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 PRINTED IN U S A 
 
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 http://www.archive.org/details/cu31924018815724 
 
AN ANALYSIS 
 
 OF THE 
 
 TORRENS SYSTEM 
 
 OF CONVEYING LAND 
 
 With References to the Torrens Statutes of Austral- 
 asia, England, Ireland, Canada and 
 the United States 
 
 WITH AN APPENDIX CONTAINING THE 
 ORIGINAL TORRENS ACT 
 
 By WILLIAM C. NIBLACK 
 
 OF THE CHICAGO J. AS. 
 
 Author of Mutual Benefit Societies and Accident Insurance, Abstracters and 
 
 Title Insurance, The Torrens System, Its Cost 
 
 and Complexity, and Etc. 
 
 CHICAGO: 
 
 CALLAGHAN & COMPANY 
 
 1912 
 
/3 ^o cy 
 
 COPYRIGHT 1912 
 BY 
 
 CALLAGHAN & COMPANY 
 
CORNilLLeUVERSiTl' 
 
 JUL Hl^12 
 LAW LIBRARY. 
 
 PREFACE. 
 
 In 1903, the legislature of Illinois passed an act, with a refer- 
 endum to the voters, providing for compulsory registration of 
 titles in certain cases. When the question of the adoption of 
 this act was before the voters in Cook County, a bitter con- 
 troversy arose, and immediately afterward a book entitled 
 ' ' The Torrens System, Its Cost and Complexity, ' ' was publish- 
 ed by the writer of this trieatise. It was merely a brief and 
 argument against that system, and gave little information con- 
 cerning its principles and the statutes establishing it in differ- 
 ent countries. While that book is on a par with most of the 
 controversial writings in this country on the subject of title 
 registration, it should not have been published. 
 
 As a stockholder, director and officer of the Chicago Title 
 and Trust Company for the past twenty years, the writer has 
 been interested in the study of the Torrens system. This work 
 is an attempt to analyze its principles, to set out its incidents, 
 to compare the statutory provisions of Torrens acts in different 
 countries, and to set forth and discuss the decisions which have 
 been rendered under those acts. The labor has been done in a 
 spirit of fairness to that great system of conveyancing, and 
 much care has been taken to make correct statements of law 
 and fact. In view of his interests, however, it is proper to sub- 
 ject any conclusions of the writer to any tests known to the 
 reader. 
 
 Perhaps any work attempting to analyze the Torrens system 
 should be written by some person known to have no bias for 
 or against the system, but a thorough knowledge of it is now 
 of little practical value to the general practitioner, and neither 
 reputation nor profit can be earned by writing a book which, 
 
in the nature of things, can have but a very limited circulation. 
 It is probable, therefore, that, such a book will be written only 
 by some interested person who is fond of recording the results 
 of his investigations. 
 
 In this work there is a repetition and reiteration of phrases 
 and ideas. This seems to be necessary for a full understanding 
 of the different phases and technicalities of the subject, when 
 discussed under topical heads. 
 
 The numerous references to and quotations from Australian 
 Torrens System, by James Edward Hogg, indicate clearly the 
 writer's appreciation of that thorough treatise. 
 
 WM. C. NIBLACK. 
 Chicago, January, 1912. 
 
CHAPTER I. 
 
 Origin and Adoption of the Torrens 
 
 System. 
 
 § 1. Land Registration. For more than two hundred and 
 fifty years the subject of registration of lands has been from 
 time to time before the Parliament of England and has en- 
 gaged the attention of the public writers of that country. An 
 act was passed in the reign of Queen Elizabeth requiring sales 
 of land to be enrolled in certain counties, but it was loosely 
 drawn and became inoperative. In 1617 another act was pass- 
 ed, but it met with the same fate. In 1649 and 1651 bills 
 were introduced, but were dropped. From that time on various 
 bills were introduced. Some of these were passed by Parlia- 
 ment, but few of them became effective. In England the great 
 objection to registration has been the publicity which it gives 
 to the condition of titles. The registries of the counties of 
 York and Middlesex, established about 1708, are still in exist- 
 ence, but they have never been popular and have never been 
 extended to other counties. All of the earlier bills and acts 
 provided for the copying or abstracting of deeds, but in 1862, 
 "An Act to Facilitate the Proof of Title to and the Conveyance 
 of Real Estate," generally known as Lord Westbury's act, 
 was passed. The object of this act was to register the title to 
 land. It was an utter failure from the start, and afterward 
 the land transfer act, 1875, commonly called Lord Cairn's act, 
 was passed. This law was also for the registration of titles. It 
 had a precarious existence for twenty-two years, when it was 
 modified and supplemented by the land transfer act, 1897. 
 
 During all these years land registration was freely dis- 
 cussed in periodicals, pamphlets and books, and there is a 
 
THE T0EEEN8 SYSTEM 
 
 great amount of literature on the subject. "Reasons against 
 the Bill for County Registers" was written in 1653. "Reasons 
 and Proposals for a Registry or Remembrancer of all Deeds 
 and Incumbrances of Real Estate to be had in every county, 
 most necessary and advantageous, as well for Sellers and 
 Borrowers, as Purchasers and Lenders. To the advance of 
 credit, and the general good, without prejudice to any honest 
 minded Person, most humbly offered to consideration," by 
 Nicholas Philpot, appeared in 1671. In 1694 a posthumous 
 work of Lord Chief Justice Hale was published, entitled, "A 
 treatise shewing how useful, safe, reasonable and beneficial 
 the Enrolling and Registering of all Conveyances of land may 
 be to Inhabitants of this Kingdom. ' ' Since that time a great 
 many publications have appeared on the subject of registries 
 and conveyancing, and many acts haver been passed by legisla- 
 tive bodies establishing systems of dealing with lands. 
 
 § 2. Four Systems of Dealing With Land. While the laws of 
 civilized countries differ greatly in the methods of dealing with 
 land, it is possible to classify these methods, and to divide 
 them into distinct systems of conveyancing. For many years 
 only three generic systems were used ; transfer without record- 
 ing or registering ; the ministerial system of recording or regis- 
 tering deeds; and the judicial system of registering lands. 
 "Within the past fifty-four years another system has been 
 adopted in many states and countries, namely, the system of 
 registering titles. 
 
 The First System is used in most of the counties of England 
 where land is transferred by the production and delivery of 
 all the title deeds, including one from the seller to the pur- 
 chaser. This may seem to us a very crude system of dealing 
 with land, but, under the laws, conditions and customs of that 
 country, it has served its purpose so well that the agitation 
 during the past two and one-half centuries for a change from 
 it has not been able to bring about more than a partial aboli- 
 tion of the system. Under the law of primogeniture the eldest 
 son inherits the real estate of a deceased person, and the title 
 papers go with the land. Except for this fact, the system 
 would not be practicable. Until the last fifty years land was 
 scarcely considered a commercial article or commodity in 
 
ORIGIN AND ADOPTION OF THE TOEEENS SYSTEM 
 
 England, and the comparative infrequency of transferring land 
 helped to maintain this system. According to an estimate, 
 made in the New Domesday book in 1871, there were only 
 about two hundred thousand landed proprietors in England, 
 and the most of these were opposed to any change which 
 affected lands or their titles. For the year 1909, the owner- 
 ship of land in England and Wales has been stated as follows : 
 400 peers and peeresses own 5,729,979 acres; 1288 great land- 
 owners own 8,497,699 acres ; 2529 squires own 4,319,271 acres ; 
 9585 greater yeomen own 4,782,627 acres ; 24,412 lesser yeomen 
 own 4,144,272 acres, 217,049 small proprietors own 3,931,806 
 acres; 703,289 cottagers own 151,148 acres, and 14,459 public 
 bodies own 1,443,548 acres. There are 1,524,624 acres of waste 
 land. From this it appears that more than half the area of 
 England and Wales is owned by a few thousand persons. Of 
 the 77,000,000 acres in England and Wales, 40,426,900, or 
 more than one-half, are owned by 2500 persons, and 38,200 
 persons own three-fourths of the total land area.^ Under the 
 system which we are considering, a proprietor may borrow 
 money oh the security of his land by depositing his title papers 
 with the lender, who thereupon obtains an equitable lien on 
 the land. This method of securing a loan is popular with both 
 borrowers and lenders, since it is cheap, safe and secret. Such 
 a system would not meet the necessities which arise from the 
 laws of our own states, but without a thorough knowledge of 
 the laws, customs and conditions in a foreign country, it is 
 unwise either to condemn or to approve any system of trans- 
 fer which has been established or has developed in that coun- 
 try. 
 
 § 3. The Second System. The system of transcribing title 
 papers at length on the public records of the county in which 
 the land lies is called the recording system, and it is the one 
 in general use in this country. The recording system is capable 
 of many modifications, and in some form it is in use in Prance, 
 Scotland, Ireland, Belgium, Italy, Spain, Canada, Australasia, 
 the British dependencies, Russia, Holland, Greece, Egypt, Port- 
 ugal, the Republics of South and Central America, parts of 
 
 1 England and the English, Price 4,500,000 acres of land in "Wales. 
 Collier, p. 107. There are about 
 
THE TOERENS SYSTEM 
 
 Switzerland, the counties of Middlesex and York in England, 
 and in parts of Asia and Africa. In some of these countries 
 there is established in the different districts an office in which 
 all instruments of title must be recorded in some manner, while 
 in others separate registries are provided for deeds and for 
 mortgages. In many countries title papers are not copied in 
 full, but when an executed instrument is presented to the pro- 
 per officer, a mere memorandum of it is made on his records. 
 In other countries a memorial is execute in a prescribed 
 form when the instrument is executed, and this memorial is 
 copied in the record. This record is not intended to show the 
 contents or effect of instruments, or to form a repository of 
 secondary evidence of interests in land. Its object is merely 
 to give information of the existence of instruments affecting 
 land, which might be suppressed otherwise, and only such 
 particulars as are necessary to identify the instruments are 
 placed on the record. The law of constructive notice is of 
 course different in the different countries, but in some coun- 
 tries the recording of an instrument is not in itself construc- 
 tive notice.^ 
 
 In most states in this country the recording system has been 
 very highly developed. In a general way it may be said that 
 all deeds, mortgages, certified copies of foreign wills and of 
 the probate thereof, and notices of mechanics' liens, affecting 
 real estate in a county, are filed and recorded at length in the 
 recorder's office of the county. Proceedings in court affect- 
 ing land, and judgments and decrees entered therein, and the 
 probate of estates are found in the records of the proper courts. 
 
 2 " It is true that a search care- the omission to search at all, but 
 
 lessly made may fail to discover a if proper care be used, or if, under 
 
 deed, and that if this be so the pur- the new rules, an official search be 
 
 chaser may be in a worse position applied for, this danger can be 
 
 than if the register had not been quite avoided. ' ' Registration in 
 
 searched — for a search in the regis- Middlesex, Brickdale page 3 (1892). 
 ter fixes the person on whose behalf "It has been decided that entry 
 
 it is made with notice of all deeds on the register does not operate as 
 
 registered in the period searched — notice, but the register is notice if 
 
 whether actually found or not, searched. ' ' Morris on Land Regis- 
 
 whether reported to the solictor or tration, page 50. This work is "a 
 
 not, whether mentioned by him to summary of the law of land and 
 
 his client or not. This rule does mortgage registration in the Brit- 
 
 not apply to official searches. ish empire and foreign countries, ' ' 
 
 This risk of constructive notice is and is an interesting and valuable 
 
 sometimes given for a reason for work 
 
ORIGIN AND ADOPTION OF THE TOEEENS SYSTEM 
 
 Taxes and special assessments on lands are spread on the rec- 
 ords of the treasurers. The proper records of all these mat- 
 ters are constructive notice of the contents of them to all the 
 world. The record of an instrument does not give to it any 
 validity as affecting the land, but it gives to the world con- 
 structive notice of its existence and of any claim which legally 
 may be made under it. The record preserves to the person 
 claiming under the instrument, and to all persons claiming 
 under him, an evidence of an interest in the land affected by 
 it. These records are searched by or on behalf of a person 
 interested in any particular piece of land, and everything per- 
 taining to that land is brought together chronologically, and 
 forms what is called an abstract of title to it. Ordinarily the 
 validity and merchantability of the title shown by the abstract 
 is determined for some interested person by a lawyer whom 
 he employs to examine and report on the title. In some parts 
 of this country this system has been in use for more than one 
 hundred and thirty years. 
 
 § 4. The Third System. The judicial system of registering 
 land is very broad and comprehensive. It embraces such regis- 
 trations as were made in some continental countries two cen- 
 turies or more ago. Some of its features are found today in 
 the laws of Russia, Turkey, Germany, Norway, Sweden, Den- 
 mark, Mexico, the Republics of Central and South America and 
 other countries. In these countries conveyancing and dealings 
 with land are done under judicial supervision, and are the 
 subject of entries made by courts. The modes of procedure 
 and the effect of these entries differ in the different countries, 
 but the underlying principle of the system is that title vests 
 from the date of the instrument when it has been presented to 
 the court and the proper entries concerning it have been made 
 on the records of the court. 
 
 § 5. The Fourth System. The distinctive feature of the 
 fourth system is that it registers and determines the condition 
 and ownership of the title to land, in lieu of registering instru- 
 ments as evidence of title. It has developed along certain 
 lines for more than half a century, and is commonly called 
 the Torrens system. "Wherever the English language is spok- 
 en it has been discussed and considered, and in many places 
 
THE TOEEENS SYSTEM 
 
 it has been adopted. Much has been written in favor of it 
 and against it. No harder things have been said of it than 
 have been said of it in South Australia, where it was first 
 adopted,* but it has frequently been the subject of violent 
 criticism and of extravagant praise. A careful study of the 
 system will doubtless disclose that it deserves neither the one 
 nor the other, and that, like most legal policies, it has its 
 advantages and its disadvantages. The scheme of the general 
 Torrens system is that the state, through the functions of a 
 registrar, vests and certifies to an indefeasible title to an inter- 
 est or estate in land. When a title is registered in the first 
 instance, or under a transfer from the last registered owner, 
 the statute declares the certificate to be evidence of an inde- 
 feasible title to the interest or estate registered, and the effect 
 of this is that the issue of the certificate, ipso facto, divests 
 any interest or estate which may exist in any other person and 
 vests it in the person registered as owner. There is, therefore, 
 on the part of an intending purchaser, no necessity for a retro- 
 spective examination of the title. The registered title is the 
 only title to registered land, though, as we shall presently see, 
 there are some rights and interests in land, which exist off the 
 register, and which must be examined aliunde. Under other 
 systems the efficacy of a deed depends on the validity of the 
 title of the grantor, but under the Torrens system titles are 
 vested by the state, by the act of registration, and a transfer 
 of land does not depend in the least on the validity of the title 
 of the transferror. Subsequent to initial registration, the title 
 to the registered interest or estate may not pass, except by the 
 entry on the register of the name and the interest and estate of 
 the transferree. All mortgages, liens and other matters affect- 
 ing the title must be noted on the page of the register set apart 
 for that land. This page of the register shows the condition 
 of the title, though instruments filed and not yet recorded 
 must be examined, and inquiry must be made concerning cer- 
 tain rights in the land. As an auxiliary to this scheme of 
 registering' indisputable titles, an indemnity fund is created, 
 out of which certain designated classes of persons may be 
 
 3 Hogg, Australian Torrens Sys- 
 tem, p. 22. 
 
OEIGIN AND ADOPTION OP THE TOREBNS SYSTEM 
 
 compensated for loss or damage suffered by them through its 
 operations. 
 
 § 6. Fragmentary History of the Torrens System, Austral- 
 asia. Several treatises have been written on the origin anii 
 early development of the Torrens system.* It is not necessary 
 to treat this subject at large in this work, but it may be ap- 
 propriate to give a brief account of the origin of the system 
 and of its adoption in different places. In the report of a com- 
 mission appointed in England to inquire into the state of the 
 law of real property, published in 1830, some of the features 
 which were subsequently embodied in the Torrens system were 
 discussed briefly and in a general way. It was suggested that 
 a registry might be established on the same principle as a reg- 
 ister of stocks, where title depends on an entry in a book and 
 not on an instrument, that a registry of land should be evi- 
 dence of title, and not merely evidence of a deed, that a reg- 
 istered proprietor should be the absolute owner, for all market- 
 able purposes, and that there should be a single estate iniland 
 instead of two estates, the legal and the equitable. This is the 
 first hint of the scheme of registering titles, of which there 
 is any record in England. But these propositions were first 
 formulated into a law in Australia. Robert R. Torrens, a mem- 
 ber of the first colonial ministry of the province of South Aus- 
 tralia, introduced in the new parliament a bill providing for 
 the registration of titles, and it became a law in 1858. The 
 method of dealing with titles provided for in this act became 
 known as the Torrens system. Concerning its adoption it has 
 been said: "The boldest effort to grapple with the problem of 
 simplification of title of land was made by Mr. (afterwards 
 Sir Robert) Torrens, a layman, in South Australia, in 1857. 
 "When he was a commissioner of customs in that colony he had 
 been struck by the comparative facility with which dealings 
 in regard to transfers of undivided shares of ships were car- 
 ried out imder the system of registration provided in the 
 Merchant Shipping Acts. Subsequently becoming a registrar 
 
 4 See Hogg, Australian Torrena Henry Pegram, member N. Y. com- 
 
 System, pp. 14-36, (1905). Morris mission on Torrens System, in pa- 
 
 on Land EegistTation, London, 1895. per presented to N. Y. Bar Ass 'n 
 
 Hunter, Torrens Cases, Toronto. January, 1908. 
 
THE TOERENS SYSTEM 
 
 of deeds, he became acquainted with the confusion and un- 
 certainty inseparable from most questions of title to land. He 
 devised a scheme of registration of title (as opposed to the old 
 schemes of registration of deeds), modelled on the Merchant 
 Shipping Acts, with such modifications as the different nature 
 of the subject-matter demanded. After some opposition his 
 scheme was passed through Parliament as the Real Property 
 Act (No. 15 of 1857-58). Torrens himself carried it into oper- 
 ation, and more than 1,000 titles were registered during the 
 first two years. The prospects of the system were so promising 
 that the other colonies soon followed the example of South 
 Australia. A similar act was passed in Queensland in 1861, 
 in New South "Wales, Victoria and Tasmania in 1862, ia New 
 Zealand in 1870, in Western Australia ia 1874, and in Fiji in 
 1876^- ' ' At the second session of the parliament of South Aus- 
 tralia sixty of the one hundred and twenty three sections of 
 the act of 1858 were repealed, and were generally replaced by 
 pro^sions of a similar import. In 1860 an entirely new act 
 was passed. In Australia there have been many amendments 
 to and revisions of the Torrens laws. This changing of these 
 laws has been summarized as follows: "The history of the Aus- 
 tralian acts is not favorable to their efficiency or permanence. 
 All of the acts have been amended or entirely repealed several 
 times. There have been in aU twelve Victorian acts. The 
 South Australian act of 1886 repealed a number of previous 
 acts, including the original act of 1861, and was followed by 
 three amendatory acts of 1886, 1887, and 1893. In "Western 
 Australia, the transfer of land act of 1893 repealed no less than 
 six previous acts. The land transfer act of New Zealand of 
 
 1885 also repealed six previous acts, and was itself followed 
 by two other acts, the last in 1889. And finally the Tasmania 
 real property act has, since its passage in 1862, been amended 
 six times— namely, in 1863, 1867, 1878, 1886, 1890 and 1893 ".« 
 The consolidated real property act, 1900, New South "Wales, 
 with the amending act, 1901, is the present law in that state. 
 The act of 1861, as copiously amended in 1877, 1884, 1885, 
 
 1886 and 1887 is the present law in the state of Queensland. 
 
 5 Transfer of Land Act, 1890. 6 Eef orms in Land Transfer, 
 
 DufEey and Eagleson, Melbourne, Olmstead, page 14. 
 1895. 
 
 8 
 
OEIGIN AND ADOPTION OF THE T0EBEN8 SYSTEM 
 
 The act of 1885, with the amendments of 1886, 1888, 1889, and 
 1902 is the present law in the state of New Zealand. The act 
 of 1886, as amended in 1887 and 1893, is the present law in 
 South Australia. The act of 1862, as amended in 1863, 1867, 
 1868, 1886, 1890 and 1903, constitues the present law of Tas- 
 mania. The consolidated act, 1890, as amended in 1890 and 
 1903, constitutes the present law of Victoria. The consolidated 
 act, 1893, which is quite similar to the Victorian act, with the 
 amendments of 1896 and 1902, constitutes the present registra- 
 tion system in "Western Australia. The Fiji Ordinance of 
 1876, with two immaterial amendments of 1883 and 1892, con- 
 stitutes the present system of registration in that colony. The 
 above acts are now respectively in use in the six states of the 
 Commonwealth of Australia, towit. New South "Wales, Victoria, 
 South Australia, Queensland, Tasmania and "Western Austra- 
 lia; in the self-governing colony of New Zealand, and in the 
 colony of Fiji.'' 
 
 In each of the states in Australasia some of the land is not 
 under the Torrens system, and in each of the states there are 
 registries of deeds for unregistered land. New South Wales 
 and Tasmania are the oldest states, and there is more unregis- 
 tered land in them than elsewhere in Australia, because since 
 1858 all lands from the crown have been put on the Torrens 
 register. 
 
 7. Title Registration in England. In 1886, Charles F. 
 Briekdale, now registrar of titles in London, made the follow- 
 ing statement concerning title registration in England: 
 "In 1862 the first English registration act, Lord "Westbury's, 
 was passed. Under its provisions, any freeholder, or leaseholder 
 for a substantial period, could apply for registration of his title. 
 In 1863, eight titles were registered; in 1864, eight; in 1865, 
 forty-eight; in 1866, one hundred and five; a slow but steady 
 rise in four years, indicating that the land owners and tlieir ad- 
 visers were not disinclined to give the system a trial, especially 
 when we consider that the scheme was quite new, little known, 
 and imperfectly understood. Nevertheless, the scheme failed. 
 After 1866 the applications fell off ; then several titles wc^re re- 
 moved from the register. In 1870 the number of titles regis- 
 tered in the year only amounted to twenty-nine; in 1875 the 
 7 Hogg, Australian Torrens Sys- 
 tem. 
 
THE TOEEENS SYSTEM 
 
 total was four. In 1868 a Eoyal Commission had been 
 appointed to inquire into the causes of the failure, and in ac- 
 cordance with their recommendations another act was drawn 
 up, — the Land Transfer Act, 1875, Lord Cairn's, — whereby it 
 was confidently hoped that the system might be made to work 
 better. How far that hope has been fulfilled, may be judged 
 from the fact that only 113 titles have been registered under it 
 altogether (down to December 23, 1885.) Another coroners 
 jury, in the shape of a select committee of the House of Com- 
 mons, sat upon this second fatality in 1878-1879. Their ver- 
 dict was, 'Death from force of circumstances;' and so the naat- 
 ter has been allowed to rest; and though registration of title 
 is admitted on many hands to be the most perfect system in 
 theory, yet many high authorities have nevertheless come to 
 doubt whether it can ever be established in England at all. 
 Many others too, as we have seen, have come to think that, if 
 registration of title is ever to be established, nothing but com- 
 pulsion will ever establish it. For Ireland an act similar to 
 Lord "Westbury 's English act was passed in 1865. The success 
 of this act may be estimated from the following circumstance : 
 By the end of 1871 rather less than five hundred titles had 
 been registered, while in 1879 the total seems to have reached 
 only six hundred and eighty-one. ' '* The act of 1875 was exten- 
 sively amended in 1897, and the present system of registration 
 in England is conducted under these two acts. They do not ap- 
 ply to Scotland, or Ireland. Concerning registration in Eng- 
 land it has been said: "The London Land registry office is lo 
 cated in a building specially erected for its purposes at a cost 
 of $1,325,000. It has a staff of about 250 of&cials, whose sal- 
 aries amount to about $250,000 annually. In a report made 
 in July 1907, by Robert J. Wynne, United States Consul Gen- 
 eral at London, it is stated that the expenses of the London 
 Land Registry office, for the year 1904-5, exceeded the receipts 
 by $55,000; the comparative results for the subsequent years 
 are not given. The system of compulsory registration of titles 
 upon sales has never been extended to any other county in 
 England and "Wales. According to reports received, in Novem- 
 ber andDecember, 1907, from U. S. Consular officials at Bristol, 
 Leeds, Liverpool, Nottingham and Manchester, the sentiment 
 of landowners, banks, building societies and land companies 
 is generally adverse to any further extension of the compulsory 
 area, while voluntary registration has been practically aband- 
 oned. According to a report made by the Registrar on Decem- 
 
 8 Eegistration of Title to Land, 
 pp. 11 & 12. 
 
 10 
 
OEIGIN AND ADOPTION 0¥ THE TOEEENS SYSTEM 
 
 ber 31, 1895, to the House of Commons, there were then 4,236 
 separate titles on the register, comprising 109,000 acres of 
 land valued at about $70,000,000. These parcels were scatter- 
 ed throughout every county of England and in several count- 
 ies in Wales. They varied in size, from small lots to estates of 
 several thousand acres; and in value from $25 to $1,500,000. 
 Of the total number, 411 had been registered under Lord West- 
 bury 's Act of 1862, and the remainder under Lord Cairns' Act 
 of 1875. From the date of the institution of compulsory 
 registration upon sales in the county of London to January 1, 
 1906, there were 91,284 initial registrations and 109,260 sub- 
 sequent registered transactions. In the year 1905 these com- 
 bined registrations averaged 118, daily. Of the initial regis- 
 trations, three-quarters are leaseholds and one-quarter, only, 
 freeholds. Of the freeholds practically all are registered as 
 possessory titles, this being the simplest and most economical 
 form of registration, as it is issued merely upon the statement 
 of the owner, supported by the production of his deed. In 
 1904 the applications for registration of absolute titles num- 
 bered eighty-five ; in 1905, seventy-one ; and in 1906, forty- 
 nine. A qualified title is seldom offered for registration, since 
 it involves a statement, upon the land certificate, of the flaw 
 existing in the title. ' '^ Forty three absolute titles were regis- 
 tered in 1907, thirty inl908, and one hundred and one in 1909. 
 Fifty two were registered in the first six months of 1910. The 
 increase since 1908 has been owing to a lowering of the fees 
 for absolute titles and to a system lately introduced of offering 
 absolute title in certain cases where only possessory title is 
 applied for. 
 
 Table Showing the Numbers of First Registrations and Deal- 
 ings in the County of London from 1899 to 1909 
 (Inclusive). 
 Tear. First Kegistrations. Dealings. Total. 
 
 1899 2,955 1,278 4,228 
 
 1900 11,072 7,144 18,216 
 
 1901 16,356 13,262 29,618 
 
 1902 15,904 16,253 32,157 
 
 9 Pegram, Land Title Eegistra- rens System, presented a paper, 
 
 tion, pp. 33, 34. At a meeting of entitled "Land Title Eegistra- 
 
 the New York State Bar Assooia- tion," giving the development of 
 
 tion in January 1908, Henry Peg- the system in the different coun- 
 
 ram Esq. of the New York Bar, tries. This paper is of great value 
 
 member of the New York State to anyone who is interested in the 
 
 Commision to investigate the Tor- history of the Torrens laws 
 
 11 
 
THE TOKEENS SYSTEM 
 
 Year. First Eegistrations. Dealings. Total. 
 
 1903 15,262 20,279 35,541 
 
 1904 13,339 20,875 34,214 
 
 1905 13,125 23,281 36,406 
 
 1906 11,124 23,670 34,794 
 
 1907 10,083 23,865 33,948 
 
 1908 8,717 23,320 32,037 
 
 1909 7,159 20,981 28,140 
 
 Totals 125,096 194,203 319,299 
 
 As between freehold and leasehold properties the numbers 
 so far as available show that the proportion is roughly one free- 
 hold to three leaseholds.^" 
 
 § 8. The following is a statement of certain conditions in 
 the registrar's office in London at the present time: "The 
 staff employed on what may be called 'Torrens System' work 
 in the county of London comprises a legal and clerical stafE 
 numbering about 30, about 50 typists and copyists, about 60 
 surveyors and mappists, and about 20 attendants — that is to 
 say about 160 in all. I am obliged to say 'about' because 
 numbers vary from time to time, and some of the staff are part- 
 ly or wholly employed on country work and on other acts ad- 
 ministered by the department, rendering an exact numeration 
 impossible. It must also be remembered that a large part of 
 the work of the 160 just mentioned consists in the bringing of 
 land on to the register-called 'first registration' under the com- 
 pulsory provisions of Sec. 2 of the Land Transfer Act 1897. As 
 time goes on, and the quantity of unregistered land diminishes, 
 this part of the work diminishes also, but it is balanced by a 
 corresponding increase in the number of dealings with land 
 already registered, which under normal conditions would al- 
 ways be an increasing amount. During the last few years 
 however, owing to the exceptional depression of the land mar- 
 ket generally, this increase has not occurred. Almost the whole 
 of the mapping work is 'first registration'. Also, it is prob- 
 able that if compulsory registration were extended into the 
 Provinces the ordinance survey department would relieve us 
 of much (if not all) our mapping work, so this item would 
 disappear or be greatly reduced. The York and Middlesex 
 offices deal with deed registration only, and have no connection 
 
 10 J 43, Report of Royal Com- Acts, 1911, page 22. 
 mission on the Transfer of Land 
 
 12 
 
ORIGIN AND ADOPTION OF THE TOREENS SYSTEM 
 
 with the Torrens system."" The English act of 1897 pro- 
 vides for making registration of titles compulsory in certain 
 places by order of a certain local authority, and the whole of 
 the county of London, including the city, has been placed under 
 the compulsory order. The order came into operation gradu- 
 ally, and the city was the last portion brought under the oper- 
 ation of compulsory registration. Lands must be brought un- 
 der the act as they are sold, and no title to any land in that 
 county may pass from the vendor to the purchaser unless and 
 until it has been registered under the act. The land registry 
 office in London registers titles for the whole of England and 
 Wales. Except as to land actually sold in the county of Lon- 
 don, registration is voluntary in England and "Wales.^^ 
 
 § 9. Ireland. A system of registering deeds has been in 
 force in Ireland for the past two centuries. A system of regis- 
 tering titles was introduced by the act of 1865, but it was a 
 failure. The present system of title registration is conducted 
 under the act for Ireland, 1891.^* 
 
 § 10. Canada. The revised laws of British Columbia, 1871, 
 contain the first statutes providing for registration of titles to 
 land in the Dominion of Canada. This act was amended at var- . 
 ions times. Proceedings under the system are now governed 
 by the act of 1906, as amended in 1907. In 1885, the province 
 of Ontario adopted the system. The laws on the subject have 
 been amended repeatedly. The revised act of 1897, with five 
 amending acts, is the foundation of the present system of regis- 
 tration. It is in force in three counties, Elgin, Ontario, and 
 York, and in seven districts which are not yet organized as 
 counties. The system was adopted in the province of Mani- 
 toba in 1885. The revised act of 1902 and four amending acts 
 now constitute the system in that province. In 1886, the first 
 act was passed providing for registration of titles in the Canad- 
 ian northwest territories. In 1894, another act was passed, 
 which with several amendments, constitutes the system for 
 the present territories. In 1906, the province of Alberta adopt- 
 ed the system, and the districts of North and South Alberta 
 were consolidated. In 1906, the province of Saskatchewan pro- 
 
 11 A letter from Sir Charles 26, 1910. 
 Fortesque Brickdale, registrar of 12 Post. § 179. 
 
 the land registry, dated October 13 Post, § 179. 
 
 13 
 
THE TOEEENS SYSTEM 
 
 vided for the registration of titles and for the consolidation of 
 the districts of Assiniboia and Bast and West Saskatchewan. 
 When Nova Scotia adopted the system under the act of 1904, 
 it was provided that it should not become operative until the 
 governor in council should proclaim it.^* In 1907, the requisite 
 proclamation was made, and put it in force in the counties of 
 Annapolis and Colchester. The system has not been adopted 
 in Quebec, Prince Edward Island or New Brunswick, or in the 
 British self-governing colony of New Poundland. 
 
 § 11, British Dependencies. British Honduras, in Central 
 America, passed a land titles act in 1858, nearly two months 
 after the first Torrens act was passed in South Australia. Al- 
 though it was an original act, its object was to register titles 
 according to the plan of the Torrens system, i. e., to provide 
 for a valid title vested by registration in lieu of conveyances 
 by instruments. The act of 1858 and amending acts were con- 
 solidated and re-enacted in 1888 and form the basis of the pres- 
 ent system. In that country conditions are primitive, and 
 there are few dealings in real estate. ^^ British Guiana, in 
 South America, was given a registration law by the ordinances 
 of 1880. Registration was established in the Leeward Islands 
 in 1886. The present system is conducted under the act of 
 1906, under which either absolute, qualified or possessory titles 
 may be registered, and by which an assurance fund is provided 
 for. A law for the registration of titles went into effect in Ja- 
 maica in 1888, and it has since been extensively amended. 
 Either absolute, qualified or possessory titles may be registered 
 and an assurance fund has been ereated.^^ 
 
 § 12. Torrens Acts in This Country. In 1895, an act for the 
 
 registration of titles was passed in Illinois, but is was declared 
 unconstitutional by the supreme court on the ground that it 
 conferred judicial powers on the registrar and the examiners of 
 titles.i''^ Another act was passed in that state in 1897. This 
 act was amended in 1907, extending the right of access to the 
 
 14 § 9 Novia Seotia act. tion, pp. 23, 24, 25. 
 
 15 Hogg, Australian Torrens 17 People v. Chase, 165 HI. 527; 
 System, pp. 20, 809. Pegram, Land 46 N. E. E. 464 (1897). See J 167, 
 Title Eegistration, pp. 22, 23. post. 
 
 16 Pegram, Land Title Eegistra- 
 
 14 
 
ORIGIN AND ADOPTION OF THE TOREENS SYSTEM 
 
 indemnity fund.^® The act of 1897 provided that registered 
 land on the death of the owner should go to the personal repre 
 sentative of the deceased in like manner as personal estate, and 
 in 1907, it was amended so that registered land descends as un- 
 registered land. This amending act covered several other sub- 
 jects.^^ In 1903, an amendment passed the legislature of Ill- 
 inois, with a referendum to the voters of any county which 
 had adopted the Torrens system, providing that every executor 
 and administrator appointed after the adoption of the act, and 
 each trustee holding title or power of sale under wills admitted 
 to probate after that date, within six months after their ap- 
 pointment, should apply for registration of all unregistered 
 lands, situated in any county in which the Torrens system was 
 in force at the time, which the decendent might have registered 
 in his own right in his lifetime. This amendment was adopted 
 by the voters of Cook County, Illinois, at the November elec- 
 tion in 1904, but the adoption was declared invalid, because 
 the question of its adoption was not submitted to the voters in 
 the manner prescribed by the act.^" At the November election, 
 1910, the compulsory act of 1903 was adopted by the voters of 
 Cook County.2i The act of 1897, as twice amended in 1907, con- 
 stitutes the present basis of registration in Illinois. 
 
 The California act was passed in 1897. It has not been am- 
 ended and very few registrations have ever been made under it. 
 The Massachusetts act was passed in 1898. It was amended 
 in 1899, 1900, 1904 and 1905. The jurisdiction of the land court 
 has been greatly extended, and the original act has been some- 
 what rewritten and revised. The Oregon act was passed in 
 1901. It was extensively revised in 1905 and 1907. The ori- 
 ginal act, except in a few sections, was a literal copy of the 
 Illinois act, 1897. The Minnesota act was passed in 1901. In 
 1903, nine sections of this act were amended, and in 1905 an en- 
 tirely new act was passed, repealing the act of 1901, as amend- 
 ed in 1903. The Colorado act was passed in 1903. It has not 
 been amended, and little has been done under it. It was taken 
 
 18 Session Laws, Illinois, 1907, 20 Harvey v. County of Cook, 
 p. 207. 221 111. 76; 77 N. E. 424 (1906). 
 
 19 Session Laws, Illinois, 1907, See post, § 180. 
 
 p. 208-212. 21 See post § 180. 
 
 15 
 
THE TOEEENS SYSTEM 
 
 very largely from the Minnesota act of 1901. The "Washington 
 act was passed in 1907. The Philippine Islands adopted an 
 act in 1902, and the Territory of Hawaii adopted one in 1903. 
 The Philippine and Hawaiian acts differ in only a few parti- 
 culars, and they are in most respects copies of the Massachu- 
 setts act of 1898. 
 
 16 
 
CHAPTER II. 
 
 Different Kinds of Registers of Title. 
 
 § 13. Certificates of Indefeasible Title ; Certificates of Ab- 
 solute, Qualified or Possessory Title. The central feature of 
 the Torrens system is the governmental register of titles. It 
 is the pivot on which the working of the whole system turns, 
 and it is usually called the certificate of title or land certificate. 
 One object in registering titles under this system is to obtain 
 from the state a certificate which is evidence that the owner of 
 it has title to the estate or interest in land, with which he is 
 registered. In Australasia, in Ireland, in the United States, 
 except in the Territory of Hawaii, and in the Canadian pro- 
 vinces of Manitoba, Alberta and Saskatchewan, the statutes 
 provide that, when the title to an estate or interest in land is 
 registered, it becomes indefeasible and indisputable. Under 
 these acts certificates of indefeasible title only are issued. But 
 under some statutes three kinds of certificates are issued. Un- 
 der what is called the English scheme of registering titles, an 
 owner may be registered with a certificate of absolute, quali- 
 fied or possessory title. If he is registered with an absolute 
 title, his certificate is conclusive evidence of an indefeasible 
 title, for registration with an absolute title divests all other 
 persons of any estate in the land and vests in the person so 
 registered the estate or interest in land, described in his cer- 
 tificate, subject only to (1) the incumbrances shown on the cer- 
 tificate, (2) such liabilities, rights and interests as are not 
 covered by registration under the act, (3) and any unregistered 
 trust on which in equity such person may hold the title. "Where 
 application is made for registration with an absolute title, and 
 on examination it appears to the registrar that the title can be 
 established only for a limited period, or subject to certain res- 
 
 17 
 
THE TOEEENS SYSTEM 
 
 ervations, the registrar, on the request of the applicant, by an 
 entry on the register, may except from the effect of registra- 
 tion any estate, right or interest arising before a specified date, 
 or arising under a specified instrument or contingency parti- 
 cularly described in the register, and the title registered sub- 
 ject to such excepted estate, right or interest is called a quali- 
 fied title. Registration with a qualified title has the same effect 
 as registration with an absolute title, save that registration 
 with a qualified title does not affect or prejudice the enforce- 
 ment of any estate, right or interest appearing by the register 
 to be excepted. Registration of the owner of an estate with 
 possessory title only does not affect or prejudice the enforce- 
 ment of any estate, right or interest which is adverse to or in 
 derogation of the title registered and which subsists or is capa- 
 ble of arising at the time of such registration; but except in 
 this particular registration with a possessory title has the same 
 effect as registration with an absolute title. ^ When a person is 
 registered with possessory title merely, his certificate is not 
 evidence of the nature and extent of his title at the time of 
 the original registration, but may be disputed and litigated for 
 the enforcement of any right, interest or estate which was ad- 
 verse to or in derogation of the title when it was registered, 
 or which subsisted or was capable of arising at the time of such 
 registration. On the first registration of a person with a po- 
 sessory title to an estate or interest in land, he may have in fact 
 an indefeasible title to such estate or interest, but his certifi- 
 cate is not evidence of that fact and does not place his title be- 
 yond dispute. The purpose of such i^egistration is merely to 
 place registerable estates or interests in land on the register, 
 and to prevent the subsequent acquirement by any person of 
 rights or interests in them off the register. Since no new rights 
 in registered land may be acquired off the register, it follows 
 that from and after the date of the first registration, the certifi- 
 cate is evidence of an indefeasible title, except as to matters 
 existing or capable of arising before that date. 
 
 § 14. Absolute, Qualified, and Possessory Titles in England. 
 Of course registration with an absolute or qualified title can- 
 
 1 5J6-9 English Land Transfer act, ^ 23, 37-39 Nova Scotia act, 
 act, 1875. $$12-17, 19-24 Ontario $$21, 38 Hawaiian act. 
 
 18 
 
DIFFEEENT KINDS OF KEGISTBES OF TITLE 
 
 not be made unless and until the title is examined and appro- 
 ved by the registrar. Such registration is voluntary in England 
 and is only made on application. Perhaps an average of some 
 seventy registrations with absolute title are made each year in 
 England and Wales, and, few registrations with qualified title 
 have ever been made under the act, since such a registration 
 presents in a bold way the defect in the title. The ordinary 
 application is for registration with possessory title only. This 
 is, in part, because the fees for registering an absolute or a qua- 
 lified title until recently were three times as much as for regis- 
 tering a possessory title, and it is also because of the compul- 
 sory feature of registration on sale of property. When registra- 
 tion is compulsory on sale, — as it is in the county of London, 
 where the purchaser of land gets no title unless and until he is 
 registered as the owner — , the title with which the purchaser is 
 registered must not be less than a possessory title. Under 
 this requirement of the statute, it is customary to register the 
 purchaser with a possessory title only.^ It is not necessary 
 for an applicant for registration with a possessory title to state 
 definitely the incumbrances, conditions or other burdens which 
 may be on his estate in the land; he need not even state 
 generally that his estate in the land is subject to any such bur- 
 dens. For such registration his title to the estate is not in- 
 vestigated or examined by the registrar. The apparent owner 
 of the estate is registered with just such title as he may have, 
 and the registration is subject to all outstanding claims and 
 interests. The purpose of such registration is not to declare, 
 establish or confirm the title in the person registered, but is 
 merely to vest in him such title as he may have. As a quit 
 claim deed vests in the grantee such right, title and interest 
 in the land as the grantor may possess, so the registration of 
 a person with possessory title vests in him such an estate as 
 he may then have. He presents to the registrar his deed and 
 such other evidence as the registrar may require, and if he 
 makes out a prima facie case, he is thereupon registered as the 
 owner of the estate described in his deed, with possessory title 
 only. Whether the application is voluntary, or compulsory on 
 sale, it should be accompanied by the latest document of title in 
 2 § 20, sub. 3, Act of 1897. 
 
 19 
 
THE TOREENS SYSTEM 
 
 the possession or under the control of the applicant, to be mark- 
 ed with notice of the registration and with the number of the 
 title, in order to give notice of the fact of registration to any 
 person subsequently dealing with the land.^ In any case, if it is 
 proved that any document of title cannot be produced, — for 
 instance, that it is in the hands of a mortgagee who refuses 
 to produce it — , the registrar may complete the registration of 
 the person without the production of the document.* A trans- 
 fer for valuable consideration of land registered with a possess- 
 ory title does not affect or prejudice the enforcement of any 
 right or interest adverse to or in derogation of the title of the 
 first registered owner, and subsisting or capable of arising at 
 the time of the registration of such owner, but, save in this 
 particular, such transfer when registered has the same effect 
 as a transfer for valuable consideration of the same land reg- 
 istered with an absolute title. ^ In England for several years 
 registration with possessory title was made without entering on 
 the register incumbrances, conditions or other burdens to 
 which the land was subject. Even though the land were leased 
 for 999 years at a low rental and were mortgaged for its full 
 value, and the building on the land belonged to the lessee, the 
 state merely certified that the owner of the fee was registered 
 with possessory title to the land. While this certificate did 
 
 3 Land Transfer Rules, 1898, a description of the land comprised 
 rules 17-21. § 38 English rules, in the title, with a reference to 
 1908. the filed plan of the land, to the 
 
 4 According to Land Transfer number of the title and to the date 
 Rule 22, 1898, and to rules 2 to 8, of registration. The charges re- 
 1908, in England, the register con- gister states the number of the 
 sists of three portions or divisions title, the date of the registration 
 called the proprietorship register, and memoranda of the incumbran- 
 the property register and the ces and burdens adversely afEect- 
 charges register. The title to each ing the title subsequent to regis- 
 registered property bears a distin- tration. Charges and inoumbran- 
 guishing number which is always ces existing at the time of the reg- 
 referred to on each of these regis- istration may be noted on it also, 
 ters. The proprietorship register But in registering a person with a 
 contains the name, address and de- posessory title, existing incum- 
 scriptiou of the proprietor, and, brances and other rights need not 
 giving its number, states whether be entered, unless they are defi- 
 the title to the land, describing it, nitely set out in the application, 
 is registered as absolute, qualified or unless it appears that there is 
 or possessory. On the face of this an outstanding leasehold interest 
 register are noted any cautions, in- which already has been registered, 
 hibitions or restrictions affecting Rules 18 and 54. 
 
 his right to dispose of the proper- 5 § 32 English act, 1875. 
 
 ty. The property register contains 
 
 20 
 
DIFFERENT KINDS OF EEGISTEES OF TITLE 
 
 not prejudice any right, it armed the person who had it with a 
 document which he might make use of to raise money, for in 
 the eyes of the general public such a certificate gave him an 
 appearance of being the owner of the land and building, free 
 of any incumbrance, and gave him an opportunity to impose 
 on uninformed persons, which he would not have had without 
 it.® Such a registration proved in practice to be crude and un- 
 scientific, and in 1908 the rule was changed so as to require 
 that all incumbrances, conditions and other burdens on land be 
 noted on a certificated 
 
 §15. Concerning Possessory Title, The term "possessory 
 title" is apt to be misunderstood by the legal practitioner in 
 this country, for we are accustomed to use it as descriptive of 
 the statutory title which is acquired by an occupying claimant 
 of land through adverse possession for a length of time fixed 
 by the statute of limitations. When it is used in title registra- 
 tion acts, it merely means the registration of a person who is 
 the apparent owner of the estate with which he is registered; 
 it is a registration, not a certification, of the title. It means 
 that the title to the estate described is registered for what it 
 is worth. By requiring a judicial or quasi-judicial examina- 
 tion and the finding of a satisfactory title, as an indispensable 
 preliminary to admission to the register, a large part of the 
 lands will be kept off the register. Small holdings will not be 
 presented for registration because of the trouble and expense 
 necessarily to be incurred through examination of the titles, 
 and defective titles will be excluded from the register. Regis- 
 tration with possessory title only was formulated and adopted 
 so that any title, however defective or encumbered, may be 
 registered, without certification as to its condition, and so that 
 the value of the registered title, though an unknown quantity, 
 will continue to improve from year to year until at last it will 
 become perfect by operation of the statute of limitations. 
 "While such registration does not affect pre-existing outstanding 
 interests, all subsequent interests in and dealings with the land 
 are subject to the operation of the system. A search and ex 
 amination of the title must be made by a prospective purchaser 
 
 6 See Marshall v. Eobertson, 50 7 J 43, Land Transfer Rules, 1908. 
 
 Solicitors' Journal 75 (1905). 
 
