219. Registration or notation of: effect of, A. §§40, 51; T. §§145, 174. effect of failure to note, A. §§54, 63, 73; T. §§137, 145, 173-4. entry of to be brought forward on subsequent certificate, A. §§39, 100; T. §187. exception, T. §170. exclusive method of giving notice of, A. §40; T. §245. form of request for, A. §114. verification of, A. §114; T. §173. method of, A. §61; T. §§173, 175-7. privilege of, A. §51; T. §§145, 173. When retained on Title Register after involuntary transfer and when not, T. §170. Where land is freed from registration, A. §65; T. §§335-7. LIFE ESTATE:— See Estates and Interests Less Than Fee-Simple. INDEX. 423 References are to sections. A. § — means section of Act; T. § — means section of text. LIMITATIONS OF ACTIONS:— Against the assurance fund, A. §77; T. §§250, 353. disabilities suspending, A. §77; T. §353. For fraud or forgery, A. §63; T. §217. by summary proceedings, A. §59; T. §§182, 184. Set by the Act do not afifect other suits, A. §84; T. §354. Set by the Act no protection to officers, A. §84, T. §354. Twelve-months' limitation as to caveat to registration, A. §§59, 60; T. §§183-5, 338-331. not affect general jurisdiction of the courts, T. §238. LIS PENDENS:— See Adverse Claims; Equity; Judiciai, Proceedings; Writ of Er- ror. Cancellation of entry of: by order of judge, A. §§60, 63; T. §§181, 188. voluntary cancellation, A. §62; T. §§142, 180. form for, A. §116. attestation of, A. §62; T. §142. Inoperative against third persons unless registered, A. §§54, 73; T. §§173, 178. Notation of: effect of, A. §§51, 54; T. §§145, 178. form for requesting, A. §114. method of, A. §61; T. §178. necessity for, to protect writ of error, T. §233. LUNATICS:— See Infants and Other Persons Under Disabieity. MARRIAGE:— Change of name by, how registered, A. §53; T. §203. MARRIED WOMEN:— See Husband and Wife. MEASURE OF DAMAGE:— In actions against assurance fund, A. §77; T. §253. MESNE PROFITS:— No issue as to in registration proceedings, T. §115. MINERAL RIGHTS:— See Estates and Interests Less Than Fee-Simpee. 424 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. MINORS:— See Infants and Persons Under Disability. MORTGAGES:— See Creditor's Certificate; Liens and Encumbrances; Trans- fers IV. Cancellation of, involuntary, by order of judge, A. §§60, 62; T. §§181-2. voluntary, A. §C3; T. §142. form of request for, A. §116. attestation of, A. §62; T. §142. Clerk's fees, for cancelling, A. §130; T. §259. for registering, A. §120; T. §259. Examiner's preliminary report as to, A. §83. Foreclosure of, T. §162. How created on registered land, T. §§161-2. In standard form, how registered, A. §3«; T. §§161-8. certified copy of entry, A. §38; T. §244. certified copy of mortgage, A. §38; T. §§162-3, 244. standard form prescribed, A. §111. Not in standard form, how registered, A. §§38, 111; T. §162. Owner's certificate must be presented at registration of, A. §37; T. §§141, 161. Penalty for forgery of, A. §85; T. §258. Proof of in evidence, A. §38; T. §§162-3, 244. Registration takes place of recording, A. §§38, 40; T. §163. When clerk retains original and when not, A. §38; T. §168. MUNICIPALITIES:— Liability of tax-officer to, for failure to note delinquent taxes, A. §57; T. §177. Service of process on, A. §11; T. §67. To be named as defendant if tax owing to, T. §44. NAME:— Change of, how registered, A. §53; T. §303. NEW TRIAL:— See Writ of Error. Right of judge to grant, A. §20; T. §99. NEXT FRIEND:— See Infants and Other Persons Under Disability. INDEX. 425 References are to sections. A. § — means section of Act; T. § — means section of text. NON-RESIDENTS:— As cross-petitioners, T. §53. As petitioners, A. §7; T. §33. Designation of local agent or attorney by, A. §7; T. §33. Service of process on, by publication, A. §10; T. §64. constitutionality of, T. §19 (n. 3). stands as personal service, A. §§14, 77; T. §251. NOTATION OF ADVERSE CLAIMS:— See Adverse Claims; Equity; Judgments and Decrees; Judiciai, Proceedings; Liens and Encumbrances; Registration; Taxes AND Assessments. NOTICE:— See Acknowledgment of Service; Advertisement; Service of Process and Notice. All given under the Act stand as personal service, A. §§14, 77; T. §§74, 351. Constitutionality of the provisions of the Act as to, T. §19. Examiner's preliminary report as to, A. §16; T. §§83-4. Form of clerk's certificate as to, A. §91. Form of sheriff's return as to, A. §90-. Form of, to be posted on the land, A. §88. Judge's power to prescribe methods of, A. §§10, 58, 73; T. §§65, 135, 166, 182. No denial of after judgment, A. §13; T. §§74, 101. Of, application for duplicate on loss of owner's certificate, A. §58; T. §135. application for involuntary transfer, A. §50; T. §166. application for order of transfer to purchaser at sale un- der creditor's certificate, A. §35; T. §§155, 160. application for order of transfer where title held in trust or on condition or unusual limitations or powers, T. §204. caveat to registration, A. §60; T. §§181-3. filing of examiner's final report, A. §30'; T. §§56, 95. hearing before examiner, A. §19; T. §§56, 88. survey, A. §33; T. §100. "Possession is notice" — rule abolished a? to registered land, T. §345. Posting of, on the land, A. §14; T. §71. Publication of, see Advertisement. in proceedings to establish heirship, A. §45; T. §§195-7. 