 21 
 
THE TOEEENS SYSTEM 
 
 or dealer, down to the date of such registration, but after that 
 time he may rely on the face of the register, as in other cases 
 of registered land. In England and Ontario, few applications 
 have been made for registration with absolute or qualified 
 titles. 
 
 §16. Purpose and Effect of Classifying Registered Titles. 
 Under the general system of registering only such titles as 
 are found to be satisfactory after due examination, many de- 
 fective titles will be kept from the register. The purpose of the 
 English system of registering a person with absolute, qualified 
 or possessory title is to place on the register (the names of the 
 owners of all registerable estates in land situated within the 
 borders of the country, or within a certain district, to prevent 
 the subsequent acquirement of any interest in such estates, 
 except by registering it, and to perfect the evidence of all titles 
 on the register through the effect of the statutes of limitation. 
 Under the general system the dominant idea is that the title it- 
 self is declared and registered, while under the English system 
 the dominant idea is that the person is registered with a certain 
 evidence of title. In England, Ontario and Nova Scotia an 
 owner may be registered with an absolute, qualified or possess- 
 ory title to an estate of freehold or leasehold, and in Hawaii 
 only the owner of an estate in fee simple may be registered 
 with one of the three kinds of evidence of title. Such regis- 
 tration does not indicate the estate or interest with which one 
 is registered, but relates solely to the evidence of title afforded 
 by the certificate. In British Columbia the estate of an appli- 
 cant may be registered with an absolute or with an indefeasible 
 certificate. This distinction in registration has reference to the 
 quality of the evidence of title. A certificate of an absolute 
 fee in the estate is only prima facie evidence of ownership in 
 the registered estate, while a certificate of an indefeasible fee 
 is conclusive evidence of such ownership. The word, "abso- 
 lute," used to describe a presumptive or prima facie title, is 
 rather confusing. 
 
 § 17. "When the system of classifying registered titles was 
 first adopted in England and Ontario, it was frequently and 
 confidently declared that in registration with possessory title 
 lay the only hope of ultimate success of the Torrens system. 
 
 22 
 
DIFPEEENT KINDS 0¥ EEGISTEES OF TITLE 
 
 But experience has demonstrated the falsity of this prophecy, 
 and today the lack of satisfaction with workings under the acts 
 in England, at least, is attributed to the fact that almost all reg- 
 istrations are with possessory title. It recently has been said : 
 "The land registry has failed so far to make the system 
 of registration of title as smoothworking and as populajr 
 as it ought to be, principally because practitioners have taken 
 advantage of the provisions of the act of 1875 to insist on regis- 
 tration with possessory title when the act of 1897 has made 
 registration compulsory. This is really the chief cause of 
 nearly all complaints made against the land transfer acts and 
 the land registry. The essence of any really useful system of 
 registration of title is that the title which passes by a trans- 
 action being recorded in a public register should be ipso facto 
 a good title, and should not require extrinsic investigation at 
 the hands of a purchaser. Registration with merely possess- 
 ory title does not ipso facto enable a purchaser to dispense with 
 investigation of his vendor's title prior to the first registration. 
 It is possessory registration that should be condemned, not 
 the whole system of registration of title as it might be carried 
 out even under the existing land transfer acts. No real trial 
 of the advantages of the acts has yet been made on any ade- 
 quate scale."* The royal commission on registration of title 
 in Scotland reported in favor of an absolute and indefeasible 
 register of title.^ 
 
 §18. Classified Registration in Leasehold Lands. In Eng- 
 land a separate register is kept for leasehold lands, in which 
 may be registered leases for a life or lives, or determinable on 
 a life or lives, or for a term of more than twenty one years.i" 
 The effect of registration of a person with absolute title in 
 leasehold land is to vest in him the right to the possession of all 
 the leasehold estate in the land, as set forth and described 
 therein, with all the implied and expressed rights, priveleges 
 and appurtenances attached to such estate, subject (1) to all 
 implied and express covenants, obligations and liabilities inci- 
 dent to such leasehold estate, (2) to any incumbrance entered 
 on the register, (3) to any liabilities, rights and interests which 
 are not covered by registration under the act, (4) and to any 
 equities of a cestui que trust, if the person registered does not 
 
 8 Vol. 24 Law Quarterly Review, Brickdale, registrar in England, 
 Pages 290 & 291. From a contri- was a member of this commission, 
 bution by J. E. Hogg. lo § 11 act of 1875. 
 
 9 July, 1910, Sir Charles F. 
 
 23 
 
THE TOEEENS SYSTEM 
 
 hold the leasehold for his own benefit.^^ No person may be 
 registered as owner of leasehold land with absolute title until 
 and unless the title both to the freehold and the leasehold, and 
 to any intermediate leasehold which may exist, is approved by 
 the registrar.^2 The registration of a person as owner of lease- 
 hold land with possessory title does not affect or prejudice the 
 enforcement of any estate, right or interest, whether with res- 
 pect to the lessor's title or otherwise, which is adverse to or in 
 derogation of the title of such registered owner, and which is 
 subsisting or capable of arising at the time of such registration ; 
 but except in this particular, it has the same effect as registra- 
 tion with an absolute title.^^ The rule with respect to the 
 registration of a person with qualified title to leasehold land 
 corresponds exactly with the section of the statute regarding 
 registration with qualified title to freehold land. Where appli- 
 cation is made to register a lease on registered land, notice 
 of the application must be given to the registered owner.^* 
 The registration of a person as first proprietor of leasehold 
 land with a good leasehold title shall not affect or prejudice 
 the enforcement of any estate, right or interest affecting or in 
 derogation of the title of the lessor to grant the lease, but save 
 as aforesaid it shall have the same effect as registration with 
 an absolute title. ^^ 
 
 § 19. Classified Registration in Hawaii. In Hawaii, the appli- 
 cation must state whether an absolute, qualified or possessory 
 title is required.^® If the court after hearing finds that the 
 applicant has title, as stated in his application, and proper for 
 registration, a decree of confirmation and registration is enter- 
 ed. Every decree of registration with absolute title is conclu- 
 sive. "When a possessory title only is required, the applicant 
 may be registered as the owner of the fee simple on giving 
 such evidence of actual bona possession and of title, and 
 serving such notices, if any, as may be ordered from time to 
 time by the court. The registration of any person as first reg- 
 istered owner of land with a possessory title only, does not 
 
 affect or prejudice the enforcement of any estate, right or inter- 
 
 # 
 
 11 Eule 45 of Land Transfer 14 Eule 59 of 1908. 
 Eules, 1898 and § 13 of act of 1875. ib Eule 56 of 1908. 
 
 12 Eule 53 of 1908. 16 $ 21 Hawaiian, act. 
 
 13 Eule 57 of 1908. 
 
 24 
 
DIFFERENT KINDS OF EBGISTEES OF TITLE 
 
 est adverse to or in derogation of his title, subsisting or capable 
 of arising at the time of his registration; but otherwise the 
 effect is the same as the registration of a person with an 
 absolute title. When an absolute title has been applied for, 
 and on examination it appears to the court that the title can 
 be established only for a limited period or subject to certain 
 reservations, or upon an application claiming such a qualified 
 title, the court, with the consent of the applicant, by an order 
 included in the decree, may except from the effect of registra- 
 tion any estate, right or interest arising before a specified 
 date, or arising under a specified instrument, or otherwise, 
 particularly described in the decree. Such registration is with 
 a qualified title, and has the same effect as registration of such 
 person with an absolute title, save that the enforcement of 
 any estate, right or interest excepted on the register is not 
 affected or prejudiced.!'^ 
 
 17 §38 Hawiian act. See §§37, 
 38, 39, Nova Scotia act. 
 
 25 
 
CHAPTER III. 
 
 What Estates or Interests may be 
 Registered. 
 
 § 20. What Estates may be Registered in this Country. In 
 this country fee simple titles only may be registered.^ In 
 some of the acts it is declared that the owner of any estate or 
 interest in land, whether legal or equitable, may apply to have 
 his title registered, but no provision is made for the initial 
 registration of any lesser estate than a fee simple, and a quali- 
 fication is immediately added to the effect that no title to a 
 mortgage, lien, trust, charge or estate less than a fee simple 
 shall be registered, unless the title in fee simple is first register- 
 ed.2 In a subsequent sentence in these acts provision is made 
 that any lesser estate than a fee simple shall be noted on the re- 
 gister and in the certificates of title. "When the whole matter is 
 figured out, nothing but fee simple titles may be registered in 
 this country, and the lesser estates are noted on the certificates. 
 In all the acts of this country, except in those of Massachusetts, 
 Hawaii and the Philippine Islands, it is provided that it shall 
 not be an objection to bringing land under the act that the title 
 is subject to any outstanding lesser estate, mortgage, trust 
 charge, or other lien or right, but that any such lesser estate, 
 etc. shall be noted on the certificate of registration when issued. 
 In Massachusetts, Hawaii and the Philippine Islands it is pro- 
 vided that if the mortgagee does not consent to the making 
 of the application, it may be entered nevertheless, and the 
 title may be registered subject to the mortgage, which may be 
 
 1 5 4 Minnesota act. $ 18 Mas- 2 $J 7 and 8 Illinois act. $$ 5 
 
 sachusetts act. § 19 Hawaiian act. and 6 Oregon act. §§ 1 and 2 
 
 J 10 New York act J 19 Philippine "Washington act. $$ 1 and 2 Col- 
 
 aet. orado act. J 5 California act. 
 
 26 
 
WHAT ESTATES OE INTERESTS MAY BE EEGISTEEBD 
 
 dealt with or foreclosed as if the land had not been registered ; 
 that the decree in such ease shall describe the mortgage and 
 shall state that it has not been registered and that registration 
 is made subject to it, and that the decree shall provide that 
 no subsequent certificate shall be issued and no further papers 
 shall be registered relative to such land, after a foreclosure 
 of such mortgage.* 
 
 In New York, Massachusetts, Hawaii and the Philippine 
 Islands there is no special provision with regard to registering 
 tax titles, but in the other acts in this country it is provided 
 that no tax titles may be registered except under certain con- 
 ditions therein set forth.* But in British Columbia and Mani- 
 toba the registration of tax titles is favored. In those provinces, 
 in case of an application under a tax title, whether that title 
 accrued on registered or on unregistered land, the registrar 
 may not take notice of any irregularity in the tax sale, or in 
 any of the proceedings relating thereto, or in any proceeding 
 prior to or having relation to the assessment of the land, but a 
 certificate from the government, showing the years for which 
 the taxes were due or in arrear, and for which the land was 
 sold, shall be produced, and the registrar shall satisfy himself 
 that the sale was fairly and openly conducted, and shall cause 
 notices to be served on all persons shown by the records to be 
 interested in the land, requiring them to contest the claim of 
 the tax purchaser. "When notices cannot be served personally, 
 they may be served by publication.^ "Where a Torrens act pro- 
 vides that a title derived from a tax sale shall not be registered 
 until it has been adjudicated to be valid by a court of compet- 
 ent jurisdiction, a judgment adjudicating the validity of a tax 
 title, rendered in an action against the holder of the legal title 
 to the property, is a sufficient compliance with the act, even 
 though the judgment does not conclude all persons claiming an 
 interest in the property. Every person not concluded by the 
 judgment may contest the validity of the tax sale in the regis- 
 tration proceeding, and may present for determination therein 
 
 3 § 18 Massachusetts act. J 19 Illinois act. § 4 Minnesota act. 
 Hawaiian act. § 19 Philippine ^ 9 California act. 
 
 act. 5 5§ 31-34 British Columbia act. 
 
 4 J 3 Washington act. $8 Ore- § 46 Manitoba act. 
 gon act. J 3 Colorado act. J 10 
 
 27 
 
THE TORRBNS SYSTEM 
 
 their claims of title adverse to the applicant. If the Torrens 
 act contemplated an adjudication of validity as against all 
 possible claimants, registration proceedings, following a judg- 
 ment concluding all possible claimants, would be a useless and 
 vain effort, and such a judgment would serve every purpose 
 of a decree in registration. A judgment against the holder 
 of the legal title is sufficient foundation for registration of a tax 
 title.* When an act says that an owner may register his title, 
 he need not be the owner of record, and one holding an unre- 
 corded deed from the conceded owner of the land, may main- 
 tain proceedings in registration.'^ Under the New York act 
 application for registration may be made by the holder of a con- 
 tract to purchase land, and a decree may be entered on terms 
 consented to by the vendor.® 
 
 § 21. What Estates may be Registered in Foreign Countries. 
 Under the English and Ontario acts the owner of freehold or 
 leasehold land may register his title, but in order to entitle 
 a proprietor of leasehold land to registration, he must have a 
 lease for a life or lives, or determinable on a life or lives, or 
 for a term of years of which more than twenty-one years 
 are unexpired.^ Where an absolute title to leasehold 
 lands is required, no person may be registered until 
 and unless the title both to the leasehold and the free- 
 hold, is examined and approved.^" The effect of registration 
 of a person as first proprietor of leasehold land with an absolute 
 title is to vest in such person the possession of the land for all 
 the leasehold estate, subject to the express covenants contained 
 in the lease, to such incumbrances as may be entered and to 
 any trusts on which he may hold It.^^ No person may be regis- 
 tered as proprietor of leasehold land with good leasehold title 
 until and unless the title to the leasehold interest is approved 
 by the registrar. Kegistration with a good leasehold title does 
 not affect or prejudice the enforcement of any estate or right 
 affecting or in derogation of the title of the lessor to grant the 
 
 6 Hendricks v. Hess, 112 Minn. 9 $ 11 Land Transfer act, 1875. 
 252, 127 N. "W. Rep. 995, (1910). § 19 Ontario act. 
 
 7 National Co. v. Alderson, 99 lo § 53 Land Transfer Rules, 
 Minn. 137, 108 N. W. Rep. 861, 1908. § 20 Ontario act. 
 
 (1906) 11 ^ 55 Land Transfer Rules, 
 
 8 § 10 New York act. See § 6 1908. 
 Ontario act. 
 
"WHAT ESTATES OR INTERESTS MAY BE REGISTERED 
 lease, but save in this particular it has the same effect as regis- 
 tration with an absolute title. ^^ In Ireland a person may be 
 registered as tenant in fee simple, tenant in tail or tenant for 
 life.^^ In British Columbia, provided the fee simple title has 
 already been registered as absolute or indefeasible, any lesser 
 estate, or mortgage, or lease for more than three years may be 
 registered, if it is satisfactory to the registrar. Such an inter- 
 est is registered in the "register of charges," and a cross-entry 
 is made in the book of absolute or indefeasible fees, as the 
 case may be. The registered owner of such an interest or 
 charge is deemed to be entitled prima facie to the interest, 
 estate or charge set forth on the register and on his certificate.^* 
 In Nova Scotia a lease for more than three years may be regis- 
 tered, if the fee simple title has been registered. A memoran- 
 dum of the lease is noted on the register and on the duplicate 
 certificate, and a certificate may be issued to the lessee, if he 
 requires it.^^ In Alberta and Saskatchewan, estates in fee 
 simple only may be registered primarily, but if the fee is regis- 
 tered, a lease for life or lives or for a term of more 
 than three years may be registered, and a certificate of title 
 may be issued to the lessee if he requires it.^® In Manitoba the 
 owner of any estate or interest in land, whether legal or equi- 
 table, may apply to have his interest or the whole title to the 
 land registered, but in his discretion the registrar may refuse 
 to entertain an application unless all persons who are inter- 
 ested in the land consent to the registration, i'' A lease or 
 demise for life or lives or for any term of years may be regis- 
 tered, and a certificate of title for leasehold estate may issue 
 to the lessee.i^ There may be registered under the Victorian 
 act fee simple titles, a title to land claimed in fee simple by 
 prescription, and leasehold interests having at least ten years 
 to run, or determinable with a life or lives.^^ In New South 
 Wales a fee simple title may be registered ; and a life estate in 
 
 12 J§ 53, 56 Land Transfer katchewau act. 
 Rules, 1908. "'§28 Manitoba act. 
 
 13 $ 28 Act for Ireland, 1891. 18 § 93 Manitoba act. 
 
 14 §^ 25-30 British Columbia act. 19 § 19, 21, 26, 41 and 110 Vic- 
 
 15 ^ 63 Nova Scotia act. torian act. 
 
 16 $26 Alberta act. § 92 Sas- 
 
 29 
 
THE TOREEN8 SYSTEM 
 
 possession of the applicant, or a leasehold for a life or 
 lives, or for a term of years not less than twenty-five, may 
 be registered, provided reversioners and remaindermen join 
 in the application. ^o In Tasmania, South Australia and 
 New Zealand, a fee simple estate may be registered and 
 a life estate, not being a leasehold for life or lives, may 
 be registered, provided all persons claiming to be entitled to 
 reversion or remainder join in the application.^^ In Tasmania 
 a lease having not less than twenty one years unexpired may 
 be registered.^^ A fee simple may be registered in Western 
 Australia, and a first estate of freehold may be registered, 
 provided the owner of any vested estate of inheritance joins 
 in the application.^* In Queensland the owner of a fee 
 simple may register his title, and a tenant for life may bring 
 the land under the act, and on his death the land may not 
 be dealt with by the remainderman until he has brought 
 his estate in the land under the act.^* 
 
 § 22. Contiguous Lands : Same Chain of Title. Section 12 of 
 the Illinois act reads: "Any number of contiguous pieces of 
 land in the same county, and owned by the same person, and in 
 the same right, or any number of pieces of property in the same 
 county having the same chain of title and belonging to the 
 same person, may be included in one application." To entitle 
 an owner to include several pieces of land in one application, 
 as authorized by this section, the several pieces must form one 
 compact body, or the several pieces must have the identical 
 chain of title. Lots in different blocks separated by a street, 
 or lots in the same block separated by lots owned by other per- 
 sons, are not within the meaning of this section, since the word 
 "contiguous" means "touching" or "in actual contact." Lots 
 owned by the same person in different subdivisions do not have 
 the "same" chain of title, within the meaning of this section, 
 when the chain of title is the same from the government down 
 to a certain year, but is then broken, since the word "same" 
 as used in the section, means "identical. ' '^^ 
 
 20 § 14 New South "Wales act. 23 § 20 Western Australia act. 
 
 21 ^ 14 Tasmania act. $ 27 South 24 j§ 16, 36-39, 41 Queensland 
 Australia act. § 18 New Zealand act. 
 
 act. 25 Culver v. Waters, 248 HI. 163, 
 
 22 $8 Tasmania act, (1893). 93 N. E. Rep. 747, (1911). 
 
 30 
 
CHAPTER IV. 
 
 Bringing Land Under the Act. 
 
 § 23. Original Registration in England. In England and her 
 colonies there are no constitutional limitations on the power of 
 legislative branches of the governments to make laws. In 
 these countries judicial powers may be conferred on adminis- 
 trative officers, and the existing rights and estates in property 
 may be abridged or abolished by statutory declaration. In 
 these countries it is competent for legislatures to confer upon 
 registrars the power to declare and vest titles to land. The 
 power to vest titles in persons registered as owners necessarily 
 includes the power to divest titles from those who are not 
 registered as such. The certification of an indefeasible title to 
 land by a registrar is a simple method of evidencing title, where 
 such a proceeding is valid. In England an application for 
 registration is made- to the registrar. He is charged with the 
 duty of passing on the validity of the title, and there is no 
 authority which may interfere with him in the performance 
 of this duty. Questions arising before him on an application 
 for registration, — whether they relate to the construction, val- 
 idity or affect of an instrument, or to the persons interested, 
 or to the nature or extent of their respective interests, or other- 
 wise — , are determined by him, subject to appeal to the court.^ 
 If he entertains a doubt as to any matter of law or fact arising 
 upon such title, he may name the parties to a case, and refer 
 it to the court for final decision ; and the court may direct any 
 issue of fact to be tried by a jury.^ When he registers a per- 
 
 1 Eule 297, Land Transfer Rules, 2 § 74 English act, 1875. 
 
 1908. 
 
 31 
 
THE TORBENS SYSTEM 
 
 son with absolute title, the certificate is conclusive evidence 
 that the person registered has an indefeasible title to the inter- 
 est or estate in land so registered, except as to certain matters.^ 
 When he registers a person with qualified title, the certificate 
 is conclusive, save as to the matters, and to the qualifications 
 mentioned in the certificate. In passing on an application for 
 absolute or qualified title, the registrar must make an examina- 
 tion of the title,^ and he must fix the number of times on 
 which notice by publication in certain newspapers shall be 
 given, requiring objections to the application, if any, to be made 
 before the expiration of a stated period, not less than 
 two months from the appearance of the latest advertisement." 
 He may also require notice or summons to be served personally 
 on interested persons, or he may order notice to be sent by mail. 
 Sufficient opportunity must be afforded to all persons to come 
 in and state their objections to applications for registration. 
 The registrar has jurisdiction to hear and determine all such 
 objections, subject to an appeal to the court in the manner and 
 on the conditions prescribed." When an appeal to court has 
 been taken from the decision of the registrar, or when he has 
 referred a matter to the court, the opinion of the court is con- 
 clusive on all parties, unless it permits an appeal.^ In register- 
 ing possessory titles only, no examination of the title is made 
 by the registrar, and no notices are required to be served. The 
 applicant need give only prima facie evidence of his title." 
 § 24. Registration in Australasia,. The Australasian acts are 
 not exactly alike in the provisions regarding initial registra- 
 tion of titles, but they are very similar. If it appears to the 
 registrar that the applicant is the original grantee of Crown 
 land, and that no sale, mortgage or other transaction affecting 
 the title has been registered, the registrar may bring such land 
 under the provisions of the act forthwith. If it appears to the 
 registrar from the report of the examiner of titles that the title 
 
 3 Ante § 13. Briokdale and Sheldon, Land 
 
 4 J 70 English act, 1875. Transfer acts, p. 342. 
 
 5 ' ' The cost of these advertise- o § 298 Land Transfer Rules, 
 ments varies from about 1 1. to 1908. See $ 17 English act, 1875. 
 about 3 1,, according to the amount See ? 25 Ontario act. 
 
 of advertising required, in fixing 7 J^ 74-77 English act, 1875, see 
 
 which the circumstances of the also j$ 93, 94 Ontario act. 
 
 title and the value of the property 8 } 37 Land Transfer Rules, 1908. 
 
 are taken into consideration." See ante $ 13. 
 
 32 
 
BEINQING LAND UNDBE THE ACT 
 
 of a remote grantee from the Crown is free from any lien or 
 beneficial interest, he causes notice of the application to be 
 advertised in the official gazette and in a daily newspaper for 
 a certain length of time, and appoints a time for hearing, not 
 less than thirty days or more than one year from the time of 
 such advertisement. Unless in the interval he receives a caveat 
 forbidding him to do so, he proceeds to bring the land under 
 the act at such hearing. If it appears to the registrar from the 
 report of the examiner of titles that the title is imperfect, he 
 may reject it, or he may give notice of a time of hearing by 
 publication and by personal notice to all interested persons 
 where possible. He may designate the persons to be notified 
 and the kind of notice to be given, and he may require proof 
 of service. The time set for the hearing must not be less than 
 thirty days or more than one year from the publication of 
 notice. Unless a caveat is filed he may bring the land under the 
 act at the hearing. If the application is contested under a 
 caveat, he must refer the matter to a court having jurisdic- 
 tion." The registrar is not a judge of a court. He is clothed 
 with the power and charged with the duty of passing on all 
 questions of law arising in a title submitted to him for regis- 
 tration, and in hearing evidence concerning the title. If any 
 objection to the title is found, he may state a case to the court, 
 and the court will pass on the question of law. Unless a 
 caveat is filed, and the application is contested, the court may 
 not be called on to inquire into and determine questions of 
 fact, and if a caveat is filed and a contest is made, the applica- 
 tion must be referred to the court to be tried as a litigated 
 case.i" Under some acts an appeal may be taken from the de- 
 cision of the registrar, refusing to register the land. When a 
 registrar refuses to bring land under the act, on the ground that 
 the applicant has not a good title, but that it is in some person 
 not before him, the court, on appeal, will not order the registrar 
 to make the registration, unless it can clearly see that the title 
 is one which would be forced on an unwilling purchaser. ii 
 
 » $J 17-23 New South Wales act. 33 Western Australia act. 
 J§ 18-28, Queensland act. §$20-30 in In re Stanley, 24 W. N. (N. 
 
 New Zealand act. §§31-40 South S. W.) 74 (1907). 
 Australia act. §§ 15-24 Tasmania n Smith v. Registrar, 24 N. Z. 
 
 act. §§22-33 Victoria act. §§21- L. E. 862, (1906). 
 
 33 
 
THE TOEBENS SYSTEM 
 
 § 25. Australasia, Bringing Land Under the Act. The land 
 described in the application is formally brought under the Tor- 
 rens system in Australasia by the issue of a certificate of title 
 to the person entitled to the registered estate. ^^ The "bring- 
 ing of land under the act ' ' is the placing of it on a public regis- 
 ter, so that an indefeasible title to estates and interests in it is 
 held by the registered owner and is transferred only by entry 
 on the register.!* In Australasia persons are registered with 
 indefeasible titles only. 
 
 § 26. Registration in Canada. The Ontario act follows the 
 English act, but it provides that the master of titles may ap- 
 prove of a title presented for registration, or he may require 
 the applicant to apply to court, upon a statement signed by the 
 master, for its sanction to the registration. In investigating a 
 title he may receive and act upon such evidence as is received 
 by courts on questions of title, or any other evidence, not 
 receivable or sufficient in point of strict law, provided it sat- 
 isfies him of the truth of facts intended to be made out there- 
 by, i* Registration is made with absolute, qualified or posses- 
 sory title. In Nova Scotia the master of titles hears and de- 
 termines all applications for registration. He may refer any 
 application to the registrar for an examination and report, or 
 he may refer it to a special examiner for that purpose. When 
 the report is received, he notifies the applicant that the title 
 is or is not satisfactory. If it is satisfactory, he appoints a time 
 for hearing, notifies the applicant and all persons interested, 
 as shown by the application and examination, and gives notice 
 by publication for thirty days in a newspaper in Halifax and 
 
 12 J 21 New South Wales act. for the publication of formal 
 5 37 South Australia act. ^ 27 notice in the Gazette by which a 
 Victorian act. J 25 New Zealand piece of land was declared ' to be 
 act. $ 22 Queensland act. J 20 land brought under the operation 
 Tasmania act. ^ 25 Western Aus- of the said act. ' The procedure 
 tralia act. by Gazette notice has been dis- 
 
 13 "It may be worth while to continued, and land is now gen- 
 point out the origin of the expres- erally expressed to be 'brought 
 sion 'bring land under the act,' or under the act' either by the issue 
 'under the operation of the act,' of a certificate of title to the 
 which occurs throughout the stat- applicant, or by registering a cer- 
 utes. The expressions generally tificate of title in the name of the 
 used in the English acts are 'place applicant." Hogg, Australian Tor- 
 land on the register,' 'registered rens System, p. 28. 
 
 land,' etc. The South Australian 14 J 25 Ontario act. 
 
 statute, 1857, provided, (§$ 15, 23) 
 
 34 
 
BRINGING LAND UNDER THE ACT 
 in one in the county in which the land lies, and by posting a 
 notice on the land.^" His decree registers the person with 
 absolute, qualified or possessory title as the ease may be,^* 
 and is subject to appeal to the supreme court within three 
 months by any person aggrieved. If no appeal is taken within 
 that time, the title is registered.^''^ Every decree of the master 
 of titles is binding and conclusive on all persons, including the 
 crown. Any person claiming to have been deprived of land 
 by fraud may apply to the master of titles within one year 
 from the decree to have it set aside, but such an application 
 does not affect the rights of an innocent purchaser for value.^® 
 In any case of doubt, the master of titles may apply for direc- 
 tions to the supreme court, or to a judge thereof, and the court 
 or a judge may hear any parties interested in the applica- 
 tion.i^ In Manitoba application is made to the registrar. He 
 examines the title papers, records and abstract of title, and if 
 he is satisfied that the title is good and safeholding, he may 
 register it, issue a certificate to the person who appears to be 
 entitled to it, and bring the land under the act. He may give 
 notices to interested persons to appear before him and assert 
 their interests, and he may give hearings on questions of title 
 and claims of interest in the land. He may refuse to entertain 
 any application unless all interested persons other than the ap- 
 plicant consent to the registration.^" In Alberta and Saskatche- 
 wan the original registration of a clear and unincumbered title 
 may be made by the registrar, and registration of a title may be 
 made by him subject to any lesser estate, if he entertains no 
 doubt as to the nature or extent of the interest, or on the con- 
 sent in writing of the person holding the lesser interest; but 
 if he entertains any doubt as to the title or its condition, he 
 must refer the application to a judge for his decision, ^-i The 
 judge examines the title and may hear evidence, and if satis- 
 fied with the applicant's title, he orders the registrar to regis- 
 
 15 §§ 15, 16 Nova Scotia act. lo § 21 B. Nova Scotia act. 
 
 16 § 23 Nova Scotia act. 20 § 28-45 Manitoba act. 
 
 17 ^ 25, 26 Nova Scotia act. 21 §§ 29-35 Alberta act. ^ 62- 
 
 18 5$ 27, 28, 29 Nova Scotia act. 65 Saskatchewan act. 
 
 35 
 
THE TOKEENS SYSTEM 
 ter it itnless the order is appealed from within four weeks.22 
 In British Columbia, if the registrar is satisfied that the appli- 
 cant for registration has a good safe-holding and marketable 
 title to the land, he may register it, but if he is not satisfied he 
 may refer it to an examiner of titles. The latter officer may di- 
 rect that it be registered "in the register of absolute fees," — 
 the effect of which is that such registered owner prima facie 
 has an estate in fee simple, subject to any charges appearing on 
 the register; or he may direct that it be registered "in the 
 register of indefeasible fees," without notice to anyone, or on 
 the giving of some notice prescribed by him, — the effect of 
 which is that the registered owner holds "an estate in fee 
 simple under a good, safe-holding and marketable title," sub- 
 ject to the charges shown on the register; or he may refuse 
 to register it. In case the applicant asks for registration "in 
 the register of absolute fees," the registrar may so register it 
 if he is satisfied with the title, or he may refuse to register it 
 if he is not satisfied with it.^* A certificate of absolute fee is 
 only prima facie evidence of title,^* while a certificate of in- 
 defeasible fee is conclusive evidence of title in all courts.^' 
 The registered owner of absolute fee may apply and be regis- 
 tered on the register of indefeasible fees, on the registrar being 
 satisfied that he has a good, safe-holding and marketable title.^® 
 "Whenever the registrar refuses to effect a registration on any 
 application, he must notify the applicant of such refusal, and 
 the applicant may petition the court or a judge to hear the 
 petition, and the court or judge shall do so, on such terms as 
 to notices and costs as may seem just and proper.^'' 
 
 § 27. Illinois act, 1895. In this country eVery act of a state 
 legislature must be in harmony with the federal and state con- 
 stitutions, and, in perhaps all of the constitutions, the powers 
 of government are divided into three distinct departments, — 
 the legislative, the executive, and the judicial, — so that no per- 
 
 22 § 35 Alberta act. $ 69 Sas- judge, 
 katchewan act. In Saskatchewan 23 § 15 British Columbia act. 
 
 the registers perform their duties 24 ^ 24 British Columbia act. 
 
 under an officer called an inspector 25 ^81 British Columbia act. 
 
 of titles, and by an amending act, 26 55 78 and 79 British Columbia 
 
 acts 1908-9, p. 113, contested act. 
 
 applications and complicated titles 27 § 83 British Columbia act. 
 
 are referred to him instead of to a 
 
 36 
 
BRINGING LAND UNDBE THE ACT 
 
 son or collection of persons, being in one of these departments, 
 may exercise any power properly belonging to either of the 
 others. Under such a division of those powers, a registrar 
 of titles, being an executive officer, may not exercise any ju- 
 dicial power to determine, declare or certify to titles. The Ill- 
 inois act of 1895 provided that the owner of any estate or in- 
 terest in land, whether legal or equitable, and any person who 
 had the power of appointing or disposing of the entire legal 
 estate in fee simple, might apply to the registrar of the county 
 in which the land was situated to have his title registered. 
 "Upon such application being filed with the registrar, he 
 shall cause examination to be made into the applicant's title to 
 the land and as to the truth of the matter set forth in the ap- 
 plication, * » * * aj2,j shall notify all persons who shall 
 appear, by the application or otherwise, to have any interest in 
 or lien or claim upon the land, of such application, a copy of 
 which notice shall be posted upon the premises, in a conspic- 
 uous place, at least ten days before the granting of the certifi- 
 cate of title. * * * It shall be the duty of the examiners to 
 examine, as the basis of their opinion, the full records of all 
 instruments. * * * If it shall be made to appear to the regis- 
 trar that the facts stated in the application are true, and that 
 the applicant is the owner of the land or interested therein, 
 as set forth in the application, he shall issue a certificate of title 
 and proceed to bring the land under the operation of this act, 
 as hereinafter provided. Otherwise he shall dismiss the appli- 
 cation without prejudice. * * * The registered owner of any 
 estate or interest in land brought under this act shall * * * 
 hold the same subject only" to estates and liens noted in the 
 certificate and to the statutory exceptions and burdens. ^^ Un- 
 der another section of the act, the registrar could issue a cer- 
 tificate of title only upon the written opinion of two duly ap- 
 pointed examiners of title, "to the effect that the applicant has 
 a good title to the estate or interest in the land, as stated in 
 the application. ' '^^ No action adverse to the title, as register- 
 ed by the registrar, might be commenced after five years from 
 the date of registration.*" The supreme court held the act un- 
 
 28 ^ 14, 15 and 29 Illinois act, 29 § 17 Illinois act, 1895. 
 
 1895. 30 j 37 Illinois act, 1895. 
 
 37 
 
THE TOEEENS SYSTEM 
 
 constitutional and void because it conferred judicial power 
 upon the registrar and upon Ms examiners of title, stating 
 that judicial power is the power which adjudicates upon and 
 protects the rights and interests of individual citizens, and 
 to that end construes and applies the law ; that under any defi- 
 nition of the terms of judicial power it is not necessary that 
 the adjudication between the parties shall be conclusive of 
 their rights put in issue, but if the party or officer is clothed 
 with the power of adjudicating upon and protecting the rights 
 or interests of contesting parties and that adjudication involves 
 the construction and application of the law and affects any of 
 the rights or interests of the parties, though not finally determ- 
 ining the rights, it is still a judicial proceeding and the exer- 
 cise of judicial functions ; that the question is not whether the 
 registrar finally determines the ownership of the land, but 
 whether his decision affects the rights of the parties claiming 
 that ownership; that the decision in a given case that the 
 property shall be brought under the provisions of the act is as 
 fatal to the right of ownership of a contestant as though that 
 question were finally and conclusively settled, except that he 
 still has a limited time in which to have his title settled in a 
 court of law or equity ; that if the duties of the registrar are 
 purely ministerial, there is no reason why he should be limited 
 in his right to bring the property within the provisions of the 
 act to cases in which he should have the favorable opinion of 
 at least two examiners; that the act manifestly contemplates 
 that he shall construe and apply the law to the facts presented 
 by the applicant.^^ 
 
 In this country the validity of an application to register a 
 title must be established by a court kaving jurisdiction to ad- 
 
 31 People V. Chase, 165 111. 527, the duty upon the registrar to 
 
 46 N. E. Eep. 454, (1897) ; see prevent instruments being regis- 
 
 opinion at length at J 167, post. tered which, in law as well as in 
 
 The Illinois act of 1895 was mod- fact, ought not to be registered in 
 
 eled after the Victorian act of the first instance, and to deter- 
 
 1890, and those sections which mine the validity of the instru- 
 
 treated of the registration of the ments, as well as the priority of 
 
 title by the registrar were in ef- registration in point of time. He 
 
 feet identical with it. In speaking has therefore to discharge not 
 
 of the duties of the registrar un- merely ministerial but judicial du- 
 
 der the Victorian act, it has been ties." In re, etc., ex parte Bond, 
 
 said: "The intention of the legis- 6 V. L. E. (L) 458, (1880). 
 lature was obviously to impose 
 
 33 
 
BRINGING LAND UNDER THE ACT 
 
 judicate on titles and to apply the law. Before we examine 
 the methods and procedure in suits for the initial registration 
 of titles in this country, it may be well to speak of the adapta- 
 bility of courts for such work. 
 
 §28. Special Courts. The state constitutions set forth the 
 courts which may be established by the legislatures, and de- 
 termine the jurisdiction of the several courts when established. 
 Under many of these it is impossible to establish separate 
 courts with special or limited jurisdiction. In Massachusetts, 
 it seems that the legislature has full power to establish a spec- 
 ial court for the adjudication and establishment of land titles, 
 for in its Torrens law it provides for a ' ' court of land registra- 
 tion, which shall have exclusive original jurisdiction of all 
 applications for the registration of titles to land within the 
 commonwealth, with power to hear and determine all ques- 
 tions arising upon such applications." In Virginia, where 
 there has been for some time past an agitation in favor of the 
 Torrens system of registration of titles, the recent constitu- 
 tional convention, under the article on judiciary, adopted this 
 clause: "The legislature shall have power to establish such 
 court or courts of land registration as it may deem proper for 
 the administration of any law it may adopt for the settlement, 
 registration, transfer or assurance of titles to lands in the 
 commonwealth, or any part thereof." 
 
 There is much to be said in favor of the creation, in the 
 county where titles are to be registered, of a special court in 
 which to make the initial registration of titles. Its judge is 
 likely to be well versed in real estate law, and to be interested 
 in the technical rules which govern real property. His ex- 
 perience in examining abstracts of title will assist him in his 
 review of the report of the examiner, and make him quick to 
 see the seriousness of any point which may be raised in the 
 title, and ready to suggest some way by which it may be rem- 
 edied. In devoting his whole time to this special line of work, 
 he will maintain an interest in it and facilitate the work of 
 the court in all its branches. In litigated cases he will become 
 highly proficient in the exercise of his knowledge, and be able 
 to expedite the trial of the issues before him. Courts of gen- 
 eral jurisdiction, especially in populous communities, are apt 
 
 39 
 
THE TOEEENS SYSTEM 
 
 to be behind in their calendars and crowded with a great vari- 
 ety of litigation. The hearing of an application for registra- 
 tion must await its turn, and in the rush and push of public 
 cases and eases of magnitude and general interest, the enter- 
 ing of the decree establishing the title according to the find- 
 ing and report of the examiner is apt to become a mere matter 
 of course and not in any proper sense an adjudication of the 
 court. In this way the constitutional restriction against the 
 exercise of judicial power by a non-judicial officer may prac- 
 tically be nullified, and the decree of the court may become a 
 mere matter of form, except as it gives vitality to the opinion 
 of the examiner. Litigated cases under the Torrens law must 
 take their places on the calendar like other cases, and be heard 
 when they are called. There are often long delays in obtain- 
 ing final determinations of such cases. It must also be remem- 
 bered that cases involving the title to real estate, with their 
 voluminous pleadings, long written evidences of title, intri- 
 cate rules of evidence, nice distinctions and technical rules of 
 construction, are great consumers of time, and greatly tend 
 to impede the rapid progress of such courts. From whatever 
 side it is looked at, it is evident that a court of general juris- 
 diction is not an ideal tribunal for the initial registration of 
 land titles. 
 
 §29. Central and Local Courts. Under the Massachusetts 
 act a court of land registration is established for the whole 
 state. Its sittings are in Boston, but it has power to adjourn 
 from time to time to such other places as the public convenience 
 may require. It has two judges who may hold court singly, and 
 different sessions may be held at the same time, either in the 
 same county or in different counties. The clerk of the court is 
 called the recorder, and the register of deeds in each county is 
 an assistant recorder. The salary of the judge of the court is 
 $4,500 per year, and that of the associate judge is $4,500 per 
 year. The salaries of the recorder, assistant recorders, exam- 
 iners of titles and all assistants and messengers are fixed by the 
 governor and council. All the salaries and expenses of the 
 court are paid by the state, except that the salaries of assistant 
 recorders, and all expenses for clerical services incurred by 
 them, are paid by the respective counties. An application for 
 
 40 
 
BEINGING LAND UNDER THE ACT 
 
 registration may be filed with the recorder of the court, or 
 with the assistant recorder in the comity where the land lies, 
 and a memorandum is entered and indexed in the books of the 
 county by the assistant recorder. "Where an application is filed 
 with the assistant recorder, he transmits the papers to the 
 court in Boston. After an application has been disposed of by 
 the court, a memorandum is sent by the recorder to the assist- 
 ant in the proper county, who records and indexes it with the 
 records of deeds and in the index of applications. A certified 
 copy of the decree of registration is sent to the assistant re- 
 corder of the proper county, and by him transcribed in the 
 registration book. This entry is the original certificate of title, 
 and a duplicate of the entry is the owner's certificate. It is 
 stated^^ that where the land is situated in a county distant 
 from Boston, the notices published and served on all the parties 
 in interest state that appearance and answers may be filed with 
 the assistant recorder in the registry of deeds for that county ; 
 that if the abstract shows that the petitioner has a clear title 
 and no appearance is entered, the petitioner has no occasion to 
 go to Boston; that all business is conducted by mail; that if 
 evidence is needed to perfect the title, or if an appearance has 
 been entered and a hearing is necessary, especially if there 
 are numerous witnesses to be heard, one of the judges goes to 
 the county where the parties and witnesses are, but that gen- 
 erally the lawyers and parties prefer to go to Boston for the 
 hearing, and that causes may be referred to an examiner of 
 titles as master to hear the evidence and report to the court. 
 It is to be noted also that under several sections of the act** 
 application may or must be made to the court in Boston for 
 instructions or relief in very important matters of administra- 
 tion under the act. 
 
 We have spoken of the manifest advantages of having the 
 Torrens act administered by a special court, but that court 
 should be local as well as special. One court of registration 
 may possibly satisfy the requirements of small states like 
 
 32 Letter of Judge Leonard A. Michigan Law Review, March, 
 
 Jones, of the court of registration 1903. 
 
 in Massachusetts, given somewhat 33 Notably in §§ 53, 55, 66, 105, 
 
 at length in "Torrens Acts, Some 107 and 108. 
 Comparisons," J. H. Brewster, in 
 
 41 
 
THE TOEEENS SYSTEM 
 
 Rhode Island and Delaware, but it is certainly a tribute to the 
 enthusiasm of the admirers of the Torrens system in Massa- 
 chusetts that they should frame such an act, and provide for 
 one central court in Boston to have jurisdiction over the whole 
 commonwealth. The cost in -time and money of the initial reg- 
 istration, and the inconvenience of having at a distance the 
 court which administers the act, far outweigh the advantages 
 of a special court, and up to this time no act copying this fea- 
 ture of the Massachusetts act has been passed by any state leg- 
 islature.^* A bill which is said to be an exact copy of the Mas- 
 sachusetts act, providing for the registration of titles to lands 
 in the District of Columbia, was introduced in the senate of 
 the United States about ten years ago, but it was not passed.'^ 
 A special court of the kind provided for in that act would be 
 peculiarly adapted to the District of Columbia, because, on 
 account of the small territory within its jurisdiction, it would 
 be local as well as special. 
 
 § 30. Under the Philippine act there is one court of land reg- 
 istration, which has exclusive jurisdiction of all applications 
 for the registration of title to land, within the Philippine Is- 
 lands, and of all such other questions as may come before it 
 under the act, subject to the right of appeal from its orders, 
 decisions or decrees to the court of first instance of the city or 
 province where the land lies. Questions of law arising in the 
 court of first instance on trial of the appeal may be taken to 
 the supreme court. When the facts before the court of land 
 registration are not in dispute, that court may enter its find- 
 ings and decree, and with the consent of the parties, may re- 
 port them directly to the supreme court for its consideration 
 as a pure question of law. The court of land registration holds 
 its sittings in Manila, but may adjourn from time to time to 
 such other places as the public convenience may require. Two 
 
 34 In Ireland the central regis- local and the central office. The 
 
 ter is in Dublin. ' It is the sole rule^ and methods of procedure of 
 
 register for land situated in the the central and local offices are set 
 
 county of Dublin. In each county forth in a general way in Land 
 
 in Ireland other than Dublin, a Transfer and Eegistration of Title 
 
 local register is established. Ten- in Ireland. Et. Hon. Dodgson H. 
 
 ant-purchasers under the land pur- Madden, M. P. Attorney General 
 
 chase acts for Ireland must resort for Ireland, 1892, page 25 et seq. 
 to the local officers, but other land S5 Senate Bill No. 1911, 57th 
 
 owners may choose between the Congress. 
 
 42 
 
BRINGING LAND UNDER THE ACT 
 
 judges of the court are provided for, and more may be appoint- 
 ed as necessity may require. All applications for registra- 
 tion are filed with the clerk of the court, either directly, or 
 through the register of deeds of the province or city in which 
 the land or some portion of it lies.^® There is a register of deeds 
 in the city of Manila, and one in each province, who, in execut- 
 ing the provisions of the act, are subject to the general direc- 
 tion of the clerk of the court of land registration.^'^ In Hawaii, 
 the court of land registration has exclusive original jurisdic- 
 tion of all applications for registration of title to land within 
 the territory, with power to determine all questions arising 
 upon them, and it has jurisdiction over such other questions as 
 may come before it under the act, subject, however, to the 
 right of appeal from its orders, decisions and decrees to the su- 
 preme court in certain cases, and subject to the right of ap- 
 peal to the circuit court if any matter of fact is in issue. 
 All applications for registration are filed with the registrar, 
 who is clerk of the court, either directly, or through the 
 assistant registrar for the district in which the land or a part 
 of it lies. There is one judge of the court of land registration, 
 and its sittings are held in Honolulu. It may adjourn from 
 time to time to such other places as the public convenience 
 may require. All assistant registrars are subject to the general 
 direction of the registrar in executing the provisions of the 
 act.®^ 
 
 § 31. Registration in Philippine Islands and Hawaii. In the 
 Philippine Islands and Hawaii an application for registration 
 is made to the court of land registration, and by it is referred 
 to an examiner of titles. He examines the records and ab- 
 stracts of title and investigates the facts set forth in the appli- 
 cation or brought to his notice, and makes a report to the court. 
 If, in his opinion, the applicant has a good title, proper for 
 registration, the registrar causes notice of the filing of the 
 application to be published in some newspaper of general cir- 
 culation. In the Philippines the notice must be published in 
 two newspapers, one in the English and one in the Spanish 
 language. In both jurisdictions a copy of the notice is mailed 
 
 36 §$ 2, 14 and 20 Philippine act. 38 $§ 2, 7, 10 and 14 Hawaiian 
 
 37 § 10 Philippine act. act. 
 