426 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. NOTICE:— (Continued). in proceedings to obtain duplicate owner's certificate, A. §58; T. §135. of cancellation of owner's certificates on involuntary trans- fer, A. §53; T. §§169, 17S. of court's action on caveat, A. §60; T. §§181, 185. on initial registration, A. §14; T. §64. contents of notice, A. §§10, 98; T. §64. recital as to in decree, conclusive, A. §13; T. §§74, 101. Registration supersedes other forms of, A. §§40, 73; T. §245. To judge of the filing of examiner's report, A. §20; T. §97. To judge of the filing of initial petition, A. §16; T. §79. To occupants of the land, A. §14; T. §73. To parties disclosed by examiner's report, A. §17; T. §75. Waived by appearance or pleading, A. §14; T. §69. Waiver in writing — see Acknowledgment of Service. What constitutes lack of, so as to give action against assurance fund, T. §251. Where clerk refers doubtful matter to judge, A. §59. OATH:— See VBRiFicaTion. Of examiner, see Examiner. OCCUPANCY:— See Adjoining Owners and Occupants, Leasbs, Possession. Notice to occupants of the land, see Notice. ORDER OF TRANSFER:— See Judge's Order of Transfer. ORDINARY:— Act in lieu of disqualified clerk, A. §69; T. §267. To allow examiner free access to records, A. §68; T. §82. OFFENSES:— Defined and punishment prescribed, A. §85; T. §258. OWN:— Definition of the word, as used in the Act, T. §26. OWNER'S CERTIFICATE:— As a source of title where land freed from registration, A. §65; T. §337, 246. INDEX. 427 References are to sections. A. § — means section of Act; T. § — means section of text. OWNER'S CERTIFICATE:— (Continued). As evidence, T. §§339, 346. how given full evidentiary value, A. §118; T. §337. Cancellation of: as a result of caveat, A. §60; T. §§181, 185. as a result of involuntary transfer, A. §53; T. §§169, 171, 173. ■by advertisement, A. §53; T. §§173, 181. none on registration of voluntary transfer of an undivided interest, A. §31; T. §148. on death of owner, A. §§44, 45; T. §§191-2, 196-7. on registration of voluntary total transfer, A. §30; T. §147. on registration of voluntary transfer of divided portion of tract, A. §31; T §151. Copy of plat or detail recorded outside the register may be at- tached to, A. §§103, 104; T. §133. Creditor's certificate to be noted on, A. §33; T. §153. Definition of, T. §31. Duplicate of, how and when issued, A. §58; T. §135. admissibility in evidence, T. §340. clerk's fees for issuing, A. §130; T. §359. effect of, A. §58; T. §135. Entry of "Valid with all entries notes," A. §118; T. §237. clerk's fee for making, A. §130; T. §359. Form and design of, A. §105; T. §§133-4. Issuance of: on initial registration, A. §28; T. §133. on owner's death to personal representative or heirs, A. §§44-5; T. §§191-3, 197. on voluntary partial transfer (divided portion), A. §31; T. §151. on voluntary partial transfer (undivided portion), A. §31; T. §148. on voluntary total transfer, A. §30; T. §147. Loss of, duplicate how procured, A. §58; T. §135. Minute dating of all entries on, A. §39; T. §273. Must accompany registration of all voluntary transactions of the owner, A. §§37, 117; T. §§140-1, 150, 310. transfer to secure debt, A. §33; T. §153. None in favor of owner of estate less than fee-simple, T. §150. Penalty for stealing, forging or counterfeiting, A. §85; T. §358. Production of, how compelled, generally, A. §52; T. §169. when caveat is filed, A. §60; T. §185. when co-owner desires to register voluntary transactions, T. §149. 428 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. OWNER'S CERTIFICATE:— (Continued). Transfer of, as security for debt, A. §3«; T. §152. See also Creditor's Certificate. Uncanceled entries to be brought forward on reissue of, A. §§39, 100; T. §187. exception in case of involuntary transfer, T. §170. PARCEL:— See Tract. PARTIAL TRANSFER:— See Transfers. Defined, T. 21. PARTIES:— See Defendants; Petition For Initial Registraton. Examiner's powers as to, A. §34; T. §89. Joinder, substitution or striking of, A. §34; T. §57. Persons dealing with the land pending registration proceedings, A. §35; T. §60. To actions against assurance fund, A. §78; T. §355. PARTITION:— Among heirs, A. §45; T. §§196-7. Result of partition proceedings, how registered, T. §206. PERJURY:— In registration proceedings — punishment of, A. §85; T. §358. PERSONAL REPRESENTATIVE:— See Administrators and Executors. PETITIONS:— See Petition For Initial Registration. To etsablish estate less than fee. See Estates and Interests Less Than Fee. To establish heirship. See Descent and Distribution. PETITION FOR INITIAL REGISTRATION:— See Cross- Petition ; Defendants; Parties; Registration II. Abstract of title to accompany, A. §7; T. §50. See Abstract of Title. Acknowledgment of service on, see Acknowledgment of Service. INDEX. 429 References are to sections. A. § — means section of Act; T. § — means section of text. PETITION FOR INITIAL REGISTRATION:— (Continued). Adjoining owners and occupants to be set forth in, A. §7; T. §45. See catchword, "Suggestions,"' below. All adverse claims to be disclosed in A. §7; T. §44. See Adverse Claims; also catchword "Suggestions," below. All cotenants must join in, A. §5; T. §25. See Cotenants. Amendment of. See Amendments. Contents of stated, A. §7; T. §§31-51. See Catchword "Sugges- tions" below. Defendants to be named in, A. §9; T. §§48-9. See Defendants; also catchword "Suggestions" below. Description of the land in, A. §7; T. §§34-6. See Description of the Land; also catchword "Suggestions" below. Dismissal of: allowed or ordered when, A. §33; T. §§103-5. where plaintiff fails to prove title, T. §103. where plaintiff proves estate less than fee, T. §104. amendment to avoid dismissal, T. §104. where plaintiff proves only an undivided interest, T. §105. Docketing of, T. §24. Filing of, A. §10; T. §24. Form of, A. §86. See catchword "Suggestions'" below. Liens, encumbrances, etc., to be disclosed in, A. §7; T. §§44, 46. See Liens and Encumbrances; also catchword "Suggestions" below. Names and addresses of all interested persons to be given, A. §7; T. §44. See catchword "Suggestions'" below. Occupancy of the land to be disclosed in, A. §7; T. §43. See catchword "Suggestions" below. Ordinary rules of procedure generally applicable to, T. §13. Petitioners: corporation as, A. §5; T. §§27-8. equitable owners as, T. §26. executors as, T. §27. infants and others under disability as, A. §5; T. §29 nonresidents as, A. §7; T. §33. appointment of local agent or attorney, A. §§7, 86(4); T. §33. person or corporation havifig power of appointing or dis- posing of an estate in fee, A. §5; T. §27. trustee as, T. §27. unincorporated associations, T. §28. who competent as, A. §5; T. §§25-9. 