 43 
 
THE TOEEENS SYSTEM 
 
 by the registrar to each person named in the application, whose 
 address is known, and a copy is posted on each parcel of land 
 described in the application, by a sheriff or his deputy, and 
 his return is conclusive proof of posting. In the Philippines 
 the posted copy of the notice of publication must be in the 
 Spanish language. In both jurisdictions "the court may also 
 cause other or further notice of the application to be given in 
 such manner and to such persons as it may deem proper. 
 The court shall, so far as it deems 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. "^8 The return of the notice shall not be less 
 than twenty nor more than sixty days from date of issue. 
 Any person claiming an interest may appear and answer. A 
 default is entered against any defendant not appearing, and 
 in case an appearance is entered, the cause is set down for 
 hearing. The court may refer the cause or any part of it, to an 
 examiner of titles, as master, to hear the evidence and to make 
 a report to the court. The court is not bound by the report, 
 but may require further evidence, and may enter a decree 
 according to its findings and judgment. The provisions of 
 the federal constitution with regard to due process of law 
 are not in force in these dependencies,*" and there can be no 
 possible question but that the mailing of such notices to known 
 defendants is sufficient service of them: no service of judi- 
 cial process is necessary. Concerning the provisions of the 
 Philippine' act it has been said: "The proceeding for regis- 
 tration is likened to bills in equity to quiet title, but it is 
 different in principle. It is a proceeding in rem under a sta- 
 tute of the type of the Torrens act, such as was discussed in 
 Tyler v. Registration Ct. Judges.*^ It is nearer to law than 
 to equity, and is an assertion of legal title; but we think 
 it unnecessary to put it into either pigeon hole."*^ 
 
 39 $§30, 31, 32 of both acts. 812, 51 L. E. A. 433, (1900). 
 These are taken from §$ 29, 30, 31 42 Carino v. Insular Government 
 of the original Massachusetts act. of Philippine Islands, 212 U. S. 
 
 40 Hawaii v. Mankichi, 190 IT. 449, 29 Sup. Ct. Eep. 334, (1909). 
 S. 197; Dorr v. United States, 195 Holmes, J., appeal from Sup. Ct. 
 U. S. 138. Phi. Islands. See $$ 38-41, post. 
 
 41 175 Mass. 71, 55 N. E. Eep. 
 
 44 
 
CHAPTER V. 
 
 Original Registration in the 
 United States. 
 
 § 32. Registration in States in this Country. In Illinois the 
 application for registration may be made to any court having 
 chancery jurisdiction in the county where the land is situated,^ 
 and the application must go either to the circuit or to the su- 
 perior court, as only they have such jurisdiction in that state. 
 Jurisdiction over such applications is given to the superior 
 court in California and Washington, to the circuit court in 
 Oregon, to the district court in Minnesota and Colorado, to 
 the supreme court in New York. Under the Ohio act, 
 application was to be made to the court of common pleas, or 
 to the probate court, which in that state is one of extensive, if 
 not general, jurisdiction. 
 
 Among other things, the fourteenth amendment to the con- 
 stitution of the United States declares that no state shall de- 
 prive any person of property without due process of law. As 
 this constitution is the supreme law of the land, it is binding 
 on every state and court in the Union. A provision that no 
 person shall be deprived of property without due process of 
 law probably is embodied in the constitution of every state. 
 It is only necessary here to say that, among other things, this 
 prohibition means that private rights in property shall not be 
 taken from any person by virtue of the judgment or decree of 
 any court unless reasonable and ample notice has been given, 
 requiring him to come into the court and to defend them. 
 
 1 5 15. The act has a referen- by the people of Cook County, in 
 dum, and has been adopted only -^yiiich Chicago is situated. 
 
 45 
 
THE TOEEENS SYSTEM 
 
 After the decision in the Chase ease^ holding that a registrar 
 of titles could not exercise judicial power and bring land under 
 the operation of the Torrens law, the advocates of that system 
 found that it was necessary in the first instance to register the 
 title under some proceeding in court, analogous to a bill to quiet 
 and establish title. After the great fire in Chicago, October 9, 
 1871, when all the public records were burned, it was feared 
 that there would be a great difficulty in establishing titles to 
 lands in Cook county, and an act was passed by the state legis- 
 lature, for the confirmation of titles, commonly known as the 
 "burnt record act." It is an act in personam, provides for 
 such notice to and process on defendants as are usual in chan- 
 cery practice, and it has been largely used as a means of 
 quieting and establishing titles. The Torrens act of 1897 in 
 Illinois has followed closely the well known practice under that 
 act, and is sufficient for the establishment of the applicant's 
 title after the expiration of the limitation period of two years, 
 provided the proceedings have been properly conducted and 
 the necessary parties have been brought into court as defend- 
 ants to the application. The following persons are to be made 
 defendants to any application for registration under the 
 Torrens act in Illinois : the occupant, if the land is occupied by 
 any other person than the applicant ; the holder of any lien or 
 incumbrance ; other persons having any estate or claiming any 
 interest in the land in law or in equity, in possession, re- 
 mainder, reversion or expectancy.^ All other persons are to 
 be made parties defendant by the name and designation of 
 "All whom it may concern."* Summons is to issue against 
 all persons mentioned as defendants, and it is to be served as in 
 other cases in chancery. Notice is also to be published and 
 mailed to such defendants, in proper cases, substantially as in 
 other cases in chancery, and the court may direct further notice 
 to be given.5 Upon a failure to answer, default may be entered 
 and, upon the hearing, a decree may be entered finding 
 in whom the title is vested, and declaring it to be subject to 
 
 2 People V. Chase, 165 111. 527, 3 J 11 of An Act concerning 
 
 46 N. B. Eep. 454, 36 L. E. A. 105. land titles, approved and in force 
 
 See State v. Gilbert, 56 Ohio St. May 1, 1897. 
 
 575, 47 N. E. Eep. 551, 60 Am. St. 4 $ 16. 
 
 Rep. 756, 38 L. E. A. 519. 5 $§ 19, 20, 21. 
 
 46 
 
ORIGINAL EEGISTBATION IN THE UNITED STATES 
 
 such liens, incumbrances, trusts or interests, if any, as are 
 shown to exist, and directing the registration to be made.* 
 Any person interested, whether named as defendant or not, 
 may appear, answer, file a cross bill and oppose the registra- 
 tion, practically as he may defend in any other chancery pro- 
 ceedingJ In passing on this proceeding, the supreme court 
 said* that the fact that it might be construed as rendering it 
 possible for a judgment to be obtained against a resident of the 
 state of Illinois upon mere constructive notice and without the 
 service of summons on him, did not make the entire act un- 
 constitutional, as a decree might be rendered under the act 
 without the happening of that possibility. But the court held 
 that so much of the act® as provided that "any person having 
 an interest in or lien upon the land, who has not been actually 
 served with process or notified of the filing of such application 
 or the pendency thereof, may, at any time within two years 
 after the entry of such order or decree, and not afterwards, 
 appear" etc., was invalid as an attempt to deprive a person of 
 his vested rights without due process of law. 
 
 The acts of Miunesota, "Washington and Colorado are very 
 similar to that in Illinois in the requirements which are made 
 for parties defendant and for process against them. The princi- 
 pal difference in the practice seems to be that under the Minne- 
 sota, "Washington and Colorado acts process is not issued 
 against the defendants until the application has been referred 
 by the court to an examiner of titles for investigation of the 
 title and for inquiry into the truth of the statements made in 
 the application, — ^particularly as to the occupation of the land 
 — and the report of such examinations has been filed with the 
 clerk. On the filing of the report, process is issued under the 
 order of the court. In its inquiry into the validity of the act of 
 that state, the supreme court of Minnesota held" that its pro- 
 visions for serving the summons and giving notice of the pen- 
 dency of the proceeding were full and complete, and that they 
 
 6§$23, 25. 9 Part of $26. 
 
 7 4 22 1** State ex rel. Douglas v. West- 
 
 8 People V. Simon, 176 111. 165, fall, 85 Minn. 437, 89 N. W. Eep. 
 page 176, 52 N. E. Rep. 910, 68 175, 54 Cent. L. J. 282, 89 Am. St. 
 Am. St. Rep. 175, 44 L. R. A. 801, Rep. 571, 57 L. R. A. 297, (1902). 
 (1898). 
 
 47 
 
THE TOEEENS SYSTEM 
 
 satisfied both the state and federal constitutions. ^^ 
 
 §33. The Massachusetts act provided that notice of the 
 application should be served by publication "in some news- 
 paper published in the district where any portion of the lands 
 lie," and by posting it "in a conspicuous place in each parcel 
 of" the land in question, fourteen days at least before the re- 
 turn day, and by mailing a copy "to every person named there- 
 in whose address is known ' ' within one week after publication 
 in the newspaper. The posting of the notice was to be perform- 
 ed by a sheriff or his deputy; the publication and mailing by 
 the recorder of the court ; and the return of the former and the 
 affidavit of the latter were made "conclusive proof of such 
 service." It was provided that by the description in the 
 notice "to all whom it may concern" "all the world are made 
 parties defendant and shall be concluded by the default and 
 order ' ' which ' ' shall first be entered against all persons who do 
 not appear and answer" on the return day. It was stoutly 
 urged that this act was unconstitutional in that the initial regis- 
 tration deprived all persons, except the registered owner, of 
 any interest in the land without due process of law, but the 
 supreme court held it to be constitutional and valid.^^ In the 
 opinion written by Chief Justice Holmes for the majority of 
 the court, it is said ; " I am free to confess, however, that, with 
 the rest of my brethem, 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 themselves that there has been no failure in this regard 
 before they admit a title to registration." After this decision 
 the act was amended, and the court was instructed to "so far 
 as it deems it possible, require proof of actual notice to all ad- 
 joining owners and to all persons who appear to have any inter- 
 est in or claim to the land included in the application. Notice 
 to such persons by mail shall be by registered letter. "^^ In the 
 dissenting opinion in this case, it is said: "The peculiarities 
 
 11 In case of personal service, a Eegistration, 175 Mass. 71, 55 N. 
 true copy of the application must E. Eep. 812, 51 L. E. A. 433, 
 be served with the summons. $ 15 (1900). 
 
 Colorado act. 13 § 31 Massachusetts act. 
 
 12 Tyler v. Judges of Court of 
 
 48 
 
ORIGINAL REGISTRATION IN THE UNITED STATES 
 
 of this act consist : first, in the fact that it bars or may bar the 
 true owner, by a decree in a proceeding had in his absence, of 
 which he did not in fact have notice, and to which he is not 
 named as a party; second, in the fact that the notice to be 
 given to those who are named therein is inappropriate and 
 inadequate to bring home to them the knowledge of the pro- 
 ceeding and enable them to appear and defend their right; 
 third, in the fact that the return and affidavit of service by the 
 sheriff and recorder cannot be shown to be either false or in- 
 correct; and fourth, in- the fact that the decree made in that 
 proceeding, unlike any other judgment or decree known to 
 the law, is final and not subject to be attacked directly or 
 collaterally, even if made in the absence of the true owner and 
 without the true owner having in fact received any notice of 
 the proceeding." 
 
 The Ohio act provided that "immediately on the filing of 
 such application (to register the title), the court shall cause 
 the applicant to give notice by publication in some newspaper 
 of general circulation in said county, for the period of four 
 successive weeks, inserted once a week, to all whom it may 
 concern.^* Immediately on the first publication of said notice, 
 the publisher shall file with the court as many copies of the 
 notice as the court may require for service, and said court 
 shall cause the applicant, or some other competent person, 
 to serve each person named in said application, resident of 
 the county, with a copy of said notice. And persons named 
 in said application, residents without the county, must be 
 served by sending a copy of said notice to their address by 
 mail. "^5 In passing upon the sufficiency of the requirements 
 of this act for bringing the interested parties within the juris- 
 diction of the court, the supreme court of that state saidi^^ 
 "To authorize a court to determine the adverse claims of par- 
 ties touching their right in things, judicial process is indis- 
 pensable. Judicial process, in its largest sense, comprehends 
 all the acts of the court from the beginning of the proceeding 
 to its end. In a narrower sense it is 'the means of compelling 
 a defendant to appear in court, after suing out the original 
 
 14 $12 Ohio act. 575, 47 N. E. Rep. 551, 60 Am. St. 
 
 15 § 14 Ohio act. Rep. 756, 38 L. R. A. 519, (1897). 
 
 16 State V. Guilbert, 56 Ohio St. 
 
 49 
 
THE TOEEENS SYSTEM 
 
 writ, in civil and after indictment, in criminal cases,' (Bou- 
 vier). In every sense it is the act of the court. This act does 
 not contemplate process. The notice which it prescribes is 
 the notice of the law of admiralty. The process required by 
 the law of the land is the process of the common law." The 
 court held that the act was unconstitutional in that it at- 
 tempted to take private property without due process of law. 
 
 § 34. Under the California act, notice of the time and place 
 of the hearing of the application must be given by four weeks' 
 publication in a designated newspaper, and notice thereof 
 must also be served in the manner prescribed for service of 
 summons in civil actions, either personally or by publication, 
 as the facts require, on all the persons shown by the petition 
 or the abstract of title to be interested in the land. «The su- 
 preme court construed this provision to mean that personal 
 service must be made, except in those cases wherein under the 
 practice of the state service may be made by publication upon 
 affidavit and an order of the court. The court declared the 
 provision ample and the law constitutional. It said: "The 
 state has full control over the subject of the mode of trans- 
 ferring and establishing titles to property within its limits. 
 For these purposes the state has power to provide a special 
 proceeding, in the nature of a proceeding in rem, to fix the 
 status of the land and declare the nature of the titles and in- 
 terests therein and the person or persons in whom such titles 
 and interests are at the time vested. It may do this whenever it 
 may be considered necessary or likely to promote the general 
 welfare. ' ''■'' 
 
 In Colorado, the act provides for the reference by the court 
 of the application to an examiner of title, who shall examine 
 the abstract of title, and inquire into the nature of the occu- 
 pancy of the land. If he reports in favor of the registration 
 of the title, he gives the names of the persons who are to be 
 made defendants in the proceeding. The persons named in the 
 application and in the report of the examiner must be served 
 personally if possible. Those who cannot be found and all 
 unknown claimants to any interest in the lands must be served 
 by publication, as in ordinary actions to quiet titles to real 
 
 iTEobinson v. Kerrigan, 151 Cal. 40, 90 Pac. Rep. 129, (1907). 
 
 50 
 
ORIGINAL REGISTRATION IN THE UNITED STATES 
 
 estate. The supreme court of that state held that the pro- 
 visions for notice were reasonable and ample, and that the 
 proceeding for initial registration of titles was constitutional 
 and valid.1* 
 
 § 35. There has been no adjudication on the constitution- 
 ality of the Oregon, Washington or New York acts, but there 
 can be no question as to the reasonableness and sufficiency of 
 the notices to interested persons in the proceedings for estab- 
 lishing titles, provided for in them. Indeed, the provisions 
 for suits to declare and confirm titles in all the acts, except 
 the Ohio act and the original Massachusetts act, are clearly 
 within the well-established principles governing bills to quiet 
 title. There are some recent cases^^ upholding the constitu- 
 tionality of a proceeding to declare and confirm titles, pro- 
 vided for in an act which is far in advance of any Torrens 
 act now on the statute books in this country, and we must 
 examine them carefully for the light which they may throw on 
 judicial proceedings for the original registration of titles. 
 
 § 36. Confirmation of Title: Due Process of Law. After the 
 earthquake and fire in San Francisco, in April 1906, the legis- 
 lature of California was convened to provide for restoring the 
 record title to land in that city, and an act to accomplish that 
 purpose became a law on its approval on June 16, 1906. It is 
 commonly known in that state as the "McEnerny act". It is 
 an act to establish and quiet titles in ease of loss or destruction 
 of public records, and provides that, whenever the public 
 records in the office of the recorder are lost or destroyed in 
 whole or in part by flood, fire or earthquake, any interested 
 person may bring and maintain "an action in rem against all 
 the world" to establish his title to lands and to determine 
 all adverse claims thereto. The defendants are described as 
 "all persons claiming any interest in or lien upon the real 
 property herein described, or any part thereof". The sum- 
 mons is directed to "all persons claiming any interest in or 
 
 18 People V. Crissman, 41 Colo. Cal. 289, 88 Pae. Rep. 356, 119 Am. 
 450, 92 Pae. Rep. 949, (1907), cit- St. Rep. 199, 8 L. R. A. (N. S.) 
 ing State v. Westfall, 85 Minn. 682, (1906). Hoffman v. Superior 
 437. The Colorado aet is very Court, 151 Cal. 886, 90 Pao. Rep. 
 similar in its provisions to the 939, (1907). American Land Co. 
 Minnesota act. v. Zeiss, 219 IT. S. 47, 31 Sup. Ct. 
 
 19 Title Co. V. Kerrigan, 150 Rep. 200, (1911). 
 
 51 
 
THE TOBEENS SYSTEM 
 
 lien upon the real property herein described, or any part there- 
 of" and requires them to appear within three months after 
 the first publication of the notice and set forth their interest 
 in the property described in the summons. At the time of 
 the filing of the complaint the plaintiff must file his affidavit 
 fully and explicitly setting forth and showing, among other 
 things, "that he does not know and has never been informed 
 of any other person who claims or who may claim any inter- 
 est in or lien upon the property, or any part thereof, adversely 
 to him; or if he does know or has been informed of any such 
 person, then the name and address of such person. If the 
 plaintiff is unable to state one or more of the matters herein 
 required, he shall set forth and show fully and explicitly the 
 reasons for such inabUity". The summons is required to be 
 published in a newspaper under order of the court or judge 
 thereof, once a week for two months, and each issue is re- 
 quired to give the date of the first publication. If the affidavit 
 discloses the name of any person claiming an adverse interest, 
 summons must be served personally on such person if he is 
 within the state, together with a copy of the complaint and 
 affidavit, and if he resides out of the state, a copy of the sum- 
 mons, complaint and affidavit must be sent to him by mail 
 within fifteen days after the first publication. A copy of the 
 summons must be posted in a conspicuous place on each sep- 
 arate parcel of property within fifteen days after the first 
 publication. At the time of filing his complaint the plaintiff 
 must record in the office of the recorder of the county in which 
 the land lies, a notice of the pendency of the action, setting 
 forth the object thereof and a particular description of the pro- 
 perty; and any defendant claiming any affirmative relief must 
 record a similar and appropriate notice. After the completion 
 of these requirements "the court shall have full and complete 
 jurisdiction over the plaintiff and said property and of the 
 person of everyone having or claiming any estate, right, title 
 or interest in and to, or lien upon, said property or any part 
 thereof, and shall be deemed to have obtained the possession 
 and control of such property for the purposes of the action, 
 and shall have full and complete jurisdiction to render the 
 judgment therein which is provided for in this act". No judg- 
 
 53 
 
OBIGINAL REGISTRATION IN THE UNITED STATES 
 
 ment is given by default, but only on proof of the facts alleged. 
 The judgment when given is to be held to determine all in- 
 terests in the property, legal, equitable, vested or contingent, 
 and to be conclusive and binding upon every person. The 
 court in passing on the act deemed it unimportant that the 
 person to whom such notice is given is not named in the cap- 
 tion or summons, held that the proceeding was judicial and 
 not administrative and ministerial, and passing over the 
 question as to whether the proceeding was strictly in rem held 
 that the mode of proceeding did not conflict with any 
 special inhibition of the state or federal constitution, was not 
 against natural justice, and was a reasonable method of no- 
 tice to all the world. On petition for rehearing, the court 
 conceded the unconstitutionality of any law dispensing with 
 personal service on persons who could be identified and served 
 with reasonable diligence, but denied the petition because it 
 was of opinion that when properly framed the affidavit did 
 require a showing as to the diligence used in determining 
 whether or not there were other ascertainable persons claiming 
 an interest in or lien on the property. Several hundered cases 
 under the act were pending in San Francisco, and few of them 
 contained in the record anything more than the averments 
 of the statutory affidavit — , that affiant did not know and 
 had never been informed of any other person who claimed an 
 interest in the property. Many lawyers appeared as "friends 
 of the court", and on the petition for a rehearing the opinion 
 was withdrawn to await a later decision of the court.^" When 
 this later decision was handed down it held that the positive 
 statement of the plaintiff to the fact, that he did not know and 
 had never been informed of any other person who claimed an 
 adverse interest in the property, was a sufficient mode of pro- 
 cedure, and was a reasonable method of imparting notice to 
 interested persons and to all the world. "With regard to the 
 duty of the plaintiff, before he makes the affidavit, to make in- 
 quiry, and with regard to the knowledge which would be im- 
 
 20 Title Co. V. Kerrigan, 150 Gal. William W. Case, of the Chicago 
 
 289, 88 Pae. Eep. 356, 119 Am. St. Bar, editor of Chicago Real Estate 
 
 Rep. 199, 8 L. E. A. (N. S.) 682, News, will be found in the number 
 
 (1906). An interest article on of that publication for February 
 
 this and the following ease by 1909. 
 
 53 
 
THE TOEEENS SYSTEM 
 
 puted to him if he should become aware of facts sufficient to put 
 him on inquiry as to the existence of adverse claims, the court 
 said: "These considerations would be of importance, and the. 
 neglect to make such inquiry might be of great weight, on the 
 question of the fraud or bad faith of the plaintiff, in any sub- 
 sequent attack upon the decree upon the ground that there 
 was extraneous fraud of the plaintiff in making a 
 false affidavit to obtain jurisdiction. The affidavit on this 
 point, may be false in fact, and the plaintiff may know it to 
 be false. This, if proven, would go far toward establishing 
 the fraud, upon such subsequent suit. So, in any case, an affi- 
 davit to a fact, made to obtain process and secure jurisdiction, 
 may be false, with like effect. The law, however, assumes 
 good faith and does not presume fraud. In any case where 
 constructive service is authorized, it is unnecessary, unless the 
 statute expressly or by implication requires it, that the ex- 
 istence of good faith or the absence of fraud on the part of 
 the plaintiff, in the preliminary steps to acquire jurisdiction 
 of the proceeding, should be affirmatively shown upon the 
 face of the record, either in the affidavit or elsewhere. If 
 fraud or bad faith in this respect was practiced, it does not 
 affect the jurisdiction of the court, nor render the decree 
 invalid on its face."^^ 
 
 § 37. Confinnation of Title ; Due Process of Law. A person 
 in possession of certain lots in San Francisco instituted a suit 
 against "all persons claiming any interest in or lien upon the 
 real property herein described, or any part thereof, defend- 
 ants", to establish his title under the McEnemy act. In his 
 complaint he described the lots, alleged that he was the owner 
 of them, free of incumbrance, and set forth the destruction of 
 the records. At the time of filing his complaint he filed his 
 affidavit setting forth the character of the estate, the source of 
 his title, his possession of the lots, and stating that he had not 
 conveyed the lands ; that there were no liens on them, and that 
 he did not know and that he had never been informed of any 
 other person who claimed or might claim any interest or lien 
 upon the property, or any part thereof, adversely to him. The 
 
 21 Hoffman v. Superior Court, (1907). 
 151 Cal. 386, 90 Pac. Eep. 939. 
 
 54 
 
OEIGINAL EEGISTEATION IN THE UNITED STATES 
 affidavit contained no averment that inquiry of any kind had 
 been made to ascertain whether such adverse claim did exist. 
 Summons was published in a newspaper for the space of two 
 months and was posted upon the land, as required by the act. 
 After the expiration of three months from the first publi- 
 cation of the summons he obtained a decree of the court, 
 establishing and confirming his title to the property. After the 
 expiration of more than a year from the date of the entry of the 
 decree, the American Land Company, a corporation of another 
 state, filed a bill in the United States district court at San 
 Francisco, California, to remove the cloud of the above pro- 
 ceeding, and to quiet its title to the lands. The complainant in 
 the bill alleged that it was the owner of the lots, and that it 
 and its grantors long had been the owners of them. The bill 
 set up all the proceedings by the defendant when he brought 
 his suit under the McEnerny act, and alleged that although 
 its grantors, then the owners of the property, at all times 
 during the pendency of such proceedings, were citizens and 
 residents of California, not seeking to evade, but ready to 
 accept the service of summons, and easily reached for that pur- 
 pose, no service was made on them, and that they did not re- 
 ceive notice of the pendency of the proceeding in any way, 
 and that they did not gain any knowledge of the existence 
 of the decree until more than a year after its entry. A de- 
 murrer was interposed to the bill, and was sustained by the 
 district court, which dismissed the bill for want of equity. An 
 appeal was taken to the United States circuit court of appeals 
 for the ninth circuit, which certified the issues involved to the 
 supreme court of the United States to obtain instructions as 
 to whether the McEnerny act was violative of the fourteenth 
 amendment of the federal constitution, and whether by virtue 
 of the decree under that act the American Land Company 
 had been deprived of its property without due process of law. 
 The supreme court held that a state possesses the power to 
 remedy the confusion and uncertainty as to recorded titles to 
 land, arising from the loss or destruction of public records 
 
 55 
 
THE TOEEENS SYSTEM 
 by flood, fire or earthquake.22 ^g to the adequacy of the safe- 
 guards which the statute provides, the court held that the safe- 
 guards afforded to unknown claimants or claims by the pro- 
 visions of the McEnemy act, by an action in rem, to be brought 
 by a person in the actual and peaceable possession of the 
 property against "all persons claiming any interest or lien 
 upon the real property herein described or any part thereof", 
 satisfy the due process of law clause of the federal constitution, 
 where such statute, as construed by the state courts, requires 
 the plaintiff to designate and serve all known claimants, and 
 those whom, with reasonable diligence, he can ascertain to 
 be such, and calls for constructive service by publication 
 against non-residents and unknown owners as well as for the 
 conspicuous posting upon the property of a copy of the sum- 
 mons, and the recording of a lis pendens. The court declared 
 that clause of the constitution to be satisfied especially, since 
 the California code of procedure declares that any person 
 interested, and having no actual notice of the decree, may come 
 in at any time within a year after its rendition, and, upon 
 showing cause, may have the decree vacated as to him, and 
 be allowed to answer to the merits.^* 
 
 § 38. Due Process of Law ; Action in Rem. 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 term is applied to actions between 
 parties, where the direct object is to reach and dispose of 
 property owned by one or more of them. Such are cases com- 
 menced by attachment against the property of debtors, or in- 
 stituted to partition real estate, foreclose a mortgage or enforce 
 a lien.24 A proceeding to adjudicate and confirm titles to real 
 estate is not incliided in any of the terms of this description, 
 but it is spoken of as quasi in rem, in rem sub modo, sub- 
 
 22 Citing Clark v. Smith, 13 Pet. 23 American Land Co. v. Zeiss, 
 
 195, 10 L. Ed. 123; Barker v. 219 TJ. S. 47, 31 Sup. Ct. Eep. 200, 
 Harvey, 181 U. S. 481, 45 L. Ed. (1911). 
 
 963, 21 Sup. Ct. Eep. 690; Arndt 24 Pennoyer v. Neff, 95 TT. S. 
 
 V. Griggs, 134 U. S. 316, 33 L. Ed. 714, 24 L. Ed. 565; Arndt v. 
 918, 10 Sup. Ct. Eep. 557; Hamil- Griggs, 134 V. S. 316, 10 Sup. Ct. 
 ton V. Brown, 161 U. S. 256, 40 L. Eep. 557, 33 L. Ed. 918; EoUer v. 
 Ed. 691, 16 Sup. Ct. Eep. 585; Holly, 176 U. S. 398, 44 L. Ed. 520. 
 Bertrand v. Taylor, 87 HI. 235. 
 
 56 
 
OEIGINAL REGISTRATION IN THE UNITED STATES 
 
 stantially in rem, and in the nature of a proceeding in rem.^s 
 The general welfare of society is involved in the security of 
 titles to real estate, and in the public records of such titles. 
 The power to legislate as to such subjects is inherent in the 
 very nature of government, and the state may exercise the 
 power, whether it seeks to remedy the confusion and uncer- 
 tainty as to recorded titles, arising from some great cal- 
 amity and disaster, or whether it merely seeks to provide 
 for and protect individual rights to the soil within its con- 
 fines.2* The state has control over the lands within its borders, 
 and may create modes of declaring and confirming titles 
 thereto, by providing reasonable and ample methods of impart- 
 ing to interested persons notice of proceedings brought to af- 
 fect titles. It is well settled that while the process of a state 
 does not go beyond its borders, it may provide for the judicial 
 determination of the extent and character of the right, title 
 and interest of unknown and non-resident persons, in and to 
 real estate within its limits, by establishing reasonable methods 
 of imparting notice to them. It has been held by state and 
 federal courts that, as against unknown claimants, and resident 
 and non-resident claimants, whose places of residence are 
 unknown, publication in a newspaper of general circulation 
 is a sufficient notice to give courts jurisdiction over them in a 
 suit to quiet and confirm title, when such publication is found- 
 ed on an appropriate affidavit, and that, on a similar affidavit, 
 such publication of notice is sufficient as against non-residents 
 whose places of residence are known, provided notice of the 
 publication is mailed to them at their last known addresses, 
 or copies of the publication and of the bill are served on them 
 personally by someone who makes proof of the service by pro- 
 per affidavit. There is no longer any question about the 
 sufficiency of such a notice to such persons in a proceeding to 
 quiet title. 
 § 39. However, on the question of the sufficiency of notice of 
 
 25 state V. Westfall, 85 Minn. man v. Superior Court, 151 Cal. 
 
 437, 89 N. W. Rep. 175, 54 C. L. 386, 90 Pac. Eep. 939, (1907). 
 
 J. 282, 89 Am. St. Rep. 571, 57 L. Robinson v. Kerrigan, 151 Cal. 40, 
 
 R. A. 297, (1902). Title Co. v. 90 Pac. Rep. 129, (1907). 
 
 Kerrigan, 150 Cal. 289, 88 Pae. 26 American Land Co. v. Zeiss, 
 
 Rep. 356, 119 Am. St. Eep. 199, 8 219 V. S. 47, 31 Sup. Ct. Rep. 200, 
 
 L. R. A. (N. S.) 682, (1907). Hoff- (1911). 
 
 57 
 
THE TOEEENS SYSTEM 
 
 such a proceeding to residents of the state, whose places of 
 residence are known, the state authorities are divided, and 
 the supreme court of the United States has made no precise 
 ruling, under the clause of the federal constitution concerning 
 due process of law against them. The Torrens act of Ohio pro- 
 vided that, immediately on the filing of his application, the 
 court should cause the applicant to give notice by publication 
 in some newspaper of general circulation in the county, for 
 the period of four consecutive weeks, inserted once a week, to 
 all whom it may concern; that the publisher immediately on 
 the first publication should file as many copies of the notice 
 as the court might require for service; that the court should 
 cause the applicant or some other competent person to serve 
 each person named in the application, resident of the county, 
 with a copy of said notice; that persons named in the appli- 
 cation, resident without the county, must be served by sending 
 a copy of said notice to their addresses by mail ; that affidavit 
 that such service was made at least twenty-one days before 
 the day for hearing should be filed with the court.^^ The su- 
 preme court of Ohio held that such service on residents of the 
 state was not due process of law. Speaking of the nature of a 
 proceeding to register a title and of the land to be brought un- 
 der the operation of the Torrens law, it said: "It is not to be 
 sold with a view to the distribution of its proceeds, and it 
 partakes, therefore, less of the nature of a proceeding in rem 
 than does the foreclosure of a mortgage. The land is not a 
 thing of shifting situs like a ship, against which obligations 
 may accrue today in one jurisdiction and tomorrow in another. 
 The status of the land is not changed by registration. The 
 substantial thing determined by registration is that the per- 
 son who makes the application has a right of property in the 
 land to the exclusion of all other persons. The judicial force 
 of the proceeding is wholly expended in a conclusive deter- 
 mination of the rights of persons in the land. ' ' And speaking 
 of the process against residents of the state, required by the 
 act, it said: "To authorize a court to determine the adverse 
 claims of parties touching their rights in things, judicial pro- 
 cess is indispensable. Judicial process, in its largest sense, com- 
 27 ^ 12-14 Ohio aet. 
 
 58 
 
ORIGINAL EEGISTRATION IN THE UNITED STATES 
 
 prehends all the acts of the court from the beginning of the 
 proceeding to its end. In a narrower sense it is 'the means 
 of compelling a defendant to appear in court, after suing out 
 the original writ in civil and after indictment in criminal cases'. 
 (Bouvier). In every sense it is the act of the court. This act 
 does not contemplate process. The notice which it prescribes 
 is the notice of the law of admiralty. The process required 
 by the law of the land is the process of the common law.''^^ 
 The original Massachusetts act required the recorder of the 
 court to publish a notice by order of the court in some news- 
 paper published in the district where any portion of the land 
 might lie. This notice was to be addressed by name to all per- 
 sons known to have or to claim to have an adverse interest in 
 the land, and to all adjoining owners and occupants so far as 
 known, and "to all whom it may concern". It was to contain 
 a description of the land, the name of the applicant and the 
 time and place of hearing. It was to be posted in a conspicuous 
 place in each parcel of land described in the application, at 
 least fourteen days before the return day, and a copy of it was 
 to be mailed "to every person named therein, whose address 
 is known," within one week after the first publication. The 
 posting of the notice was to be performed by a sheriff or his 
 deputy, and the publication and mailing was to be made by 
 the recorder of the court. The description in the notice, "to all 
 whom it may concern ' ', made all the world parties defendant, 
 and the judgment of the court on the application included 
 every person. It was held that such service of notice satisfied 
 the requirement of due process of law, and Chief Justice Hol- 
 mes, of the supreme court of Massachusetts, said: "Speaking 
 for myself, I see no reason why what we have said as to pro- 
 ceedings in rem in general should not apply to such pro- 
 ceedings concerning land. * * * But it is said that this is 
 not a proceeding in rem. It is certain that no phrase has been 
 more misused. * * * if the technical object of the suit is to 
 establish a claim against some particular person, with a judg- 
 ment which generally, in theory at least, binds his body, or to 
 bar some individual claim or objection, so that only certain 
 persons are entitled to be heard in defense, the action is in per- 
 sonam, although it may concern the right to or possession of 
 28 state V. Guilbert, 56 Ohio St. Rep. 756, 38 L. R. A. 519, (1897). 
 575, 47 N. E. Rep. 551, 60 Am. St. 
 
 59 
 
THE TOEEENS SYSTEM 
 
 a tangible thing. If, on the other hand, the object is to bar 
 indifferently all who might be minded to make an objection 
 of any sort against- the right sought to be established, and if 
 any one in the world has a right to be heard on the strength 
 of alleging facts which, if true, show an inconsistent interest, 
 the proceeding is in rem. All proceedings, like all rights, are 
 really against all persons. Whether they are proceedings or 
 rights in rem depends on the number of persons affected. Hence 
 the res need not be personified and made a party defendant, as 
 happens with the ship in the admiralty. * * * But perhaps the 
 classification of the proceeding is not so important as the 
 course of the discussion thus far might seem to imply. I have 
 pursued that course as one which is satisfactory to my own 
 mind, but for the purpose of decision a majority of the court 
 prefer to assume that in cases in which, under the constitu- 
 tional requirements of due process of law, it heretofore has 
 been necessary to give to parties interested actual notice of 
 the pending proceeding by personal service or its equivalent 
 in order to render a valid judgment against them, it is not in 
 the power of legislature, by changing the form of the pro- 
 ceeding from an action in personam to a suit in rem, to avoid 
 the necessity of giving such a notice, and to assume that 
 under this statute personal rights in property are so in- 
 volved and may be so affected that effectual notice and an 
 opportunity to be heard should be given to all claimants 
 who are known or who by reasonable effort can be ascer- 
 tained. It hardly would be denied that the statute takes 
 great precaution to discover outstanding claims, as we al- 
 ready have shown in detail, or that notice by publication is 
 sufficient with regard to claimants outside the state. "With 
 regard to claimants living within the state and remaining un- 
 discovered, notice by publication must suffice, of necessity. 
 As to claimants living within the state and known, the ques- 
 tion seems to come down to whether we can say that there is 
 a constitutional difference between sending notice of a suit 
 by a messenger and sending it by the post-office, beside publish- 
 ing in a newspaper, recording in the registry and posting on 
 the land. It must be remembered that there is no constitu- 
 tional requirement that the summons, even in a personal ac- 
 tion, shall be served by an officer, or that a copy served shall be 
 officially attested. Apart from local practice, it may be served 
 by any indifferent person. It may be served on residents by 
 leaving a copy at the last and usual place of abode. "When 
 we are considering a proceeding of this kind, it seems to us 
 within the power of the legislature to say that the mail as it 
 is managed in Massachusetts is a sufficient messenger to con- 
 
 60 
 
ORIGINAL EBGISTEATION IN THE UNITED STATES 
 
 vey the notice, when other means of notifying the party, like 
 publishing and posting, also are required. We agree that such 
 an act as this is not to be upheld without anxiety. But the 
 difference in degree between the case at bar and one in which 
 the constitutionality of the act would be unquestionable, seems 
 to us too small to warrant a distinction. If the statute is with- 
 in the power of the legislature, it is not for us to criticise the 
 wisdom or expediency of what the legislature has done. ' '^^ 
 
 § 40. The courts of many states presume that the common 
 law of England is in force in the other states, and many states 
 have declared that the common law of England, so far as it 
 is general and applicable, and substantially as it existed prior 
 to the fourth year of James the First, is in full force unless re- 
 pealed by legislative authority. One part of the common law, 
 as such, is no more sacred than any other part of it, and, in 
 the absence of constitutional prohibition, a legislature may 
 abolish any part or all of it. A constitutional provision, that 
 the privileges and immunities of a citizen shall not be abridg- 
 ed, must be confined to those privileges and immunities which 
 are fundamental, as belonging of right to the citizens of free 
 governments, and there has never been a suggestion that under 
 such a provision a court may obtain jurisdiction of the prop- 
 erty of a citizen only by service on him, by an officer of the 
 court, of the ancient writ of summons, under the hand of its 
 clerk and with the seal of the court. In providing for due pro- 
 cess of law, none of the constitutions in this country give a 
 description of the processes which are to be allowed or for- 
 bidden, or declares what principles are to be applied to ascer- 
 tain what is due process. Among other things, the fourteenth 
 amendment to the federal constitution declares: "Nor shall 
 any state deprive any person of life, liberty or property with- 
 out due process of law. ' ' It has been held that a statute pro- 
 viding for a jury of eight, instead of twelve persons, in any 
 criminal ease, not capital, does not deny the right of the de- 
 fendant to due process of law, if all persons within the state 
 are made liable to be proceeded against in the same way;^" 
 and it is settled that in cases of felony the proceeding by in- 
 formation instead of by indictment by a grand jury, amounts 
 
 29 Tyler v. Judges of Court of (1900). 
 Registration, 175 Mass. 71, 55 N. 30 Maxwell v. Dow, 176 XT. S. 
 
 E. Rep. 812, 51 L. R. A. 433, 581, 20 Sup. Ct. Rep. 448, (1899). 
 
 61 
 
THE TOEEENS SYSTEM 
 
 to due process of law.^^ The doctrine on the subject of due 
 process of law in cases of felony seems to be that it is proper 
 for the citizens of each state to determine how persons shall 
 be proceeded against for crimes, and how they shall be tried 
 in criminal cases, provided all persons within the jurisdiction 
 of the state may be proceeded against and tried in the same 
 manner, and provided the equal protection of the law is se- 
 cured to them. It is easy and natural to extend the same 
 principles of local self-government to civil actions, and, unless 
 the protection of private property is of more consequence 
 than the protection of the life and the liberty of the citizen, 
 we may expect the supreme court of the United States to fol- 
 low thp decision of the supreme court of a state as to the 
 power of the state over titles to real estate within its borders, 
 as to the jurisdiction over the subject, which the state may 
 confer upon its courts, as to the nature of the process of sum- 
 mons to be served on defendants, and as to the adequacy of the 
 safeguards to the rights of interested persons, which the state 
 may provide. Where the supreme court of a state so holds, 
 we may expect the supreme court of the United States to hold 
 that the state may declare actions by occupants of land to 
 quiet and establish titles to be strictly in rem; that in such 
 actions service of the judicial writ of summons is not neces- 
 sary in order to adjudicate on the rights of persons in land; 
 that a legislature may provide for notice to all persons inter- 
 ested in the land by publication in a newspaper of general 
 circulation in the county, by mailing copies of such publica- 
 tion notices to all interested persons, resident or non-resident 
 within the state, whose addresses are known, as shown by a 
 proper affidavit filed in the cause as a foundation for notice, 
 by posting a copy of such notice on the land, and by filing a 
 notice of lis pendens in some appropriate county office. The 
 case of American Land Co. v. Zeiss, supra, is a long step in 
 this direction. The due process of law clause in the federal 
 constitution restrains only those arbitrary and unreasonable 
 exertions of power, which really are not within lawful state 
 power, as being so unreasonable and unjust as to impair or 
 
 31 Hurtado v. California, 110 U. Eep. Ill; Maxwell v. Dow, supra. 
 S. 516, 28 L. Ed. 232, 4 Sup. Ct. 
 
 62 
 
ORIGINAL REGISTRATION IN THE UNITED STATES 
 
 destroy fundamental rights. The state is required to make a 
 proceeding to confirm title general and applicable to all per- 
 sons under like circumstances, to establish a proceeding which 
 is calculated to disclose the names and addresses of all per- 
 sons interested in the land, and to provide methods which 
 are generally adequate and sufficient to apprise such persons 
 of the steps which are taken against their rights. A state law 
 which possesses these qualities will undoubtedly be sustained. 
 In American Land Co. v. Zeiss, supra, concerning the require- 
 ments for notice, it is said : ' ' We think the statute manifests 
 the careful purpose of the legislature to provide every reason- 
 able safeguard for the protection of the rights of unknown 
 claimants, and to give such notice as, under the circumstances, 
 would be reasonably likely to bring the fact of the pendency 
 and the purpose of the proceeding to the attention of those 
 interested. To argue that the provisions of the statute are re- 
 pugnant to the due process clause because a case may be con- 
 ceived where rights in and to property would be adversely 
 affected without notice being actually conveyed by the pro- 
 ceedings, is in effect to deny the power of the state to deal 
 with the subject. The criterion is not the possibility of con- 
 ceivable injury, but the just and reasonable character of the 
 requirements, having reference to the subject with which the 
 statute deals. "^2 In Twining v. New Jersey,^* it was said: 
 "Due process requires that the court which assumes to deter- 
 mine the rights of parties shall have jurisdiction, and that 
 there shall be notice and opportunity for hearing given the 
 parties. Subject to these two fundamental conditions, which 
 seem to be universally prescribed in all systems of law estab- 
 lished by civilized countries, this court has, up to this time, 
 sustained all state laws, statutory or judicially declared, regu- 
 lating procedure, evidence and methods of trials, and held 
 them to be consistent with due process of law." The Mc- 
 Enerney act, the original Massachusetts act for the registra- 
 tion of titles, and the Ohio act for that purpose, are quite 
 32 Citing In Re Empire City 461, 27 Sup. Ct. Rep. 261; Huling 
 Bank,' 18 N. Y. 199; Title Co. v. v. Kaw Valley Co., 130 U. S. 559, 
 Kerrigan, 150 Cal. 289, 88 Pac. 32 L. Ed. 1045, 9 Sup. Ct. Rep. 603. 
 Rep. 356, 8 L. R. A. (N. S.). 682, 33 211 U. S. 78, 53 L. Ed. 97, 29 
 
 119 Am. St. Rep. 199; Ballard v. Sup. Ct. Rep. 14. 
 Hunter, 204 U. S. 241, 51 L. Ed. 
 
 63 
 
THE TOKEBNS SYSTEM 
 
 similar in the requirements for jurisdiction over the land de- 
 scribed in the proceeding and over the persons interested 
 therein. They are the most progressive acts which have yet 
 been passed in this country for quieting and establishing titles 
 to real estate, and they manifest clearly a tendency to make 
 such a proceeding an action in rem.** 
 
 § 41. Some Minor Observations. The Minnesota, California 
 and Colorado cases on the constitutionality of the Torrens acts 
 were decided by unanimous courts. Mr. Justice Boggs dis- 
 sented from the opinion of the majority in the Ulinois case. 
 The Ohio act was held to be unconstitutional by an unanimous 
 court. As has been pointed out by an able writer,^^ "there 
 appear to have been but five of the seven judges of the Massa- 
 chusetts court sitting in this (the Tyler) case, and the dissent 
 of two as expressed by Justice Loring will not be ignored in 
 future discussions. He agrees with the chief justice neither 
 in his discussion as to whether the proceeding is or is not in 
 rem nor in the conclusion of the majority irrespective of this 
 point. * * * The practical lesson to be learned from these 
 decisions is, it seems, that in acts of this nature there should 
 be the amplest provision made for giving notice to all adverse 
 parties by personal service, wherever this is possible, and by 
 substituted service only when no other is reasonably possible. ' ' 
 The Ohio court and a majority of the justices of the Massa- 
 chusetts court hold that an application to register a title is 
 not a proceeding in rem, while Chief Justice Holmes holds that 
 it is. In the Illinois, Minnesota, California and Colorado Tor- 
 rens cases there was no occasion to discuss at length the mature 
 of the proceeding, since the acts under consideration in those 
 cases substantially follow the well known practice in chancery 
 and provide for ample personal and substituted service. The 
 California act declares that the decree in the proceeding under 
 it shall be in the nature of a decree in rem, but the service 
 required for jurisdiction over defendants is the same as in 
 civil actions, and the court might have contented itself with 
 
 34 See $1 Massachusetts act. $ 29 Sup. Ct. Eep. 334, (1909). 
 
 2 Hawaiian act. § 2 Philippine SB The Torrens Acts, Some Com- 
 
 act. $ 17 California act. State v. parisons, by J. H. Brewster, Mich- 
 
 Westfall, 85 Minn. 437; Carino v. igan Law Beview, March, 1903, 
 
 Insular Government, 212 V. S. 449, Vol. 1, No. 6. 
 
 64 
 
OEIGINAL REGISTRATION IN THE UNITED STATES 
 
 SO stating. But the language of the opinion and the method 
 of arriving at its conclusion give the impression that the court 
 was quite prepared to hold that such a proceeding could be 
 made strictly in rem. 
 
 § 42. Some Comment on These Gases. In considering the 
 force of these decisions, we must understand exactly what was 
 before the courts for adjudication. In Illinois, Minnesota and 
 Colorado the actions originated upon an information in the 
 nature of a quo warranto against the registrar to show by 
 what authority of law he was exercising the powers and duties 
 of the office of registrar of titles. In each case the defendant, 
 in answer to the information, set up the act of the legislature, 
 commonly known as the Torrens law, and the relator filed a 
 general demurrer. In Massachusetts, a petition was filed, ask- 
 ing for a writ of prohibition to restrain the judges of the court 
 of registration from proceeding to register land in which peti- 
 tioner claimed an interest, and a demurrer was filed to the peti- 
 tion. In California, plaintiff brought a suit to compel defend- 
 ant, as judge of the superior court, to make an order appoint- 
 ing a time for hearing a petition for registration, as provided 
 for in the act of March 7, 1897. Defendant refused to proceed 
 under the act on the ground that it was unconstitutional and 
 void. In each case it was argued that the Torrens act provid- 
 ing for the registration of titles was unconstitutional and 
 void. It is clear that the question to be determined was wheth- 
 er the Torrens act so violated the constitution as to render it 
 void, and therefore to furnish no justification for the exercise 
 of powers and duties under it; and it is equally clear that in 
 the determination of that question every reasonable doubt 
 should be resolved in favor of the validity of the act. Under 
 the issues presented, it was not competent for the court to give 
 a construction to the different sections of the act, which did 
 not involve the validity of the entire law. Constitutional guar- 
 anties for the protection of persons or property can be invoked 
 generally only by persons whose rights are injuriously affected 
 by the alleged disregard of such guaranties, and the construc- 
 tion of provisions not affecting the validity of an entire act 
 will usually be left until the necessity for construction shall 
 arise in cases involving rights under them. It has been stated 
 
 6S 
 
THE TOKEEN8 SYSTEM 
 
 that the Torrens act in Massachusetts has been held to be con- 
 stitutional both in the supreme court of that state, and in the 
 supreme court of the United States, but the latter court declin- 
 ed to take jurisdiction of the case when it was brought before 
 it. The disposition of the case was published in December, 
 1900, as follows : ' ' The constitutionality of the Massachusetts 
 land registration act was involved in the case of William B. 
 Tyler against the court of registration, coming from the su- 
 preme court of Massachusetts. But in deciding the case Jus- 
 tice Brown held that Tyler did not have the status requisite to 
 challenge the constitutionality of the law, and that the court 
 could not decide moot questions or abstract propositions pre- 
 sented by a party who did not himself disclose that he would 
 be affected. The court holds that it cannot assume to decide 
 the general question whether Massachusetts has established a 
 court whose jurisdiction may as to some other person than the 
 party in the suit amount to a deprivation. The decision adds 
 that it will be only after the party had shown that a right has 
 been denied him under the XlVth amendment that he may have 
 a writ of error from this court. A dissenting opinion was de- 
 livered by the Chief Justice and was concurred in by Justices 
 Harlan, Brewer and Shiras. ' '^® 
 
 § 43. None of the cases involving the constitutionality of 
 our present Torrens acts really considers the distinctive prin- 
 ciples or elementary processes of the system. They all con- 
 sider the method of establishing a title under the respective 
 acts for the purpose of registering it, and they hold that the 
 acts provide for notice to all persons interested in the land, 
 which is reasonable and sufficient to give jurisdiction over 
 such persons, in order to confirm and establish the title in 
 question and to decree registration of it. These decisions are 
 manifestly right on this point, and a study of sections 12, 13 
 and 14 of the repealed Ohio act, in connection with the recent 
 cases on the subject of actions in rem to establish title to land, 
 may leave much doubt as to the correctness of the decision on 
 this point by the supreme court of Ohio in the Guilbert case. 
 "When the court decided in each of these cases that the pro- 
 se Tyler V. Judges of Court of Sup. Ct. Eep. 206, (1900). 
 Eegistration, 179 U. S. 405, 21 
 
 66 
 
OEIGINAL BEGI8TEATION IN THE tTNITBD STATES 
 
 eeeding for placing the title on the register was valid and 
 sufficient, it seemed to be taken for granted that the constitu- 
 tionality of the act was established in the state where the de- 
 cision was rendered. In People v. Chase, supra, it was held 
 that a title could not be placed on an indefeasible register by 
 a registrar, according to the scheme of the Torrens system, 
 and these eases merely held that a title could be placed on such 
 a register by a decree of court obtained by process under 
 the acts, according to the principles of the judicial system of 
 registering titles. While they did not determine the legality 
 of a single principle of the Torrens system, they held that the 
 substitute for the first Torrens registration by act of the regis- 
 trar answered every constitutional requirement for due process 
 of law. People v. Chase, supra, at once recognized the prin- 
 ciple of the Torrens system, that a certificate of title becomes 
 absolute and conclusive evidence of title, declared that such 
 a certificate became conclusive, if at all, only by an adjudica- 
 tion by the registrar on the rights of all persons concerned, 
 and held that a registrar under the constitution, could not 
 exercise judicial functions and issue a certificate which would 
 directly or ultimately conclude the rights of such persons. All 
 Torrens statutes declare that every certificate shall be con- 
 elusive evidence of title, and no distinction is made between 
 the first certificate and Subsequent ones. In People v. Chase, 
 supra, the power of the registrar to make an original regis- 
 tration was challenged and was directly passed on ; and in the 
 Torrens cases which we have been considering in this chapter 
 the power of the registrar to make a new registration on the 
 transfer of registered land was challenged, but the question 
 was not met squarely along the whole line of attack. Without 
 explaining or attempting to explain the difference between the 
 nature of the functions of the registrar in making the first 
 registration and in making a subsequent registration on a 
 transfer of registered land, both of which are declared by 
 statute to be conclusive, they held that his acts in making a 
 new registration are merely ministerial and quasi judicial. 
 Having held that his acts concluded no one and might be cor- 
 rected by any proper proceeding for that purpose, they made 
 no attempt to explain how the statutory declaration operates, 
 
 67 
 
THE TOEEENS SYSTEM 
 
 which says that the certificate issued by the registrar shall be 
 conclusive evidence of title in all courts and in all places. 
 This statutory declaration of an indefeasible title on the regis- 
 ter is the very essence, center and heart of the system. In for- 
 eign jurisdictions it is made effective by the fact that the reg- 
 istrar acts judicially in making any registration, first or sub- 
 sequent, and that he adjudicates on the rights of all persons 
 interested in it, and applies the law to their rights, whether 
 they are present or absent, and whether or not they have been 
 notified and given an opportunity to be heard. "When in- 
 struments of transfer are filed in his office, and are thus present- 
 ed to him for registration, he is empowered by statute to regis- 
 ter them on his own judgment as to their legal effect, without 
 notice to anyone, and when he makes a registration, whether it 
 is right or wrong, the state vests the title by the statutory 
 declaration of indefeasibility of a registered title.^'' This is the 
 scheme of the Torrens system, and while we have decisions 
 upholding generally the Torrens acts which have been passed 
 in some of the states in this country, we have no decision 
 which holds that such a scheme may be operated in this country. 
 
 § 44. Other Constitutional interpretations. An act was en- 
 titled "an act for the certification of land titles and the sim- 
 plification of the transfer of real estate". Provisions of the 
 act related to felonies, county officers, county government, 
 principal and surety, lawyers, judgments, liens, procedure 
 and other matters connected with land titles and the transfer 
 of land. The claim was made that the act violated the pro- 
 vision of the constitution, that "every act shall embrace but 
 one subject, which subject shall be expressed in its title". 
 The court said: "We think the title to the act sufficiently ex- 
 presses the subject to which it relates, and that it embraces 
 but one general subject. "We find no sufficient ground for 
 holding the law unconstitutional. "^^ In Colorado the act is 
 entitled "an act concerning land titles," and the court held 
 that the title to the act is not so general as to be repugnant 
 to the constitutional requirement, that the subject of an act 
 
 37 See post M47. Cal. 40", 90 Pac. Eep. 129, (1907). 
 
 38 Eobinsou v. Kerrigan, 151 
 
ORIGINAL EEGISTEATION IN THE UNITED STATES 
 
 shall be clearly expressed.^® In one ease it was said: "It is 
 claimed that the act is special because it makes special pro- 
 visions regarding the statute of limitations, the rights of pur- 
 chasers in good faith of land registered under the act, and 
 other matters peculiar to the lands which are brought within 
 its provisions. "We perceive no merit in this contention. The 
 fact that the land thus registered may be conveyed and trans- 
 ferred by means different from that required as to other lands, 
 and the necessity of a special proceeding as a foundation for the 
 system, creates a separate class of such registered lands, and 
 authorizes special provisions of law on the subject, applying 
 only to such registered lands, the owners thereof, or persons 
 interested therein, or to the procedure whereby the system is 
 to be inaugurated. ' '*<* The Torrens acts in Illinois and Minne- 
 sota are held to be general and not special laws.^i 
 
 The fact that the act gives affirmative relief to the 
 applicant for registration only, — by providing for a 
 decree in his favor if his title is sustained and merely for 
 the dismissal of the action if it is not sustained — , is not con- 
 trary to a constitutional provision that all persons must be 
 given equal rights and privileges under the law. The right 
 to a particular remedy is not a vested right, and every state 
 has complete control over the remedies which it offers to sui- 
 tors in its courts. The object of the proceeding under the act 
 is not to give affirmative relief to defendants, but to establish, 
 declare and make conclusive the status or right of the applicant 
 as a foundation for subsequent transfers and dealings with the 
 land.*^ A provision of the act that an examiner of titles may 
 act as referee and report his findings to the court is not re- 
 pugnant to the constitution as a delegation of judicial power, 
 when the court is also given power to inquire into the facts 
 and into his findings.*^ A provision to the effect that the reg- 
 
 S9 People V. Crissman, 41 Colo. 52 N. E. Eep. 910, 68 Am. St. Eep. 
 
 450, 92 Pac. Eep. 949, (1907). 175, 44 L. E. A. 801, (1898); State 
 
 40Eobin3on v. Kerrigan, 151 v. Westfall, 85 Minn. 437, 89 N. 
 
 Cal. 40, 90 Pae. Eep. 129, (1907) W. Eep. 175, 57 L. E. A. 297, 89 
 
 See Lofstad v. Murasky, 152 Cal. Am. St. Eep. 571, 54 Cent. L. J. 
 
 64, 91 Pac. Eep. 1008, (1907). 282, (1902). 
 
 Waugh V. Glos, 246 111. 604, &2 N. 42 People v. Crissman, supra, 
 
 B. Eep. 974, (1909). citing Gooley's Const. Lim. 515. 
 
 41 People V. Simon, 176 111. 165, 43 State v. Westfall, supra. 
 
 69 
 
THE TORRENS SYSTEM 
 
 istrar of titles shall perform his duties under the act under 
 rules and instructions established and given by the court which 
 is administering the act, is not unconstitutional. It does not 
 devolve executive duties on the court; it simply confers on it 
 certain judicial duties incident to the plan of registering titles 
 under the act.** When a recorder of deeds or other officer is 
 made a registrar of titles under an act for the registration of 
 titles, he is not elected or appointed a new county officer 
 within the meaning of constitutional provisions concerning 
 such election or appointment. His duties as recorder or other 
 officer are merely added to and extended.*® A provision that 
 the act shall not take effect until after a favorable vote by a 
 county is not a delegation of legislative power.** The fact that 
 an act providing that an examiner of titles may receive in evi- 
 dence any abstract of title or certified copy thereof, made in 
 the ordinary course of business by makers of abstracts, makes 
 such abstract evidence without the sanction of an oath, does 
 not render the act unconstitutional.*'' Where an original act 
 was not in force until it was adopted by a vote of the citizens 
 of a county, and the legislature afterward amended the act 
 without providing for the submission of the amendment to 
 the vote of the people, it was held that the amendment was 
 not unconstitutional.** 
 
 44 Tyler v. Judges, 175 Mass. 71, 
 55 N. B. Rep. 812, 51 L. R. A. 433, 
 (1900); State v. Westfall, supra; 
 People V. Crissman, supra. 
 
 46 People V. Crissman, supra. 
 
 See also State v. Westfall, 
 supra. 
 
 46 People V. Simon, supra. 
 
 47Waugh V. Glos, 246 111. 604, 
 
 92 N. E. Rep. 974, (1910). 
 
 48 Culver V. Waters, 248 111. 163, 
 
 93 N. E. Rep. 747, (1911). 
 Mihalik v. Glos, 247 111. 597, 93 N. 
 E. Rep. 372, (1910). Waugh v. 
 Glos, 246 111. 604, 92 N. B. Rep. 974 
 (1909). Brooke V. Glos, 243 HI. 
 392, 90 N. B. Rep. 751, (1910). 
 
 70 
 
CHAPTER VI. 
 
 Proceeding in Original Registration 
 in this Country. 
 
 § 45. Proceeding in Chancery ; Civil Action. It is an essen- 
 tial element of the general Torrens system that a certificate 
 shall be created, which is conclusive evidence of an indefeasible 
 title to registered land.^ This creation is indispensable, but 
 the system does not require that it shall be made in any parti- 
 cular manner. In foreign countries the registrar gives inde- 
 feasibility to any title as soon as he registers it, for the Tor- 
 rens acts declare that the person registered as owner shall hold 
 the title free from any adverse claims, and from incumbrances 
 except the statutory burdens and those set forth in his certifi- 
 cate. But in this country a declaration of a statute cannot 
 make an entry on a non- judicial register indisputable evidence 
 of title, *and it is necessary to invoke the aid of a court, wherein 
 an applicant for registration may bring in all the world to con- 
 test his title. In this proceeding all controversies respecting 
 the title are heard, all interests in it are determined and estab- 
 lished, and registration is ordered. "When the title is registered, 
 and not until then, the principles of the Torrens system are 
 brought into operation. This difference in initial registration, 
 however, is to be observed: In foreign countries first regis- 
 tration ipso facto makes the title indefeasible and indisputable, 
 but in this country first registration does not place the title 
 beyond dispute, and, in order to know that it is indefeasible, 
 inquiry must be made into it and into the proceeding to register 
 it. The decisions which are referred to in this chapter relate to 
 
 1 $ 161, post. a J 64, post. 
 
 71 
 
THE TOEEENS SYSTEM 
 
 unregistered land and to so much of Torrens acts as provides 
 for original registration of titles to unregistered lands, but 
 they do not relate to any principle of the Torrens system of 
 conveyancing, for there is no decision in this country respect- 
 ing registered lands and rights in them. Perhaps it is pertinent 
 here to suggest that if the proceedings to establish and con- 
 firm titles to land for the purpose of registering them are su- 
 perior to the ordinary methods of removing clouds and quiet- 
 ing titles, the state, which is deeply interested in the stability 
 of titles, should adopt them as a substitute for bills to remove 
 clouds and quiet titles. 
 
 In the early applications under the Torrens act in the state 
 of Illinois it was insisted that the proceedings under the act 
 were sui generis, and that the rules of practice and evidence 
 which obtained in ordinary proceedings in court did not apply. 
 The lower courts were inclined to this view and so held in sev- 
 eral cases. But it is now the settled law of that state that 
 such applications are proceedings in chancery and are gover- 
 ned by the rules of practice, evidence and procedure in chan- 
 cery.2 When the registration act contains no definite and ex- 
 press directions as to the method and mode of procedure under 
 it, all rules and principles of law applicable to equitable ac- 
 tions, and all rules of practice with respect to the trial, intro- 
 duction of evidence, findings and judgment, so far as appli- 
 cable, should be followed and applied. Where issue is joined 
 in such proceedings, the finding of facts and conclusions of law 
 should be made as in ordinary cases.^ It is provided in the 
 New York act that "the action shall be governed by, and shall 
 proceed according to, the laws of this state and the rules of 
 court, relative to an action in the supreme court, as far as the 
 same are applicable and are not abrogated or modified by this 
 act.*" The Minnesota act provides that "the case shall be 
 tried by the court in like manner as an ordinary civil action. ' '^ 
 
 2 People V. Simon, 176 111. 165, 3 Owsley v. Johnson, 95 Minn. 
 
 52 N. E. Eep. 910, 68 Am. St. Eep. 168, 103 N. W. Eep. 903, (1905). 
 
 175, 44 L. E. A. 801, (1898) ; Gage In re Kuby, ■ Minn. , 130 
 
 V. Consumers' Co., 194 111. 30, 64 N. W. Eep. 1100, (1911). 
 
 N. E. Eep. 653, (1901); O 'Laugh- 4 § 17 N. T. act. 
 
 lin V. CoveU, 222 lU. 162, 78 N. 5 $ 19 act of 1905. 
 E. Eep. 59, (1906). 
 
 ra 
 
PROCEEDING IN ORIGINAL REGISTRATION IN THIS COUNTRY 
 
 The relation of the examiner of titles to the court and to the 
 parties to the application is analogous to that of the master 
 in chancery in other chancery cases. Specific objections and 
 exceptions must be made to the rulings of the examiner on 
 the hearing of the application. Objection to the competency 
 of a witness or to the testimony given by him must be raised 
 before the examiner and by exception to the examiner 's report.* 
 If the parties are content with the findings of the examiner, 
 and make no objection or exception thereto, they cannot com- 
 plain if the report is adopted by the court ; but if the findings 
 are excepted to, they may require the court to pass on them 
 and approve or disregard them, as they may appear to be in 
 accordance with or against the weight of the evidence. If no 
 objection is made to the sufficiency of the applicant's evidence 
 by exception to the examiner's report, such objection is waiv- 
 ed.'^ In a proceeding for registration of title the same rules 
 apply to the mode of preserving for review objections to the re- 
 port of the examiner of title as are applicable to the objections 
 to the report of a master ia chancery. Objections to the ex- 
 aminer's rulings on evidence should be made before his re- 
 port is returned, and, if not acted on favorably by the examin- 
 er, should be renewed before the chancellor as exceptions to 
 the report. An objection to the report of the examiner of titles 
 is in the nature of a special demurrer, and it must point out the 
 grounds of objection with clearness and certainty. An objec- 
 tion that the examiner erred in finding that the applicant for 
 registration was seized of a title in fee is not sufficiently spec- 
 ific to preserve the question as to the sufficiency of the prelim- 
 inary proof for the admission of abstracts of title in evidence.* 
 An applicant for initial registration of title should introduce 
 his evidence before the examiner of titles, on notice to the de- 
 fendants, in such form that the latter may preserve their 
 rights for review by objection to the evidence.^ "While the ex- 
 
 eO'Laughlin v. Covell, 222 111. 8 Glos v. Hoban, 212 111. 223, 72 
 
 162, 78 N. E. Rep. 59 (1906). Glos N. E. Rep. 1, (1904). 
 
 V. Holberg, 220 HI. 167, 77 N. E. 9 Glos v. Holberg, 220 111. 167, 
 
 Rep. 80, (1906). See $24 Wash- 77 N. E. Rep. 80, (1906); Glos v. 
 
 ington act. Association, 229 HI. 387, 82 N. E. 
 
 rGage v. Consumers' Co., 194 Rep. 304, (1907). 
 111. 30, 64 N. E. Rep. 653, (1901). 
 
 73 
 
THE T0EEEN8 SYSTEM 
 
 aminer of titles is not required to report to the court more 
 than the substance of the proof submitted to him, except upon 
 the request of some party or by direction of the court, yet he 
 should so far report the evidence as to show its iatroduction 
 before him, and, in case secondary evidence has been received, 
 that a proper foundation for its introduction was laid.^** It is 
 the duty of the examiner to report the evidence submitted to 
 him if requested to do so by a party to the action. If he fails 
 or refuses to do so, such party may apply to court for a rule 
 on him, but if no rule is applied for, the party on appeal can- 
 not complain that his request was not complied with.^^ The 
 parties to an application to register a title may not urge on 
 appeal that the examiner failed to return the evidence, where 
 they failed to ask the trial court for a rule on the examiner to 
 report and file it.^^ If the report of an examiner of titles 
 contains sufficient evidence, competent to support his findings, 
 it will be presumed by a court of review that he considered 
 only competent evidence in making his findings.^^ "Where the 
 examiner erroneously refused to admit evidence which was 
 offered, it is proper practice for the reviewing court to re- 
 refer the cause to the examiner to hear such evidence. If the 
 examiner dies before hearing this evidence, a new examiner 
 may hear and report it, and the court may base its findings 
 on the two reports.^* In Massachusetts where an appeal is 
 taken from an order of the court, overruling or sustainiiig 
 exceptions to a master's report, the whole record is before the 
 appellate court, and it may direct what the final decree shall 
 be ; but where the correctness of the order is brought up by bill 
 of exceptions, the case must go back to the court below for 
 further hearing.i^ 
 
 § 46. In the absence of a statute making abstracts of title 
 prima facie evidence of title, an examiner cannot consider ab- 
 stracts for the introduction of which in evidence no proper 
 foundation has been laid, nor can he base his report on an ex 
 
 loGlos V. Holberg, 220 111. 167, is McMahon v. Rowley, 238 ni. 
 
 77 N. E. Eep. 80, (1906). 31, 87 N. E. Eep. 66, (1908). 
 
 11 Mundt V. Glos, 246 111. 636, 93 14 McMahon v. Eowley, supra. 
 
 N. E. Rep. 49, (1910). is Welsh v. Briggs, 204 Mass. 
 
 i2Cregar v. Spitzer, 244 111. 208, 540, 90 N. E. Rep. 1146, (1910). 
 91 N. E. Eep. 418, (1910). 
 
 74 
 
PEOCEEDING IN OEIGINAIi BEGISTEATION IN THIS COUNTEY 
 
 parte examination of sueh abstracts, or on the original court 
 records, or on the records of the recorder's office of the 
 county.i* In the absence of such a statute, it is error to per- 
 mit petitioner, over specific objection, to introduce in evidence 
 an abstract of title showing record of conveyances which were 
 indispensable links in petitioner's chain of title, without re- 
 quiring any preliminary proof which might render the abstract 
 admissible as secondary evidence.^'' An abstract of title may 
 be read in evidence only when it is shown by preliminary 
 proof in accordance with the statute that the original recorded 
 instrument has been lost or destroyed, or that it is not within 
 the power of the party wishing to use it to produce it, and that 
 the record thereof has been destroyed.^® Where a statute pro- 
 vides that an examiner may receive in evidence any abstract 
 of title or certified copy thereof, made in the ordinary course 
 of business by the maters of abstracts, evidence must first 
 be given as to when, where and under what circumstances the 
 abstract to be offered in evidence was made. An abstract, 
 purporting to consist of copies of a number of distinct examin- 
 ations of title, made at different times by different abstract 
 makers, is not admissible in a proceeding to register a title to 
 land, without proof that they were made in the ordinary course 
 of business. Where a witness testifies that an abstract was 
 made in due course of business, but it appears from his testi- 
 mony that he had nothing to do with making it, that he knows 
 nothing about any order given for it, and that he testifies 
 merely from an examination of the abstract, the abstract is 
 not admissible in evidence.^* The statute of Illinois, amend- 
 ment of 1907, authorizes the admission in evidence of "any 
 abstract of title, or certified copy thereof, made in the ordinary 
 course of business by makers of abstracts." Under this act 
 testimony that an abstract of title was "ordered in the regular 
 
 16 Glos V. Holberg, 220 HI. 167, 17 Glos v. Hallowell, 190 111. 65, 
 
 77 N. E. Eep. 80, (1906); Glos v. 60 N. E. Eep. 62, (1901); Messen- 
 
 Cessna, 207 III. 69, 69 N. E. Eep. ger v. Messenger, 223 111. 282, 79 
 
 634, (1904); Glos v. Kingman, 207 N. E. Eep. 27, (1906). 
 
 111. 26, 69 N. E. Eep. 632, (1904) ; i8 Glos v. Wheeler, 229 111. 272, 
 
 Glos V. Taleott, 213 111. 81, 72 N. 82 N. E. Eep. 234, (1907). 
 
 E. Eep. 707, (1905) ; Glos. v. 19 Waugh v. Glos, 246 HI. 604, 92 
 
 Wheeler, 229 111. 272, 82 N. E. Eep. N. E. Eep. 974, (1910). 
 234, (1907). 
 
 75 
 
THE TOEEENS SYSTEM 
 
 course of business" from a company engaged in the business 
 of making abstracts of title is not sufifleient to entitle such 
 abstract to admission. The statute does not suggest how ab- 
 stracts shall be ordered, in order to make them admissible in 
 evidence, but it does provide that they shall be made in the 
 ordinary course of business.^" 
 
 § 47. The court may decree registration of title as to such 
 portion of the premises as the evidence shows the applicant to 
 have title to in fee, even though it be less in extent than the 
 premises described in the application.^! Tax liens held by the 
 state of Minnesota are within the terms of its land registration 
 act, and it must be made a party defendant in proceedings 
 under that act wherever it has "an interest in or lien upon" the 
 land in suit.^^ If the examiner finds a tax deed to be void 
 and recommends reimbursement of the defendant thereunder 
 as a condition precedent to registering the title, but the de- 
 fendant objects, insisting that such deed is valid, he cannot 
 complain that the applicant dismisses his application as to 
 so much of the property as is covered by the tax deed, and 
 takes a decree for the remaining property described in the 
 application.23 There is a distinction to be drawn between a 
 bill to remove a cloud and an application to register a title 
 under the land registration act. In the first case, when the 
 plaintiff has shown a prima facie title in the premises, he 
 must also show the invalidity of the defendant 's claim. Under 
 the registration act, however, when the applicant establishes 
 his right to have his title registered, the establishment of any 
 adverse interest of title rests upon the party relying on it, and 
 the applicant is not required, in the first instance, to show its 
 invalidity.2* When the applicant to register a title produces 
 evidence establishing title in him, defendants must prove their 
 claims, and hence the burden is not on him to show the in- 
 
 20 Culver V. Waters, 248 111. 163, 23 Glos v. Murphy, 225 HI. 58, 80 
 93 N. E. Eep. 747, (1911). N. E. Eep. 559, (1907). 
 
 21 Glos V. Holberg, 220 HI. 167, 24 Glos v. Holberg, 220 ni. 167, 
 77 N. E. Eep. 80, (1906). 77 N. E. Eep. 80, (1906); Glos v. 
 
 22 National Co. v. Hopkins, 96 Hoban, 212 111. 223, 72 N. E. Eep. 1, 
 Minn. 119, 104 N. W. Eep. 678 & (1904); Eeed v. Siddall, 94 Minn. 
 816 (1905). 216, 102 N. W. Eep. 453, (1905). 
 
 76 
 
PEOCEEDING IN OEIGINAL EEGI8TEATI0N IN THIS COUNTET 
 
 validity of tax deeds claimed to be clouds on his title.^s The 
 purpose and object of registration acts is to provide a speedy 
 and summary method of determining rights and interests in 
 real estate, and by decree to establish and declare them. The 
 court may determine the existence, place and validity of liens 
 on the land, but in such a proceeding may not foreclose them. 
 The filing of an answer in such a proceeding, setting up the ex- 
 istence of a mechanic's lien, is not equivalent to the commence- 
 ment of an action to foreclose the lien, and does not operate to 
 continue the lien in force beyond the period limited for the 
 foreclosure of it by the general law.^^ It is essential that the 
 conveyances under which the applicant claims shall identify the 
 premises so that they may be ascertained by the description, 
 and where conveyances describing the property as being a lot 
 or block in a subdivision are put in evidence, the plat of the 
 subdivision itself must be put in evidence to identify and locate 
 the property.2'^ An applicant for registration ' of title must 
 prove the condition of the land as to possession, and if he 
 alleges that the land is unoccupied, he should prove the fact. 
 The allegation is not a negative one which requires no proof, 
 and the application itself is not evidence of the faet.^* "With- 
 out proof as to who is in possession of premises if occupied, 
 or that they are vacant and unoccupied, it is impossible for the 
 court to determine whether or not the title is rested in the 
 applicant against the whole world. ^^ It is error to decree 
 registration if the proof fails to identify the premises occupied 
 by the applicant as the premises described in the application.*" 
 § 48. "When the name of a claimant is known to an appli- 
 cant from any source of knowledge, information, notice or be- 
 lief, the name of such claimant must appear in the summons. 
 He must be personally served if possible, but if his place of 
 residence is unknown and he cannot be found, he must be ser- 
 ved by publication in which his name appears in the summons. 
 
 25McMahon v. Eowley, 238 HI. tion, 229 111. 387, 82 N. E. Eep. 
 
 31, 87 N. B. Eep. 66, (1908). 304, (1907). 
 
 26 Eeed v. Siddall, 94 Minn. 216, 28 Jackson v. Glos, 243 111. 280, 
 102 N. W. Eep. 453, (1905). 90 N. E. Eep. 717, (1910). 
 
 27 Glos V. Ehrhardt, 224 HI. 532, 29 Brooke v. Glos, 243 HI. 392, 
 79 N. E. Eep. 605, (1906); Glos v. 90 N. E. Eep. 751, (1910). 
 Bragdon, 229 111. 223, 82 N. B. 30 Milhalik v. Glos, 247 HI. 597, 
 Eep. 224, (1907); Glos v. Assoeia- 93 N. E. Eep. 372, (1910) 
 
 77 
 
THE TOEEENS SYSTEM 
 
 As he is not an "unknown" party to the suit, an "unknown 
 owner" or merely a person "to whom it may concern," the con- 
 cealment by the applicant of the adverse claim or interest is a 
 fraud on the claimant, and the concealment by the applicant of 
 his knowledge of the claim is a fraud on the court, and the de- 
 cree entered in the cause may be set aside as of no force or 
 affect against the claimant. ^^ "Where the examiner suggests 
 that a certain party named by him be made a defendant, but 
 the suggestion is not observed, and on the contrary is entirely 
 ignored, the judgment thereupon entered is invalid and void 
 as against such party and as against all persons in privity with 
 him and not made defendants to the proceeding.^^ In an appli- 
 cation for registration it is plaintiff's duty to name as parties 
 defendant all persons having an iaterest in the property. Any 
 person having such interest and not made a party is not bound 
 to rely on the non-conclusiveness of any judgment therein, 
 as against his interest, but is entitled to appear in the action, 
 whether to support and assert his rights by answer setting up 
 his precise interest, or to set up a cross-demand to have his 
 title registered in him. He may appear, though time for 
 defendants to answer or demur has expired, and his motive 
 in applying for leave to appear is immaterial where he 
 shows he has an interest.^* In some states an abutting own- 
 er of land is not a necessary party to a proceeding in reg- 
 istration. Where two persons own adjoining lots with a 
 party Wall standing on the line between the lots, and one 
 seeks to register his title, the other will not be granted 
 leave to become a party to such registration proceedings 
 if the plaintiff will stipulate that in any judgment or de- 
 cree which may be entered, and in any certificate which 
 may be issued, a recital shall be placed stating that it is with- 
 out prejudice to the rights, if any, of the abuttor.^* A claimant 
 of a mechanic's lien on a platted lot, whose lien statement 
 does not describe the right lot, in consequence of which he is 
 not named as defendant in a proceeding to register title, is 
 
 31 Baart v. Martin, 99 Minn. 33 Hawes v. U. S. Trust Co., 127 
 197, 108 N. W. Eep. 945, (1906). N. Y. Supp. 632, (1911). 
 
 32 Dewey v. Kimball, 89 Minn. 34 Smith v. Martin 126 N. Y. 
 454, 95 N. W. Eep. 317, 895, 96 N. Supp. 877, (1910). 
 
 W. Eep. 704, (1903). 
 
 78 
 
PROCEEDING IN ORIGINAL REGISTRATION IN THIS COUNTRY 
 
 a party to the proceeding under the term "all other persons 
 or parties unknown," and is bound by the decree, although 
 it does not recognize or establish his lien.ss 
 
 The mere fact, that a defendant to an application appears 
 in a case and insists that the applicant shall establish his title 
 by competent evidence, furnishes no reason for charging the de- 
 fendant with any part of the costs of the proceeding. Neither 
 the necessity for the proceeding in registration nor the cost of it 
 is affected by a tender to the holder of a tax title, who intro- 
 duced no evidence, and the refusal of a tender is no ground for 
 charging costs against the holder of the tax title.*® Where an 
 applicant may withdraw his application at any time before 
 final decree, on terms to be fixed by the court, the court is not 
 restricted to taxible costs in fixing terms, but may require ap- 
 plicant to pay all the expenses of defendant in the matter.*^ 
 "Where a petitioner for registration moves to dismiss his action 
 without prejudice, the motion should be passed on and disposed 
 of before any other action is taken respecting the petition ; and 
 where such a motion is denied, petitioner may appeal directly 
 or he may take an exception under the general rules of pleading 
 and practice.** Where an act provides for filing a map and 
 plan of lands with the application, and this is not done, the 
 court, on the seasonable motion of the defendant, will order 
 it to be filed, and may dismiss the application if the order is 
 not complied with; but a defendant, having answered to the 
 merits, is not entitled to a dismissal because no plan was filed 
 with the application.*^ A defendant to an application for 
 registration cannot complain that the decree was entered with- 
 out sufficient service by publication as to certain other defend- 
 ants, where the latter were defaulted and do not complain of 
 the decree.*" The applicant for registration may amend his 
 application at any time under an order of court.*^ In an ap- 
 
 35 Doyle V. Wagner, 108 Minn. 90 N. E. Rep. 578, (1910). 
 
 443, 122 N. W. Rep. 316, (1909). 39 Welsh v. Briggs, 204 Mass. 
 
 36Waugh V. Glos, 246 111. 604, 540, 90 N. E. Rep. 1146, (1910). 
 
 92 N. E. Rep. 974, (1910). 40O'Laughlin v. Covell, 222 111. 
 
 37 McQuesten v. Commonwealth, 162, 78 N. E. Rep. 59, (1906). 
 198 Mass. 172, 83 N. E. Rep. 1037, 4i Glos v. Murphy, 225 111. 58, 
 (1908). 80 N. E. Bep. 559, (1907). 
 
 38 Poss V. Atkins, 204 Mass. 337, 
 
 79 
 
THE TOEKENS SYSTEM 
 
 plication to register title to many lots, if defendant claims 
 title to only two of such lots, a decree registering title to all 
 the lots in which defendant had no interest and continuing the 
 case as to the other two lots without adjudging costs against 
 defendant, does not affect defendant, and he is not entitled 
 to appeal or to a writ of error in advance of final determination 
 of the title to the two lots which he claims. Defendant is 
 not in a position in such a case to complain that applicant 
 failed to prove title as against all the world in the lots to which 
 the former set up no claim.*^ On a petition to register land 
 a decision was filed finding the applicant the owner of a part of 
 the tract and defendants the owners of the remainder. The 
 court then permitted defendants to substitute themselves as 
 petitioners for registration as to their part of the land, and 
 a decree was entered on their petition. It was held that such 
 substitution of petitioners was not authorized by the Torrens 
 act, that petitioners should have brought their own action, 
 and that the decree of registration in their favor was void.*^ 
 
 § 49. Proceeding in Chancery — Proof must show good title 
 against all the World. Evidence establishing good title as 
 against the world is essential to warrant a decree awarding 
 initial registration of title. An applicant for initial registration 
 of title in fee simple must make such proof as warrants regis- 
 tration of such title as against the world, and not merely such 
 title as would be sufficient to authorize a decree removing a 
 cloud. If an applicant for initial registration of title in fee 
 fails to establish such title in himself, he is not entitled either 
 to registration of his own title, or to a decree finding that the 
 titles of the defendants are clouds upon such prima facie title 
 as he may have shown, and the application should be dismissed. 
 Unless the applicant for initial registration shows a title which 
 may be registered as against the world, the court cannot re- 
 move a tax deed alleged to be a cloud, but must dismiss the 
 application. On appeal from a decree finding title in fee to be 
 in the applicant for initial registration, and finding defendant's 
 tax deed to be a cloud, the defendant may insist that the evi- 
 
 42Mundt V. Glos, 231 HI. 158, 43 Foss v. Atkins, 204 Mass. 
 
 83 N. B. Eep. 135, (1907). 337, 90 N. E. Rep. 578, (1910). 
 
 80 
 
PEOGEEDING IN ORIGINAL KEGISTEATION IN THIS COUNTEY 
 dence of sueh title was insufficient to warrant the decree. Title 
 in fee simple in an applicant for initial registration is not shown 
 by proof of deeds and receipts which are unconnected with 
 any chain of title from the government, and which fall short 
 of establishing the title under the statute of limitations. In 
 discussing the subject of initial registration, it was said: "The 
 proceeding at bar is not a bill in equity to remove a cloud, but 
 is an application, under the statute, for the initial registration 
 of the title to the lots. The principal object to be subserved by 
 this statute is, to provide a system of registration whereby it 
 shall be possible for an intending purchaser of land to ascertain, 
 by an inspection of the register, who may convey to him the 
 title. A proceeding \mder the statute, if it shall result in a de- 
 cree of registration of the title of the applicant as the title in 
 fee, should subject the titles of all parties to the proceeding, 
 and every other title or claim to the land, to judicial investi- 
 gation, in order that the true state of the title in fee should 
 be ascertained and declared. The applicant for registration 
 in the case at bar must therefore establish that the true title in 
 fee is in him before he can have relief or require those whom 
 he has brought before the court as defendants to bring their 
 titles before the court for adjudication. If the applicant does 
 not prove such a title as is entitled to be registered as a title 
 in fee, he cannot have relief, either in the way of the regis- 
 tration of his own title or a declaration finding that the ad- 
 verse claimants have no title, or that the claims are but clouds 
 on such prima facie title as the applicant may be able to show. 
 If the applicant in a proceeding, under the statute, for the 
 registration of his title, produces evidence establishing title 
 in him, then those who had been brought in, under the appli- 
 cation, as holders of claims to the title may be required to 
 produce proof to establish the validity of their claims to the 
 title or to a lien on the title, as the case may be. Defendants 
 to the proceeding may therefore be heard in the trial court to 
 urge that the applicant has not shown a title of the nature 
 proper to be registered, for if that be true the application 
 should be dismissed, and that without any regard whatever to 
 the question whether the title or claims of the defendant to the 
 title are but mere clouds. "While one who has shown a title 
 entitled to be registered may not only have a decree to that 
 effect, and may also have the claims of others who are defend- 
 ants to his application decreed to be but clouds on his title, yet 
 sueh applicant, if he fails to establish title in himself of the 
 nature and character to be registered, cannot have a decree 
 removing the defendants' claims as mere clouds on a mere 
 
 81 
 
THE TOEEENS SYSTEM 
 
 prima facie case of ownership in himself, but his application 
 should be dismissed. The appellant may therefore be heard 
 to insist that the proofs as to title in fee of the appellee com- 
 pany were insufSeient to support the decree. * * * We need 
 not consider whether, in a bill in equity by the appellee com- 
 pany to remove appellant's tax deed as a cloud because of in- 
 validity set forth in the bill and proven on the hearing, these 
 deeds, tax payments and acts of the attorney of appellee in 
 connection with the possession of the lots relied upon to con- 
 stitute possession would be sufficient proof of ownership to 
 give the complainant standing to ask a decree as owner, for 
 the reason that, as before explained, the applicant for initial 
 registration, under the statute, of a title as a title in fee must 
 produce proof that he is possessed of such 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, 
 actual, open, continuous and hostile possession under claim 
 of title for the period of twenty years, or by payment of taxes 
 and possession of the premises under color of title, or pay- 
 ment of taxes alone, the premises being vacant, for the period 
 necessary, under our statute of limitations, to the perfection 
 of a title of that character. The claim of ownership of the 
 appellee company was not entitled to be registered, and the 
 application should have been dismissed. Evidence establish- 
 ing title good as against the world is essential to warrant a 
 decree awarding initial registration of a title."** And again 
 it was said : ' ' The purpose of the act is to establish the title 
 and give certainty to it, so that the public, or any one dealing 
 with the land, may ascertain the true state of the title by 
 inspection of the register. By the act all persons are to be 
 deemed defendants by the designation of 'all whom it may 
 concern,' and the decree with certain limitations, is to be for- 
 ever binding and conclusive upon the whole world. It was not 
 the design of the act that a mere prima facie title should be 
 registered as an absolute title in fee simple, and to entitle 
 an owner to registration with such a title it should be proved. 
 The applicant for initial registration of title in fee simple as- 
 serts that he is the owner of such title as against all the world 
 and undertakes to establish it, and not merely such a title as 
 would be sufficient to remove a tax deed as a cloud. The 
 court could not order registration of title in fee simple in the 
 applicant in this case without removing the tax deed which 
 was alleged to be a cloud upon such title, but the court could 
 not remove the cloud and then dismiss the petition for failure 
 to prove the title alleged. The proof must warrant the regis- 
 
 44G10S V. Kingman & Co., 207 111. 26, 69 N. E. Eep. 632, (1904). 
 
 82 
 
PROCEEDING IN ORIGINAL REGISTRATION IN THIS COUNTRY 
 
 tration of the title to enable the court to grant the incidental 
 relief of removing a cloud. The act was not intended to sub- 
 stitute a new proceeding for a bill in equity to remove a 
 cloud, and accordingly we have decided*^ that where the 
 proof does not authorize the registration of title, the applica- 
 tion should be dismissed. ' '*^ 
 
 § 50. Title Under Limitation Acts. A good and sufficient 
 title for the purpose of registration under the act may be 
 shown under the different statutes of limitation. In Illinois 
 several decisions have been made with reference to attempts 
 to establish title under such statutes. Twenty years adverse 
 possession under section 1 of the limitation act is sufficient, 
 but proof of a deed to the applicant for initial registration, 
 coupled with possession by him for a period of sixteen years, 
 but without proof of payment of taxes for at least seven suc- 
 cessive years during that period, in accordance with the terms 
 of the limitation act, does not show title as against the world, 
 and the applicant must in such case show title from the govern- 
 ment in order to be entitled to registration.*'^ To establish 
 title by limitation under section 6 of the statute of limitations, 
 the proof must show color of title, payment of taxes for seven 
 consecutive years by the holder of such title or some one acting 
 for him, and continuous, uninterrupted possession for the full 
 period of seven years, and all three conditions must exist con- 
 currently without interruption and continue throughout the 
 full period. Possession of land is not shown by proof of the 
 recording of the deed, and making of entries in books with 
 reference to the property ; nor is seven years possession shown 
 by proof that a house was built on the land by the holder of 
 the color of title, which the witness had occupied for five 
 years, where there is no other proof as to when the house was 
 b^iilt or whether any other person ever occupied it.*^ Posses- 
 sion of land under claim and color of title made in good faith, 
 coupled with payment of taxes on the property for a period 
 of seven consecutive years, in the absence of any other evidence, 
 
 45 Glos V. Kingman & Co., supra. (1907) ; Glos v. Miekow, 211 111. 
 
 46G10S V. Cessna, 207 111. 69, 69 117, 71 N. E. Rep. 830, (1904). 
 N. E. Rep. 634, (1904) ; See also 4T Glos v. Holberg, 220 HI. 167, 
 
 Glos V. Holberg, 220 HI. 167, 77 N. 77 N. E. Rep. 80, (1906). 
 E. Rep. 80, (1906) ; Glos v. "Wheel- 48 Glos v. Wheeler, 229 HI. 272, 
 
 er, 229 111. 272, 82 N. B. Rep. 234, 82 N. E. Rep. 234, (1907). 
 
 S3 
 
THE TOEBENS SYSTEM 
 
 is sufficient to authorize registration of the title. In a pro- 
 ceeding for registration, proof of payment of all state, county, 
 city, town, school, road, park, drainage and corporation taxes 
 assessed against the property raises a presumption, in the ab- 
 sence of evidence to the contrary, that all taxes against the 
 property were paid during the period covered by the proof.** 
 A title to a legal estate in land in fee simple, acquired under 
 adverse possession for the requisite length of time, will be 
 recognized and registered.^'' 
 
 § 51. Proceeding for Begistration is a Lawsuit. When it 
 was determined that in this country initial registration must be 
 made under the terms of a decree of court, establishing and 
 confirming the title, it was strenuously insisted by the advo- 
 cates of the Torrens system that the proceeding for register- 
 ing the title was not a lawsuit in any proper sense of that term. 
 It is evident that the cases of Glos v. HallowelF^ and Gage v. 
 Consumers' Co.,^^ ^ere tried and decided in the court below 
 on the theory that such a proceeding was sui generis and was 
 not governed by the general rules of a suit in chancery. In 
 the first few applications made under the registration act in 
 Illinois, it was held in the circuit court that defendants could 
 not demur, but should answer within the time given. But the 
 supreme court of that state has consistently held that the ob- 
 ject of an application for registration is to establish and de- 
 clare the title to land as against defendants and to obtain a 
 certificate which will disclose the entire title to the land, and 
 that in this it does not differ from any other suit in the nature 
 of a suit to quiet title, except as provided in the act. The pro- 
 ceeding under the application in Illinois is taken largely from 
 what is there known as the "burnt record act," and that is 
 clearly adversary in its character. It is now conceded every- 
 where that an application to register a title by a proceeding in 
 court is adversary, and that defendants may set up their 
 rights, demand their equities, and proceed as in other chancery 
 
 49 Glos V. Mickow, 211 111. 117, S. 449, 29 Supreme Ct. Eep. 334, 
 71 N. E. Rep. 830, (1904); Tobias (1909). 
 
 V. Kaspzyk, 247 111. 80, 93 N. E. 5i 190 ni. 65, 60 N. E. Eep. 62, 
 
 Eep. 52, (1910). (1901). 
 
 50 Carino v. Insular Govern- 62 194 111. 30, 64 N. E. Rep. 653, 
 ment, Philippine Islands, 212 U. (1901). 
 
 84 
 
PROCEEDING IN OEIGINAL EEGISTRATION IN THIS COUNTRY 
 
 or civil cases. One may have a title which is good as against 
 all the world, if he remains quiet and does not invoke the court 
 to establish it as against any person, but when he brings it 
 into court and invites others to come in and set up any inter- 
 est which they may have in the land, claims which were stale 
 and barred by the statute of limitations are given new life, 
 and they may be pressed with vigor by the defendants. In 
 most eases defendants are defaulted and a decree is rendered 
 in due course, but occasionally a vigorous defense is made, 
 and long and expensive litigation foUows.^^ 
 
 § 52. Proceeding in Chancery — ^Applicant Must Do Equity. 
 When an owner of land applies to have it registered, he must 
 set forth in his sworn petition "whether any other person has 
 any estate or claims any interest in the land, in law or ia 
 equity, in possession, remainder, reversion or expectancy, and, 
 if any, set forth the name and post-office address of every such 
 person, and the nature of his estate or claim, "s* In such a 
 proceeding the "court shall have power to inquire into the 
 condition of the title to and any interest in the land, and any 
 lien or incumbrance thereon, and to make all such orders, judg- 
 ments and decrees as may be necessary to determine, establish 
 and declare the title or interest, legal or equitable, as against 
 all persons, known or unknown, and all liens and incumbrances 
 existing thereon, whether by law, contract, judgment, mort- 
 gage, trust deed or otherwise, and to declare the order and 
 preferences as between the same, and to remove clouds from 
 the title. ' '^^ An application was filed by Consumers ' Electric 
 Light Company to register certain lots, which set forth that 
 Henry H. Gage, giving his address, had tax titles to the land 
 under three tax deeds dated respectively, October 24, 1872, 
 October 12, 1872, and March 10, 1873. Gage was made a party 
 to the suit, and made answer by setting up his tax deeds based 
 on sales of the property for taxes in 1869. The examiner 
 found that Gage had no interest in the land, and so reported 
 to the court ; and the court approved the report of the examin- 
 er. On appeal to the supreme court it was urged by the com- 
 pany that it did not apply to have the tax deeds removed as 
 
 63 See application 448 at § 108, 54 $ 11 Illinois act. 
 
 post. 55 j 15 Illinois act. 
 