430 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. PETITION FOR INITIAL REGISTRATION:— (Continued). in case of bond for title or executory sale, T. §26. when security deed is outstanding, T. §26. Process on, see Process. Reference to examiners, see Examiners. Several separate tracts included in, when, A. §8; T. §35. severance as to, when ordered, T. §§35, 58-9, 106. Suggestions as to preparation of: allegation as to: age of applicant, T. §47. assessment for taxation, T. §37. dower, T. §42. easements, T. §46. estate or interest claimed, T. §38. homestead or exemption, T. §42. liens, encumbrances, etc., T. §44. occupancy, T. §43. source of ownership, T. §39. title by prescription, T. §40. title papers, T. §41. unpaid taxes, T. §44. value, T. §37. appointment of local agent or attorney by non-resident pe- titioner, T. §33. attaching abstract of title, T. §50. description of the land, T. §§34-6. dividing tract into parcels, T. §36. including several parcels in same petition, T. §35. listing adjoining owners and occupants, T. §45. listing adverse claimants, T. §44. naming the defendants, T. §49. husband or wife, as defendant, T. §48. unknown or of unknown address, how designated, T. §44. Tract divided into parcles, A. §8; T. §36. Venue of, A. §§2, 5; T. §33. land divided by county line, T. §23. Verification of, A. §§7, 86; T. §51. PLAT:— See Survey. Certified copy of as evidence, T. §242. Outside recordation of, A. §102; T. §121. Surveyor to make, when, A. §22; T. §100. INDEX. 431 References are to sections. A. § — means section of Act; T. § — means section of text. PLEADING AND PRACTICE:— See Appearancb; Dbfensive Pleadings; Demurrer; Petition For Initial Registration; Registration II and III; Summary Proceedings. Before examiners, see Examiners. Equitable pleading and practice in suits for registration, A. §5; T. §23. Ordinary rules of procedure generally applicable, T. §13. Power of Judges in conversion to prescribe, A. §70; T. §2&6. Slackness of not to be allowed, T. §55. POSSESSION:— See Prescription. Adverse, no rights in registered land affected toy, A. §66; T. §238. Adverse, not prevent sale by executor or administrator, T. §189. History of in examiner's preliminary report, A. §16; T. §85. Rule that, "Possession is notice," abolished as to registered land, T. §245. Statement as to initial petition, A. §7; T. §43. POWERS:— Holder of power of appointing or disposing of the fee-simple as petitioner for initial registration, A. §5; T. §27. Transfer coupled with — see Transfers. Transfer by holder of — see Transfers. PRACTICE:— See Pleadings and Practice. PRESCRIPTION:— See Possession. None against registered owner, A. §66; T. §232. Title toy, how alleged in initial petition, A. §86(11); T. §40. Title by, will support petition for registration, T. §94. PROCEDURE:— See Pleading and Practice; Petition for Initial Registration; Registration II and III; Summary Proceedings. Ordinary rules of, generally applicable in registration proceed- ings, T. §13. Power of judges in convention to prescribe, A. §70; T. PROCEEDINGS ON INITIAL REGISTRATION:— See Petition For Initial Registration; Registration II. 432 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. PROCESS:— Copies and second originals, A. §10; T. §63. Defendants to be named in, A. §10; T. §62. Form of, A. §87. Issued by the clerk, A. §10; T. §62. Service of, see Service. Time of return, A. §10; T. §63. "To whom it may concern," A. §§4, 10; T. §62. Waiver of .by appearance and pleading, A. §14; T. §69. Waiver of in writing, A. §13; T. §68. See Acknowledgment of Service. PRODUCTION OF BOOKS AND PAPERS:— See EviDBNCB; Examiners. PROTEST TO SURVEY:— Filing and trial of, A. §23; T. §100. PUBLICATION:— Service by, see Service of Process and Notice. RAILWAYS:— In actual operation, excepted from registration, A. §63; T. §§211, 225. RECEIVER:— How registered title may be conferred on, T. §§307-8. Sales by — how title transferred to purchaser, T. §168. RECORDATION:— Of instruments not in standard form, A. §38; T. §§143, 162-3. Of lengthy details, A. §103; T. §129. Of plats, A. §102; T. §121. Of transfers in trust or with powers or on condition or unusual limitations, A. §38; T. §163. Registration a substitute for, A. §§38, 40; T. §345. REGISTER OF DECREES OF TITLE:— See Decree of Title. Duty of county authorities to furnish, A. §38; T. §371. Enrollment of decrees of title thereon, A. §§28, 97, 98; T. §§119- 123 Form and design prescribed, A. §98; T. §119. Index to, how kept, A. §§28, 98; T. §§119, 123. INDEX. 433 References are to sections. A. § — means section of Act; T. § — means section of text. REGISTER OF DECREES OF TITLE:— (Continued). Method of enrolling decrees thereon, A. §98; T. §§120-123. dating the entry, A. §29; T. §§122, 273. numbering, A. §98; T. §120. outside recordation of plats and details, A. §102; T. §121. Supervisory powers of Attorney-General over, T. §274. REGISTER OF TITLES:— See TiTLB Register. REGISTERED LAND:— See Registration; Titi,i;. As liquid security, T. §8. Definition of the phrase, A. §3; T. §21. Disposition of on death of owner, A. §§42-7; T. §§188-199. See Administrators and Executors; Descent and Distribution. Not affected by unregistered transaction or claim, A. §§63, 73; T. §§137, 145, 173-4. Safety and certainty of ownership of, T. §9. See Conclusiveness. Subject to same rights and burdens as other lands, A. §73; T. §§3, 11, 12, 137. Subject to the ordinary jurisdiction of the courts, A. §73; T. §§3, 11, 12, 137-8, 205-7. REGISTRATION :— See Certificate op Titie; Decree of Title; Land Registration Act; Registered