 85 
 
THE TOEEENS SYSTEM 
 
 clouds upon the title, and that nowhere in its application did 
 it ask for the cancellation of the tax deeds or liens. But the 
 court said : ' ' We take the view that this was a proceeding for 
 the cancellation of the tax deeds in order that the cloud upon 
 appellee's title, created by them, might be removed. Such 
 seems to us the reasonable conclusion from the consideration of 
 the act under which this proceeding is brought. The purpose of 
 that act, as disclosed by its many sections, is to so shape the 
 title to real estate that the production of a single certificate of 
 the registrar will disclose an entire title, and thus avoid re- 
 search through volume after volume of records, and the cost 
 of opinions of experts on real estate law and conveyancing as 
 to the condition of the title. The proceeding must be brought 
 in a court of chancery. The form of the petition is prescribed 
 by the statute. Not only the form, but the substance, includ- 
 ing the prayer, is set out in that act. * * * Thus, under the, 
 petition prescribed by the act, the court has power to remove 
 clouds from the title, and we do not deem it necessary, when 
 pleading according to a form prescribed by law, that more 
 be stated than the act itself requires, to submit all questions 
 that may arise under the consideration of the petition con- 
 taining the averments required by the act itself. ' ' It was also 
 insisted that, inasmuch as the court found that the tax deeds 
 were void, the petitioner ought not to be required to reim- 
 burse the holder of such deeds ; but the court held that, so far 
 as the authority to impose the condition of re-imbursement in 
 an order cancelling or setting aside tax deeds was concerned,®* 
 it was immaterial whether the petition was by the owner who 
 held the title at the time of the tax sale, or by a subsequent 
 owner, and it said: "So long as appellee was satisfied to let 
 its title remain as it was, without attempting to bring it under 
 the provisions of the Torrens act, it could do so, and appellant 
 had no means of enforcing payment of this tax ; but whenever 
 appellee invoked the operation of the law by its petition in 
 chancery, under which its title would be freed from the cloud 
 created by these tax deeds, it brought itself within the rule 
 'that he who seeks equity must do equity,' and within the re- 
 quirement of the statute that he who seeks to set aside a tax 
 deed must pay the tax, with legal interest. ' '^"^ 
 
 A decree in registration should not only require reimburse- 
 ment to holders of tax deeds as a condition precedent to set- 
 Be Following Phelps v. Harding, 57 Gage v. Consumers ' Co., 194 
 87 111. 442; Alexander v. Merrick, 111. 30, 64 N". E. Eep. 653, (1901); 
 121 HI. 606; Burton v. Perry, 146 See Jackson v. Glos, 243 111. 280, 
 111. 71, and other cases. 90 N. E. Eep. 717, (1909). 
 
 86 
 
PBOCEEDING IN ORIGINAL REGISTRATION IN THIS COUNTRY 
 
 ting such deeds aside, but it should also require reimburse- 
 ment as a condition precedent to registering the title. It is 
 error to direct immediate registration of a title and to pro- 
 vide that if the holders of tax deeds are not reimbursed with- 
 in a certain time, the decree as to so much of the land as is 
 covered by the tax deeds shall be vacated.^^ The decree should 
 provide, not only as a condition precedent to setting aside tax 
 deeds, but also as a condition precedent to registering the title, 
 that applicant pay to the holders of the tax deeds the amount 
 found to be due them, and that, in the event of their refusal 
 to -accept it, the money due be paid into court subject to 
 their order.^s In a legal sense a tax deed purporting to con- 
 vey a vigintillionth of a lot is not a cloud upon title, and may 
 be disregarded by the owner of the legal title, since the frac- 
 tion is so small as to be incapable of possession. The owner 
 may stand on his legal rights, but if he comes into court and 
 asks to have the tax deed removed as a cloud on the title, it is 
 error to decree such removal without reimbursement to the 
 holder of the tax deed.®° 
 
 Land Registration, No. 3494, in Chicago is Miller v. Miller. 
 On September 3, 1895, Partello made a mortgage of $1000. to 
 Seidler, and it was recorded at once, and on November 20, 1907, 
 he conveyed the land to Miller. On March 17, 1910, Miller filed 
 an application to register his title to the land, making Seidler 
 a party. The evidence showed that nothing ever had been 
 paid on the mortgage, and applicant asked to have it removed 
 as a cloud on his title, basing his prayer on the statute of 
 limitations of ten years. But the court held that he must do 
 equity, and must pay off the mortgage as a condition to regis- 
 tration. 
 
 § 53. When Decree of Court Becomes Conclusive. In the 
 Illinois act it is provided:®^ "The order or decree so made and 
 entered shall, except as herein otherwise provided, be forever 
 binding and conclusive upon all persons, whether mentioned 
 by name in the petition or included in 'all whom it may con- 
 cern. ' It shall not be an exception to such conclusiveness, that 
 
 58 Cregar v. Spitzer, 244 111. 208, so Jackson v. Glos, 243 111. 280, 
 91 N. E. Rep. 418, (1910). 90 N. E. Rep. 717, (1910). 
 
 59 Mihalik v. Glos, 247 111. 597, ei J 26 Illinois act. 
 93 N. E. Rep. 372, (1910). 
 
 87 
 
THE T0BEEN8 SYSTEM 
 
 the person is an infant, lunatic, or is under any disability, but 
 such person may have recourse upon the indemnity fund * * 
 
 * * for any loss he may suffer by reason of being so con- 
 cluded.*'2 An appeal may be allowed to the supreme court 
 
 * * * as in other cases in chancery. A writ of error may 
 be sued out of the supreme court within two years after the 
 entry of the order or decree, and not afterwards. Any person 
 having an interest in or lien upon the land who has not been 
 actually served with process or notified of the filing of such 
 application, or the pendency thereof, may, at any time vdthin 
 two years after the entry of such order or decree, and not 
 afterwards, appear and file his sworn answer. * * * An 
 appeal (from the decree on this issue) may be allowed, or writ 
 of error sued out, * * * within a like time and in like man- 
 ner as in the ease of an original order or decree under this 
 act, and not otherwise. ' '®* Any person who is not bound by the 
 decree, because of some irregularity, insufficiency or other 
 cause, may bring an action for the recovery of the land or his 
 interest therein within two years after the entry of the de- 
 cree.®* In California it is provided that "no person shall com- 
 mence any action at law or in equity for the recovery of land, 
 or assert any interest, right in, or lien or demand upon the 
 same, or make entry thereon adversely to the title or interest 
 certified in the first certificate bringing the land under the 
 operation of this act, unless within five years after the first 
 registration. ' ' No exception to this rule is made for an infant, 
 lunatic or one under any disability, and any person bringing 
 such an action must show that neither he nor those under 
 whom he claims had actual notice of the proceedings for regis- 
 tration in time to appear and file his objections or assert his 
 claim. Any such action ' ' shall in no way effect or disturb the 
 rights of any person in said land, acquired subsequent to the 
 registration thereof, bona fide and without knowledge, and for 
 a valuable consideration. "^s It is also provided: "Any per- 
 
 62 In J 103 it is provided that act are identical with §§ 26 and 
 
 anyone under disability at the 103 of the Illinois act. 
 time when the action first accrues es § 26 Illinois act. $ 25 Oregon 
 
 may bring an action against the act. 
 
 indemnity fund at any time within 64 $ 27 Illinois act. $ 26 Oregon 
 
 two years after such disability is act. 
 removed. 5$ 25 and 102 of Oregon 65 JJ 45 and 46 California act. 
 
 88 
 
PEOCBEDING IN OEIGINAL EEGI8TEATI0N IN THIS COUNTBY 
 
 son having any interest, right, title, lien, or demand, whether 
 vested, contingent, or inchoate, in, to, or upon registered land, 
 which existed at the time the land was first registered, and 
 upon or for which no cause of action shall have accrued at the 
 date of the registration of the land, may, prior to the expira- 
 tion of said five years after such registration, file in the regis- 
 trar 's office a notice, under oath, setting forth his interest, 
 right, title, lien, or demand, and how and under whom derived, 
 and the character and nature thereof; and if such claim is so 
 filed, an action may be brought to assert or recover or enforce 
 the same at any time within one year after the right of action 
 shall have accrued thereon, or at any time within the period 
 of five years after said first registration, and not afterwards. 
 It shall be the duty of a life tenant or trustee to file such claim 
 on behalf of any remainderman or reversioner, whether the 
 remainder or reversion be at the time vested or contingent, 
 and of a guardian to file such claim on behalf of his ward. ' '** 
 Under the Ohio act, the decree was to be in the nature of a 
 decree in rem, final and conclusive against everyone, but any 
 person not having actual notice of the proceedings might 
 within five years bring an action to establish his claim, pro- 
 vided such action did not "disturb the rights of any person 
 in the land, acquired subsequent to the registration thereof, 
 bona fide and -v^ithout knowledge, and for a valuable considera- 
 tion. "^'^ In the Mionesota act, 1905, it is provided that the 
 decree shall be forever binding and conclusive upon all per- 
 sons, whether mentioned by name in the summons or included 
 in the phrase "all other persons or parties unknown, claiming 
 any right, ' ' etc., and shall not be opened by reason of the ab- 
 sence, infancy or other disability of any person affected there- 
 by, except that an appeal may be taken to the supreme court 
 within six months, and except that an action attacking the 
 validity of the decree may be commenced within six months 
 from the date of the decree. Any person having any interest 
 in the land, who was not served with process, and who had no 
 notice or knowledge of the filing of the application or of the 
 pendency of the proceeding prior to the decree, may at any 
 time within sixty days after the entry of the decree file a peti- 
 66 J 47 California act. 67 ^ 81, 82 and 83 Ohio act. 
 
 89 
 
THE TOREBNS SYSTEM 
 
 tion to review the case. If such a petition is granted, the case 
 is* tried de novo. There is no provision that a purchaser for 
 value during the six months shall be protected.^* 
 
 § 54. The Massachusetts act allows thirty days for an ap- 
 peal from a decree in favor of an applicant,®^ and provides 
 that the decree registering and confirming his title "shall not 
 be opened by reason of the absence, infancy or other disability 
 of any person affected thereby, nor by any proceeding, at law 
 or in equity, for reversing judgments or decrees, ' ' except only 
 that in case the decree was procured by the fraud of the ap- 
 plicant, a petition for review may be filed within one year, 
 provided the rights of innocent third persons have not inter- 
 vened.^o The decree "shall bind the land and quiet the title 
 thereto," and "shall be conclusive upon and against all per- 
 sons, including the commonwealth, whether mentioned by 
 name in the application, notice or citation, or included in the 
 general description 'to all whom it may concern.' " In the 
 Colorado act it is provided that the decree shall be forever 
 binding and conclusive upon all persons whether mentioned 
 by name or included in the expression "all other persons or 
 parties unknown claiming," etc., and shall not be opened by 
 reason of absence, infancy or other disability, except that an 
 appeal may be taken to the supreme court as in other cases, 
 and except that within ninety days, any person who is not 
 bound by the decree, because of some irregularity in or in- 
 sufficiency of the proceedings, may bring an action for the 
 recovery of the land or his interest therein. Any person who 
 has an interest in the land, and who was not served with pro- 
 cess, and who had no notice of the filing or pendency of the 
 application, may appear and file his petition to be heard at 
 any time within ninety days after the entry of the decree, 
 provided no innocent purchaser for value has acquired an 
 interest.''^ In the Washington act it is provided that the de- 
 cree shall be forever binding and conclusive upon all persons 
 whether mentioned by name in the application or included in 
 "all other persons or parties unknown claiming," etc., and 
 
 68 $$ 25, 27 and 28 Minnesota to $ 37 Massachusetts act. 
 
 act, 1905. 71 $§ 27, 28 and 29 Colorado act. 
 
 69 § 13 Massacliusetts act. 
 
 90 
 
PEOCEEDING IN OEIGINAL EEGISTEATION IN THIS COUNTET 
 
 that it shall not be e(pened by reason of the absence, infancy 
 or other disability of any person affected thereby. An appeal 
 may be taken as in other civil cases. Any person interested 
 in the land, who was not served with process or notified of the 
 filing or pendency of the application, may appear and file a 
 petition to be heard within ninety days after the entry of the 
 decree, provided no innocent purchaser for value has ac- 
 quired an interest.''^ In the New York act it is provided 
 that the judgment shall be forever binding and conclusive 
 upon the state of New York and all persons in the world, 
 whether mentioned and served with summons and notice 
 specifically by name, or included iu the description, "all 
 other persons, if any, having any right" etc. It shall not 
 be an exception to such conclusiveness that any such per- 
 son is an infant, lunatic or is under any other disability 
 or is not yet in being. Within ten years after the entry 
 of the decree, a proceeding may be commenced to set it 
 aside for fraud, but such proceeding shall not affect the rights 
 of an innocent purchaser or incumbrancer for value, who has 
 no actual notice of the fraud. No action, except for fraudulent 
 registration, may be commenced to set aside the judgment, or 
 to affect it, after six months from the entry of it.'^* In Hawaii 
 and the Philippine Islands, "every decree of registration of 
 absolute title shall bind the land and quiet the title thereto. 
 * * * * It shall be conclusive upon and against all persons, 
 including the Territory, whether mentioned by name in the 
 application, notice or citation, or included in the general de- 
 scription 'to all whom it may concern.' Such decree shall not 
 be opened by reason of the absence, infancy or other disability 
 of any person affected thereby, nor by any proceeding at law 
 or in equity for reversing judgments or decrees," subject 
 only to the right of appeal as in other cases. A petition for 
 review may be filed within one year where the decree has been 
 obtained by fraud, provided no innocent purchaser for value 
 has acquired an interest.'^* 
 
 § 55. When Decree of Court is Conclusive — Writ of Error — 
 Appeal. It is to be noticed that under all the acts the decree 
 
 72 $§ 27 and 28 ■Washington act. 74 § 38 Hawaiian act. J 38 Phil- 
 
 73 J ^ 23 and 24 New York act. ippine act. 
 
 91 
 
THE TOEEENS SYSTEM 
 
 is declared to be conclusive against infan|l^ lunatics and others 
 under disability. Since the federal constitution does not con- 
 fer upon minors or others under disability any special rights 
 or privileges, it is competent for the legislature of any state, 
 in the absence of restrictions in the state constitution, to con- 
 clude them by the decrees of its courts, just as it concludes 
 other personsJ^ In the Illinois, Oregon and Minnesota acts 
 there is no provision that an innocent purchaser for value, 
 during the period within which the decree may be reviewed or 
 set aside, shaU be protected. The lack of such a provision 
 does not tend to promote immediately the scheme of the Tor- 
 rens system, which is for indefeasible titles. The right to re- 
 view the proceedings in registration is a substantial right 
 under these acts. It is of value to the persons who may assert 
 the right, and it is an impediment to a title just registered. 
 It has been said that the right to sue out a writ of error within 
 two years under the Illinois act "can have no unfavorable 
 effect upon the negotiability of a registered title during its 
 first two years," because "all persons named as defendants 
 and served with process are bound by the decree from its 
 entry."''* This statement of the law is manifestly erroneous, 
 for the right to sue out the writ is general in the statute; it 
 is not confined to any class of defendants. It applies equally 
 to defendants served with process and to those constructively 
 served. Two years must elapse from the date of the entry of 
 the decree before it becomes absolute against any of the de- 
 fendants. It was this fact which prompted the promoters of 
 the Torrens system in Illinois to procure the American Surety 
 Company of New York to issue bonds "guaranteeing the per- 
 formance of warranties of title contained in instruments of 
 conveyance of land upon which the registrar's certificate of 
 title has issued under the Torrens law." In the advertisement 
 of that company inserted in Mr. Sheldon's book, it is stated: 
 "Such bonds run for the minimum period of five years, which 
 is sufficiently long to cover the term during which the certifi- 
 cate of title is not conclusive evidence of title. ' ' Under some 
 of the acts, protection is given to purchasers for value during 
 
 75 Vance v. Vance, 108 U. S. 514. in Illinois, p. 36. 
 
 76 Sheldon's Land Eegistration 
 
PEOCEEDINQ IN ORIGINAL EBGISTKATION IN THIS COUNTEY 
 the period of limitation.''^ In Dlinois there is a difference of 
 opinion among lawyers as to whether a purchaser for value 
 during the two years limitation will be protected, where no 
 appeal is prayed or pending. Under the chancery jurispru- 
 dence of that state it is well established that the right to sue 
 out a writ of error does not deprive a purchaser for value of 
 the right to the protection of a decree of a court of chancery ; 
 that such a purchaser will be protected even though he knew, 
 when he paid out his money, that a writ of error was pending 
 to reverse the decree; that nothing short of a stay order or a 
 writ of supersedeas will deprive him of his right to rely on 
 the decree.''^ Of course, this rule may be changed by statute, 
 and the only question is whether it has been changed by the 
 terms of the registration act of Illinois. The proceeding in 
 court on an application for registration is not to establish a 
 title as an end, as is a bill to quiet title, or a suit under the 
 burnt record act; it is merely a method or means of issuing 
 a certificate which shall disclose and declare the whole title 
 to a particular piece of land.''^ The decree is binding and 
 conclusive on all persons, "except as herein otherwise provid- 
 ed."*" The certificate issued under the act and under the 
 terms of the decree is only "prima facie evidence that the pro- 
 visions of the law have been complied with, and that such cer- 
 tificate of title has been issued in compliance with a valid 
 order or decree, and that the title to the land is as therein 
 stated, ' ' for two years after the rendition of the decree, and is 
 conclusive evidence of such facts thereafter.*^ This provision 
 as to the conclusiveness of the certificate is one of the excep- 
 tions "herein otherwise provided," for if a purchaser for 
 value within two years is protected by the decree, the decree 
 is conclusive in his favor, while the certificate, the object and 
 product of the decree, is not conclusive until the expiration 
 of two years, according to the very words of the statute. On 
 this point, as on many others, the statutes concerning regis- 
 
 77 $§45, 46 California act. §§81, 1009, (1909). 
 
 82, 83 Ohio act. §J 27, 28, 29 Col- 79 Gage v. Consumers' Co., 194 
 
 orado act. ^ 27, 28 Washington 111. 30, 64 N. E. Eep. 653, (1901). 
 
 act. 80 $ 26 Illinois act. 
 
 78 Chicago & N. W. E. E. Co. v. si J39 Illinois act. See also, § 31 
 Garrett, 239 HI. 297, 87 N. E. Eep. New York act. J 38 Oregon act. 
 
 93 
 
THE TOEBENS SYSTEM 
 
 tration of title in that state are not clear, but it is to be noted 
 that, by the terms of some registration acts, purchasers for 
 value during the period of limitation are protected, while 
 there is no such provision in the Illinois act. 
 
 § 56. When Decree of Court Becomes Conclusive — Limita- 
 tion. Concerning the limitation of sixty days in which a per- 
 son might contest the validity of a decree in registration under 
 the Minnesota act of 1901, it was said : ' ' The time limit seems 
 to us to be a short one, but, in view of the complete and far- 
 reaching provisions of the act for notice to all parties, and the 
 fact that the right of appeal as in civil actions is given, we 
 cannot hold that the legislature arbitrarily exercised its dis- 
 cretion in fixing the limit. "^^ The provision of the "burnt 
 record act" of Illinois, that the decree "shall be forever bind- 
 ing and conclusive, unless an appeal be taken during the term 
 of court at which the decree shall be rendered, or a writ of 
 error shall be sued out within twelve months from the entry 
 of said decree," was held to be reasonable and valid against 
 all persons who were parties to the suit.**^ The limitation of 
 two years in the Torrens act of Illinois is reasonable so far as 
 it affects the rights of those who have had due notice of the 
 proceeding. The Massachusetts act makes the decree con- 
 clusive upon all persons from the time it is entered, unless an 
 appeal is taken within thirty days. All the other acts sub- 
 stantially provide that a person who was not served with pro- 
 cess, or who had no notice of the filing or pendency of the 
 proceeding, may file a petition for a review of the case within 
 a given time. This time is fixed at five years in California, two 
 years in Illinois and Oregon, six months in New York, ninety 
 days in Colorado and "Washington, and sixty days in Minne- 
 sota. In discussing generally the provisions of the Illinois act, 
 the supreme court of that state said: 
 
 "Objection is made that by section 26 any person who has 
 any interest in the land, whether personally served, notified 
 by publication or not served at all, must, within two years after 
 the entry of the decree, appear and file an answer, and that 
 
 82 state ex rel v. Westfall, 85 235. Persons under disability 
 Minn. 437, 89 N. "W. Eep. 175, 54 have, under that act, two years 
 C. L. J. 282, 89 Am. St. Rep. 571, after their disabilities are remov- 
 57 L. E. A. 297, (1902). ed, in which to prosecute a writ of 
 
 83 Bertrand v. Taylor, 87 111. error. 
 
 94 
 
PBOCEEDING IN ORIGINAL EEGISTEATION IN THIS COUNTRY 
 
 after the expiration of that term of two years the decree shall, 
 with certain exceptions, be 'forever binding and conclusive 
 upon all persons. ' This provision seems to attempt to make a 
 decree binding upon persons not parties to the suit, and if 
 given eflEect literally would deprive persons of vested rights 
 without due process of law. A limitation may be placed upon 
 the time within which a person who has a mere right of action 
 shall bring it, but 'limitation laws cannot compel a resort to 
 legal proceedings by one who is already in the complete en- 
 joyment of all he claims. 's^* To the extent that the act at- 
 tempts to transfer property without due process of law it 
 cannot be upheld. On all parties to the suit properly before 
 the court the decree may, after the lapse of two years, be- 
 come conclusive and forever binding, and as to all who have 
 merely a right of action the expiration of two years may com- 
 plete the bar. Even though the language of this section may 
 be broad enough to amount to an attempt to transfer an 
 estate by the law or by decree, yet it is possible to carry out 
 the purposes of the act without violating the constitution in 
 the respect complained of. "^^ 
 
 It may be assumed that neither the decree nor the statute 
 of limitations will bind a person in possession of the land, not 
 served with summons,®^ and that the provisions of the acts 
 now under discussion were not aimed at such a person. These 
 provisions were evidently intended to apply to persons made 
 defendants to proceedings in registration either by name or 
 under the general designation of "unknown owners," "un- 
 known persons claiming an interest" etc., who had never had 
 actual notice of the proceeding, though served by publication 
 of notice, either by name or under such general designation. 
 None of the other courts, in considering the constitutionality 
 of the initial proceeding under the Torrens laws, have treated 
 the subject under discussion iu the manner above quoted. 
 
 § 57. Effect of Decree — Effect of Limitation. At the time 
 this country was first settled, no such thing was known as a 
 judgment against a defendant before he entered an appearance 
 in court, even if he had been personally served with process. 
 If he did not appear after service of process, his goods were 
 distrained until they were exhausted or until he appeared in 
 
 84 Cooley's Const. Lim. p. 366. (1898). 
 
 85 People V. Simon, 176 HI. 165, 88 State v. Westfall, 85 Minn. 
 p. 177, 52 N. E. Rep. 910, 68 Am. 437; People v. Simon, supra. 
 
 St. Rep. 175, 44 L. R. A. 801, 
 
 95 
 
THE T0EBEN8- SYSTEM 
 
 court as commanded by the summons. Afterward statutes were 
 passed permitting proofs to be heard and judgment to be 
 rendered in the absence of a defendant personally served and 
 not appearing.^'' Presently the doctrine of substituted service 
 on defendants in equity was developed and decrees were 
 rendered against absent defendants who had been served by 
 publication of notice of the pendency of the suit. It has long 
 been a principle of our jurisprudence, founded on a sense of 
 abstract justice, that a defendant has a right to be heard in 
 review of a decree rendered under a statute authorizing a 
 decree to be rendered against him in his absence and on sub- 
 stituted service, if he did not actually have notice of the pro- 
 ceeding before the decree was rendered, and that if a decree 
 on default is based on any service of process, other than per- 
 sonal service, provision should be made, giving to a defendant 
 an opportunity to have it reviewed, if he did not in fact have 
 notice of the proceeding before the decree was entered. Until 
 recently it has been assumed quite generally in this country 
 that in an action in the nature of a suit to quiet title, the decree 
 does not operate ex proprio vigore to cut off the rights of 
 persons served by publication of summons either by name or 
 under the general designation of "unknown owners," "un- 
 known persons claiming an interest" etc., or "to whom it 
 may concern"; that it is necessary to fix a period after the 
 entry of the decree within which such persons may assert their 
 rights in the land ; that the decree becomes a starting point for 
 the fixed period of limitation, and that the rights of such per- 
 sons are barred by failure to assert them within such time. 
 The Massachusetts act and the McEnemy act of California 
 seem to hold that the legislature may create a new action, 
 strictly in rem, in which the decree may cut off the rights of 
 such persons on the day on which it is rendered. There are 
 those who contend that a statute may make a decree in such 
 an action binding and conclusive against such persons, and 
 therefore against all the world, from the date of its entry, — 
 if not by its own force, then as a period of limitation.** The 
 ground of the contention is that the court obtains control of the 
 
 87 See Tyler v. Judges, 175 88 People v. Simon, 176 111. 165. 
 
 Mass. 71, on p. 89, (1900). 
 
 96 
 
PEOCBEDING IN OEIGINAL EBQISTBATION IN THIS COTJNTEY 
 
 ) 
 land when the action is commenced, and that the legislature 
 
 fixes the time of the entry of the decree as the period within 
 which all rights in the land must be asserted. If A. takes pos- 
 session of B.'s land, occupies it for the period of the statute 
 of limitations, openly and notoriously claiming to own it, and 
 brings himself in all respects within the terms and provisions 
 of the statute, he becomes the owner of it, without a convey- 
 ance from B., without any notice to B., without a judicial 
 proceeding of any kind, and without any process of law against 
 B., except the time and opportunity which B. had to discover 
 that his rights were in peril and to proceed to assert them. 
 If the state may declare that B. must assert his title against 
 A. within the period of limitation, then it may also declare 
 that, unless B. shall appear in court and assert his interest 
 in the land whenever A. shall institute an action, give reason- 
 able notice to impart knowledge of the pendency of the pro- 
 ceeding and comply with the terms of the act under which the 
 proceeding is brought, he shall be absolutely bound by the 
 decree. Such is the argument in favor of the conclusiveness 
 of a decree which the statute makes binding on all the world. 
 The precise point under discussion was decided in two cases 
 involving the constitutionality of acts which made decrees 
 immediately conclusive against all persons.*® 
 § 58. In the California ease it was said : 
 
 "The principal contention upon this question of due process 
 is that the act is unconstitutional in that it seeks to bar by the 
 decree the rights of unknown owners, that is, those who are 
 not alleged in the complaint or the affidavit to claim any inter- 
 est in the property, and who cannot have any notice of the 
 fact that their rights are involved, other than the general 
 notice given by the posting and publication. • * * » The 
 validity of such judgments against known residents is based 
 upon the ground that the state has power to provide for the 
 determination of titles to real estate within its borders, and 
 that as against non-resident defendants or others who can- 
 not be served in the state, a substituted service is permissible, 
 as being the only service possible. These grounds apply with 
 equal force to unknown claimants. The power of the state 
 as to titles should not be limited to settling them as against per- 
 
 89 Tyler v. Judges, 175 Mass. 71, (1900) ; Title Co. v. Kerrigan, 150 
 55 N. E. Sep. 812, 51 L. E. A. 433, Cal. 289 88 Pac. Eep. 356, (1907). 
 
 97 
 
THE TOEEENS SYSTEM 
 
 sons named. In order to exercise this power to the fullest 
 extent it is necessary that it should be made to operate on 
 all interests, known and unknown. ' ' And again it was said in 
 that case : ' ' The state has power to enact statutes under which 
 the interests of persons in property within the state shall be 
 affected so far as that property alone is concerned, and the 
 action to quiet title, although originally under the old chancery 
 practice merely a personal action against the defendant, may 
 by statute be so extended as to permit the court to bind the in- 
 terest of the defendant in the property, even though such de- 
 fendant may not have been personally served with process with- 
 in the state."*" In speaking of the Massachusetts act it was 
 said in the Tyler case : " If it does not satisfy the constitution, 
 a judicial proceeding to clear titles against all the world hardly 
 is possible ; for the very meaning of such a proceeding is to get 
 rid of unknown as well as known claimants, — indeed, certainty 
 against the unknown may be said to be its chief end, — and un- 
 known claimants cannot be dealt with by personal service 
 upon the claimant. * * » * in Hamilton v. Brown,®i it was de- 
 clared to be within the power of the state 'to 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 publicaton 
 to all other persons'. I doubt whether the court will not take 
 the further step, when necessary, and declare the power of 
 
 the states to do the same thing after notice by publication 
 alone. "92 
 
 A statute provides that no action for the foreclosure of 
 
 any lien against registered land, in existence at the date of 
 
 90 Citing Pennoyer v. Neff, 95 California, in the case of Title Co. 
 
 U. S. 714, 24 L. Ed. 565; Hurtado v. Kerrigan, supra, read into the 
 
 V. California, 110 U. S. 516, 4 Sup. act under consideration a provision 
 
 Ct. 111. Arndt v. Griggs, 134 TJ. S. of the general code of civil proeed- 
 
 316; 10 Sup. Ct. Eep. 557, 33 L. ure (§ 473), declaring that any per- 
 
 Ed. 918, explaining Hart v. San- son interested and having no actual 
 
 som, 110 IT. S. 151; Lynch v. notice of the decree, may come in- 
 
 Murphy, 161 IT. S. 247; EoUer v. to court at any time within a year 
 
 Holley, 176 IT. S. 398, 44 L. Ed. after its rendition, and, upon 
 
 520; Dillon v. Heller, 39 Kan. 599; showing cause, may have the de- 
 
 Shepard v. Ware, 46 Minn. 174; cree vacated as to him, and be 
 
 Sloane v. Martin, 145 N. T. 524; allowed to answer to the merits. 
 
 Lantry v. Parker, 37 Neb. 353; The supreme court of the United 
 
 Perkins v. Wakeham, 86 Cal. 580, States in American Land Co. v. 
 
 25 Pac. Eep. 51, 21 Am. St. Eep. 67; Zeiss, 219 IT. S. 47, 31 Sup. Ct. 
 
 State V. "Westfall, 85 Minn. 437, 89 Eep. 200 (1911), upheld the con- 
 
 N. W. Eep. 175, 89 Am. St. Eep. stitutionality of the same act, re- 
 
 571 ; However, in connection with f erring to the construction given to 
 
 that section of the act, which pro- it by the supreme court of Gal- 
 
 vided that the decree should be ifornia. 
 
 binding on all persons, it is to be 91 161 IT. S. 256, 274. 
 
 noted that the supreme court of 92 See Huling v. Kaw Valley Im- 
 
 98 
 
PROCEEDING IN ORIGINAL EEGISTBATION IN THIS COUNTET 
 
 the original decree of registration, and which is not recog- 
 nized and established by such decree, shall be maintained, un- 
 less such action is commenced within six months from the date 
 of the decree, and that no action shall be commenced by any 
 person who is bound by the decree. It was held that a per- 
 son having an unrecorded lien on the land at the time of the 
 filing of the application is to be considered as a party to the 
 proceeding and bound by the decree, where the proceeding 
 was regular and in good faith, without notice of the unrecord- 
 ed lien, and all interested unknown persons were duly served 
 by publication.^* 
 
 § 59. Comment on Conclusiveness of Decrees. The law is 
 not a fixed science, but is an expanding evolution of social 
 and governmental relations. It is evident that the trend 
 of legislation is toward the passing of statutes making de- 
 crees of court conclusive, either at once or within a very short 
 time, and that courts are inclined to sustain such statutes. 
 There is a general feeling that all saving clauses in statutes, 
 by which persons of any description are given time beyond the 
 decree for the assertion of their rights, are unscientific and 
 unnecessary for the administration of the law and of justice. 
 Suits to quiet, confirm and establish titles are very numerous, 
 but instances in which injustice was done by the entry of 
 a decree in such a case, and in which the injustice was cor- 
 rected by a proceeding begun within the period for reviewing 
 the decree, are not numerous.'* Stale, vague and neglected 
 interests in the title to land are a hindrance to its merchant- 
 ability, and it reasonably may be insisted that those who hold 
 them shall place on record some notice of their names, address- 
 es and interests, or shall take some steps to assert their inter- 
 ests, prior to the entry of a decree quieting title against them, 
 and not afterward. A non-resident owner, not in possession, 
 should take measures for the protection of his rights in case 
 
 provement Co., 130 TJ. S. 559, 564. 575; 47 N. E. Rep. 551; 60 Am. St. 
 
 There are authorities opposed to Rep. 756. (1897). 
 
 the views expressed in these eases. 93 Doyle v. Wagner, 108 Minn. 
 
 See Hill v. Henry, 66 N. J. Eq. 150; 443; 122 N. W. Rep. 316 (1909). 
 
 57 Atl. Rep. 554 and the dissenting 94 We are discussing the conclus- 
 
 opinion in the Tyler case. See al- iveness of decrees apart from any 
 
 so State V. Guilbert, 56 Ohio St. consideration of fraud. 
 
THE TOERENS SYSTEM 
 
 they are attacked.®^ In other words, a person claiming an 
 interest in lands may be called upon to exercise some such 
 diligence in protecting his interest as he would exercise in 
 his commercial affairs. After all, it may be merely a question 
 of policy whether the law shall be most favorable to the in- 
 terests of those who have uncertain claims, or who have not 
 taken the means to make their names and addresses known, 
 as claimants of the land, or of those who own the lands, 
 occupy them or pay taxes on them, and desire to deal with 
 them. 
 
 In this connection there is a matter of prime importance. 
 The general laws of a state, regulating the procedure and 
 practice in suits to quiet and establish title, and regulating 
 the force and effect of decrees in such actions, should be the 
 same as any law of a special nature passed in that state for 
 a similar purpose. There should be one trend or policy in all 
 laws and proceedings having the same general object in view. 
 The process and service of process of the court, the require- 
 ments for and time of publication of notice, the mailing of 
 notice, the conclusiveness of the decree, the right to appeal or 
 sue out a writ of error, the rights of innocent purchasers for 
 value during any limitation, and the rights of persons under 
 disability should be the same in every proceeding in the nature 
 of a suit to quiet title in that state. It is confusing to in- 
 ject into the laws of the state a new set of laws, the purport 
 of which is at variance with the spirit of the laws which have 
 developed in its jurisprudence during a series of years, espec- 
 ially if the two sets of laws are to be concurrently admin- 
 istered. Each system of laws is certain to have a modifying 
 effect on the other, and confusion and uncertainty is sure to 
 follow. In Illinois, a decree under the "burnt record act" is 
 conclusive against persons not under disability in one year 
 after its entry, while a decree urder the Torrens act is not 
 conclusive until two years thereafter ; persons under disability 
 have two years after their disabilities are removed to pro- 
 secute a writ of error under the "burnt record act", while 
 
 95 See Huling v. Kaw Valley, supra. 
 
 100 
 
JUL 1 1 1912 
 LAW LIBRARY. 
 
 PEOCEEDING IN OEIGINAL REGISTRATION IN THIS COUNTRY 
 
 they are barred under the Torrens act after two years from 
 the entry of the decree. In California, the requirements for 
 obtaining notice by publication against unknown claimants 
 in the land and against defendants not found in the state are 
 much more general in the McBnemey act, 1906, than they are 
 in the Torrens act, 1897, and the decree under the McEnemey 
 act is declared to be binding and conclusive against all the 
 world from the time it is entered, though the supreme court 
 holds that it is not binding for one year under a provision of 
 the general code, while under the Torrens act it is not con- 
 clusive for five years. Such contrariety of statutory provisions 
 in the laws of a state are deplorable, and they indicate a lack 
 of thoughtfulness and a total disregard of harmony and 
 symmetry.^^ 
 
 § 60. Effect of Decree Bringing Land under Act. The 
 
 bringing of land under the registration act implies an agree- 
 ment running with the land, binding upon the applicant ,and 
 all persons claiming title or an interest under him, that the 
 property shall be subject to the terms of the act and all amend- 
 ments thereto; and that all subsequent dealings with the 
 property shall be subject to the terms of the act.*'' It goes 
 without saying that the terms of the act, which bind an appli- 
 cant and those claiming under him, and which bind property 
 brought under the act, must be constitutional and legal terms. 
 Those which are not valid bind nothing and no one, and this 
 section does not have the force and effect which its exact 
 words may imply. 
 
 § 61. When Trustee may make Application for Registration. 
 
 According to the provisions of some acts a trustee may make 
 application for registration unless he is prohibited from so 
 doing by the terms of the instrument creating the trust.*® 
 Under some acts the person or persons who claim to have the 
 
 86 The McEnerney act is set § 45 Hawaiian act. § 45 Philippine 
 
 forth in full in American Land Co. act. 
 
 V. Zeiss, supra. 98 § 68 Massachusetts act. J 69 
 
 97 J 36 New Tork act. J 23 Hawaiian act. § 69 Philippine act. 
 
 Minnesota act. $ 33 Colorado act. $ 66 Colorado act. $ 65 Washing- 
 
 § 44 Massachusetts act. $ 33 Wash- ton act. $ 70 California act. J 67 
 
 ington act. J 45 Oregon act. J 46 Nova Scotia act. 
 niinois act. J 44 California act. 
 
 101 
 
THE TOEEENS SYSTEM 
 
 power of appointing or disposiag ia fee simple of the legal 
 estate in land may apply for registration.^® A trustee with 
 power of sale ia fee simple may register the land, where the 
 registrar is satisfied that the application is made to carry 
 such power into effect. ^ A trustee with no power of sale in 
 fee simple must get the consent of the person claiming to be 
 beneficially entitled to the first estate of freehold in the land,^ 
 or to the first life estate or greater estate,^ or he must get the 
 consent of the person beneficially interested in the land.* A 
 trustee with power of sale must get the consent to the appli- 
 cation of any person whose consent is necessary to a sale.^ 
 In England and Ontario any person holding land on trust for 
 sale, and any trustee having a power of selliag land, may 
 apply to be registered as first proprietor, with the consent 
 of the persons, if any, whose consent is required to the ex- 
 ercise by the applicant of his trust or power of sale. The 
 amount of all necessary costs and expenses in the proceeding 
 is ascertaiued and declared by the registrar, and becomes a 
 part of the expense of administering the trust.® 
 
 99 J 10 New York act. J 14 New 
 South Wales act. $ 20 Western 
 Australia act. $ 21 Victorian act. 
 J 18 New Zealand act. 
 
 1 J 27 South Australia act. 
 
 2 j 16 Queensland act. § 14 New 
 South Wales act. 
 
 3 14 Tasmania act. 
 
 4 § 18 New Zealand act. $ 27 
 South Australia act. 
 
 5 18 New Zealand act. $ 21 Vic- 
 torian act. 
 
 6 § 68 Land Transfer act. 1875 
 § 8 Ontario act. 
 
 102 
 
CHAPTER VII. 
 
 Certificate of Title. 
 
 § 62. Nature of the Certificate of Title. When we shall pre- 
 sently determine what the essential elements of the Torrens 
 system really are, we shall see that none of the principles of 
 that system are brought into action until the certificate is 
 issued. It makes no difference to the essence of the system 
 whether the registration is made hy the act of a registrar, a 
 master of titles or a judge of a court, or whether it is registered 
 by a decree of a court entered in an adversary action. The 
 proceeding on an application is a mere preliminary to the first 
 great act of the system, which is the issue of a first certificate 
 of registration. "When this certificate is issued we have a 
 registered title, a governmental declaration of the ownership 
 and condition of the title, and a title which may not be dis- 
 puted. These are three basic elements of the Torrens system.^ 
 
 There are several kinds of Torrens certificates of title. Un- 
 der the English, Ontario, Nova Scotia and Hawaiian acts there 
 are certificates of possessory, qualified and absolute titles; 
 under the British Columbia act there are certificates of an 
 absolute fee and of an indefeasible fee; and under the othfer 
 acts, there are certificates of an indefeasible title only. Bach 
 kind of certificates is different evidence of the title of the 
 registered person to the estate or interest in land with which 
 he is registered, and every certificate is. some evidence of title. 
 The nature of the evidence of certificates of possessory or 
 qualified title has been considered.^ In British Colum- 
 bia the registered owner of an absolute fee is prima 
 
 1 Post, J 161. 2 Ante $ 13. 
 
 103 
 
THE TOKEBNS SYSTEM 
 
 facie the owner of the estate or interest in the land 
 described in the certificate, subject to the statutory exceptions 
 and to the registered charges ; and, subject to such exceptions 
 and to such charges, the registered owner of an indefeasible 
 fee is conclusively held to be the owner of the estate or interest 
 in the land described in his certificate.^ On first registration 
 the applicant, and on any subsequent registration the new 
 owner, is entitled to a certificate stating the kind of title with 
 which he is registered, and describing the estate or interest 
 in the property of which he is the registered owner. It is at 
 least prima facie evidence of the matters contained in it, so 
 far as the act permits incidents and burdens on a title to be 
 entered. Generally speaking, it must be produced at the reg- 
 istry on every dealing with the property, and, like a stock cer- 
 tificate, it is a document of great importance to the owner. 
 The registered owner of a lesser estate than a fee simple is 
 prima facie the owner of the estate or charge described in his 
 certificate.* An indefeasible title to land is one which gives 
 to its holder the right to eject the whole world. Under the 
 general Torrens system, according to which only certificates 
 of an indefeasible title are issued, a certificate is conclusive 
 evidence of the title, except (1) where a certificate of title 
 of an earlier date is in existence, (2) where the land has been 
 made, wholly or partially, the subject of a certificate of title 
 by some mistake or through some error, not being a 
 mistake or error of law On the part of the registrar 
 when acting in his judicial capacity; (3) and where the certi- 
 ficate of title has been obtained by the holder through fraud. 
 Unless and until it is shown to fall within one of these recog- 
 nized exceptions, a certificate is conclusive evidence of title, 
 and the burden of showing that it falls within one of the ex- 
 ceptions is on the person who alleges that it does.^ When a 
 
 3 ^ 24, 80 British Columbia act. ham v. Buttle, 13 S. A. L. E. 1 (18- 
 
 4 ^§ 25-29 British Columbia act. 79). Franklin v. Ind., 17 S. A. L. 
 6 Lloyd V. Mayfield, 7 A; L. T. 8 B. 133 (1883). § 42 New^ South 
 
 (1885). Main v. Robertson, 7 A. L. Wales act. J 44 Queensland^ act. $ 
 
 T. 127 (1886). St. George v. Bur- 69 South AustraUa act. §33 Tas- 
 
 nett, 10 8. A. L. E. 47 (1876). Hall mania act. § 74 Victoria act. J 68 
 
 V. Loder, 7 N. S. W. L. R. Eq. Western Australia act. $$ 75, 180 
 
 44 (1885). Marsden v. McAllister, Saskatchewan act. $ 44 Alberta 
 
 8 N. S. W. L. E. 300 (1887). Wad- aet; 
 
 104 
 
CEBTIFICATE OF TITLE 
 
 certificate does not fall within one of these exceptions, the reg- 
 istered owner is declared by statute to hold the estate or inter- 
 est in the land, free from all incumbrances and adverse claims, 
 except those enumerated in the statute and those set forth in 
 the certificate. The statutory exceptions are substantially 
 the same in all acts, and generally speaking, in this country 
 are (1) liens, claims or rights arising or existing under the 
 laws or constitution of the United States, which the state 
 cannot require to appear of record, (2) subsisting leases with- 
 in a certain designated number of years, (3) taxes and special 
 assessments, (4) public highways and easements on the land, 
 (5) and the right of appeal or review.* Experience seems 
 to teach that to be satisfactory the register of titles must be 
 absolute and indefeasible, and that if it is anything less, the 
 system of registering titles loses much of its merits and most 
 of its attractions. Accordingly, under the general system, 
 certificates are made conclusive evidence of title and of priority 
 of Uens, except as provided otherwise in the acts, meaning 
 by this expression, except as to the statutory burdens not 
 covered by registration.'^ In all courts and in all places in 
 Illinois and Oregon until two years from the date of the de- 
 cree, the original certificate is prima facie evidence that the 
 title to the land is as therein stated, and after that time it is 
 conclusive evidence of that fact.^ Under some of the acts 
 the certificate relates back to and takes effect from the date of 
 the decree of registration.® Since the first registration of 
 
 6 J 24 Minnesota act, 1905. $ 40 7 § 46 Massachusetts act. $ 47 
 
 Illinois act. § 39 Oregon act. j 30 Hawaiian act. $ 47 Philippine act. 
 
 Colorado act. $ 38 Massachusetts $ 42 Colorado act. $ 41 Washington 
 
 act. $ 39 Hawaiian act. § 30 Wash- act. $ 42 California act. J 40 New 
 
 ington act. § 32 New York act. $ South Wales act. § 96 Queensland 
 
 34 California act. $ 39 Philippine act. § 65 New Zealand act. $ 69 
 
 act. See J§ 7, 13, 18, English act. South Australia act. $ 33 Tasmania 
 
 1875. $J 43, 104 Alberta act. $J 75, act. 5§ 69, 74 Victoria act. $$ 63, 
 
 76 Saskatchewan act. $ 26 Ontario 68 Western Australia act. $ 180 
 
 act. J 80 British Columbia act. $ Saskatchewan act. § 44 Alberta act. 
 
 41 Nova Scotia act. $ 70 Manitoba § 71 Mantoba act. $ 41 Nova Sco- 
 
 act. ^ 55, 56 New Zealand act. J tia act. $ 36 act for Ireland, 1891. 
 
 44 Queensland act, 1861. $$ 40i 42 8 § 39 Illinois act. § 38 Oregon 
 
 New South Wales act. § 68 West- act. See $ 31 New York act, in 
 
 em Australia act. $ 33 Tasmania which the period of limitation is 
 
 act. $ 74 Victoria act. $ 69 South six months. 
 