Lands. I. Generally. II. Proceedings on Initial Registration. III. Matters Subsequent to Initial Registration. I. Generally. Acknowledgment or waiver of service in proceedings relating to, A. §12; T. §68. See Acknowledgment of Service. Advantages of, T. §§6-10. As a substitute for recordation, A. §§38, 40; T. §245. As localizing the evidence of title, T. §7. As Synchronizing title in evidentiary sense with title in sense of ownership, T. §6. As the exclusive method of perfecting rights against registered land, A. §§40, 63, 73; T. §§137-8, 145, 211-233, 239, 245. Certified copies on matters relating to, how procured, A. § 101; T. §241. See Evidence. —28 434 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. REGISTRATION, I.:— (Continued). Clerk's relation to, A. §§59, 106; T. §§16, 228-9, 269, 270, 275. See Clerk. liability of the Clerk as to, A. §§13, 59, 84, 106; T. §§73, 257, 269. Clouds upon title prevented by, T. §§10, 167. Compared with other methods of evidencing title, T. §5. Complete system of, created by the Act, T. §§13, 275. continuous nature thereof, T. §136. general outlines, T. §15. practicability and simplicity, T. §14. Conclusiveness of, see Conclusiveness. Courts alvi^ays open for purposes of, A. §67; T. §§167, 265. Covenant attached to title by, A. §64; T. §§20, 117. Date of, as date when transaction becomes operative, A. §73; T. §137. Does not change ordinary rights and burdens of ownership, A. §73; T. §§3, 11-2, 137. Does not destroy jurisdiction of the courts over registered lands, A. §73; T. §§11-3, 137-8, 205-7. See Equity; Judicial Proceed- ings. Effect of reversal of judgment authorizing, T. §233. Extraordinary situations in respect to, how dealt with, T. §275. Freeing land from, see Freeing Land From Registration. General objects of, stated, T. §4. Harmony between registration and ordinary court jurisdiction, T. §138. Judge's relation to, A. §§59, 60 ; T. §§16, 328-9, 275. See Judge. Jurisdiction of the superior courts over, A. §3; T. §16. Land rendered a liquid security by, T. §8. See Registered Lands. Land values increased by, T. §8. Minute dating of all entries relating to, A. §39; T. §373. Offenses relating to, punishment of, A. §85; T. §358. Of lengthy details, A. § 103; T. §§ 121, 139. Of plats, A. §103; T. §131. Permanent filing of all papers relating to, A. §119; T. §373. Safety and certainty of landownership assured by, T. §9. See Conclusiveness. Suggestions to clerk in respect to, T. §§270, 275. See Clerk. Venue of proceedings relating to, A. §2; T. §23. II. Proceedings on Initial Registration. See Amendments; Cross- Petition; Decree oe Title; Defendants; Defensive Pleadings; Dismissal; Examiners; Evidence; INDEX. 435 References are to sections. A. § — ■ means section of Act; T. § — means section of text. REGISTRATION, II.:— (Continued). Judgments and Decrbes; Parties; Petition foe Initial Reg- istration ; Process ; Service of Process and Notice ; Severance. Assessment for assurance fund, A. §74; T. §249. See Assurance Fund. Begun by petition, A. §5. See Petition For Initial Registration. Boundaries permanently marked how, A. §§7, 22; T. §100. See Survey. Cardinal features of, summarized, T. §275. Constructive seizure of the land, A. §14; T. §§19, 71-2. Dealings with the land pending, A. §25; T. §60. Decision of the cause, A. §26; T. §101. See Judgment and Decree. Equity pleading and practice applicable to, A. §5; T. §22. but not equity jurisprudence, T. §22. Exclusive jurisdiction of superior court over, A. §2; T. §§16, 23. Existence of liens and encumbrances no obstacle to, A. §5; T. §25. Piling away of documents relating to, A. §119; T. §272. Fraud in, T. §219. In-rem nature of the proceedings, A. §4; T. §§19, 22, 70-1, 167. Jury trial in, how obtained, A. §20; T. §§97-8. No issue as to improvements or mesne profits, T. §115. No judgment by default in, A. §21; T. §102. Not a substitute for ejectment or other possessory action, T. §115. Persons dealing with the land pending, to become parties, A. §25; T. §60. Petition to establish estate less than fee, A. §6; T. 30-1. See Estates and Interests Less Than Fee-Simple. Several tracts included, when, A. §8; T. §§35, 106. Tract divided into parcels, A. §8; T. §§36, 107. Undivided interests not subject to initial registration, A. §5; T. §§25, 105. Who authorized to institute, A. §5. See Petition For Initial Reg- istration. Venue of registration, A. §3; T. §23. Writ of error to, A. §§20, 82; T. §118. See Writ of Error. Ill, Matters Subsequent to Initial Registration. See Involuntary Transactions; Summary Proceedings; Trans- fers ; Voluntary Transactions. Cardinal provisions as to summarized, T. §375. Creditor's certificate — see Creditor's Certificate. Effect of failure to register, A. §§40, 63, 73; T. §§ 138, 145, 345. Effect on, where land freed from registration, A. §65; T. §§336-7. See Freeing L,and From Registration. 436 INDEX. References are to sections. A. S— means section of Act; T. §— means section of text. REGISTRATION, III.:— (Continued). Entries by clerk prima facie conclusive, A. §59; T. §§228-331. caveat to, A. §§59, 60; T. §§181-5. See Caveat. twelve-month's limitation, when applicable, A. §59; T. §§229, 330. Entries to be brought forward, A,. §§39, 100; T. §187. exception in case of involuntary transfers, T. §170. Errors in registration, how corrected, A. §60; T. §183. Extraordinary situations, how dealt with, T. §275. Filing away of instruments relating to, A. §§38, 119; T. §273. when clerk keeps original and when not, A. §38; T. §§162-3. Liability of clerk as to, A. §§59, 84, 106; T. §§257, 369. Minute dating of all entries relating to, A. §39; T. §373. Notation of liens, encumbrances, etc., see Liens and Encum- brances. judgment liens, see Judgments and Decrees. taxes and assessments, see Taxes and Assessments. Notation of lis pendens, see Lis Pendens. Owner's certificate must accompany registration of all voluntary transactions by the owner. A. §§ 37, 117; T. §§140-1, 270. Proceedings as to, are proceedings in rem, A. §4; T. §167. Registration of: adverse claims, see Adverse Claims. cancellation, see Cancellation. change of name, A. §53; T. §203. guardian's sale, T. §200. homestead or exemption, A. §117; T. §210. involuntary transaction, not involving transfer, T. §145. involuntary transfer, see Transfers III. result of condemnation proceedings, T. §202. transfers or dealings by those holding in trust or with pow- ers or on condition or unusual limitations, A. § 56; T. §204. transfer from hu.sband to wife and vice versa, A. §48; T. §301. transfer to personal representative on death of owner. See Administrator and Executors. transfer to heirs at law on death of owner. See Descent and Distribution. transfers to secure debt, see Transfers IV. voluntary transfers, generally, see Transfers, II. year's support and transfers thereof, T. §309. Right of any one to note adverse claim on Title Register, A. §51; T. §145. Supervisory powers of judge over, A. §§59, 60; T. §§139, 181-4, 270, 375. See Caveat; Summary Proceedings. RULES OF COURT:— Power of judges in convention to make, A. §70; T. §266. INBEX. 437 References are to sections. A. g — means section of Act; T. § — means section of text. SALES:— See Transfers. SECOND ORIGINALS:— See Service of Process and Notice. SECURITY DEED:— Effect of existence of, on right to register land, T. §26. How rights of holder are set forth in decree of title, T. §§110-2. SEIZURE OF THE LAND:— See Constructive Seizure of the Land. SERVICE OF PROCESS AND NOTICE:— See Notice; Process. Acknowledgment or waiver of, A. §12; T. §68. See Acknowl- edgment of Service. by appearance or pleading, A. §14; T. §69. form of, A. §89. All methods of, prescribed by the Act stand as personal serv- ice, A. §§14, 77; T. §§74, 251. By publication, A. §10; T. §64. See Advertisement; Notice, form of, A. §88. form of clerk's certificate as to, A. §91. Constitutionality of the provisions of the Act as to, T. §19. Duty of the judge to investigate and adjudge as to, A. §13; T. §§74, 101. Examiner's preliminary report as to, A. §16; T. §§75, 83-4. Form of clerk's certificate as to, A. §91. Form of sheriff's return as to, A. §90. In proceedings to establish heirship, A. §45; T. §195. In summary proceedings, A. §§60, 72; T. §§166, 182. Judge's power over, A. §§10, 72; T. §§65, 166, 182. Liability of officer for false return, A. §§13, 84; T. §§73, 255-7. Method of initial registration, A. §§10, 14; T. §§63-7, 72. On application for involuntary transfer, A. §50; T. §166. On. caveat to registration, A. §60; T. §§181-2. Provisions of the Act as to, not unduly onerous, T. §76. Recital of in decree of title — conclusiveness of, A. §13; T. §§73-4, 101. Relation between prescribed methods and the object of the suit, T. §61. Second originals and copies for, A. §10; T. §63. Sheriff's fees for making, A. §120; T. §261. Traverse of, none after judgment, A. §13; T. §§73-4. 438 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. SERVICE OF PROCESS AND NOTICE:— (Continued). Time of making, A. §10. power of judge to enlarge, A. §10; T. §65. Upon: additional defendants disclosed in course of proceedings, A. §§10, 17; T. §75. counties, A. §11; T. §67. infants and persons under disability, A. §10; T. §70. municipalities, A. §11; T. §67. non-residents, A. §10; T. §64. occupants of the land, A. §14; T. §72. representatives of a numerous class, T. §66. residents of the State, A. §10; T. §63. State Treasurer, A. §77. the State, A. §11; T. §67. unknown parties and parties of unknown address, A. §10; T. §64. SEVERANCE:— Assessment for assurance fund in case of, T. §349. Definition of, A. §58. Effect of, T. §59. Examiner's powers as to, A. §24; T. §§58, 89. For purpose of rendering final judgment, T. §106. Ordered or allowed, how and when, A. §24; T. §58. Record on appeal in case of, T. §59 (n. 1), §118. Terms imposed by the court, A. §24; T. §§59, 106. When petitioner has included tracts not held under same gen- eral claim of title, T. §§35, 106. SHERIFF:— See Service of Process and Notice. Actions against for wrong or neglect, A. §84; T. §257. As defendant in action against assurance fund, A. §78; T. §355. Constructive seizure of the land by, A. §14; T. §71. Crimes by, in relation to the Act, A. §85; T. §358. Deputy-sheriff: criminal responsibility of, A. §85; T. §258. duties of sheriff performed by, A. §83; T. §268. sheriff's responsibility for acts of, A. §83. Duty of, going on the land and obtaining name of occupants, A. §14; T. §71. posting notice on the land, A. §14; T. §71. serving resident defendants, A. §§10, 14; T. §§63, 73. INDEX. 439 References are to sections. A. § — means section of Act; T. § — means section of text. SHERIFF :— (Continued) . Fee bill, A. §120; T. §261. Form of return, A. §90. Liability for making false return, A. §§13, 84; T. §§73, 255. Limitations of the Act no protection to against action for wrong or neglect, A. §84; T. §257. Removal from office for offenses against the Act, A. §85; T. §258. Return as to occupancy of the land, A. §14; T. §73. Return of service, A. §90. not subject to traverse after judgment, A. §13; T. §§73-4. STATE OF GEORGIA:— Bound by decree of title, A. §27; T. §117. Liability of tax-officer to, for failure to register delinquent taxes, A. §57; T. §177. Service of process on, A. §11; T. §67. STATE TREASURER:— See Assurance Fund. STENOGRAPHER:— Compensation of, A. §§71, 120; T. §§93, 260. Employment of before examiner, A. §71; T. §93. SUIT FOR REGISTRATION:— See Petition For Initial Registration; Registration. SUMMARY PROCEEDINGS:— See Judge; Judge's Order oe Transfer. Application for involuntary transfer, A. §§49, 50, 52; T. §§166- 172. See Transfers IIL cancellation of owner's certificate, A. §52; T. §§169, 172. form of judge's order, A. §110. guardian ad litem for persons under disability, A. §50; T. §166. instructions by judge to clerk, T. §170. Application for transfer to purchaser at sale under creditor's certificate, A. §35; T. §160. See Creditor's Certificate. Application to confirm sale by administrator or executor, T. §§189-193. See Administrators and executors. Application to establish duplicate of lost owner's certificate A. §58; T. §135. Attacks for fraud or forgery by, A. §63; T. §§184, 217. By trustees or personal representatives to determine beneficia- ries or heirs, A. §47; T. §198. 