 Australia act. $$ 30, 34 act for Ire- 8 § 40 Washington act. $ 38 Ill- 
 land, 1891. inois act. § 37 Oregon act. $ 41 
 
 105 
 
THE TOEEENS SYSTEM 
 the title is founded on the decree of the court, and since the 
 act of the registrar in this country in entering the effect of 
 the decree on the register is merely clerical and ministerial, 
 it would seem that the original certificate would relate back to 
 the date of the decree, whether or not the statute so provided 
 in express terms. In this country where an original or first 
 certificate of title is made conclusive evidence as to all incum- 
 brances on the land, the court must pass on the validity of 
 all such incumbrances before issuing the certificate.^" The 
 rights and incumbrances excepted from the operation of the 
 certificate and from the conclusiveness thereof, including the 
 right of appeal, must be set forth in the certificate, according 
 to the Minnesota act, 1905, and in that state a certificate is 
 conclusive evidence of titles, except as to the matters therein 
 expressly set forth.^^ In some acts it is provided that in a suit 
 for specific performance brought by a registered owner, and in 
 any action or proceeding brought for ejectment, partition or 
 possession of registered land, the certificate shall be conclusive 
 evidence of a good and valid title, subject to such matters as 
 may be noted therein.^^ gjnee in other sections of the acts 
 the certificate is declared to be conclusive, this provision seems 
 to be unnecessary. 
 
 § 63. In perhaps all the registration acts there is a pro- 
 vision that, in case of a variance between the owner's duplicate 
 and the original certificate, the original shall prevail. The or- 
 iginal certificate is the official public register of the title, and 
 according to the theory of the registration system, it should 
 prevail, even though the statute does not expressly so declare. 
 The term, "certificate of title," includes all memorials and 
 notations contained in any certificate, and the owner of any in- 
 terest or estate less than a fee simple is protected by the entry 
 on the certificate of a memorial of his interest. The expression 
 
 Colorado act. J 42 Hawaiian act. 12 ^ 43, 44 Illinois act. $J 42, 43 
 
 § 41 Minnesota act, 1905. $ 42 Oregon act. $§ 40, 41 California act. 
 
 Philippine act. $ 41 Massachusetts $ 136 Alberta act. $$ 147, 181 Sas- 
 
 act. katchewan act. $ 115 Manitoba act. 
 
 10 First National Bank v. City, § 96 Queensland act. J 73 Victoria 
 192 Mas^. 220; 78 N. E. Eep. 307 act. J 44 New South "Wales act. § 
 (1906). 80 South Australia act. $ 67 West- 
 
 11 $ 35 Minnesota act, 1905. ern Australia act. 
 
 106 
 
CEETIFICATE OF TITLE 
 "certificate of title," when used in a general sense, means 
 the original register and the owner's duplicate certificate. 
 When the part retained by the registrar is intended, as dis- 
 tinguished from the part given to the owner, it is variously 
 spoken of as the original certificate, the register and the folium 
 of the register ; and when the other part is intended — , the one 
 which is given to the owner, — it is usually called the owner's 
 duplicate. "When the context will apply equally well to either 
 part, the term ' ' certificate of title ' ' may be used. "When it is 
 said that an intending purchaser may rely on the certificate 
 of title, the register, the page of the register reserved for the 
 particular land, is meant. The duplicate certificate may have 
 been an exact copy of the register when it was executed, but 
 involuntary liens may have been placed on the register sub- 
 sequently, and may not have been noted on the duplicate 
 certificate. A purchaser must examine the register, and may 
 not rely on a duplicate certificate. In favor of a bona fide pur- 
 chaser for value, the register is conclusively presumed to show 
 everything which is subject to registration, but the statutory 
 burdens which are not the subject of registration must be 
 inquired into off the register. 
 
 § 64. It is often said that the great object of the Torrens 
 system is to produce a governmental register which may be re- 
 lied on to set forth the condition of the title to an estate or 
 interest in land, so that any person dealing with the land will 
 take the registered title from the last registered owner, no 
 matter what the true condition of the title may be. But this 
 is not a statement of the whole scope of the system or of the 
 only function of the register; it is merely a statement of one 
 of the results, which follows from the terms of the statutes. 
 The statute declares that every certificate is conclusive evidence 
 of title. This statutory declaration is not limited in favor of 
 a purchaser; and it makes no distinction between the first or 
 original certificate, issued on the bringing of land under the 
 act, and any certificate subsequently issued on a transfer of 
 registered land. All certificates are evidence of an indefea- 
 sible title. "When the Registrar, under the provisions of the act, 
 passes on the validity of a title submitted to him for rcgis- 
 
 107 
 
THE TOEEENS SYSTEM 
 tration, lie represents the state and passes on it once for ail, 
 and when he registers the title in the exercise of his functions, 
 the stai^utory declaration of indefeasibility operates on the 
 certificate of title, unless it falls within some of the recognized 
 exceptions. When a first certificate has been issued, the holder 
 takes the title, and the certificate may not be impeached for 
 mere error of law, made by the registrar in passing on the 
 validity of the title. "When the registrar passes on the 
 validity of a transfer of registered land, he exercises the same 
 functions as in case of original registration, and his registra- 
 tion in succession to a former certificate may not be impeached 
 for mere error of law.^* The great object of the system is, 
 therefore, to create a certificate which is conclusive evidence 
 of an indefeasible title to an estate or interest in registered 
 land, and the register or certificate of title is the pivot on 
 which the working of the Torrens system turns. Bach section 
 of a Torrens statute, and each point in a case arising under 
 a Torrens act, has some connection with or relation to 
 the certificate of title, and manifestly the subject of the cer- 
 tificate of title is too generic to be treated of in all of its rami- 
 fications. But it should be said here that, in order to be con- 
 clusive evidence of title, a certificate in succession to a former 
 certificate must be issued on a transfer from the identical 
 person who held the former certificate, and that the burden is 
 on the intending purchaser to see that he deals with such 
 person, and not with an imposter.^* "While he need not search 
 the title back of the last certificate, he must see that he deals 
 with the person registered as owner in that certificate. This 
 requirement is not contained in any Torrens statute, at least 
 in a way to make it readily noticeable, and it was more than 
 thirty years after the institution of the system before it was 
 authoritatively laid down as a principle of title registration.^^ 
 Some twenty years after the passage of the original Torrens 
 act it was held in South Australia that a first certificate, in the 
 absence of any statutory exception, was conclusive evidence 
 of title in favor of a first registered owner,^^ but this doctrine 
 
 13 See post $ 147 et seq. C. 248, P. 0. 
 
 14 See post $ 129. le Bonnin v. Andrews, 12 S. A. L. 
 IB See Gibbs v. Messer, 1891 A. E. 153 (1878). See also Coleman v. 
 
 108 
 
CERTiriCATE OF TITLE 
 was not generally accepted, and it was more than forty-five 
 years after the passage of the original Torrens act before it was 
 authoritatively settled that there was no difference between the 
 indefeasibility of a title held under a first and under a sub- 
 sequent certificate, and that, in the absence of some statutory 
 exception, all certificates issued under an act were conclusive 
 as evidence of title to the estate or interest registered in the 
 registered owner.^'' A mistake as to the boundaries of the 
 land brought under the act can affect only the first certi- 
 ficate,!^ and the rule, that an intending purchaser of regis- 
 tered land must deal with the last registered owner, can apply 
 only to certificates issued subsequent to the first,^^ but, with 
 these exceptions, all certificates are on the same basis as to 
 indefeasibility of title. Every certificate, whether first or sub- 
 sequent, is conclusive, except, (1) where a certificate of an 
 earlier date is in existence,^" (2) where the land has been 
 made, wholly or partially, the subject of certaia f-rrors,^^ (3) 
 and where the certificate has been obtained by the holder 
 through fraud. A thorough understanding of the scheme and 
 working of the system will be greatly impeded by the suppos- 
 ition that there is any distinction between the conclusiveness 
 of a first certificate of title and one subsequently issued, or 
 that the functions of the registrar are different when he makes 
 an original registration and when he issues a certificate on a 
 transfer of the title. The statutory declaration in all foreign 
 acts, that every certificate, with certain exceptions, is con- 
 clusive evidence of title, is the very foundation of the Torrens 
 system. If a certificate, which does not fall within one of these 
 exceptions, is not evidence of an indefeasible title to the estate 
 or interest registered, an examination of the whole chain of title 
 should be made on each dealing with registered land, nothing is 
 gained by title registration, and the scheme should be abol- 
 ished. If in this country it is not competent for a legislature 
 to declare that a certificate, made by a registrar, no matter 
 
 Eiria Puwhanga, 4 N. Z. 8. C. 230 § 148. 
 
 (1886). Hamilton v. Iredale, 3 St. is See post, § 149 et seq. 
 
 Eep. (N. S. W.) 535 (1903). 19 See post, $129. 
 
 17 Assets Company v. Mere 20 Post, $ 153. 
 
 Eoihi, 1905 A. C. 177, P. C. See post 21 Post, j 147 et seq. 
 
 109 
 
THE TOEEENS SYSTEM 
 
 how erroneous in the law arising on a question of title, is 
 conclusive evidence of an indefeasible title as against all per- 
 sons interested in the land, our Torrens statutes should be 
 repealed at once. In this connection it must be remembered 
 that a certificate signed by an administrative offlcer is not 
 necessarily in and of itself conclusive evidence of the matters 
 of fact and of law set forth and declared therein, and a legis- 
 lature in this country may not enact a law making evidence 
 conclusive which is not necessarily so in and of itself. In ju- 
 dicial investigations the law of the land requires an opportun- 
 ity for a trial, and there can be no trial of rights in registered 
 property if a registrar's certificate is conclusive evidence of 
 ownership in all courts and in all places, and if only one party 
 may produce his proofs. To preclude a party from going be- 
 hind a certificate of title issued in this country, and from 
 showing the truth concerning the condition of the title, would 
 seem to be nothing short of invasion of the judicial province, 
 of confiscation of property and of destruction of vested rights, 
 without due process of law. It has been repeatedly held that 
 in this country it is not within the legislative power to de- 
 clare what shall be conclusive evidence. 
 
 State V. Beach, 147 Ind. 74; 46 
 N. E. Rep. 145; 36 L. E. A. 179 
 (1897). State v. Buck, 120 Mo. 
 479; 25 S. W. Eep. 573 (1893). 
 People V. Cannon, 139 N. T. 32; 34 
 N. E. Eep. 759 (1898). "Wantlan v. 
 White, 19 Ind. 470 (1862). Felix 
 V. Wallace Co., 62 Kan. 832; 62 
 Pac. Eep. 667 (1900). Chicago Ey. 
 Co. V. Minnesota, 134 V. S. 418; 33 
 L. Ed. 970 (1889). United States 
 V. Klein, 13 Wall. 128; 20 L. Ed. 
 519 (1871). People v. Eose, 207 
 
 111. 352, on p. 361; 69 N. E. Eep. 
 762 (1904). Corbin v. Hill, 21 
 Iowa 70 (1866). White v. Flynn, 
 23 Ind. 46 (1864). Baart v. Martin, 
 99 Minn. 204; 108 N. W. Eep. 915 
 (1906). Meyer v. Berlandi, 39 
 Minn. 438 (1888). Missouri Ey. 
 Co. V. Simonson, 64 Kan. 802; 68 
 Pac. Eep. 653; 57 L. E. A. 765 
 (1902). Farmers' Union v. Thresh- 
 er, 62 Cal. 407 (1882). Cooley, 
 Const. Lim., 5 Ed., 453-5. 3 Cyc. 
 of Ev. 292. 8 Cyc. of Law, 820. 
 
 110 
 
CHAPTER VIII. 
 
 Voluntary Dealings with Registered 
 
 Land. 
 
 § 65. Nature of the Functions of the Registrar. According 
 to the general Torrens system, the purpose of the first regis- 
 tration of a title to an estate or interest in land is to present a 
 certificate of an indefeasible title to it, so that the registered 
 owner may hold the title as against all unregistered rights, 
 which are the subject of registration, and so that an intending 
 purchaser from him need make no inquiry into the title, ex- 
 cept as to certain matters noted on the certificate and as to 
 burdens enumerated in the statutes. Under the general real 
 estate laws, and according to the recording system, on every 
 dealing with land there must be, or at least usually is, an ex- 
 amination of the history and progress of the whole chain of 
 title, but under the Torrens system, on an application for regis- 
 tration, an examination is made once for all on behalf of the 
 state, and the result of the examination is registered on a cer- 
 tificate of title. Save as to certain well known statutory excep- 
 tions, this result, however correct or erroneous it may be, is 
 declared by the state to be conclusive evidence of an indefeas- 
 ible title to the registered estate in the registered owner. Since 
 the title is so vested and declared in the registered owner by 
 the acts of the registrar, he necessarily must have adjudi- 
 cated on the rights of all persons interested in the land, and 
 it follows that in passing on the sufficiency of the title and in 
 registering it, he acts judicially. In passing on the sufficiency 
 of the title and in registering it, the registrar acts judicially. 
 
 Ill 
 
THE T0EEEN8 SYSTEM 
 When a deed for a transfer of the registered estate or inter- 
 est in land is filed in the registrar's office, and the duplicate 
 certificate of title is surrendered, the registrar examines the 
 deed and the register of the title, which is to be affected by reg- 
 istration of the deed, determines the validity and effect of the 
 deed, the right of the last registered owner to deal with the 
 land as proposed, the right of the transferee to have the estate 
 or interest transferred to him, and if he is satisfied that no 
 other person can succeed against the transferee in an action of 
 ejectment, and that the transfer should be made, he makes 
 a registration of a new certificate accordingly. In foreign 
 countries the functions of the registrar in making a new reg- 
 istration in succession to the last one, and in noting mortgages, 
 leases and liens on certificates of title, are recognized as judi- 
 cial. The nature of his functions is the same in making 
 an original registration of a title and in making a regis- 
 tration in succession. In bringing land under the act he deter- 
 mines the validity and sufficiency of the whole chain of title 
 as the basis for the certificate which he issues, and in making 
 a registration in succession he determines the validity, force 
 and effect of the deed of transfer under the last certificate, 
 as the basis for the new certificate issued by him ; and the dif- 
 ference in his duty is merely in the amount of labor performed 
 and not in the character of the labor. Under all statutes the 
 act of registration is the operative act to vest the title. In 
 speaking of the functions of the registrar in making registra- 
 tions under the Victorian act, it was said : ' ' The intention of the 
 legislature was obviously to impose the duty upon the regis- 
 trar to prevent instruments being registered which, in law 
 as well as in fact ought not to be registered in the first in- 
 stance, and to determine the validity of instruments, as well 
 as the priority of registration in point of time. He has there- 
 fore, to discharge not merely ministerial but judicial duties. ' '^ 
 Recently it has been held that where a registrar is vested with 
 a discretion in passing on matters which come before him 
 under the provisions of an act, he must be judicially satis- 
 
 1 Ex parte Bond, 6 V. L. B. L. v. Hassett, 1907, V. L. E. 404; 28 A. 
 458 (1880). See National Company L. T. 232. 
 
 112 
 
VOLUNTAEY DEALINGS WITH EEGISTEEED LAND 
 
 fied and act accordingly, and the court will not interfere with 
 his decision and compel him to act in a certain way.^ Under 
 the English act the registrar acts as a judge in the performance 
 of his duties with respect to registration.* In clerical matters, 
 as, for instance, in writing out descriptions of land, names of 
 persons, duplicate certificates, affixing his seal, or his initials, 
 etc., — he acts in an administrative capacity ; but within a limit- 
 ed sphere, — ^in performing any act which may result in divest- 
 ing, transferring or fixing the rights of persons in land, — in 
 carrying out the elemental features of the system, — he per- 
 forms judicial functions. 
 
 § 66. There seems to be an analogy between a registrar un- 
 der foreign acts and a judge of a court, who is also clerk of his 
 court; a distinction must be made between the acts which he 
 performs in his clerical and ministerial capacity, and those 
 which he performs in his judicial capacity. The statutes de- 
 clare that certificates issued by him shall be conclusive evi- 
 dence of title. Thus, the state by statutory declaration vests 
 rights and titles through certificates issued by him. There is 
 no distinction between the first certificate and any one issued 
 subsequently, but there is this qualification on the conclusive- 
 ness of a subsequent certificate, that the person registered 
 under it must have taken a transfer of the estate or interest 
 from the last registered owner. Though he has power to sum- 
 mon persons before him in many cases, and to determine many 
 matters of administration under the acts, the registrar is not 
 a judge of a court. Under most Torrens statutes, controvert- 
 ed questions of law and fact, arising on an application for 
 original registration, must be referred by him to a court com- 
 petent to adjudicate upon all the rights of the parties inter- 
 ested. He is not authorized to inquire into conflicting equities 
 arising between persons, which may arise from or grow out 
 of his acts of registration, or to determine controverted ques- 
 tions of fact concerning alleged errors in a registration ; ordin- 
 ary suits and proceedings in court must be instituted in order 
 to litigate such questions.* But he is authorized to pass on all 
 
 2 Ex parte Gallagher, 8 S. E. (N. 4 Barham v. Hoggins, 6 Tas. L. 
 S. "W. )230; 25 W. N. 54 (1908). E. 6 (1910). In re Stanley 24 W. 
 
 3 Attorney General v. Odell, 2 N. (N. S. W.) 74 (1907). 
 Chan. Div. 47 (1906). 
 
 113 
 
THE TORBENS SYSTEM 
 
 questions of law arising in an abstract of title submitted to 
 him on an application to register the land, or arising on the 
 construction of an instrument of transfer of registered land. 
 "Where a registration is not contested under a caveat, he sees 
 that all things are done in accordance with the terms of the 
 act, exercises his judgment and discretion on behalf of the 
 state, in order to effectuate the purposes of the statutes, and 
 in making a registration, whether first or subsequent, acts 
 judicially. In case of doubt in his own mind on a question 
 of law arising on any proposed registration, he may refer the 
 question to the court, but he may not be compelled to do so. 
 When he decides a question of law arising on any proposed 
 registration, an appeal lies from his decision. His main func- 
 tion is to make and keep the register of titles, and, in all mat- 
 ters directly leading up to the act of registration, he acts as 
 a judge, When he has registered his decision on a title or 
 on a transfer of registered land, the statute declares the certifi- 
 cate issued by him to be conclusive evidence of an indefeasible 
 title. It is the essence of the Torrens system that his decision 
 as registered in a certificate of title shall be binding on all 
 persons interested in the land, whether they have been notified 
 of the proposed registration or not. If, in passing on ques- 
 tions of title and in performing his duties with respect to 
 registration, bis acts are not binding on every person who may 
 be interested therein, and if an action may be prosecuted to 
 correct or annul his act and to compel him to act in a certain 
 way, the system is one of judicial registration, and not the 
 Torrens system of registering indefeasible titles. With re- 
 spect to the functions of the registrar in making new registra- 
 tions on transfers of registered land, it is to be noted that the 
 terms of the acts in this country are substantially the same 
 as the terms of all the foreign acts. They seem to carry out 
 the same scheme and design. His functions in making such 
 new registrations under the acts in this country have been 
 challenged as judicial and beyond the powers of a ministerial 
 ofiicer. No ease has been decided in this country, in which 
 some specific act of a registrar was challenged as judicial, 
 but the supreme courts of several • states, in suits involving 
 the constitutionality of certain registration acts as a whole, 
 
 114 
 
VOLUNTARY DEALINGS WITH EEGISTEEED LAND 
 
 have passed generally on the nature of the functions of regis- 
 trars under them. 
 
 § 67. Nature of Registrar's Functions in This Country. The 
 first decision on the subject was in Ohio, where the supreme 
 court said : 
 
 "Recurring to the duties of the recorder under the act, he 
 is not merely to enter the evidence furnished hy the agree- 
 ment of the parties that a lien has been discharged, or that it 
 has become void by the lapse of time, or that a mistake has 
 intervened touching their rights; but he is to apply the rules 
 of evidence to the ascertainment of disputed facts, to apply 
 the rules of law concerning payment, to interpret and apply 
 the statute of limitations as it may affect the enforcement of 
 liens, including such questions of disability as may arise, to 
 decide the questions of fact and law that may arise in de- 
 termining whether mistakes have intervened, and who are 
 bona fide purchasers; and then to make an entry which is to 
 the same effect in concluding the rights of the adversary 
 parties as would a decree in equity. That these are judicial 
 powers is entirely clear. They seem to have been so regarded 
 by the general assembly, for there is a provision for appeal 
 from the decisions of the recorder. This is not supposed to 
 include all the judicial powers which the act assumes to con- 
 fer on the recorder, but it is sufficient for present purposes. 
 Nor is this objection to the act avoided by the provisions which 
 contemplate a review of or appeal from the action of the re- 
 corder. It would, perhaps, be found upon a careful considera- 
 tion of his powers, that they are not all embraced within the 
 provisions for review or appeal. But the assumption that 
 they are so embraced would not validate the act in this re- 
 spect. The recorder as a ministerial officer is incompetent 
 to receive a grant of judicial power from the legislature. His 
 acts in the attempted exercise of such powers are necessarily 
 nullities. They cannot be effective to impose any obligation 
 or burden upon any citizen, or to deprive him of any right. 
 The act plainly contemplates that the person against whom 
 the recorder decides in the exercise of any of the powers 
 sought to be conferred must either submit to the adverse de- 
 cision or take upon himself the burden of an appeal. In view 
 of the constitutional provision on the subject, he cannot be 
 forced to this alternative. If these are judicial powers, it 
 is admitted that they cannot be vested in the recorder. If 
 they are not judicial, the provisions for an appeal are void, 
 since, as was said by this court,^ we have no idea of an appeal, 
 
 5 Logan Branch Bank, ex parte, 1 Oh. St. 432. 
 
 115 
 
THE TOBRENS SYSTEM 
 
 except from one court to another."^ 
 
 § 68. Issuing a New Certificate Is Not Necessarily a Judicial 
 Act. The supreme court of Illinois passed on sections 40, 60, 
 68 and 69 of the Illinois act, relating to the transfer of land 
 after registration, and to the registering of liens and claims, 
 and held that these sections did not confer strictly judicial 
 power upon the registrar, and that the discretionary power 
 which he might exercise under those sections was only quasi 
 judicial and incidental to the proper performance of his min- 
 isterial duties.'^ In discussing these sections, the court said: 
 
 " It is first insisted that the act confers judicial powers upon 
 the registrar of titles, or upon him and the examiners of titles, 
 in violation of the constitution of this state. A somewhat 
 similar act passed in 1895 was held invalid on that ground 
 in People v. Chase.® By the provisions of the law of 1895 
 the registrar was clothed with power to determine the owner- 
 ship of land when application was made for the initial regis- 
 tration thereof, and to issue his certificate accordingly. The 
 present act provides that the ownership shall be determined 
 by a decree in equity entered in a court of competent juris- 
 diction, upon which decree the registrar shall issue the first 
 certificate of registration. In this regard his duties under 
 the present law are clearly ministerial only, and the fatal 
 objection to the former act is therefore removed. But it is 
 insisted that the law is still vulnerable, in that it vests judicial 
 power in the registrar in the performance of his duties as to 
 subsequent registrations. Waiving the question whether this 
 would, if true, necessarily vitiate the whole act, is the position 
 tenable ? Like a mere recorder, the registrar is required to file 
 all deeds, mortgages, leases and other instruments affecting 
 the title to land, and make proper notations upon the instru- 
 ments and upon the record. He is to keep a record to be 
 known as the 'Register of Titles,' in which must be entered 
 the original and all subsequent certificates of title, and such 
 notations as to liens, incumbrances and the like as are re- 
 quisite to show the true condition of the title. When any 
 instrument is filed with him which is intended to create a 
 charge, lien or incumbrance upon land, it is made his duty, 
 by section 60, to enter a memorial upon the register and also 
 upon the original certificate. Thus far his duties are clearly 
 and simply ministerial. But it is contended this section 60 
 
 6 state V. Guilbert, 56 Ohio St. 175; 44 L. R. A. 801 (1898). 
 
 575; 47 N. E. Rep. 551 (1897). 8 165 ni. 527; 46 N. E. Rep. 454 
 
 7 People V. Simon, 176 HI. 165; (1897). 
 52 N. E. Rep. 910; 68 Am. St Rep. 
 
 116 
 
VOLUNTARY DEALINGS WITH EBGISTEEED LAND 
 
 authorizes him to determine the validity of liens, incum- 
 brances or charges, and the argument is, that this is an exer- 
 cise of judicial power, which, under our constitution, can be 
 conferred upon no officer or tribunal save those which belong 
 to the judicial department. The language of the section applic- 
 able to this question is as follows: 'It appearing to the regis- 
 trar that the person intending to create the charge has the 
 title and right to create such charge, and that the person in 
 whose favor the same is sought to be created is entitled by 
 the terms of this act to have the same registered, he shall 
 enter upon the proper folium of the register, and also upon 
 the owner 's certificate, a memorial of the purport thereof, ' etc. 
 It will be noticed that the provisions in case of a transfer of 
 the property are substantially the same. Section 47 says: 
 'Upon its being made to appear to the registrar that the 
 transferee (evidently intending transferrer) has the title or 
 estate proposed to be transferred and is entitled to make the 
 conveyance, and that the transferee has the right to have 
 such estate or interest transferred to him, he shall make out 
 and register as hereinbefore provided, a new certificate,' etc. 
 Article 3 of the constitution of 1870 reads as follows: 'The 
 powers of the government of this State are divided into three 
 distinct departments, — the legislative, executive and judicial; 
 and no person or collection of persons, being one of these 
 departments, shall exercise any power properly belonging to 
 either of the others, except as hereinafter expressly directed 
 or permitted.'® The question therefore is, can the legislature 
 devolve the duties named, upon an officer not a member of 
 the judicial department? That the duties mentioned are ju- 
 dicial in their nature may be admitted, but it does not neces- 
 sarily follow that their exercise is prohibited by the constitu- 
 tional provision to all but officers belonging to the judicial 
 department. Numerous instances may be cited, as is done in 
 Owners of Lands v. People,!" where executive and legislative 
 officers are authorized to exercise powers which in a sense 
 are judicial, and the laws imposing such duties held not to 
 be in violation of the constitutional provision quoted. These 
 duties or powers are generally and properly termed 'quasi 
 judicial,' to distinguish them from those which are judicial 
 in the sense of belonging to the judicial department exclusive- 
 ly. In theory all governmental power is divided into the 
 three named divisions, and upon a casual consideration the 
 division would seem to present no difficulty, but in the prac- 
 tical application of the principles involved, courts have been 
 compelled to observe that the line of demarkation between 
 
 9 Eev. Stat. p. 60. People v. Chase, supra.) 
 
 10 113 m. 296 (referred to in 
 
 117 
 
THE TORRENS SYSTEM 
 
 the exclusive powers of the three departments is far from 
 clear. 11 Judge Cooley, in his work on Constitutional Limita- 
 tions on the Legislative Branch of the Government, has given 
 a definition of 'judicial power.' It is this: 'The power which 
 adjudicates upon and protects the rights and interests of indi- 
 vidual citizens, and to that end construes and applies the 
 laws. ' As a general definition of the functions of the judicial 
 department it is sufficiently accurate, and we adopted it in 
 the case of People v. Chase, supra. We then thought, and are 
 of the opinion still, that it was applicable to that case, the 
 functions of the registrar, under the act of 1895, being not 
 quasi judicial, merely, but strictly so, and such as are usually 
 exercised by the courts alone, constituting the exercise of 
 judicial power within the constitutional prohibition. Under 
 the present act his duties more nearly resemble those fre- 
 quently exercised by members of the executive department. 
 The definition given by Judge Cooley does not attempt to 
 mark the line between those quasi judicial functions which 
 may be vested elsewhere, and those strictly judicial, which 
 can be reposed nowhere save in the courts, and for that rea- 
 son it cannot be properly adopted in this ease. As we said 
 in another ease: 'It may in many cases be a matter of diffi- 
 culty to determine the precise line which divides the executive 
 and judicial functions. It has been said that where the 
 functionary hears, considers and determines, then he per- 
 forms judicial acts. This definition is not strictly accurate. 
 ♦ * * * It embraces cases that are not judicial, and hence 
 is too comprehensive. '12 And appreciating the difficulty of 
 defining the limits of the several departments of government 
 we also said in an earlier case : ' Nevertheless, when we come 
 to apply them to actual controversies growing out of the 
 varied relations which the citizens sustain to the State and to 
 one another, we encounter doubts and difficulties of the grav- 
 est character. Just where the dividing line is to be drawn 
 between judicial and legislative power, with respect to cer- 
 tain subjects, often presents questions about which enlighten- 
 ed courts and eminent jurists widely differ. So while the 
 powers of courts seem so very simple and clearly defined, yet 
 in the application of them to actual cases, their proper limits 
 are often difficult to determine. 'i* Also : 'The first and second 
 sections of the first article of the constitution (of 1818) divide 
 the powers of governments into three departments, — the legis- 
 lative, executive and judicial, — and declare that neither of 
 these departments shall exercise any of the powers properly 
 
 11 6 Am. & Eng. Eney. of Law HI. 94, on p. 108. 
 
 2d ed. p. 1007. is Dodge v. Cole, 97 lU. 338 on p. 
 
 12 Donahue v. Will County, 100 357. 
 
 118 
 
VOLUNTAEY DEALINGS WITH EEGISTEEED LAND 
 
 belonging to either of the others, except as expressly permit- 
 ted. This is a declaration of a fundamental principle, and, 
 although one of vital importance, it is to be understood in a 
 limited and qualified sense. It does not mean that the legis- 
 lative, executive and judicial power should be kept so entirely 
 distinct and separate as to have no connection or dependence, 
 the one upon the other; but its true meaning, both in theory 
 and practice, is, that the whole power of two or more of 
 these departments shall not be lodged in the same hands, 
 whether of one or many. 'i* Judge Story, in his work on the 
 Constitution, says: 'But when we speak of a separation of 
 the three great departments of government, and maintain that 
 their separation is indispensable to public liberty, we are to 
 understand this maxim in a limited sense. It is not meant to 
 affirm that they must be kept wholly separate and distinct 
 and have no common link of connection or dependence, one 
 upon the other, in the slightest degree. The true meaning is, 
 that the whole power of one of these departments should 
 not be exercised by the same hands which posjess the whole 
 power of either of the other departments, and that such exer- 
 cise of the whole would subvert the principles of a free con- 
 stitution. '^^ 'Notwithstanding the memorable terms in which 
 this maxim of a division of powers is incorporated into the 
 bills of rights of many of our state constitutions, the same 
 mixture will be fotind provided for, and, indeed, required, in 
 the same solemn instruments of government. * * • Indeed, 
 there is not a single constitution of any state in the Union 
 which does not practically embrace some acknowledgment 
 of the maxim and at the same time some admixture of powers 
 constituting an exception to it.'^^ In the case of Murray's 
 Lessee v. Hoboken Land and Improvement Co.,^'' in discuss- 
 ing whether the issuing of a distress warrant by the so- 
 licitor of the treasury was the exercise of executive or of 
 judicial power, the supreme court of the United States 
 says: 'It is not sufficient to bring such matters under the 
 judicial power that they involve the exercise of judgment 
 upon law and fact. » * * That the auditing of the ac- 
 counts of a receiver of public moneys may be, in an en- 
 larged sense, a judicial act, must be admitted. So are all 
 those administrative duties, the performance of which involves 
 an inquiry into the existence of facts and the application to 
 them of rules of law. * * * We do not doubt the power of 
 Congress to provide by law that such a question shall form 
 the subject matter of a suit in which the judicial power can 
 
 14 Field V. People, 2 Scam. 79, on see. 525. 
 
 p. 83. 16 Ibid. sec. 527 p. 395. 
 
 15 1 Story on the Const. 5th ed. 17 18 How. 272. 
 
 119 
 
THE TOEEENS SYSTEM 
 
 be exerted. The act of 1820 makes such a provision for 
 reviewing the accounting officers of the treasury, but until it 
 is reviewed, it is final and binding ; and the question is, wheth- 
 er its subject matter is necessarily, and without regard to the 
 consent of Congress, a judicial controversy, and we are of 
 the opinion it is not.' Prom these authorities it is apparent 
 that the mere fact that the registrar is required by this act 
 to inquire into the existence of certain facts and to apply the 
 law thereto, in order to determine what his official conduct 
 shall be, and that his action may affect private rights, does 
 not constitute the exercise of judicial power, strictly speak- 
 ing. It is not the intention of these two sections (60 and 47) 
 to provide a tribunal for the adjudication of disputes con- 
 cerning land titles. The primary purpose is the issuing of the 
 certificate, and the exercise of the judgment of the registrar 
 is incidental. The prohibition in question 'has never been 
 held to apply to those cases where judgment is exercised as 
 incident to the execution of a ministerial power. '^* The 
 powers exercised by the registrar under this law are analogous 
 to those exercised by the commissioner of patents. A power 
 of decision is given to that officer in many matters, not only 
 between the government and the patentee, but also between 
 different claimants, as to priority, patentability and like mat- 
 ters, and in the performance of these duties it has never been 
 considered that he was encroaching upon the judicial domain. 
 They are also, in a measure, like the duties performed by offic- 
 ers of the land office. Duties of a similar nature, involving 
 judgment or discretion and the application of the law to the 
 facts, pre devolved both under the state and federal laws 
 upon many other executive officers, legally. In some instances 
 it is evep held that J" the exercise of such judgment the 
 officer is free from judicial interference But in the case of 
 the registrar this act provides that any person feeling him- 
 self aggrieved by th'> act or neglect of this officer, in any 
 matter pertaining to the duties required of him, may file a 
 petition in equity in the proper court, making the registrar 
 and other persons interested parties defendant, and that the 
 court may proceed therein as in other cases in equity, and may 
 make such order or decree as shall be according to equity 
 in the premises and the purpose of the act. This, with the 
 well-known jurisdiction of the courts in mandamus, injunc- 
 tion, rescission, cancellation, bills of relief, and the like, will 
 effectually protect the citizen against any arbitrary conduct 
 on the part of the officer. Recurring to the duties of the 
 registrar, we find that in case of a tax sale or judgment, or 
 
 18 Owners of Lands v. People, supra. 
 
 120 
 
VOLUNTARY DEALINGS WITH EEGISTEEED LAND 
 
 levy under an attachment or execution, or in case of a me- 
 chanic's lien, the registrar, upon the filing of the proper cer- 
 tificate, enters a memorial thereof upon his record, and in case 
 the lien ripens into a title the former certificate of title is 
 canceled and a new one issued to the proper party. These 
 duties do not diflEer in character from those already mentioned, 
 and what has been said is equally applicable thereto also.''^^ 
 
 § 69. In the California case is was argued that the registrar 
 was required by the act to pass on deeds, mortgages, trusts, 
 powers, etc., and to adjudicate upon the rights of persons 
 under them. In passing on the nature and scope of the duties 
 of the registrar, the court said : 
 
 "The point is that the registrar is required to determine 
 the legal effect of these instruments, and that this is a judicial 
 function which can be given only to a judicial officer. There 
 is no force to the objection. Every administrative officer 
 is frequently called upon, in the discharge of his duties, to 
 decide questions of law relating thereto. The recorder is re- 
 quired to determine whether an instrument presented for 
 record is a deed, a mortgage, a lease, a notice of action, or 
 what not, so as to record it in its proper book. The sheriff 
 must often determine, for his own guidance in making a levy, 
 the ownership of property. The clerk must determine the 
 nature and legal effect of papers filed with him, and perform 
 the appropriate duty respecting them. The duties required of 
 the registrar by these sections are of the same nature. His 
 decision in the matter is not conclusive. If he decides wrong- 
 fully and refuses to perform the appropriate duty in the prem- 
 ises, he may be compelled to act properly by means of a writ 
 of mandamus, the same as any other ministerial officer who 
 mistakes his duty under the law and refuses to perform it. 
 The exercise of such powers by ministerial officers is a neces- 
 sary function of the executive department, and although it 
 may require similar deliberation to that involved in the exer- 
 cise of judicial power, the bestowal of such powers upon the 
 executive department does not violate the provisions of the 
 constitution forbidding that department to exercise the func- 
 tions of any other department. "2" 
 
 In discussing the nature of the duties of the registrar, as 
 set forth in the act, the supreme court of Massachusetts said : 
 
 "The other objection to the constitutionality of the statute 
 is with regard to the powers and duties of the recorder and 
 
 19 People V. rfimon, supra. E. Eep. 910; 68 Am. St. Rep. 175. 
 
 20 Robinson v. Kerrigan, 151 Cal. Owners v. People, 113 III. 296. 1 
 40; 90 Pac. Rep. 129 (1907) Citing Story on Constitution, 5tli ed., sec. 
 People V. Simon, 176 111. 165; 52 N. 525. 
 
 121 
 
THE TOEEENS SYSTEM 
 
 assistant recorder. It is said that they are given judicial 
 powers after the original registration, although not judicial 
 officers under the constitution. The act of registration is the 
 operative act to convey title,^^ and by the act of 1898 the assist- 
 ant recorder does it, unless in doubt.22 It is said that, as his 
 decision affects title, it must be judicial. But here again it 
 is necessary to use a certain largeness in interpreting broad 
 constitutional provisions. The ordinary business of registra- 
 tion is very nearly ministerial. There is no question to be 
 raised, or which can be raised. If there is a question, either 
 raised by any party in interest or occurring to the assistant 
 recorder, it is to be referred to the judge for decision.^^ But 
 whatever may be thought of the original act, by amendment 
 even the ordinary business is to be done only in accordance 
 with the rules and instructions of the court. '2* Under this 
 amendment registration is the act of the court. The fact that 
 it may be done by the assistant recorder under general orders, 
 when there is no question, is not different from the power of 
 the clerk to enter judgment in cases ripe for judgment under 
 a general order or rule of the superior court. It should be 
 observed that by section 55 the production of the owner's 
 duplicate certificate, whenever any voluntary instrument is 
 presented for registration, is conclusive authority from the 
 registered owner for the entry of a new certificate or the 
 making of a memorandum of registration, and that a registra- 
 tion procured by presenting a forged certificate etc., is void. 
 * * * The act shows throughout the intent that no one 
 shall be concluded without having a chance to be heard, and 
 although some of its methods are new to this commonwealth, 
 we cannot say that the precautions as to notice are insufficient 
 in substance or form."^^ 
 
 § 70. When Registrar is in Doubt. Under several acts, ques- 
 tions arising before the registrar upon an application for 
 registration, or as to any dealing with a registered title, 
 whether they relate to the construction, effect or validity of 
 any instrument, or to the nature or extent of interests or 
 powers, or to the mode in which any entry should be made, may 
 be determined by the registrar, or may be referred by him 
 at once to the court for decision.^s Some acts provide that 
 
 21 § 50. 437; 89 N. W. Eep. 175; 54 Cent. L. 
 
 22 J§ 53, 55, 57, 58, 61, 62, 63. J. 282 (1902). People v. Crissman, 
 
 23 §53. 41 Colo. 450; 92 Pac. Eep. 949 
 
 24 Statutes, 1899, c. 131, J 8 (1907). 
 
 25 Tyler v. Judges, 175 Mass. 71; 26 Eule 297 English act. See also 
 55 N. E. Eep. 812; 51 L. E. A. 433 § 158 Saskatchewan act. $ 113 Al- 
 (1900). State v. Westfall, 85 Minn. berta act. U 90, 91 British Colum- 
 
 122 
 
VOLUNTARY DEALINGS WITH EEGISTBEED LAND. 
 
 whenever any question shall arise with regard to the per- 
 formance of any duty or the exercise of any function con- 
 ferred or imposed on him by the act, the registrar may state 
 a case for the opinion of the supreme court, and the decision 
 of the court is binding on him.^'^ There is nothing in these 
 sections to indicate that any party in interest, when in doubt, 
 may refer the matter to the court, and the fact that the statute 
 says that a registrar may refer a matter to the court, when 
 in doubt, does not give an interested party the right to pass 
 over the head of the registrar and make a direct application 
 to the court for action.^^ In some of the acts in this country 
 it is provided that when the registrar is in doubt on any ques- 
 tion, it may be referred to the court for decision, on the cer- 
 tificate of the registrar, stating it; and that the court, after 
 notice to all parties and a hearing, shall enter an order pre- 
 scribing the form of memorandum to the registrar, who shall 
 make registration in accordance therewith.^^ The acts of Ill- 
 inois, Oregon, Minnesota and California do not provide for a 
 reference to the court in case the registrar is in doubt as to 
 the proper entry to be made in a registration. 
 
 § 71. When Parties Do Not Agree on Begistration. When- 
 ever an interested person raises a question with regard to the 
 performance of any duty, or the exercise of any function, of 
 the registrar, he may state a case for the opinion of the su- 
 preme court, and its decision shall bind him.^" Some acts in 
 this country provide that if any party in interest does not 
 agree as to the proper memorandum to be made in pursuance 
 of any deed, mortgage or other voluntary instrument pre- 
 sented for registration, the matter shall be referred to the 
 court for decision, upon the suggestion in writing of any 
 party in interest ; and the court, after notice to all parties and 
 a hearing, shall enter an order prescribing the form of memo- 
 
 bia act. §93 Ontario act. §21 (1908). 
 
 Nova Scotia act. § 97 Eiji Ordin- 29 § 52 Massachusetts act. § 53 
 
 ance, 1876. §14 Act for Ireland, Hawaiian act. § 53 Philippine act. 
 
 1891. § 54 New York act. § 48 "Washing- 
 
 27 § 199 Victoria act. § 193 West- ton act. § 49 Colorado act. 
 
 ern Australia act. § 123 New South so § 199 Victorian act. § 193 
 
 Wales act. § 195 New Zealand act. Western Australia act. § 123 New 
 
 § 223 South Australia act. § 111 South Wales act. § 195 New Zea- 
 
 Tasmania act. land act. § 223 South Australia act. 
 
 28 In re Smith, 1 Sask. 126 § 111 Tasmania act. 
 
 123 
 
THE T0EEEN8 SYSTEM 
 randum to the registrar, who shall make registration in ac- 
 cordance therewith.^^ It is to be noted that according to these 
 acts the disagreement must arise concerning some voluntary- 
 instrument, but under other acts a reference to the court may 
 be made when any party does not agree as to the proper entry 
 to be made on the filing of any instrument, voluntary or in- 
 voluntary.^2 Under all these sections the duty is imposed on 
 the registrar to decide what entry shall be made in the case 
 before him, and the registration will be made according to 
 his decision, unless a reference to the court is made by some 
 party in interest. But in New York it is provided that when 
 a deed or other instrument is filed in the office of the registrar, 
 and the duplicate certificate is surrendered to him, if the 
 interested parties agree in a statement as to the nature and- 
 effect of the transfer, the registrar shall enter such statement 
 as a memorial upon the original certificate, make out and 
 register a new certificate, and issue an owner's duplicate. If 
 the parties fail to agree upon the statement to be entered on 
 the certificates, the registrar shall refuse to make a transfer 
 until directed by the court.^^ Under this section the agree- 
 ment of the parties on the construction to be given to an 
 instrument of transfer, and not the judgment of the registrar 
 thereon, is the basis of a new registration. He is required to 
 perform a mere clerical duty in entering such a registration 
 as may be agreed upon by the parties or as may be directed 
 by the court. The acts of Illinois, Oregon, Minnesota and 
 California do not provide for a reference to the court in case 
 the parties do not agree on the proper entry to be made on 
 the register, but, as will be seen in the next section, in Illinois, 
 Oregon and California, there is a provision for an appeal to 
 court by any person who is aggrieved by any decision or act 
 of the registrar. In Minnesota, however, there is no pro- 
 vision either for a reference to the court in case of a disagree- 
 ment as to the proper entry to be made, or for an appeal 
 after the entry is made. 
 § 72. Person Aggrieved By Action of Registrar. Any per- 
 
 31 § 52 Massachusetts act. $ 53 32 § 48 Washington act. § 49 
 
 Hawaiian act. J 53 Philippine act. Colorado act. 
 § 54 New York act. 33 § 38 New Yfcrk act. 
 
 124 
 
VOLUNTAEY DEALINGS WITH EBGISTEEED LAND 
 
 son feeling himself aggrieved by the action of the registrar, 
 or by his refusal to act in any matter involving his duties 
 or functions under the act, may file his petition, bill or com- 
 plaint in a court of competent jurisdiction, making the regis- 
 trar and other persons, whose interests may be affected, parties 
 defendant, and the court may proceed as in other cases, and 
 may make such order or decree as shall be according to equity 
 and the purport of the act.^* The Illinois act provides that 
 he may file his petition in court in the proceeding in which 
 the land was registei'ed, or that he may file an original bill in 
 equity in any court of competent jurisdiction.^^ Tjig other 
 acts in this country do not provide for a reference to the 
 court in case a person feels himself aggrieved by any act of 
 the registrar. In the case of State v. Guilbert,** this pro- 
 vision was adversely commented on, and it was held that if 
 the powers of the registrar were judicial, the whole scheme 
 of the act was unconstitutional and void, and if his powers 
 were not judicial, the provision for an appeal from his decision 
 was void. It is common to provide for appeals to the court 
 from the decisions of persons in the executive branch of the 
 government, as, for instance, from the decisions of appraisers 
 of customs or of assessors of property for taxation; but such 
 officers are governmental agencies and are connected with the 
 governmental revenues. It may be that it is competent for 
 the legislature to provide for an appeal to the court from the 
 decision of a person who represents the state in vesting titles 
 to real estate. Perhaps such a procedure as that under con- 
 sideration may be sustained, not as an appeal, but as a pro- 
 ceeding in the nature of an application for a mandamus to 
 the registrar to perform his supposed duty in the premises 
 under the act. This suggestion as to the nature of the pro- 
 ceeding was made in Australia in an early case,^'^ but in a later 
 case it was said that such a procedure did not require any 
 writ in the nature of a mandamus.^® Under foreign acts, 
 
 34 § 33 California act. § 94 Ilin- 36 56 Ohio St. 575; 47 N. E. Eep. 
 
 ois act. $93 Oregon act. ^9 551 (1897). 
 
 British Columbia act. $ 96 Fiji Or- 37 Fitzgerald v. Archer, 1 W. W. 
 
 dinance 1876. §121 New South & a'B. (L.) 40 (1864). 
 
 Wales act. \ 14 Act for Ireland, 38 Ex parte Patterson, 4 A. J. E. 
 
 1891. $ 298 English rules 1908. 26 (1873). 
 
 35 $ 94 as amended in 1907. 
 