440 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. SUMMARY PROCEEDINGS:— (Continued). Caveat to registration, A. §§59, 60; T. §§183-5. See Caveat. filing and notation of, A. §60; T. §182. Clerk's fee in connection with, A. §130; T. §259. Conclusiveness of registration not to be aflfected by, T. §228. Correction, cancellation or modification of entries and registra- tions, A. §60; T. §§183-5. See Caveat. Courts always open for purposes of, A. §67; T. §§167, 265. Distinguished from general jurisdiction of the courts, T. §185. Errors on register, corrected through, A. §60; T. §183. In rem character of the proceedings, A. §4; T. §167. Judge's duty as to bona fide justifiable controversies developed on, T. §167. Judgment on, T. §166. provisional nature of in contested case, T. §183-5. writ of error to, A. §82; T. §§118, 167. See Writ of Error. Judicial nature of the proceedings, T. §167. Notice to the parties: generally, A. §50; T. §§166, 183. judge's power to provide for, A. §72; T. §§166, 182. Proceedings to establish heirship, A. §§45, 47; T. §§195, 198. Registered rights of third persons to be protected, T. §§183, 185, 228. Twelve-months' limitation in cases of transfers and cancella- tions, A. §59; T. §§182-5, 229-231. Where clerk refers doubtful matter to judge, A. §59; T. §§131, 369, 270, 275. method of applying, T. §131. notation to be made in register, T. §270. Where one holding title in trust or with powers or on condition or unusual limitations seeks to transfer or deal with the land, A. §56; T. §304. as to administrators or executors, see Administrators and Executors. sale of homestead, T. §210. sale of year's support, T. §209. SUPERIOR COURT:— See Court. SUPREME COURT:— See Writ of Error. SURVEY:— Notice of, A. §22; T. §100. INDEX. 441 References are to sections. A. § — means section of Act; T. g — means section of text. SURVEY :— (Continued). Ordered how and when, A. §§7, 22; T. §§34, 89, 100. Protest to, how filed and tried, A. §22; T. §100. Surveyor's compensation, A. §120; T. §262. TAXES AND ASSESSMENTS:— Allegation as to in petition for initial registration, T. §44. Delinquent: as an involuntary transaction, A. §3; T. §21. cancellation of entry of, A. §62; T. §§181-2, 186. form of noting, A. §112. how noted, A. §57; T. §177. liability of tax officer for failure to note, A. §57; T. §177. must be registered to bind the land, A. §57; T. §177. when to be noted, A. §57; T. §177. Examiner's preliminary report as to, T. §83. For the current year excepted from registration, A. §63; T. §§211, 220, 223. Tax-sales — how title transferred to purchaser at, T. §168. TENANTS IN COMMON:— See CoTENANTs. TIMBER RIGHTS:— See Estates and Interests Less Than Fee-Simple. TITLE:— See Abstract of Title; Bond For Title; Decree of Title; Estates; Estates and Interests Less Than Fee-Simple; Prescription. All matters affecting must be entered in Title Register, A. §§28, 40, 63, 73; T. §§137-8, 145, 339, 245. By prescription, how alleged in petition for initial registration, A. §86(11); T. §40. none against registered owner, A. §66; T. §232. By year's support, how registered, T. §20-9. Clouds upon, prevented by registration, T. §§10, 167. Covenant attached to by registration, A. §64; T. §§20, 117. Deeds and other title-documents, necessity of keeping dispensed with by registration, T. §§7, 9. Description of, in initial petition, A. §§7, 86; T. §§38-41. Dual sense of the word, discussed, T. §2. Equitable, how enforced after registration, see Equities. Equitable title may be registered, when, T. §26. Evidence of, localized by registration, T. §7. 442 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. TITLE:— (Continued). Exact status of, permanently disclosed by registration, T. §10. See Conclusiveness. Freed from registration, A. §65; T. §235. See Freeing Land From Registration. In substantive sense not affected by registration, A. §73; T. §|2, 3, 12. Last certificate as a source of, where land freed from registra- tion, A. §65; T. §237. Limitations and conditions affecting to be set forth in certifi- cate of title, T. §129. in decree of title, A. §26; T. §§111-3. Methods of evidencing, discussed, T. §§5-7. Of registered owner, not affected by adverse possession, A. §66; T. §232. Petitioner must prove though no objections filed, A. §21; T. §§94, 102. Proof of, before examiner, T. §94. Quieted by decree of title, A. §27; T. §§9, 117. Safety and certainty of, assured by registration, T. §9. State of, to be shown in examiner's final report, A. §20; T. §95. To estate less than fee-simple — established but not registered, A. §6; T. §§30, 104. Transfer of, see Transfers. Transmission of, on death of owner, A. §§42-7; T. §§188-198. Vested by registration, A. §§4, 27; T. §117. What kind will support petition for registration, A. §5; T. §§25-6, 94. TITLE REGISTER:— See Certificate of Title; Registration. All entries and registrations on, prima facie conclusive, A. §59; T. §§328-231. caveat to, A. §§59, 60; T. §§182-5. See Caveat. twelve-month's limitation, when applicable, A. §59; T. §§339- 331. All matters affecting registered land must be entered on, A. §§40, 63, 73; T. §§137-8, 145, 211-333, 339, 345. All voluntary and involuntary transactions to be entered thereon, A. §28. See Involuntary Transactions; Transfers; Voluntary Transactions. Certificate of title to be enrolled thereon, A. §§28, 99; T. §135. Certified copies of matters appearing on, how procured, A. §101; T. §241. Description of, A. §§28, 99; T. §134. Duty of county authorities to furnish, A. §38; T. §271. INDEX. 443 References are to sections. A. § — means section of Act; T. § — means section of text. TITLE REGISTER:— (Continued). Entries to be brought forward on, A. §§39, 100; T. §187. Form and design of, A. §99; T. §134. Index to, A. §§38, 99; T. §§124, 133. Minute dating of all entries thereon, A. §29; T. §273. Outside recordation of plats or lengthy details, A. §§103, 103; T. §§129, 375. Overcrowding of, how dealt with, T. §375. Penalty for crimes in relation to, A. §85; T. §258. Privilege of noting liens, encumbrances and adverse claims, A. §51; T. §145. See Adverse Claims, Liens and Encum- brances. Supervisory powers of Attorney-General over, T. §274. Supervisory powers of judge over, see Summary Proceedings. TORRENS SYSTEMS:— See Land Registration Act; Rbgistration. Distinguished from the Land Registration Act, T. §1. Historical sketch of, T. §1. (See also preface to the Appendix, p. 335). TOTAL TRANSFER:— See Transfers. Defined, T. §21. TRACT:— Definition of, T. §35. Divided into parcels, see Decree of Title; Petition for Initial Registration; Registration II. Including several in one petition, A. §8; T. §35. duty of sheriff to post separate notice on each tract, A. §14; T. §71. separate decrees to be rendered for each tract, A. §26; T. §§106, 109. severance as to, when ordered, T. §§58-9; T. §106. TRANSFERS:— See Involuntary Transactions; Registrations; Summary Pro- ceedings; Voluntary Transactions. I. Generally. II. Voluntary Transfers. III. Involuntary Transfers. IV. Transfer to Secure Debt. I. Generally. All registrations of, prima facie conclusive, A. §59; T. §§228-231. 444 INDEX. References are to sections. A. § — means section of Act; T. I — means section of text. TRANSFERS, I.:— (Continued). caveat to, A. §§59, 60; T. §§182-5. See Caveat, twelve-month's limitation, A. §59; T. §§239-231. Must be registered to affect the land, A. §§40, 63, 73; T. §§137-8, 245. Of lands on death of owner, A. §§42-7; T. §§188-198. See Ad- ministrators and Executors; Descent and Distribution. Procured by fraud or forgery, see Fraud, Forgery. To be entered on Title Register, A. §28. See Certificate of Title; Title Register. To free land from registration, see Freeing Land From Regis- tration. Uncanceled entries to be brought forward on new certificate, A. §§39, 100; T. §187. II. Voluntary Transfers. See Voluntary Transactions. Attestation of, A. §§30, 31; T. §§147-8, 151, 153. clerk's duty and liability as to, A. §106; T. §269. By corporations, T. §164. By trustee or quasi-trustee, A. §56; T. §204. by administrator or executor, see Administrators and Ex- ecutors. by head of family under homestead, T. §210. by widow under year's support, T. §209. Certified copies of entry of registration of — use and effect of, A. m-, T. §244. Forms of, A. §107. Husband to wife, A. §48; T. §201. Instrument of, when retained by clerk, when not, A. §38; T. §158. In trust or with powers or on condition or unusual limitations, A. §§30, 38. how registered, A. §38; T. §163. next succeeding transfer, how registered, A. §56; T. §204. Not in standard form, how registered, A. §§38, 117; T. §163. Not to be registered unless owner's certificate accompanies, A. §§ 30, 31, 37; T. §§140-1. Not to be registered unless properly attested, A. §106; T. §269. Of estates less than fee-simple, A. §117; T. §150. Operate as a deed, A. §30; T. §147. Partial transfer: definition of, T. §21. of divided portion of tract, A. §31; T. §151. cancellation and reissue of certificates, A. §31; T. §161. cross-reference between certificates, A. §31; T. §151. INDEX. 445 References are to sections. A. § — means section of Act; T. § — means section of text. TRANSFERS, II.:— (Continued). description of portion transferred, A. §31; T. §151. registration of, A. §§31, 38; T. §§151, 163. of undivided interest, A. §31; T. §148. certificates not to be cancelled, A. §31; T. §148. exception in case of transfer on death of co-owner, A. §44; T. §193. registration of, A. §§31, 38; T. §§148, 163. transfer not to be written on owner's certificate, T. §148 (n. 2). wher« co-owner refuses possession of certificate for the registration of, T. §149. To free land from registration, see Freeing Land From Regis- tration. To hinder, delay or defraud creditors, A. §55; T. §307. Total transfer, A. §30; T. §147. definition of, T. §31. cancellation and reissue of certificates, A. §30; T. §147. not in standard form, A. §38; T. §163. registration of, A. §30; T. §147. Wife to husband, A. §48; T. §301. III. Involuntary Transfers. See Judge's Order op Transfer; Summary Proceedings. As the result of judicial proceedings: application for, A. §50; T. §§168, 305. guardian ad litem for persons under disability, A. §50; T. §166. how efiEectuated, A. §50; T. §§305-7, 166-9. how registered, A. §49; T. §§305-7. transactions in fraud of creditors, A. §55; T. §307. Directions to clerk to be given, T. §170. Form of judge's order of^ A. §110. Generally: application for, A. §50; T. §168. guardian ad litem for persons under disability, A. §50; T. §166. cancellation of owner's certificate, A. §53; T. §169. by advertisement, A. §53; T. §173. how effectuated, A. §§50, 53; T. §§166-172. production of owner's certificate for cancellation how com- pelled, A. §53; T. §169. On: bankruptcy of the owner, T. §§168, 333. execution sale, T. §168. 