 125 
 
THE TOEEENS SYSTEM 
 
 where the registrar is a judicial officer, it is certainly proper to 
 provide for an appeal from his decision on questions of title 
 and of administration under the act ; and if it is not competent 
 in this country to provide for an appeal from the acts and decis- 
 ions of the registrar as a ministerial officer, the expense and de- 
 lay of independent suits to correct supposed errors will inter- 
 fere with the smooth working of the system. All the provisions 
 which we have been considering for references of matters to 
 the court give to the acts a certain finish and a color of fair- 
 ness, but the expense and delay of such references inevitably 
 must be considerable. Some Canadian acts provide that if 
 any person is dissatisfied with any act, decision or order of 
 the registrar, he may apply to the judge by petition, setting 
 forth the grounds of his dissatisfaction, and the judge shall 
 determine the matter in controversy.^® Any person feeling 
 himself aggrieved by any act or refusal to act on the part of 
 the registrar may petition the court to require him to per- 
 form his duty.*" In Ontario an appeal to the court lies from 
 any act, order or decision of the master of titles.*^ 
 
 § 73. Act of Registration is the Operative Act. Under the 
 Torrens system the transfer of an interest in land is made 
 by registering the ownership of it in a public office, instead 
 of by the execution and delivery of an instrument. It is made 
 by registering the evidence of the title and not the evidence 
 of the deed. Registration takes the place of the feudal fiction 
 or ceremony of seizin, and no formal delivery of an instru- 
 ment of transfer is necessary. It is the one thing which makes 
 valid any instrument relating to registered land, and which 
 gives completeness and validity to a transaction relating to it. 
 Under this system, the registered estate, which is the equiva- 
 lent of the legal and equitable estate under the general laws, 
 is the only estate in land, and it is manifest that the registered 
 estate does not pass or vest unless and until the instrument of 
 transfer is registered. It is an elementary and essential fea- 
 
 39 $ 158 Saskatchewan act. $§ 83, Wales act. § 191 New Zealand act. 
 89 British Columbia act. § 112 Al- § 221 South Australia act. § 203 
 berta act. § 121 Manitoba act. } Western Australia act. 
 
 25 Nova Scotia act. 4i § 157 Ontario act. See also 
 
 40 J 96 English act, 1875. J 209 rule 88. 
 Victorian act. J 121 New South 
 
 126 
 
VOLUNTARY DEALINGS WITH REGISTERED LAND 
 
 ture of this system of registering titles that no voluntary in- 
 strument relating to land, and no judgment, execution, at- 
 tachment or other adversary proceeding, shall take effect as a 
 conveyance, or bind or affect the land. They operate only as 
 a contract between the parties and as evidence of authority 
 to the registrar to make a proper registration. The act of 
 registration is the operative act to affect the title to an estate 
 or interest in land. It vests the registered title in the register- 
 ed owner,*2 and ex propria vigore divests any outstanding un- 
 registered estate or interest in the land from any other per- 
 son, in order to transfer and vest it in the registered owner of 
 the title. For centuries land was conveyed by the act of the 
 owner, and the efilcacy of a deed depended on the validity of 
 the title of the grantor, but under the Torrens system titles 
 are vested by the state by the act of registration and through 
 the functions of the registrar, and a transfer does not depend 
 in the least on the validity of the title of the transferror. A 
 registered owner may hold a certificate which is void for forg- 
 ery,*^ and yet a bona fide transferee for value from him will 
 take a good and valid title to the land as soon as he is regis- 
 tered. If such a transferee takes a good and valid title through 
 a transferror whose title is invalid, it is evident that the 
 transfer, vesting and affecting of the title is effected by the 
 power of the state through its statutory declaration of con- 
 clusiveness of the certificate, and is not done by virtue of any 
 estate or interest in the registered owner. "While the effect of 
 a new registration does not depend on the estate or interest 
 in the land, which is held by the last registered owner, yet 
 the new registration, in order to be effective, must be made 
 under a valid transfer from the last registered owner. The 
 technical rule of the system, concerning registration of a new 
 owner in succession to a former registered owner, therefore, 
 
 42 § 44 Washington act. $ 45 Wales act. § 36 New Zealand 
 
 Minnesota act. $ 38 New York act. § 39 Tasmania act. § 39 Fiji 
 
 act. 5 49 Massachusetts act. $ Ordinance, 1876. §§ 29-49 English 
 
 J 50 Hawaiian act. § 50 Philippine act, 1875. § 41 Ontario act. §§ 53, 
 
 act. § 54 Illinois act. § 53 Ore- 74 British Columbia act. $ 83 Mani- 
 
 gon act. § 45 Colorado act. § 55 toba act. §§ 43, 52 Nova Scotia act. 
 
 California act. §§ 63, 92 Victorian §§41, 46 Alberta act. $§73, 80 
 
 act. § 58 Western Australia act. Saskatchewan act. § 35 act for Ire- 
 
 § 43 Queensland act. § 57 South land, 1891. 
 
 Australia act. § 36 New South 43 Post, § 127. 
 
 127 
 
THE TOKRENS SYSTEM 
 
 is that registration under a transfer from the last registered 
 owner is the operative act to vest the title as registered in the 
 new owner.** 
 
 § 74. Begistration is Not an Operative Act in This Country. 
 It is easy to catch a phrase and use it without realizing its full 
 meaning. The supreme court of Massachusetts in the Tyler 
 case said : ' ' The act of registration is the operative act to con- 
 vey title, and by the act of 1898 the assistant recorder does it, 
 unless in doubt." It is easy to accept the proposition, that 
 registration is the operative act to affect a title, to transfer 
 the title, and to vest in the registered owner an indefeasible 
 title to the estate or interest with which he is registered, with- 
 out comprehending the corollary which naturally follows over 
 and above it. Where the mere act of registration transfers 
 and vests the title in accordance with the terms of the certifi- 
 cate of title, a registration, when erroneous as to a matter of 
 law arising in the title, must divest the title, or some part of 
 it, from the real owner, in order to transfer it to and vest it in 
 the person registered as owner. If the act of registration 
 transfers an indefeasible title to the new registered owner 
 only when the transferror has such a title, and only when 
 the instrument of transfer is suflScient for that purpose, the 
 act of registration is not an operative act, effecting the trans- 
 fer and vesting of the title ex propria vigore, but is a mere 
 record of the legal effect of the links in the chain of the title. 
 If registration evidences an indefeasible title only when the 
 title is in fact indefeasible, there is nothing in the system 
 which is not in any other system wherein titles are deraigned 
 from their sources. There are indefeasible titles under every 
 recognized system of conveyancing, but the distinctive fea- 
 ture of a true Torrens system is that the state indisputably 
 declares the title to be unimpeachable just as it is registered, 
 whether in fact it is so, or not. Here is the crux of the Ameri- 
 can Torrens system. If the mere presentation of an instru- 
 ment of transfer of registered land to the registrar, to be acted 
 on by him under his powers as contained in the statutes, does 
 not confer upon him the jurisdiction to make a new registra- 
 tion according to his judgment, without any necessary notice 
 
 44 § 129, post. 
 
 128 
 
VOLUNTARY DEALINGS WITH REGISTERED LAND 
 
 to persons who may have rights under the instrument, and 
 without any necessary opportunity on their part to be heard, 
 and if the act of the registrar in making the new registration 
 and the statutory declaration of indisputable title cannot di- 
 vest from the real owner any interest or estate which may be 
 in him, and vest it in the registered owner, then the act of 
 registration is not an operative act to transfer, vest or affect 
 the title, and the system cannot be worked under our laws. 
 So far our courts have declared against the binding force of 
 the act of registration in this country. *5 The supreme court 
 of Ohio in the Guilbert case held that no act of the registrar 
 could deprive a person of any right in land, or be effective to 
 impose any obligation or burden on him; other courts have 
 merely held that his acts do not conclude any interested per- 
 son; and the supreme court of Illinois has held that his acts 
 are merely prima facie evidence of their correctness, and may 
 be impeached in any proper litigation.*® This merely means 
 that an officer will be presumed to have performed his duty, 
 and that the burden of proof is on the attacking party, ac- 
 cording to the usual rule in litigated cases. The Ohio court 
 merely meant that an interested person could not be forced 
 by statute to appeal from the decision of a non-judicial officer, 
 who assumed to pass on his rights, but that he might assert his 
 rights by an independent action to enforce and declare them. 
 All the cases in this country agree that the acts of the regis- 
 trar conclude no one, and the logic of them all is that under 
 our system the act of registration is not an operative act to 
 transfer, vest and affect the title. 
 
 § 75. Concerning Registration. The first case determined 
 by the court of appeal in England, construing any of the pro- 
 visions of its land transfer acts, and discussing the principles 
 of the Torrens system, held that there was nothing in the Eng- 
 lish acts to prevent the passing of the legal estate in land by an 
 ordinary mortgage deed executed by the owner in fee, whether 
 he is registered or not at the time of the excution of the deed ; 
 that, after land has been placed on the register, the title will 
 pass by an unregistered deed, subject to the risk of the grantee 
 
 45 Ante, $ 68, post § 167. 111. 188; 92 N. E. Rep. 814 (1910), 
 
 46 State V. niinois Central, 246 citing People v. Simon supra. 
 
 ;129 
 
THE TOEEENS SYSTEM 
 
 having his title defeated by an exercise of the statutory power 
 of disposition given to the registered owner; that he merely 
 assumes that risk in dealing off the register; but that the 
 grantee may protect himself against that risk by procuring 
 an entry to be made on the register.*'' As a statement of the 
 general principle, that one who is not himself registered as 
 owner may convey by his deed the legal estate to registered 
 land, this decision seems to undermine the Torrens system at 
 its most vital point. It tends to confuse our ideas concern- 
 ing the rule that dealings with registered lands must be only 
 with registered owners, and concerning the theory of a single 
 registered estate in land, vested by the power of the state on 
 registration by the proper oflcer. In some acts it is provided 
 that every instrument, until registered, shall be deemed to 
 confer upon the person taking under it a right or claim to 
 registration,** but the instrument must have been executed 
 by a registered owner, and all that the purchaser gets is a 
 right or claim against the land, and not an estate. It has 
 been held that although a transfer from a registered owner, 
 which has not been registered, is ineffectual to pass the title 
 to land, yet it is effectual to pass an equitable right to set 
 aside a certificate of title relating thereto, which had been ob- 
 tained by fraud, and which prevents the registration of the 
 transfer. But here also the transfer must have been executed 
 by a registered owner, and all that the transferee gets is an 
 equitable right.*^ The general doctrine is that an unregis- 
 tered transferee of an estate or interest in land, taking from 
 a registered owner, has certain rights to registration which 
 he may enforce, but he is not the owner of the estate or inter- 
 est, and is not entitled to be treated as such.^" An unregis- 
 tered statutory instrument of transfer, executed by a regis- 
 
 47 Capital and Counties Bank v. act. § 74 British Columbia act. 
 Rhodes, 1 Chan. 631 (1903). It 49 McEllister v. Biggs, L. E. A. 
 must be said, however, that the 0.314(1883), P. C, on appeal from 
 court was construing 5 49 English the supreme court of South Austra- 
 act, 1875, and that this section lia. See also Butters v. Blacker, 21 
 would spoil the symmetry of any S. A. L. E. 37 (1887). Trantor v. 
 system of title registration. See Lord, 8 S. A. L. E. 81 (1874). 
 Entwisle v. Lenz, 14 British Col. Gibbs v. Messer, 1891 A. C. 248, P. 
 Eeps., 51 (1908). C. 
 
 48 § 90 Manitoba act. §§ 48, 49 so Ex parte Davies, 11 V. L. E. 
 Queensland act, 1877. § 71 Ontario 780 (1885). 
 
 130 
 
VOLUNTARY DEALINGS WITH REGISTERED LAND 
 tered owner, operates only as a contract between the parties 
 to the instrument, and may be enforced as between them 
 where no rights of third persons have intervened.^i In April, 
 1907, execution creditors registered their judgment against 
 the lands registered in the name of their judgment debtor, pur- 
 suant to an .act declaring that a registered judgment shall 
 form a lien and charge on the lands of the debtor. Previous 
 to this, in January, 1906, the debtor had transferred a eer- 
 taiQ lot described in his certificate to a person who, through 
 ignorance of the land registry laws, neglected to register his 
 transfer until August, 1907, when he found this judgment 
 registered against the lot. Section 74 of the land registry act 
 provided that no instrument should pass any estate or interest, 
 either ia law or equity, to land until it was registered in com- 
 pliance with the provisions of the act. The transferee brought 
 suit to set aside the cloud of this judgment. In construing 
 these provisions of the two acts, the court below held that 
 section 74 governed, since it made registration of transfers 
 a sine qua non to the passing of any title to land, whether at 
 law or in equity. But on appeal it was held that the judgment 
 act gives the judgment creditor only a right to register against 
 the interest in lands possessed by the judgment debtor; and 
 that in this case the debtor, having conveyed the land to plain- 
 tiff so long before the execution creditors' judgment was ob- 
 tained, was a dry trustee of the land for plaintiff.^^ Notwith- 
 standing section 74 of the land registry act of British Colum- 
 bia, providing that no interest in land shall pass until the 
 instrument of transfer is registered, an unregistered deed con- 
 fers a good title upon the transferee as against a registered 
 assignment for the benefit of the creditors of the transferror, 
 if the transferee, or some one claiming under him, subsequently 
 effects registration. Such registration relates back to the 
 delivery of the instrument.^^ The act for Ireland, 1891, pro- 
 vides that on registration an instrument of transfer shall oper- 
 ate as a conveyance and vest the title. This expression is con- 
 fused, and the idea attempted to be conveyed by it is not 
 
 51 Munroe v. Adams, 17 V. L. R. 52 Entwisle v. Lenz, 14 British 
 
 703 (1891). Mathieson v. Mercant- Col. Repts. 51 (1908). 
 ile Finance Co., 17 V. L. E. 271 53 Westfall v. Stewart, 13 Brit- 
 
 (1891). . ish Col. Repts. Ill (1907). 
 
 131 
 
THE TOEEENS SYSTEM 
 
 clothed in the terms usually used in Torrens statutes. It 
 might be taken to mean that the instrument conveys and vests 
 the title from its date and by its own force, as soon as it is 
 registered, but there is no reason why registration should not 
 be the operative act under this statute, and it probably means 
 that the registration of the instrument vests the title from the 
 date of registration.^* 
 
 § 76. Some statutes provide that a voluntary unregistered 
 transfer from a registered owner shall pass a sufficient right 
 or claim to entitle it to registration after the death of the 
 transferror.^^ In a case where there was no statutory declara- 
 tion on the subject, it was held that such a transfer passed 
 such a right, ''^ but in another case this was denied.^'^ One act 
 provides that if any person entitled to be registered as owner 
 of any estate or interest in land shall die before being regis- 
 tered, his estate or interest shall be transmitted as if he had 
 been registered.*^ The vendor of registered land is required 
 to see that the register is placed in condition for a new regis- 
 tration of the title,^® but the purchaser must see to the regis- 
 tration of his title.®" While it is the duty of the transferror 
 to take the necessary steps to make the registration of his 
 transfer possible, still the transferee may help himself if he 
 chooses to move in the matter, and he may proceed by man- 
 damus against the registrar to compel registration.^^ So long 
 as an instrument is registered before the hearing of an action 
 in which it is used, it is sufficient.®^ Instruments are registered 
 in the order of production for registration, and not according 
 to date of execution. They have priority according to regis- 
 tration, not according to date of execution. Eegistration, not 
 date of execution, gives priority.®^ For the purposes of priority 
 
 B4 35, 36 Act for Ireland, 1891. 555 (1891). 
 
 55 § 163 Manitoba act. $ 59 South 6i Ex parte Clark, 17 "V. L. E. 
 Australia act. ? 30 New South 82(1891). 
 
 Wales act. 62 Little v. Dardier, 12 N. S. W. 
 
 56 Tierney v. Halfpenny, 9 V. L. L. E. Eq. 319 (1891). 
 
 E. 152 (1883). 63 §58 Ontario act. $81 Sas- 
 
 57 In re Skinner, 6 Q. L. J. 68 katchewan act. § 23 Alberta act. 
 (1894). J 53 British Columbia act. § 55 
 
 58 § 49 Queensland act, 1877. Victorian act. $ 12 Queensland act, 
 69 Vale V. Blair, 9 A. L. T. (V.) 1877. ^ 36 New South Wales act, 
 
 90 (1887). sub-see. 3. 
 
 60 Common v. Eees, 9 N. Z. L. E. 
 
 132 
 
VOLUNTARY DEALINGS WITH EEGISTEEED LAND 
 
 between transferees, mortgagees and others dealing with reg- 
 istered land, the time of filing the instrument is taken as the 
 time of registration.** If two instruments covering the same 
 property are produced for registration at the same time, the 
 one which is accompanied by the duplicate certificate of title 
 is entitled to priority.®^ 
 
 § 77. Registration, Lease, Will, Exceptions. Each act pro- 
 vides that a lease for a certain number of years therein men- 
 tioned shall not be the subject of registration. The term of 
 such a lease is usually fixed at three years or less, but under 
 some acts it is fixed at seven years. In Ireland it is fixed at 
 thirty-one years where the tenant is in actual possession, and 
 in England leases or agreements for leases, and other tenancies 
 for any term not exceeding twenty-one years, or for any less 
 estate, in cases where there is an occupation under such ten- 
 ancies, are not deemed to be incumbrances within the meaning 
 of the registration act.®* Such leases are altogether outside 
 of the provisions for registration and give a right of possession 
 for their terms. In some acts it is provided that no voluntary 
 transfer except a will shall convey land, and that a certified 
 copy of the will and of letters testamentary shall be filed with 
 the registrar for entry on the register immediately after the 
 will is probated.*''^ This provision is made to conform to the 
 general law of wills, under which a will operates to convey the 
 land of the testator immediately on his death, but it is in de- 
 rogation of the general rule of the Torrens system, that reg- 
 istration, and not an instrument, transfers and vests title. 
 Where such a provision is in the statute it recognizes a dealing 
 with the title off the register, destroys the theory of a regis- 
 tered estate only in land, and makes it impossible to claim 
 
 64 J 49 Illinois act. J 48 Oregon 56, 58 South Australia act. §J 36, 
 act. § 46 Washington act. $ 47 41 New South Wales act. §^ 55, 
 Colorado act. § 37 Minnesota act. 63 Victorian act. §§ 35, 39 Tas- 
 § 50 California act. § 55 Massa- mania act. $§ 53, 58 Western Aus- 
 chusetts act. § 56 Hawaiian act. tralia act. 
 
 § 56 Philippine act. Rules 19, 160 66 § 18 English act, 1875. 
 
 English act. § 20 Alberta act. $ 40 67 j 55 California act. J 45 Min- 
 
 Saskatchewan act. J 58 Ontario nesota act. § 45 Colorado act. § 
 
 act. 54 Illinois act. § 53 Oregon act. 
 
 65 J$ 12, 14, 15, Queensland act, $ 44 Washington act. J 43 Nova 
 1877. $ 33 New Zealand act. §J Scotia act. 
 
 133 
 
THE TOERENS SYSTEM 
 
 that the register and the instruments filed for entry show the 
 person or persons in whom the title rests. It will be obser^^ed 
 from the citation just made that such a provision is contained 
 only in the act of Nova Scotia and in some of the acts in this 
 country. According to the foreign acts a registi'ation must be 
 made under the terms of the will before it becomes effective, 
 and in some of these acts it is provided that such registration 
 shall relate back to the date of the death of the testator. 
 
 § 78. When Transfer is Deemed to be Registered. Under 
 some of the acts every grant is deemed to be registered as soon 
 as it has been marked with the folio and volume of the register ; 
 all other instruments are deemed to be registered as soon as 
 the memorandum has been entered on the register.®* The 
 transfer of land is completed by the entry on the register of the 
 transferee as the registered proprietor of the land, and a charge 
 is completed when the owner of the charge is registered as 
 such.^^ Registration is deemed to be complete when the cer- 
 tificate is signed and sealed by the registrar, or when the mem- 
 orial noted on the certificate is signed and sealed by him.'^'' 
 Many of the acts in this country do not state in apt words 
 when the act of registration is complete, but in others it is de- 
 clared that every transfer is deemed to be registered when 
 the new certificate to the transferee is entered, and all other 
 dealings are considered as registered when the memorial or 
 notation is entered on the last certificate of title set apart for 
 the property.''^ 
 
 §79. Concerning Registration of an Invalid Instrument. 
 "Where an instrument dealing with a registered title is informal 
 and lacking in some statutory requirement, and the registrar 
 registers it notwithstanding its defect, it is apprehended that 
 the registration cures the defect in the instrument; but this 
 subject has not been developed as yet.''^ The registration of 
 
 68 J 22 Alberta act. $ 45 Sas- Seotia act. 
 katchewan act. J 54 Victorian act. to J 65 Manitoba act. 
 
 J 34 Queensland act. J 35 New 7i j 32 California act. § 49 Ill- 
 South Wales act. § 50 South Aus- inois act. § 48 Oregon act. § 44 
 tralia act. § 32 New Zealand act. New York act. See also § 55 Brit- 
 $ 52 Western Australia act. J 34 ish Columbia act. 
 Tasmania act. 72 See Otago Harbour Board v. 
 
 69 5$ 22, 29 English act, 1875. Spedding, 4 N. Z. S. C. 272 (1885). 
 55 33, 41 Ontario act. $ 49 Nova Moore v. Public Trustee, 20 N. Z. 
 
 134 
 
VOLUNTARY DEALINGS WITH EEGISTEEED LAND 
 
 a lease or mortgage, or the entry of a memorial of a lease or 
 mortgage on the register, is not a declaration by the state that 
 such an instrument is a valid and subsisting interest in land; 
 it is merely a declaration that the record of the title appears 
 to be burdened with the lease or mortgage described, accord- 
 ing to the priority set forth in the certificate. Such a regis- 
 tration may be at most, and under some acts is, prima facie 
 evidence of the existence of the burden. But while registered 
 as a valid and subsisting instrument, the rights of the lessee 
 may have been lost by failure to observe the covenants of the 
 lease, or the rights of the mortgagee never may have attached, 
 because of his failure to advance the consideration, or the 
 mortgage lien may have ceased because of payment of the debt. 
 The mere fact that a lease or mortgage was registered does not 
 estop any party to it from setting up that it now has no force 
 or efEect. In this country whenever any interest in or lien on 
 registered land arises adversely to the registered owner, with- 
 out voluntary action by him, and not pursuant to a judgment 
 or decree of court fixing the interest in. a lien on the land, 
 the registration of it is not conclusive as to the regularity 
 of any proceeding or instrument by means of which such inter- 
 est or lien arose, or as to the validity of such instrument or lien. 
 Such registration has no greater force and effect than the 
 recording of an instrument creating a similar interest or lien 
 would have, in case the land were not registered.''* There is 
 little in foreign Torrens statutes and in decisions under 
 them, which defines the rights of persons who have filed in- 
 voluntary liens on registered land, and the rule laid down 
 in this country may not apply to the noting of judgments and 
 executions for the sale of property in foreign jurisdictions. In 
 them the registrar acts judicially in making registrations and 
 entries on the register, and it may be that the act of the reg- 
 istrar in noting an involuntary lien is conclusive as to the 
 identity of the land to be affected and as to the validity of 
 all court proceedings, as well as to the priority of the lien. 
 The statutory declaration of indefeasibility of title operates 
 where a writ is noted, a sale on the writ is made, and a new cer- 
 
 L. E. 288 (1901). 73 § 105 California act. 
 
 135 
 
THE TOEEENS SYSTEM 
 
 tificate of title is issued to the piirchaser.'^* The law on the 
 subject of registration under a forgery is fairly well settled 
 in foreign countries, but there is room for a great development 
 in the law concerning registration of invalid, insufficient and 
 irregular instruments. It is apprehended that such develop- 
 ment will be along lines which are inconsistent with our system 
 of jurisprudence. 
 
 §80 Production of Certificate of Title with Instrument 
 Affecting Title. Under the scheme of the Torrens system, and 
 as a protection to the registered owner, the certificate of title 
 must be produced with any voluntary instrument purporting 
 to affect the title. In some acts it is expressly provided that 
 no new certificate of title shall be entered, and no memoraadum 
 shall be made upon the register by the registrar, in pursuance 
 of any voluntary instrument, unless the owner's duplicate cer- 
 tificate is presented with such instrument, except in cases 
 specifically provided for in the act, or upon the order of a court 
 for cause shown.^^ The other acts in this country provide 
 that on the filing of such an instrument and the production of 
 the owner's duplicate certificate, the transfer or memorial 
 may be registered.'^® It is evident that under these acts the 
 registrar has no authority to make registration without the pro- 
 duction of the certificate of title with the voluntary instru- 
 ment. "Where there is no specific provision in an act that the 
 production of the owner's duplicate certificate is to be a con- 
 dition precedent to the right of the registrar to make a regis- 
 tration or a memorial, such provision may be inferred from the 
 other requirements or statements of the act. A requirement 
 that the owner's certificate shall be cancelled when a new 
 registration is made, or that a memorial, when registered, 
 shall be noted on the duplicate certificate, is an implication 
 that the owner's duplicate must be presented before a new reg- 
 istration may be made.''' Some of the Australasian acts pro- 
 
 74 Hassett v. Bank, 7 "V. L. R. L. ewan act. § 20 Alberta act. 
 
 380; 3 A. L. T. 38 (1881). See § 116 76 § 47 Illinois act. $ 46 Oregon 
 
 75 J 54 Massachusetts act. J 55 act. $ 38 New Tork act. J 48 Cali- 
 Eawaiian act. J 55 Philippine act. fornia act. See $§ 47, 49 Nova Sco- 
 § 49 Minnesota act. § 50 Colorado tia act. 
 
 act. J 49 Washington act. § 46 77 Ex parte Settle, 14 N. Z. L. E. 
 
 Nova Scotia act. § 41 Saskateh- 129 (1895). 
 
 136 
 
VOLUNTARY DEALINGS WITH EEGISTERED LAND 
 
 vide that the duplicate certificate of title shall be produced 
 before the title is transferred or dealt with, but others are not 
 clear on this point. They provide that should two or more 
 instruments signed by the same proprietor, and purporting 
 to affect the same estate or interest, be at the same time pre- 
 sented to the registrar for registration, he shall register and 
 endorse that instrument which shall be presented by the person 
 producing the duplicate grant or certificate of title.^^ In On- 
 tario the master of titles may require the production of the 
 certificate in any voluntary dealing with land, and may decline 
 to register any dealing unless the certificate is produced.''^ 
 
 § 81. Voluntary Instrument as Evidence of Authority to Reg- 
 ister. In some of the acts in this country there are vague 
 expressions with regard to the instruments of transfer which, 
 when presented to the registrar, will authorize him to make 
 registration. In Minnesota it is provided in one section that 
 a voluntary instrument executed by a registered owner shall 
 operate "as authority to the registrar to make registration."*" 
 In one section of the California act it is stated that "on the 
 filing of such instrument, the land, estate, interest, or charge 
 shall become transferred, mortgaged, leased, charged or dealt 
 with according to the purport and terms ' ' of the instrument.*^ 
 But from other sections in each of these acts it is evident that 
 no transfer or memorial may be made without the production 
 of the owner's duplicate certificate.*^ Some acts provide that 
 any instrument purporting to deal with registered land shall 
 take effect ' ' as evidence of authority to the registrar to make 
 registration,"*^ but in order to be consistent with the other 
 provisions of these acts, some such words as "when accompa- 
 nied by the owner's duplicate certificate, or "upon compliance 
 with the terms of this act, ' ' should be added.** 
 
 78 $ 33 New Zealand act. ^ 12, 8i § 55 California act. 
 
 14, 15, Queensland act. §$ 36, 41 82 j 49 Minnesota act. $ 48 Cali- 
 
 New South Wales act. $ j 55, 63 fornia act. 
 
 Victorian act . $$ 56, 58 South Aus- 83 $ 45 Colorado act. $ 44 Wash- 
 
 tralia act. §i 35, 39 Tasmania act. ington act. § 49 Massachusetts act. 
 
 J§ 53, 58 Western Australia act. § 50 Hawaiian act. § 50 Philippine 
 
 79 ^$ 42, 43 Ontario act. See also act. 
 
 J 8 English act, 1897. U 54, 67 84 See $ 54 Illinois act. $ 53 Ore- 
 
 Manitoba act. gon act. 
 
 80 § 45 Minnesota act. 
 
 137 
 
THE TOEEENS SYSTEM 
 
 § 82. Certificate as Evidence of Authority to Register. In 
 
 some acts it is declared that whenever any voluntary instru- 
 ment affecting the title to registered land is presented for 
 registration, the production of the owner's duplicate certificate 
 shall be conclusive authority from the registered owner to the 
 registrar to enter a new certificate, or to make a memorial or 
 notation of registration in accordance with such instrument, 
 and the new certificate or memorial is binding upon the regis- 
 tered owner and all persons claiming under him, in favor of 
 every purchaser for value and in good faith.^^ In effect this 
 provision seems to declare that if an innocent person for value 
 presents a deed forged by a third person and purporting to be 
 executed by the registered owner, and also presents the dupli- 
 cate certificate of the registered owner, although it has been 
 stolen from him, the registrar is authorized to make a new 
 registration which will divest the title of the true owner.*® 
 This provision goes too far, as it is a cardinal principle of the 
 system that a purchaser must deal with the registered owner of 
 land,*^ and in some acts it is immediately followed by a pro- 
 viso, that a registration in succession procured by a forgery 
 is null and void.*® 
 
 A general declaration, that a registrar may make a new reg- 
 istration of the title in succession to a previous registration, 
 on being satisfied with the propriety of it, would seem to confer 
 judicial power on him for that purpose, and it is evident that 
 the acts in this country require the production of the last du- 
 plicate certificate issued on the title by the government, in or- 
 der to state a specific situation in which, and a material condi- 
 tion on which, a valid transfer or memorial may be made by 
 him. The production of the duplicate certificate of the last 
 registered owner is made evidence of his consent to the new 
 registration, but it does not aid the registrar in dealing with 
 the subject matter of the registration. In this country no 
 legislative declaration as to the conclusiveness of authority 
 
 86 5 50 Colorado act. § 49 Wash- 87 J 129, post, 
 
 ington act. In $ 49 Minnesota act 88 J 54 Massachusetts act. $ 55 
 
 and in § 47 Nova Scotia act the Hawaiian act. § 55 Philippine act 
 
 word "conclusive" is omitted. See $ 131, post. 
 
 86 See $ 128 post. 
 
 138 
 
VOLUNTAKY DEALINGS WITH BEGISTBEED LAND 
 
 in the registrar to act, or as to the conclusiveness of any evi- 
 dence of an indefeasible title in any person, can overcome the 
 constitutional prohibition against the passage by any state of 
 a statute which shall deprive a person of property without 
 due process of law. The New York act which became a law 
 on May 20, 1908, avoids any suggestion whatever that it 
 attempts to confer judicial power on the registrar, and it gives 
 him no power to make a registration, even on the surrender of 
 the outstanding certificate, except on a statement as to the na- 
 ture and effect of the transfer, agreed to by the parties and 
 reduced to writing. The provision referred to is as follows: 
 "Upon filing such a deed or other instrument in the registrar's 
 office and surrendering to the registrar the duplicate certificate 
 of title, if the interested parties agree in a statement as to the 
 nature and effect of the transfer, the registrar shall enter 
 such statement as a memorial upon the proper original cer- 
 tificate, provided that such statement is not more than one 
 folio (one hundred words) in length." He shall then make 
 the registration, etc. "If the parties in interest fail to agree 
 upon the statement to be entered upon the certificate, the reg- 
 istrar shall refuse to make the transfer until directed by the 
 court as herein provided. Title to such property shall not pass 
 by such transfer until the transfer is registered as prescribed 
 by this section. ' '^^ 
 
 §83. Notice of the Contents of Instruments of Transfer. 
 One of the objects of the Torrens system is to save a person 
 dealing with registered land from the trouble and expense of 
 going behind the register in order to investigate the history 
 of the vendor's title and to satisfy himself of the validity of it. 
 That end is sought to be accomplished by providing that 
 everyone who purchases land in good faith and for value from 
 a registered owner, and enters his transfer on the register, shall 
 thereby acquire an indefeasible title to the estate with which 
 he is registered, notwithstanding any infirmity in his vendor's 
 title.^" It is the scheme of the system that a purchaser may 
 rely on the face of the register to determine the condition of 
 the main title as set forth therein, and that he shall not be 
 
 89 § 38 New York act. 248. P. C. 
 
 90 Gibbs V. Messer, 1891 A. C. 
 
 139 
 
THE TOEEENS SYSTEM 
 
 required to take notice of the contents of any instrument filed 
 with the registrar in the devolution of it. The parties to such 
 an instrument must take notice of the covenants, conditions 
 and agreements contained therein, but a purchaser may rely 
 on the register. The rule, that a purchaser may rely on the 
 register to determine the status of the main title, is subject to 
 at least one practical exception. The acts provide for the 
 filing of instruments dealing with registered land, and for the 
 notation thereon of the year, month, day, hour and minute of 
 such filing. Many acts expressly provide for the relating back 
 of the registration, when made, to the time of the filing of the 
 instrument, and perhaps this is the legal effect of registra- 
 tion whether it is so declared in the statute or not.^^ A person 
 dealing with land, therefore, must take notice of all instruments 
 and the contents of them, which have been received at the reg- 
 istry, and which have not yet been registered. According to 
 the English rule, "when an instrument purporting to be al- 
 ready executed by a registered proprietor is delivered at the 
 registry for registration, notice of the fact shall be sent to 
 him at his registered address; and unless the execution is ad- 
 mitted by him, the registration shall not be completed until 
 after the expiration of three clear days from the posting of the 
 notice. "*2 It is nowhere contemplated that the register shall 
 be kept down to date, and an examination of the instruments 
 not yet registered must be made, since they take priority ac- 
 cording to the order in which they are received for regis- 
 tration. When the transfers of registered land are few in 
 number, and the officers and assistants in the registry are wait- 
 ing for work to do, it is possible to keep the register posted 
 down to date, and to make it show the condition and state of 
 all registered titles at any given time, but when the system 
 is carrying a fair amount of the dealings in land in any com- 
 munity, instruments will be received at the registry, which 
 cannot be registered immediately. But after an instrument 
 has been registered, where there is nothing in the act, which 
 puts a purchaser on inquiry as to matters contained in the in- 
 strument, a sub-purchaser is entitled to rely on the register 
 
 91 Hogg, Australian Torrens Sys- 92 § 118 English rules, 1908. 
 
 tern, p. 903. 
 
 140 
 
VOLUNTARY DEALINGS "WITH REGISTERED LAND 
 as a certificate of the standing and condition of the title.** 
 
 § 84. Statutory Declarations as to Notice of Instruments. 
 The rule, that persons dealing with registered land may rely 
 on the register, and may not be required to take notice of the 
 contents of instruments relating to the devolution of the main 
 title, may be greatly modified or entirely changed by statute. 
 Several acts contain sections vs^hich must be studied carefully 
 since they seem to affect this rule. In some acts it is provided 
 that upon registration every instrument shall be deemed to 
 be embodied in the register-book as part and parcel thereof, 
 and shall have the effect of a deed duly executed by the par- 
 ties signing the same.^* When taken in connection with other 
 positive declarations of these acts, these sections seem to mean 
 that when an instrument has been registered it is an executed 
 contract, so far as the registration is concerned, but that the in- 
 strument is deemed to be embodied in the register for the pur- 
 pose of evidencing the date, terms and covenants of the original 
 contract, and of defining all personal rights of the parties to 
 it.®' It must be admitted that this interpretation of the 
 meaning of this section is not derived from the language used. 
 If we should examine this section apart from the context of an 
 act in which it is found and should take the language literally, 
 we should conclude that an instrument of transfer filed and 
 registered by the registrar is a part and parcel of the register, 
 is notice to all persons subsequently dealing with the land, and 
 must be examined in order to determine the condition and state 
 of the title. But this is a complete abandonment of an essential 
 purpose of registration acts, and makes them nugatory and 
 useless. Unless compelled to do so by very definite and direct 
 provisions of an act, courts will not hold that a person dealing 
 with registered land may not rely on the register as to the 
 status and condition of a title, but must examine all instru- 
 ments of transfer constituting the devolution of the title to 
 
 93 Brown v. Railway Co., 17 N. torian act. J 81 Manitoba act. 
 
 Z. L. R. 471 (1898). 95 Hogg,' Australian Torrens Sys- 
 
 94 §5 35, 36 New South Wales tern, pp. 902, 904, citing Mathieson 
 act. $ 35 Queensland act. § 32 v. Mercantile Co., 17 V. L. R. 271 
 New Zealand act. § 57 South Aus- (1891). Munro v. Adams, 17 V. L. 
 tralia act. $ 34 Tasmania act. $52 R. 703 (1891). 
 
 Western Australia act. § 54 Vie- 
 
 141 
 
THE T0REEN8 SYSTEM 
 
 determine the effect of them. Time and again, courts have 
 complained that different sections of a registration act are 
 at variance and contradictory, and they have subordinated 
 the language of some section to the general scheme and pur- 
 pose of the act. They have fallen back on the rule of statutory 
 construction that, in interpreting such an act, courts must look 
 to its scope and objects, and not to one section alone. The 
 trouble about this procedure is that this reconcilement of con- 
 flicting provisions of an act is judicial legislation which cannot 
 be foreseen or anticipated. The student and the practitioner 
 must take a section as he finds it, and must give to it the force 
 and effect which its language clearly indicates it should have. 
 § 85. Some sections declaratory of the notice imparted by 
 instruments of transfer are more confusing than the one which 
 we have just considered. One act provides that "no person 
 other than the parties thereto shall be held to have any notice 
 of the contents of any instrument other than those instruments 
 mentioned in the existing register of title of the parcel of land, 
 or which have been duly entered in the books of the office 
 kept for entry of instruments received or in course of entry. ' '^^ 
 The effect of this section is not clear to one who is not familiar 
 with the working of the act in Ontario. The instruments de- 
 scribed in the exception seem to be all instruments filed in 
 the office. The New York act provides that "all papers filed 
 by the registrar, and indexed and entered by him pursuant 
 to this act, shall be of equal effect as to notice, in the order of 
 their filing as shown by their filing numbers, as are similar 
 papers when recorded by county clerks or registers under the 
 recording acts. ' '®^ In some acts it is provided that every con- 
 veyance, lien, decree or judgment, or other instrument or pro- 
 ceeding, which would affect the title to unregistered land 
 under existing laws, if recorded or filed with the recorder or 
 register of deeds, shall in like manner affect the title to regis- 
 tered land if filed and registered with the registrar iii the 
 county where the real estate is situated, and shall be notice to 
 all persons from the time of such registering or filing.®* The 
 
 96 § 84 Ontario act. 1907. § 46 Minnesota act. $ 46 
 
 97 § 42 New York act. Colorado act. $ 50 MassachusettB 
 
 98 j 49 Oregon act, as amended in act. § 51 Hawaiian act. J 51 Phil- 
 
 142 
 
VOLUNTAEY DEALINGS WITH REGISTERED LAND 
 
 language of these sections seems perfectly clear, and the effect 
 of them seems to be to make instruments of transfer of regis- 
 tered land constructive notice to all the world of everything 
 contained in them, just as deeds are under the recording acts. 
 It is only necessary to add that if these sections mean what they 
 say, a purchaser of land registered under an act containing 
 such a section must deraign his title just as he does under the 
 recording laws. 
 
 § 86. Notice of Contents of Mortgages, Leases, etc. While, 
 according to the scheme of the Torrens system, a hona fide pur- 
 chaser for value is not charged with notice of the contents of 
 instruments constituting the devolution of the title, he is charg- 
 ed with notice of the contents of all mortgages, leases and other 
 instruments which are noted on the certificate as burdens on 
 the title. The memorials and notations of instruments on the 
 face of the register, derogatory to the title, do not assume to 
 set forth in detail the burdens to which the title is subject; 
 they are mere notes of reference, and the purchaser at his peril 
 must examine such instruments and ascertain the contents of 
 them. He must take notice of the terms and conditions of a 
 registered mortgage, lease, decree of court or other instrument 
 noted on the certificate. He must take notice of every possible 
 right which a tenant may have in the land under his lease, 
 whether it be a right of renewal or an option to purchase the 
 land.^® In case of a variance between the memorial and the 
 original instrument, the latter prevails. 
 
 § 87. May an Instrument contain Conditions, Limitations, 
 Restrictions, Forfeitures and Covenants, running with the 
 Land. It is evident that the power of a registered owner to 
 deal with his land on the register is controlled by the terms of 
 the registration act under which he is holding. It is important 
 that clear and explicit provisions of the act shall state the dis- 
 positions which are authorized by it, and shall describe in de- 
 tail the incidents and effect of such dispositions. It is to be 
 regretted that none of the acts is specific in these matters. In 
 each act there is a series of elaborate provisions concerning 
 
 ippine act. § 45 "Washington act. $ 89 $ 124, post. 
 
 44 Nova Scotia act. 
 
 143 
 
THE T0EEEN8 SYSTEM 
 
 registered dealings with registered land, but the power of the 
 registered owner to deal with his land is not fully defined. 
 Before we examine the different acts in order to determiae 
 whether the registered owner may deal with his land with the 
 same freedom of contract with which an owner may deal with 
 unregistered land, it may be well to examine the preambles to 
 some acts and the entitlement of other acts. The pream- 
 ble to the original Torrens act was: "Whereas, the inhabit- 
 ants of the province of South Australia are subjected to losses, 
 heavy costs and much perplexity, by reason that the laws re- 
 lating to the transfer and encumbrance of freehold and other 
 interests in land are complex, cumbrous and unsuited to the 
 requirements of the said inhabitants," etc. The act was en- 
 titled "an act to simplify the laws relating to the transfer 
 and encumbrance of freehold and other interests in land. " The 
 preambles to the South Australia act, 1874, and the "Western 
 Australia act, 1874, set forth that it is expedient "to render 
 dealings with land more simple and less expensive. ' ' The New 
 Zealand act, 1870, is "an act to simplify the title to and the 
 dealing with estates in land." The Queensland act, 1861, and 
 the Tasmania act, 1862, are acts "to simplify the laws relating 
 to the transfer of land." The Victorian act, 1890, and the 
 "Western Australia act, 1893, are acts "to consolidate the law re- 
 lating to the simplification of the title to and dealing with 
 estates in land." The English and Ontario acts are entitled 
 acts "to simplify titles and to facilitate the transfer of land." 
 The Canadian acts are called "real property acts" or "land ti- 
 tle acts", relating to the registering and transfer of land. 
 In Massachusetts, Hawaii and "Washington the acts are "to 
 provide for registering and confirming titles to land." In 
 Illinois and Colorado they are acts "concerning land titles." 
 In the other states they are as follows: In Minnesota, "an act 
 concerning registration of land and the title therto;" in Ore- 
 gon, ' ' an act concerning land titles * * * providing for the reg- 
 istration of title to real estate ; " in California, ' ' an act for the 
 certification of land titles and the simplification of the transfer 
 of real estate ; " in New York, ' ' an act in relation to registering 
 titles to real property and facilitating and expediting its trans- 
 fer." 
 
 144 
 
VOLUNTAEY DEALINGS WITH REGI8TEEED LAND 
 
 It is obvious that these preambles and entitlements do not 
 disclose any fixed purpose to simplify titles, running through 
 all the acts, but this is the declared object of many of them. In 
 all the literature on the subject of the Torrens system, it is 
 assumed that the recording system is too elaborate and com- 
 plex, and that it should be replaced by a system of simple titles. 
 Although some of the acts do not expressly declare that they 
 are passed in order to simplify titles and the transfer of land, 
 it may be assumed here that such is the purpose of registration 
 acts. The only way to simplify titles is to exclude from them 
 all the elements which make them complex and complicated. 
 These elements manifestly are all trusts, conditions, limitations, 
 reservations, restrictions, equities, forfeitures and covenants 
 running with the land and hampering its use. If fee simple 
 titles only may be transferred and registered, without any of 
 these complicating elements, the new system of dealing with 
 lands is certainly simple. It may restrict the power of the 
 registered owner to deal with his title, and it may limit his 
 power to contract with reference to his title, but it is neverthe- 
 less simple. If, however, a registered owner may deal with his 
 title under the new system in the same manner as under the 
 old system, nothing is gained in the way of simplifying titles. 
 If the register and the duplicate certificate of title set forth 
 that the registered owner holds the title "subject to the condi- 
 tions, covenants and restrictions contained in a deed, ' ' describ- 
 ing it, the deed so described becomes a part of the register and 
 must be consulted and construed by any subsequent dealer with 
 the land ; and the new registered owner takes a title subject to 
 conditions which may involve a forfeiture. The mere registra- 
 tion of a title containing covenants, conditions and restrictions 
 will not tend to simplify it, and a reference to or statement 
 of such burdens on the title may render registration practially 
 useless by leaving the certificate open to be defeated by matters 
 of fact outside of the register. It may be said that a study of 
 the foreign acts does not disclose the underlying principle upon 
 which titles are simplified by them. Mortgages and leases are 
 noted on the register in general terms of brief description, but 
 it is evident that such instruments must be examined in order to 
 
 145 
 
THE TOEEENS SYSTEM 
 
 determine what covenants and conditions are set forth and 
 specified in them. Many acts are entirely silent as to whether 
 covenants, conditions, restrictions, reservations or limitations 
 may be placed in an instrument of transfer of title, and the 
 decisions of the courts on the subject are hopelessly at variance. 
 
 § 88. Two cases on this subject are of special interest. 
 Where certain covenants running with the land were contained 
 in the instrument transferring the title, but these covenants 
 were not noted on the register or in the owner's duplicate cer- 
 tificate, and the registered owner sold the land and transferred 
 it to a person who had no actual notice of the covenants, it 
 was held that the latter purchaser was not bound by the cove- 
 nants, that where there is nothing in the act which puts a 
 purchaser on inquiry as to matters contained in the instrument 
 transferring the property, a sub-purchaser is entitled to rely on 
 the certificate of title. ^ In discussing these points the court 
 indicated that it was the duty of the registrar to note on the 
 register any covenant running with the land, and it suggested 
 that the assurance fund was liable for his omission to do so. 
 Thereupon the transferror, who had placed the covenants in his 
 transfer, brought an action against the assurance fund to 
 recover for the loss sustained by him through the omission of 
 the registrar to note the covenants on the register, and in 
 this case the court said: "The purpose of the land transfer 
 acts, from the original act of 1870 to the present time, has been 
 to simplify and cheapen the transfer of land and of interests 
 therein, and to insure security of title. The scheme devised to 
 carry this purpose into effect is the creation of a register, each 
 folio of which is to show upon its face the exact interest of 
 the registered proprietor, and the encumbrance to which such 
 interest is subject. The document of title which evidences the 
 title of each registered proprietor to any land is a duplicate 
 of the folio in the register relating to such land. No interest 
 in land passes by the execution of an instrument purporting 
 to create it ; but upon the registration of such an instrument, 
 the estate which it purports to create does pass. It is obvious 
 that such a system, while it is simple and affords security of 
 title, is wanting in elasticity and that it is adapted only to the 
 record of simple transactions; and accordingly provision has 
 
 1 Brown v. Eailway Co., 17 N. Z. L. E. 471 (1898). 
 
 146 
 
VOLUNTAEY DEALINGS WITH REGISTERED LAND 
 
 been made for excluding from the register all notice of trusts, 
 and also, it seems to me, of equities. Provision has been made, 
 however, for the registration of all ordinary legal interests, 
 such as leases, mortgages, easements, rent-charges, etc. ; and 
 ever since the inception of the scheme it has been the common 
 understanding of the legal profession that those interests only 
 which are expressly authorized can be entered upon the regis- 
 ter. * * * There is nowhere in the statute any provision 
 authorizing the registration of any instrument creating an 
 equitable interest, — even such an instrument as an agreement 
 of sale; there is certainly nothing in the act which even 
 remotely suggests that a covenant hampering the use of land, 
 or precluding the registered owner of a freehold interest in 
 land from setting up any right incident to his ownership, could 
 be registered. If all instruments which affect, or purport to 
 affect, interests in land could be registered, the special pro- 
 visions authorizing the registration of instruments creating cer- 
 tain specified interests would have been entirely unnecessary. ' '^ 
 The court referred to the suggestion in the former case, that 
 an action would lie against the assurance fund for the omission 
 of the registrar to note the covenants on the register, and in- 
 sisted that the suggestion had been made inadvertently and 
 without due consideration of the duties of the registrar. The 
 argument in this ease is very convincing, and the decision is in 
 line with the method of simplifying titles by excluding complex 
 elements. According to this decision an act for the registration 
 of titles covers the whole ground, and no interest in land may 
 be registered unless the act specifically provides for the regis- 
 tration of it. 
 