446 INDEX. References are to sections. A. § — means section of Act; T. § — means section of text. TRANSFERS, III.:— (Continued), receiver's sale, T. §168. sale under creditor's certificate, A. §35; T. §160. tax sale, T. §168. Registered only on order of judge, A. §41; T. §§144, 166. Transfer by death of owner, A. §§43-47; T. §§188-198. See Ad- ministrators and Executors; Descent and Distribution. IV. Transfer to Secure Debt. See Cisditor's Certificatb. Ordinary, A. §36; T. §§152, 157. bond for title to debtor, A. §36; T. §153. Original instrument of transfer, when retained by clerk, A. §38; T. §158. Owner's certificate must accompany registration of, A. §§33, 37; T. §141. With power of sale without foreclosure, A. §§33, 38; T. §153. attestation of, A. §33; T. §153. creditor's certificate on, see Creditor's Certificate. form prescribed, A. §§107, 109. in standard form, A. §32; T. §153. not in standard form, A. §38; T. §§156-8. not to be written on owner's certificate, T. §153 (n. 1). registration of, A. §§33, 38; T. §§156-8. TRUSTS AND TRUSTEES:— See Administrators and ExecuTORS. No action against assurance fund for injury through breach of trust, A. §80; T. §254. Proceedings by trustees to determine beneficiaries, A. §47; T. §198. Registration does not prevent creation of, T. §3. Transfers by trustees and quasi-trustees, A. §56; T. §304. See Transfers. Transfers in trust, see Transfers. Trustees as petitioners for initial registration, A. §5; T. §§37, 29. UNDIVIDED INTERESTS:— See Cotenants; Transfers. Not subject to initial registration, A. §5; T. §25. Not to be freed from registration where jointly held., A. §65; T. §238. Registration of voluntary transfer of, A. §31; T. §§148-9. See Transfer II. INDEX. 447 References are to sections. A. § — means section of Act; T. § — means section of text. UNDIVIDED INTERESTS :—( Continued) . Transfer to personal representative on owner's death, A. §44; T. §192. See Administrators and Executors. UNINCORPORATED ASSOCIATIONS:— As petitioners for initial registration, T. §28. UNITED STATES:— Liens and rights arising under laws of, how far exempted from registration, A. §63; T. §§211, 221-3. UNKNOWN CLAIMANTS AND PERSONS OF UNKNOWN AD- DRESS:— See Whom It May Concbrn. How designated in petition for initial registration, T. §44. Service on, T. §64. constitutionality of the mode of service, T. §19 (n. 3). VENUE:— Of actions against assurance fund, A. §77; T. §250. Of registration proceedings, A. §3; T. §23, fixed by definition of word "court," A. §§2, 3; T. §§21, 33. lands divided by county line, T. §33. VERIFICATION:— Of amendments, A. §7; T. §57. Of cross-petition, T. §53. Of defensive pleadings, T. §54. Of petitions, A. §§7, 86; T. §51. Of petitions to establish heirship, A. §45; T. §195. Of request for notation of adverse claim on Title Register A. §114; T. §173. VOLUNTARY TRANSACTIONS:— Clerk registers without prior order of judge usually A «37- T. §§140, 270. exceptions stated, T. §140. Definition of the phrase, A. §3, T. §31. Homestead and exemption as, A. §3; T. §21. Not operative till registered, A. §§40, 73; T. §§137-8. Not otherwise provided for, how registered, A. §117; T. §143. Owner's certificate must accompany registration of A S37- T. §§140-1. ' • ^ ' Relating to lands held in trust or with powers or on condition or unusual limitations, A. §56; T. §204. 448 INDEX. References are to sections. A. § — means section of Act; T. §— means section of text. VOLUNTARY TRANSACTIONS:— (Continued). To be entered on Title Register, A. §38. See Title Register. Voluntary dealings with estates less than fee-simple are included in the definition of the phrase, A. §3; T. §31. Voluntary transactions not involving a transfer, see Cancella- tion, Homestead and Exemption; Mortgages. Voluntary transfers, see Transfers II. WAIVER:— Of service by appearance or pleading, A. §14; T. §69. Of service in writing, see Acknowledgment of Service. "WHOM IT MAY CONCERN:"— As defendants in initial registration, A. §§9, 86(36); T. §§53, 63, 64. Bound by all registration proceedings, A. §4. Bound by decree of title, A. §27; T. §117. Notices provided by the Act, stand as personal service on, A. §14; T. §74. Process directed to, A. §ia; T. §§62, 64. WIDOW:— See Dower; Descent and Distribution; Year's Support. WIFE:— See Husband and Wifb,. WILLS:— See Administrators and Executors. Transmission of title by, an involuntary transaction, A. §3; T. §21. WITNESSES:— Examiner as a witness to explain his report, T. §98. Interrogatories for, A. §30; T. §89. Power of examiner to compel attendance of, A. §30; T. §89. Testimony of taken by depositions before examiner, A. §80; T. §91. WORDS AND PHRASES DEFINED:— Actual notice, T. §351. Adjoining owners and occupants, T. §45. Belongs to, T. §26. Certificate of title, T. §31. Certificate of title number, T. §125. INDEX. 449 References are to sections. A. § — means section of Act; T. § — means section of text. WORDS AND PHRASES DEFINED:— (Continued). Clerk, A. §3; T. §21. Court, A. §3; T. §31. Fee simple, T. §35. Involuntary transaction, A. §3; T. §31. Judge, A. §3; T. §31. Judge of the court, A §3; T. §31. Judge of the superior court, A. §3; T. §31. Judge of the superior court of the county where the land lies, A. §3; T. §21. Land Registration Act, A. §1; T. §31. Lease, T. §224. Own, T. §36. Owner's certificate, T. §21. Parcel, T. §35. Partial transfer, T. §31. Register of Decrees of Title, A. §98; T. §120. Registered land, A. §3; T. §21. Registered title number, T. §§130, 125. Same general claim of title, T. §35. Severance, T. §58. Title, T. §2. Title Register, A. §99; T. §134. Total transfer, T. §21. Tract, T. §35. Voluntary transaction, A. §3; T. §31. WRIT OF ERROR:— Costs on. A. §130; T. §359. Dismissal of, when lis pendens not noted, T. §233. Effect of reversal of judgment authorizing registration, T. §233. Pendency of to be noted on Title Register, A. §54; T. §§118, 178. effect of failure to note, T. §233. Record on, where severance has been ordered, T. §59. Statement as to right of in decree of title, T. §114. To judgments and decrees, A. §82; T. §118. supersedeas, T. §118. To judgment on examiner's final report, A. §20; T. §99. YEAR'S SUPPORT:— Sales of, how registered, A. §56; T. §209. Title by, how registered, T. §§305-8.