 In one ease it was held that a condition of forfeiture con- 
 tained in an instrument is opposed to the policy of the acts and 
 should not be registered, that it is not competent for parties 
 to invest a body, not possessed of powers for judicial investiga- 
 tion of facts, with the conclusive determination of facts which 
 might constitute a forfeiture.^ Unless power is given under 
 the act, no provision may be inserted in a lease prohibiting the 
 assignment of a lease, and such a condition, if inserted, is in- 
 effectual.* 
 
 2 Wellington Railway Co. v. Reg- 3 Matt v. Peel, 2 V. R. (m) 27, 
 
 istrar General, 18 N. Z. L. R. 250 31; 2 A. J. R. 133 (1871). 
 (1899), citing Staples v. McKay, 11 4 Ex parte Bond, 6 V. L. R. (L.) 
 
 N. Z. L. R. 258. 458 (1880). 
 
 147 
 
THE TOBEENS SYSTEM 
 
 § 89. It has been held that the Torrens system does not 
 recognize equitable interests on its registry or certificates, and 
 that covenants in an instrument of transfer cannot be regis- 
 tered so as to bind a purchaser with notice and make his title 
 subject to the burden of them.^ But there are cases which 
 lay down the principle that rights are to be preserved under 
 the Torrens system, which are enforced under the general law.* 
 It is impossible for one who is not thoroughly familiar with 
 the spirit, history and practice of the Torrens system in 
 Australasia to determine from the authorities whether agree- 
 ments, conditions and covenants contained in an instrument 
 of transfer may be registered. A learned author has said: 
 "The subject of covenants, relating to the use of the land, 
 which bind successive proprietors, — or, in ordinary language, 
 run with the land — apart from the ordinary relation of lessor 
 and lessee, is a difficult one. * * * It need only be here 
 mentioned that, as on the question of what interests created 
 by covenant can be protected by caveat, so on the question of 
 what covenants contained in statutory instruments relating 
 to the land can be registered, the authorities are at variance. 
 The reasoning, which seems to be in favor of the view that 
 covenants relating to the land may be protected by caveat, 
 seems also to favour the view that such covenants, when con- 
 tained in statutory instruments, may be registered. ' ''' 
 
 If one is disposed to assume that one object of the Torrens 
 system is to simplify titles by excluding from instruments all 
 conditions, limitations, restrictions and contingencies, he is 
 met by the fact that schedule P., a "bill of trust," of the 
 original Torrens act, 1857, was as follows: "I, A. B., being 
 seized, etc., desire to invest all my estate and interest in the 
 above described land (or a lesser estate in the said lands, speci- 
 fying the nature and limitations of such lesser estate, and all 
 conditions, restrictions, limitations and contingencies, rever- 
 sions and remainders, to which it is desired to subject the same) 
 in trust for the uses and benefit of C. D. * * * and do 
 therefore transfer, set over, and appoint all my estate and in- 
 terest in said lands * * * to B. F. and G. H. as trustees, 
 to have and to hold the said estate and interest, in trust, for 
 
 5 staples V. Corby, 19 N. Z. E. 188 (1876). In re Association, 25 
 
 517, 537 (1900). Ex parte Johnson, V. L. E. 77 (1899). In re Tanner, 
 
 5 W. W. & a'B (L.) 55 (1867). 5 N. Z. 8. C. 102 (1886). 
 
 Eogers V. Hosegood, 2 Ch. 388 7 Hogg, Australian Torrens Svs- 
 
 (1900). tern, p| 941. 
 
 6Bucknall v. Eeid, 10 S. A. E. 
 
 148 
 
VOLTJNTAEY DEALINGS "WITH REGISTERED LAND 
 
 the uses and benefit of C. D., subject to the said conditions, 
 limitations, restrictions and contingencies, reversions and re- 
 mainders above set forth and specified" * * *.^ The state- 
 ment is frequently made that one of the benefits to be derived 
 from title registration is the keeping from the register of the 
 title all trusts, conditions, limitations and contingencies and 
 the preventing of the encumbrance of the register. It is often 
 said that the Torrens system is designed to prevent the com- 
 plication of titles. It is difficult, however, to state just how 
 this is accomplished. Instruments may contain restrictions, 
 covenants and limitations, and such burdens on the land may 
 be shown on the register by means of a note to the effect that 
 there are such burdens. The instrument is filed away for 
 reference and may be inspected by any person dealing with 
 the land. Of course this introduces the necessity for an investi- 
 gation off the register, but the notation of all burdens and con- 
 ditions in full on the face of the register would make it so 
 bulky as to lose a great part of its value. There are no adjudi- 
 cations showing just how far a new purchaser is bound by 
 such a note, but it is apprehended that he would be bound to 
 find the burdens and to construe rightly their legal effect. 
 Since some conditions on the use of land are so framed as to 
 work a forfeiture of title in case of breach, the notation of 
 conditions, limitations, etc., does not tend to the simplification 
 of registered titles. In Fiji, when conditions are contained in 
 any instrument of transfer or transmission, they may not be 
 registered, but any person claiming to be interested in any such 
 condition may file a caveat for the protection and determina- 
 tion of his rights.® Under the act for Ireland, 1891, covenants 
 and conditions in any instnunent may be registered, and may 
 be removed by court on proof that they are no longer en- 
 forcible or do not run with the land, or they may be modified 
 on proof that the modification will be beneficial to the persons 
 principally interested in the enforcement thereof.^" A pur- 
 chaser who has obtained and registered a transfer of the estate 
 or interest of a registered owner, appearing on a certificate 
 of title, takes an absolute and indisputable title to such estate 
 
 8 See also J 74 Victorian act. J$ 9 § 16 Fiji Ordinance, 1876. 
 
 68, 222, Western Australia act. lo § 45 act for Ireland, 1891. 
 
 149 
 
THE TOEEENS SYSTEM 
 
 or interest, except in case of fraud. To suggest that his mere 
 knowledge that a former certificate contained restrictions, con- 
 ditions, limitations, clauses of forfeiture or covenants running 
 with the land, made it a fraud on his part to accept the transfer 
 without inquiry as to such matters, is futile. It would be 
 disastrous to the working of the system to hold that a 
 new transferee, in the absence of fraud, was bound by such 
 knowledge. He is protected by the statutory declaration of 
 indefeasibility of title, and he need not investigate the title 
 from its commencement in order to see how or when such bur- 
 dens were removed.^^ Under the Torrens system, in the ab- 
 sence of fraud, an indefeasible title is given to everything 
 which may be registered, but nothing may be registered except 
 such things as are authorized by the statutes.^^ 
 
 § 90. Conditions and Covenants in England and Ontario. 
 
 There may be registered as annexed to any land which 
 is being or has been registered, subject to general rules and 
 in the prescribed manner, a condition or covenant that such 
 land or any specified portion thereof is not to be built on, or is 
 to be or not to be used in a particular manner, or any other 
 condition or covenant running with or capable of being legally 
 annexed to land. The first owner, and every transferee, and 
 every other person deriving title from him, shall be deemed to 
 be affected with notice of such condition or covenant. Any 
 such condition or covenant may be modified or discharged by 
 order of the court, on proof to the satisfaction of the court 
 that the modification will be beneficial to the persons princi- 
 pally interested in the enforcement of the condition or cove- 
 nant, i^ By the English act, 1897, the above section is amended 
 so as to provide that conditions may be annexed to land at 
 any time, and that the section shall apply to any restrictive 
 condition capable of affecting assigns by way of notice.^* 
 Under this amendment only restrictive or negative covenants 
 may be annexed to land. Covenants to do work or to spend 
 money are merely contractual and personal and do not affect 
 
 11 King V. Price, 24 N. Z. L. E. Eules, 40, 102 and 184. ? 104 On- 
 291 (1904). tario act. See Eule 223 English 
 
 12 Fells V. Knowles, 26 N. Z. L. rules, 1908. 
 
 E. 604 (1906). 14 Schedule 1, English act, 1897. 
 
 IS §84 English act, 1875. See 
 
 150 
 
VOLUNTARY DEALINGS WITH EEGISTEEBD LAND 
 
 purchasers, even though they have notice. ^^ Covenants and 
 conditions which do not run with the land are excluded from 
 the register as far as is practicable. "When positive and 
 negative covenants are so intermingled in one document that 
 they cannot be separated, the whole document is registered, 
 with a note confining the operation of the entry to such of the 
 conditions as are within the section, i* 
 
 § 91. Covenants, Reservations and Restrictions in Instru- 
 ments Under the Acts in This Country. In some of the acts in 
 this country it is expressly provided that "an owner of regis- 
 tered land may convey, lease, charge or otherwise deal with it 
 as fully as if it had not been registered. "^'^ In New York it 
 is provided that "each registrar shall provide a book to be 
 known as the book of covenants, restrictions and forms. 
 * * * Any person may have recorded in this book any 
 covenant, restriction or form he may present for that purpose 
 on payment to the registrar at the rate of fifty cents per folio. 
 The covenant, restriction and form so entered shall be num- 
 bered consecutively and shall be written in the book with India 
 ink or equally permanent ink in a clear and legible manner 
 under the number given to it. Eeferences in any documents 
 issued by the registrar to any covenant, restriction or form 
 recorded in this manner shall be as follows : Subject to restric- 
 tion, (or covenant or form) recorded under No in the 
 
 book of covenants, restrictions and forms, in the registrar's 
 office in this county. ' '^^ In other acts it is declared that on the 
 filing of any deed, mortgage, lease or other instrument pur- 
 porting to deal with registered land, "the land, estate, interest 
 or charge shall become transferred, mortgaged, leased, charged 
 or dealt with according to the purport and terms of the deed, 
 mortgage, lease or other instrument. "^^ It seems to be clear 
 that in this country an owner may deal with registered land 
 as fully as if it had not been registered, and that it is the 
 
 15 Austerberry v. Oldham, 29 Oh. Hawaiian act. § 50 Philippine act. 
 Div. 750. See London and 8. W. 5 44 Washington act. $ 45 Minne- 
 Ry. Co. V. Gomm, 20 C. H. Div. 562. sota act. § 45 Colorado act. 
 
 Tulk V. Moxhay, 2 Ph. 774. is § 40 New Tork act. 
 
 16 Briekdale and Sheldon, Land 19 § 55 California act. $ 54 Illin- 
 Transf er Acts, p. 208. ois act. $ 53 Oregon act. 
 
 17 J 49 Massachusetts act. $ 50 
 
 151 
 
THE TOEEENS SYSTEM 
 duty of the registrar to note all covenants, conditions, restric- 
 tions and limitations on the face of the register in such a man- 
 ner that a purchaser shall have notice of them. "While this does 
 not tend to the simplification of titles, — ^may give rise to uncer- 
 taintly as to what covenants run with the land and as to what 
 covenants are merely contractual and personal, and may some- 
 times bring about litigation, it at least avoids the criticism 
 so often made that the Torrens system abridges and limits the 
 power of a registered owner to contract with reference to his 
 land. It is further provided in the acts in this country that 
 if land is impressed with any equitable condition or limitation, 
 the particulars thereof shall not be entered on the register, 
 but a memorial thereof may be entered by the words "upon 
 condition," or "with limitations" or other apt words, and by 
 a reference by number to the instrument authorizing or cre- 
 ating it.^" After such a registration, a transfer may be made 
 only by an order of court, or by such methods of procedure as 
 are designated by the statute.^^ 
 
 §92. Memorial Carried Forward. Whenever a memorial 
 or notation has been entered on the register, the registrar must 
 carry it forward upon all new certificates of title issued by him 
 until it is cancelled in some authorized manner.22 
 
 §93. Instruments to be Used in Dealing With Registered 
 Land. In the foreign acts the forms for instruments to be used 
 in dealing with registered land are prescribed in rules and 
 schedules. In the acts in this country it is provided that any 
 forms of deeds, mortgages, leases or other instruments, which 
 are sufficient under existing laws for the purpose intended, may 
 be used in dealing with registered land.^* In California this 
 clause is added: "But an indorsement, duly acknowledged, 
 upon the duplicate certificate oflitle, substantially in the fol- 
 
 20^59 Minnesota act. §$64, 65 tations." 
 
 Massachusetts act. §$ 65, 66 Haw- 22 § 35 New York act. J 45 niin- 
 
 aiian act. J$ 65, 66 Philippine act. ois act. § 51 Washington act. $ 59 
 
 $ 64 Colorado act. § 63 Washington Hawaiian act. $ 58 Massachusetts 
 
 act. J§ 67, 68, 69 California act. act. § 50 Minnesota act. $ 44 Ore- 
 
 § 69 Illinois act. § 68 Oregon act. gou act. $ 52 Colorado act. $ 43 
 
 See §§ 64, 65 Nova Scotia act. California act. J 59 Philippine act. 
 
 21 See $ 101, post. The same pro- $ 32 New South Wales act. 
 visions apply under the acts wheth- 23 J 38 New York act. $ 47 min- 
 er land is registered ' ' in trust, ' ' ois act. J 46 Oregon act. $ 45 Col- 
 ' ' upon condition, " or " with limi- orado act. $ 45 Minnesota act. $ 44 
 
 152 
 
VOLUNTARY DEALINGS WITH REGISTERED LAND 
 
 lowing form, viz: 'I, , grant to the 
 
 real property described in this certificate. "Witness hand 
 
 and seal, this day of ', shall be sufficient to trans- 
 fer the property in said certificate described. ' ' In Nova Scotia 
 the registered owner may use the forms prescribed by the act, 
 or he may use any form of instrument sufficient in law, before 
 the passage of the act, for the purpose intended.^* There is 
 an impression that the forms prescribed in the acts may not be 
 varied, and that all dealings with registered land are confined 
 within a narrow compass, but the practice is to permit varia- 
 tions in the forms, so long as they are consistent with the prin- 
 ciples of the acts. Of course no modification may be made in a 
 form so as to give notice of a trust or to refer to instruments 
 off the register. The English rules expressly provide that such 
 modifications and additions may be made to the forms as the 
 registrar will permit.^^ "Where transfers of registered prop- 
 erty are made on the ordinary forms of conveyancing under 
 the general law, it is natural that the customs of ordinary 
 conveyancing should be adopted in dealing with registered 
 land. A purchaser of registered land will often execute a 
 mortgage on it before the deed to him has been registered, in- 
 tending that the deed to him and the mortgage from him shall 
 be registered at the same time. This practice seems unob- 
 jectionable.2^ In California it is provided that any instru- 
 ment dealing with the title to registered land shall give the 
 number of the certificate of title of the land described there- 
 in.2'^ It is no particular and distinctive feature of the Torrens 
 system that under it instruments affecting title to lands are 
 not required to be under seal or attested. Seals and attested 
 instruments have been abrogated and done away with under 
 the general laws in many jurisdictions. In registration acts the 
 term "any instrument" is used with great frequency, and it is 
 used in a broad sense which incTudes any document relating to 
 land, such as a deed, will, map, plan, survey, writ, certificate 
 of probate, exemplification of a will, or any other document in 
 
 Washington act. § 49 Massaehu- 25 ^ 97, 98, English rules, 1908. 
 
 setts act. § 50 Hawaiian act. $ 50 26 Hogg, Australian Torrens Sys- 
 
 Philippine act. J 53 California act. tern, p. 912. 
 
 24 f 43 Nova Scotia act. 27 § 53 California act. 
 
 153 
 
THE T0EEEN8 SYSTEM 
 
 writing relating to the transfer of or other dealing with land, 
 or evidencing an interest in or title to land. 
 
 § 94. Instruments Filed With the Registrar Are a Perpetual 
 Deposit. All instruments, documents and papers filed with 
 the registrar are numbered in the order in which they are re- 
 ceived, and are endorsed with the year, month, day, hour and 
 minute in which they are filed. They are retained and kept as 
 a perpetual deposit in the registrar's office.^* Under rules in 
 England and Ontario, instruments filed in the ofBce of the 
 master of titles may be destroyed when they have become 
 altogether superseded by entries in the register or have ceased 
 to have any effect.^^ 
 
 § 95. Access to Filed Instruments. Is the Register a Public 
 Record? Where under the law and instrument filed in a public 
 ofSce is constructive notice to the public of the contents of it, 
 there is a corresponding right in any member of the public who 
 may be interested in it to examine it. It would be monstrous 
 to require a person to take notice of an instrument and to give 
 him no right to examine the contents of it. Under statutes 
 declaring that all instruments and documents filed or regis- 
 tered by the registrar shall be notice to all persons from the 
 time of such filing or registering, interested members of the 
 public have the right to inspect them. So long as an instru- 
 ment is filed with the registrar and is not yet entered on the 
 register, it is constructive notice to any person dealing with the 
 land described in it, and during that time any interested person 
 may examine it. But where there is nothing in the act which 
 requires a purchaser to take notice of an instrument after it has 
 been registered, it ceases to be constructive notice on registra- 
 tion, and after that time it is not necessarily open to public 
 inspection. It may be stated as a matter of history that when 
 the act was put into operation in Chicago, the registrar de- 
 clined to permit any person to examine the registered instru- 
 ments in his ofSce, on the ground that they were not con- 
 
 28 J 51 Illinois act. J 50 Oregon § 48 Nova Scotia act. Eule 52 
 
 act. J 51 California act. § 47 Col- Ontario act. 
 
 orado act. $46 Washington act. ,20 §321 English rules, 1908. Eule 
 
 $ 143 British Columbia act. § 46 58 Ontario act. 
 Saskatchewan act. $ 23 Alberta act. 
 
 154 
 
VOLUNTAEY DEALINGS WITH KEGISTEEED LAND 
 
 structive notice, and that persona dealing with registered land 
 must rely on the face of the register. When it was afterward 
 found by experience that many persons were unwilling to 
 deal with land according to this new method of disclosing 
 titles, and that in many instances registered land could not he 
 dealt with on the market without an abstract of the con- 
 veyances, showing the devolution of the title, or without a 
 policy of title insurance, all registered instruments were freely 
 submitted to public inspection. In introducing and carrying 
 on a new system of dealing with land, it is not good policy to 
 refuse an inspection of instruments filed in a public ofiSce, and 
 by doing so to arouse unnecessarily the prejudices of persons 
 who are accustomed to the requirements of a well estab- 
 lished system. Since the registrar in this country is a minis- 
 terial officer merely, it is not unreasonable for a purchaser of 
 land to insist that the work of the registrar shall be reviewed 
 before he pays over the consideration for a transfer. Under 
 some acts all records and papers relating to registered land in 
 the office of the registrar are open to the public, subject to such 
 reasonable regulations as he may make under the direction of 
 the court of land registration.^" Under one act they are 
 open to the inspection of the public at such times and under 
 such conditions as the court may prescribe ;^^ and under an- 
 other act they are open to public inspection in the same manner 
 as are now the papers and records in the office of the county 
 clerk and reeorder.^^ j^ Nova Scotia any document may be 
 inspected by any person upon payment of the prescribed fee.^^ 
 For the^ purpose of inspection during the hours and upon the 
 days appointed for search, any person, on payment of the pre- 
 scribed fee, may have access to the register-book and to all 
 instruments filed.** In Ontario, subject to such regulations 
 and to the payment of such sums as may be fixed by general 
 rules, any registered owner, or his agent, or any person author- 
 ized by an order of court, or by general rule, may inspect and 
 make copies of and extracts from any document in the custody 
 of the master of titles, relating to registered land or a charge 
 
 30 § 55 Massachusetts act. $ 56 32 § 47 Colorado act. 
 Hawaiian act. § 56 Philippine act. 33 $ 47 Nova Scotia act. 
 
 31 § 37 Minnesota act. 34 j 121 Queensland act. J 65 
 
 155 
 
THE TOERENS SYSTEM 
 
 thereon; but no other person is entitled to do so.^® In England 
 it is provided that no general rule concerning the inspection 
 of the register shall permit the inspection of any entry in the 
 register, except by or under the authority of some person inter- 
 ested in the land or charge to which the entry refers.^^ Any 
 estate or interest in land less than a fee simple is registered 
 by the entry of a memorial on the register. This entry is neces- 
 sarily a brief memorandum describing in the most general 
 terms the instrument under which the lesser estate is created. 
 It seems to be clear that anyone interested in the title has a 
 right to inspect the original instrument for the particulars con- 
 tained therein. Anyone interested or about to deal with the 
 title might well insist that he desired to see the original lease, 
 mortgage or charge registered against the land. In Australasia 
 "the bound-up certificates of title constitute what is generally 
 known as the register-book. This, however, is not the whole 
 of the register, for there are two other collections of docu- 
 ments which form important adjuncts to it, and without which 
 the certificates of title are not absolutely complete. These 
 consist, first, of the instruments of transfer, lease, mortgage, 
 charge, etc., which have been executed by registered proprie- 
 tors, and on the faith of which entries have been made in the 
 register-book; and, secondly, of maps and plans deposited 
 either on the land being originally brought under the system, 
 or subsequently on a single parcel of land being subdivided. 
 * * * And references to maps deposited in other public 
 offices than the registry are also noted in a certificate of title, 
 and such references have the eif ect of practically incorporating 
 the maps referred to in the certificate of title, so as to fix with 
 notice of their contents anyone who inspects the certificate of 
 title. ""^ On tender of the proper fee therefor, any person 
 is entitled to a duly certified copy of any record or paper, with 
 all memoranda and endorsements thereon. Unless otherwise 
 provided, the fee is the same as is allowed to a clerk or recorder 
 for a like certified copy.^® 
 
 In Australia, it seems, the lodging of a caveat on the register 
 is not notice to the public, and does not affect dealings with 
 
 South Australia act. $ 106 Taamau- 36 J 22 English act, 1897. $ 284 
 
 ia act. § 116 New South "Wales act. et seq. English Land Transfer 
 
 $ 40 New Zealand act. § 239 West- Rules, 1908. 
 
 ern Australia act. § 241 Victorian 37 Hogg, Australian Torrens Sys- 
 
 act. tern pg. 763. 
 
 35 § 150 Ontario act. See to same 38 § 51 California act. J 48 Col- 
 
 eflect § 104 English act, 1875. orado act. $ 55 Massachusetts act. 
 
 156 
 
VOLUNTARY DEALINGS "WITH REGISTERED LAND 
 
 the property outside of the office of the registrar. Where a 
 caveat has been filed, but no notice of it has been given to the 
 mortgagee personally, it is unnecessary for a registered mort- 
 gagee, who is paying out the money to the mortgagor from time 
 to time in installments, to search the register for caveats be- 
 fore paying over an installment.^^ 
 
 § 96, Transfer of Land. A study of the Torrens system will 
 disclose that the word ' ' conveyance ' ' is seldom used to denote 
 the alienation of an interest in registered land ; under this sys- 
 tem such alienation is called a transfer. The acts usually speak 
 of a transfer of land in the sense of a transfer of an estate of 
 fee simple. A transfer gives to the new registered owner of 
 the estate all the rights in the property, which were possessed 
 by the prior registered owner and such additional rights, as 
 against unregistered equities, as are conferred by the statutes. 
 But the owner of registered land may transfer his whole inter- 
 est to the transferee, or he may create a new interest in the 
 land by an instrument of transfer, though this new interest 
 must, of course, be less than the whole iuterest of the trans- 
 ferror.*" He may transfer a life estate, or an estate for a term 
 of years, though in some jurisdictions such interests in land 
 are deemed to be more in the nature of encumbrances than of 
 estates in land. Under the Fiji ordinance establishing a system 
 of registration of titles, a life estate in registered land is de- 
 clared to be in the nature of an encumbrance, and is registered 
 as such on the register by notation on the duplicate certificate 
 of title of the proprietor of the fee simple.*^ A transfer is de- 
 fined as the passing of any estate or interest in registered land, 
 whether for a valuable consideration or otherwise. ^^ 
 
 $ 56 Hawaiian act. $ 56 Philippine tion, 14 S. A. R. 146 (1880). 
 
 act. $ 47 Washington act. $ 37 4i §§ 18, 19 Ordinances of Dec. 
 
 Minnesota act. 29, 1876. 
 
 39 Queensland Trustees v. Regis- 42 ^ 3 Tasmania act. J 3 Queens- 
 trar, 5 Q. L. J. 46, 1893. land act. $ 3 New South Wales act. 
 
 40 Formby v. Adelaide Corpora- 
 
 157 
 
CHAPTER IX. 
 
 Trust Estates, Mortgages, 
 Judgments, Liens. 
 
 § 97. Trust Estates. According to the preamble to the 
 first Torrens act in 1857, the evils to be remedied, by the act 
 were losses, heavy costs and much perplexity, for the reason 
 that the real estate laws of the country were complex, cumbrous 
 and unsuited to the requirements of its inhabitants. Estates 
 in trust were within the preamble, and, in fact, were the estates 
 against which it principally was aimed. Trusts were 
 not to be entered on the register, and a purchaser for 
 value in good faith was not required to take notice of any of the 
 burdens of the trusts upon which the registered owner held the 
 land. At first and for some time it was supposed that the Tor- 
 rens act was a mere adaptation of the shipping act to land 
 and to the transfer of land, and that under it there could be no 
 transfer of equitable as distinguished from legal interests; it 
 was supposed that by the act all trusts in registered land were 
 abolished.^ But it was held that there was nothing in the policy 
 of the act, which rendered it necessary that trusts should not 
 exist between parties, so long as purchasers for value in good 
 faith were not required to take notice of trusts, and that the 
 system of trusts was untouched, except in the case of a sale to 
 an innocent purchaser.^ As between the immediate parties to a 
 contract or to an equitable relation, a certificate of title does 
 not alter their rights against and liabilities to each other. As 
 
 1 Lange v. Euwoldt, 7 S. A. L. E. 173 (1883). Cuthbertson v. Swan, 
 1 (1872). . 11 S. A. L. E. 102 (1877). J 51 
 
 2 In re Bosquet, 17 S. A. L. E. Queensland act, 1877. 
 
 158 
 
TRUST ESTATES, MOKTGAGBS, JUDGMENTS, LIENS. 
 
 between the trustee and the cestui que trust a certificate of 
 title does not put an end to the trust, and the cestui que trust 
 may always enforce his rights against the trustee.* But the 
 declared object of the earlier Torrens acts was to simplify titles 
 to and dealings with estates in land, and the method of accom- 
 plishing that object was to provide that only simple trans- 
 actions in real estate should be registered. Trusts in land were 
 obviously a source of great complexity in titles, and it was ne- 
 cessary to deal with them in such a manner as to relieve a 
 purchaser from notice of the terms of a trust. Accordingly pro- 
 vision was made for excluding from the register all notice of 
 trusts. This was not so radical a measure as it may seem at 
 first impression. It is quite customary for the donor of a trust 
 to vest title to the property in the trustee, giving him power 
 to sell the land and to invest and reinvest the proceeds of 
 the sale, and declaring that no purchaser of the land shall be re- 
 quired to inquire into the necessity or expediency of the sale or 
 to see to the application of the proceeds. It is competent for 
 the legislature to provide that all trusts in land under the 
 Torrens system shall have the same effect as such trusts under 
 the general law, and that no cestui que trust shall have any 
 greater security and protection under the Torrens system than 
 is afforded to him under such a trust under the general law. 
 Such is the effect where the Torrens act provides that the 
 trustee shall be registered as the absolute proprietor and that 
 no notice of any trust shall be placed on the register. In one 
 case the cestui que trust is as much in the hands of the trustee 
 as he is in the other. In some foreign acts the duty is imposed 
 on the registrar to inquire into the transfer and to determine 
 whether it is made according to the terms of and for the pur- 
 poses of the trust, but under most of the foreign acts the reg- 
 istered trustee is regarded as the owner of the land, and he 
 may transfer it as such. Under many acts trusts may not be 
 registered, and no notice of any trust, whether express, im- 
 plied or constructive, may be entered on the register.* 
 
 3 Paora Torotoro v. Sutton, 1 N. gage Co., N. Z. L. R. 3 S. C. 257. 
 Z. J. R. N. S. C. S. 57. Kissling v. 4 $ 57 Victorian act. § 162 South 
 
 Mitchelson, N. Z. L. R. 3 C. A. 261. Australia act. $ 66 Tasmania act. 
 
 National Bank v. National Mort- $ 79 Queensland act. J 82 New 
 
 159 
 
THE TOEEENS SYSTEM 
 
 § 98. Under some acts no memorandum or entry may be 
 made upon the register of any notice of a trust, whether ex- 
 press, implied or constructive. The registrar must treat any 
 instrument containing any notice as if there were no trust, and 
 the trustee therein named is to be deemd to be the absolute 
 and beneficial owner of the land for the purpose of the acts.® 
 Under the Manitoba act every certificate of title issued to au 
 administrator, executor or trustee under a wiU shall describe 
 him as such, and the will shall be deemed to be embodied in and 
 to form part of the certificate, and before registering any 
 dealing with the land, the registrar shall satisfy himself that 
 such dealing is in accordance with such trusts and purposes.® 
 Except in the cases just mentioned, and except in case of land 
 held in trust for or to be used in connection with any church, 
 the registrar shall not make an entry in the register, contain- 
 ing any notice of a trust, whether express, implied or construc- 
 tive; and except in the cases just mentioned, the describing 
 of an owner as the trustee, whether the beneficiary or object of 
 the trust be mentioned or not, shall not impose upon the regis- 
 trar the duty of making any inquiry as to the power of the 
 owner in respect to the land, mortgage, or charge, or money 
 secured thereby or otherwise, but, subject to the registration of 
 any caveat, the land, mortgage or charge may be dealt with 
 as if such description had not been inserted.^ In Ontario it 
 is provided: "There shall not be entered on the register, or be 
 receivable by the master of titles, any notice of any trust, 
 express, implied or constructive. Describing the owner of any 
 freehold or leasehold land, or of any charge, as a trustee, 
 whether the beneficiary or object of the trust is mentioned or 
 not, shall not be deemed a notice of a trust within the meaning 
 
 South Wales act. § 122 New Zea- act. $ 162 South Australia act. J 
 
 land act. J 55 Western Australia 66 Tasmania act. § 57 Victorian 
 
 act. § 63 Act for Ireland, 1891. A act. J 55 Western Australia act. 
 
 judgment against a person cannot 6 § 69 Manitoba act. This power 
 
 be registered against land which he and duty of supervision on the part 
 
 holds as executor. Balding v. of the registrar may give to the 
 
 Nicholas, 19 V. L. E. 110 (1893). heirs and devisees of the testator 
 
 5 $ 79 Saskatchewan act. § 47 access to the assurance fund, in 
 
 Alberta act. See $ 40 British Col- case he fails to protect their In- 
 
 umbia act. See J 76 Alberta act. terests properly. 
 
 5 82 New South Wales act. $ 79 7 § 92 Manitoba act. 
 Queensland act. $ 122 New Zealand 
 
 160 
 
TEUST ESTATES, MORTGAGES, JUDGMENTS, LIENS. 
 
 of this provision, nor shall such description impose upon any 
 person dealing with such owner the duty of making any in- 
 quiry as to the power of the owner in respect of the land or 
 charge or the money secured by the charge, or otherwise ; but, 
 subject to the registration of any caution or inhibition, such 
 owner may deal with the land or charge as if such description 
 had not been inserted. ' '« In the English act of 1875 it was pro- 
 vided that "there shall not be entered on the register, or be 
 receivable by the registrar, any notice of any trust, implied, ex- 
 press or constructive, "8 but it was found impracticable to 
 avoid references to trusts on all occasions, and the plan was 
 adopted to permit the entry of trusts on the register when 
 it was necessary to note them, but to prevent the entry from 
 having any effect as notice. Accordingly, the act of 1897 pro- 
 vides that "neither the registrar nor any person dealing with 
 registered land or a charge shall be affected with notice of a 
 trust, express, implied or constructive, and references to trusts 
 shall, as far as possible, be excluded from the register, "i" 
 In Australasia the estate of a bankrupt or insolvent goes to 
 the official assignee, when he is registered as proprietor of the 
 land, subject to the equities or trusts upon which the bankrupt 
 or insolvent held the land.^^ 
 
 § 99. Concerning the statutory declaration that no notice 
 of any trust shall be entered on the register, it has been said: 
 
 "This prohibition of the entry of 'notice' of a trust, or of 
 the 'trust' itself, in the register, cannot be construed literally; 
 other parts of the statutes, and also decided cases, are quite 
 inconsistent with any such literal construction. Consistently 
 with the other parts of the statutes, and with the decided 
 cases, entry of a trust or notice of a trust can only mean, in 
 this connection, entry of the names of the beneficaries and the 
 nature of the interests intended to be conferred on them; the 
 language of the South Australian statute — by which entry is 
 forbidden of the 'particulars of any trust' — appears to be 
 more accurate than the expression used in the corresponding 
 enacts of the other statutes. Except in Queensland, the stat- 
 utes do not contemplate the use of the word 'trustee' in a trans- 
 
 8 § 103 Ontario act. 236 Victorian act. § 86 Queensland 
 
 9 § 83 Land Transfer act, 1875. act. ^ 76 Tasmania act. $§ 170, 171, 
 
 10 Schedule 1, Land Transfer act, 180 South Australia act. § 234 
 1897. "Western Australia act. 
 
 11 $ 90 New South "Wales act. $ 
 
 161 
 
THE TOEEENS SYSTEM 
 
 fer or certificate of title, but there appears to be no reason 
 why it should not be used, and why land should not be express- 
 ed to vest in a proprietor 'as trustee', on the analogy of land 
 vested in the representatives of a deceased proprietor. ^^ Not- 
 withstanding the omission of the words 'trust' or 'trustee', 
 the fact that land is not vested in joint proprietors for their 
 own benefit may be clearly indicated on the face of the certi- 
 ficate of title in two ways, viz. either by inserting the words 
 'no survivorship' — thus indicating that the joint proprietors 
 have not full rights of ownership — or by lodging at the regis- 
 try the instrunient by Vhich the trusts are created or declared 
 and protecting it by caveat; and both precautions may be 
 adopted together. * * * in all jurisdictions a distinction is 
 made — with respect to their liability to lapse or removal — 
 between ordinary caveats to prevent dealings, and caveats 
 entered for the protection of trusts. * * * "Where the existence 
 of a trust is made to appear on the register, whether by in- 
 inserting the words 'no survivorship' or by entry of a caveat 
 in the appropriate manner, * * the effect appears to be that 
 a restriction on the power of the proprietor to deal with his 
 estate, amounting to something in the nature of an encum- 
 brance, is created, and the existence of this restriction or in- 
 cumbrance implies a correlative interest in the persons bene- 
 ficially entitled, notwithstanding that this interest cannot — 
 under the' terms of the statutes — be called a registered inter- 
 est, "is 
 
 § 100. Under many foreign acts trusts in land may be de- 
 clared by any document, or attested copy, by depositing it with 
 the registrar, but the rights incident to any ownership or 
 dealing registered under the act are not declared to be positi- 
 vely affected by the deposit, and such document may not be 
 registered. It is not clear what function this deposit per- 
 forms, except that under some acts the registrar must be satis- 
 fied that any transfer of the land by a trustee is in accordance 
 with the terms of the trust as declared in the instrument so 
 deposited with him. While trusts may not be placed on the reg- 
 ister, yet all foreign acts provide for the filing of caveats or 
 cautions which will prevent a new registration unless it be 
 made subject to the rights and interests of the caveator, and 
 in this indirect way, notice of a trust may be given to any per- 
 
 12 The insertion of the words "as is Hogg, Australian Torrens Sys- 
 
 trustees" is expressly authorized tern, pp. 973, 974. 
 by the Fiji 1876 Ordinance J 21. 
 
 162 
 
TEUST ESTATES, MOBTGAGES, JUDGMENTS, LIENS. 
 
 son about to deal with the title. If a beneficiary may file a 
 caveat and give notice of the terms of the trust on the face of 
 the register, the statutory declaration that no notice of a trust 
 may be registered amounts to little in simplifying titles and 
 facilitating transfers. It seems of little moment to declare that 
 the state may give no notice of a trust on the register, though 
 a beneficiary may do so. It is not an essential feature of the 
 Torrens system that no notice of a trust may be registered; it 
 is merely a scheme of most of the foreign acts. In Nova Scotia 
 and in this country apt words must be used to show that the 
 land is held in trust, and a reference must be made to the in- 
 strument creating the trust. Of course this method of registra- 
 tion discloses the trust and in many cases calls for a 
 judicial construction of the instrument creating it, but the 
 foreign method of registering the trustee as the absolute 
 owner of the land is not without its difficulties and complica- 
 tions, i* 
 
 § 101. Registration of Trust Estates in this Country. In sev- 
 eral of the acts in this country it is substantially provided : 
 If a deed or other instrument is filed with the registrar for the 
 purpose of transferring 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 therein without the transfer thereof, the particulars 
 of such trust, condition, limitation or other equitable interest 
 shall not be entered on the register, but a memorial thereof 
 may be entered by the words "in trust", "upon condition", 
 or "with limitations" or other apt words, and by reference 
 by number to the instrument authorizing or creating the same. 
 A similar memorial shall be made upon the owner's duplicate 
 certificate. If the instrument which creates or declares the 
 trust or other equitable interest has already been recorded in 
 any public office of this state, a certified copy thereof may be 
 filed with the registrar and registered by him in lieu of the 
 original. If the instrument contains an express power to 
 sell, mortgage or otherwise deal with the land, such power 
 shall be stated in the certificate of title by the words "with 
 
 14 See § 141, post. 
 
 163 
 
THE TOEEENS SYSTEM 
 
 power to sell" or "with power to mortgage" and by apt words 
 of description in ease of other powers. No instrument dealing 
 with registered land held in trust shall be registered unless 
 the power thereto enabling is expressly conferred in the in- 
 strument of trust, or unless the court has construed the in- 
 strument in favor of the power. In such case a certified copy 
 of such decree shall authorize a registration in accordance 
 therewith. 1^ An analysis of the provisions of the sections just 
 cited will show many minor differences and distinctions be- 
 tween them, but it is not necessary to consider them all here. 
 We must, however, stop to examine briefly the terms of these 
 sections so far as they relate to the power of the registrar to 
 make a new registration on a transfer by the trustee. 
 
 § 102. In Massachusetts, Hawaii and the Philippine Islands 
 no transfer by the trustee may be made unless the instrument 
 creating the trust gives him the power to deal with the land 
 in the proposed manner, or unless a decree of a competent 
 court has authorized it. In Minnesota, if the instrument de- 
 claring the trust contains a power of disposition, the registrar 
 shall register the trustee "with power of sale", "with power to 
 mortgage" etc., but no registration of a transferee from the 
 trustee may be made unless the power is expressly conferred 
 and the court has construed the instrument in favor of the pow- 
 er. Under several acts no transfer of or charge upon or deal- 
 ing with land registered in tru^t shall thereafter be registered, 
 except upon an order of court directing such transfer in ac- 
 cordance with the true intent and meaning of the trust.i® 
 In California, a trustee under any will admitted to probate, 
 unless such power has been expressly withheld by the terms 
 of such will, has power to deal with any registered land held 
 by him in trust as fully in every respect as if such lands be- 
 longed to him individually." If, however, the trust is declared 
 by a deed or by any instrument except a will, and such instru- 
 ment contains the words "with power of sale," the trustee 
 
 15 § 59 Minnesota act. ^ 64, 65 See U 64, 65 Nova Seotia act. 
 
 Massachusetts act. §§ 65, 66 Haw- le § 64 Colorado act. J 63 "Wash- 
 
 aiian act. ?§ 65, 66 Philippine act. ington act. § 59 Minnesota act. 
 
 ? 64 Colorado act. § 63 Washington 17 § 70 California act. 
 act. §$ 67, 68, 69 California act. 
 
 164 
 
TEUST ESTATES, MORTGAGES, JUDGMENTS, LIENS. 
 
 has power to deal with the land as the owner thereof, and a 
 bona fide purchaser is not bound to inquire into or determine 
 whether or not the acts of such trustee are in accordance with 
 the terms and conditions of the trust. When such power is 
 conferred, the registrar shall note upon the register and du- 
 plicate certificate the words "with power of sale."!* If no such 
 power is contained in the instrument, the registrar may make a 
 registration only on an order of court.^^ Under some acts, 
 registration based on an order of court directing it to be made 
 is conclusive evidence in favor of the new registered owner that 
 a transfer, charge or other dealing is in accordance with the 
 true intent and meaning of the trust, condition or limitation.^o 
 § 103. In Oregon, when land has been registered ' ' in trust ' ', 
 "upon condition" or "with limitations", no dealing with the 
 land may be registered thereafter, unless pursuant to the order 
 of some court, or the filing of an affidavit of the person apply- 
 ing for the registration that such dealing is in accordance 
 with the true intent and meaning of the trust, condition or lim- 
 itation. Eegistration based on such an affidavit is made con- 
 clusive evidence that it is in acordance with such intent and 
 meaning.21 In Illinois, when land has been registered "in 
 trust", "upon condition" or "with limitations," no dealing 
 with it may be registered thereafter, unless pursuant to the 
 order of some court, or upon the written opinion of two ex- 
 aminers that such dealing is in accordance with the true in- 
 tent and meaning of the trust, condition or limitation. Regis- 
 tration based on such written opinions is made conclusive evi- 
 dence that it is in accordance with such intent and meaning.^^ 
 In a case involving the constitutionality of the act,2s the su- 
 preme court of Illinois considered the sections just cited,^* 
 and said : 
 
 "If the registration be made pursuant to the order or finding 
 of a court of competent jurisdiction the acts of the registrar are 
 purely ministerial, but, if made upon the opinion of the two 
 
 18'5 68 California act. 21 §$ 67, 68 Oregon act. 
 
 19 $ 69 California act. 22 $ j 68, 69 Illinois act. 
 
 20 § 63 Washington act. $ 64 23 People v. Simon, 176 111. 165; 
 Colorado act. $ 59 Minnesota act. 52 N. E. Eep. 910; 68 Am. St. Eep. 
 $69 California act. $69 Illinois 175; 44 L. E. A. 801 (1898). 
 
 act. § 68 Oregon act. 24 §§ 68, 69 Illinois act. 
 
 165 
 
THE TOEEENS SYSTEM 
 
 examiners, he is required to exercise a judgment of his own. 
 These duties do not differ materially from those already exam- 
 ined, except that here the decision is made conclusive, in favor 
 of the person taking the transfer in good faith and for a val- 
 uable consideration, that the transfer or charge is in accord- 
 ance with the true intent and meaning of the trust, condition 
 or limitation. This does no more than abrogate the rule in 
 equity which requires the purchaser of trust property to see 
 to the application of the purchase money, and the inclination 
 of courts now is to withdraw from that rule. * * * This statute 
 also changes the rule of law as to notice. We know of no rea- 
 son why the legislature might not change either or both of these 
 rules without violating the constitution. Certainly, as to the 
 future all trusts could be entirely abolished by the legislature, 
 as was done in eases of uses by the statute of uses. As the 
 law now stands, cases frequently arise in which bona fide pur- 
 chasers take property free from existing trusts, and are not 
 held bound to see to the application of the consideration." 
 
 This exposition of these sections does not seem to meet the 
 questions which arise under them. The legislature may abolish 
 trusts in land, may abolish the rule that a purchaser must take 
 notice of an express trust in land, and still preserve the whole 
 scheme of trusts as between the parties to them, and may abol- 
 ish the rule that a purchaser must see to the application of the 
 purchase money to the purposes of the trust. But in these 
 sections the legislature says nothing about abolishing trusts 
 in registered land, or nothing about the rule as to the applica- 
 tion of the purchase money ; and it does in apt words provide 
 that notice of trusts, conditions and limitations must be given, 
 and states the only methods according to which registered 
 land may be dealt with after such notice is given. The ques- 
 tion is concerning the validity of one of the methods provided 
 for. According to it power is delegated, in cases as they arise, 
 to the registrar and two examiners of titles to determine 
 whether a proposed dealing with land registered in trust, on 
 condition, or with limitations is in accordance with the true 
 intent and meaning of such trust, condition or limitation. In 
 Oregon the power to determine whether a proposed dealing 
 with land so registered is in accordance with such true intent 
 and meaning is delegated to the purchaser of the land so 
 registered, and he is to settle the question by making an affi- 
 
 166 
 
TEUST ESTATES, MOETGAGES, JUDGMENTS, LIENS. 
 
 davit that it is. The validity of these portions of these sec- 
 tions must be left to the determination of the courts in cases 
 in which it is directly involved. It is submitted that these por- 
 tions are unconstitutional because they give to the registrar 
 and examiners in Illinois, and to the person making the affi- 
 davit in Oregon, the power to adjudicate upon the rights of 
 parties and to apply the law. While legislatures may abolish 
 future trusts, they may not recognize trusts, and confer on 
 non-judicial officers and other persons the power to pass on 
 the validity of transfers under the terms of trusts, whether in 
 registered or in unregistered land. Any new registration 
 made according to the methods under consideration will be 
 valid if made according to the true interpretation of the terms 
 of the trust, but it will be invalid if the registrar and the ex- 
 aminers in one case, and the person making the affidavit in the 
 other case, make an error of law in such interpretation, and it 
 may be set aside by any interested person, no matter how many 
 subsequent registrations may have been made. In future in- 
 terpretations of Torrens statutes in this country, courts must 
 decide whether the statutory declarations are valid, which say 
 that certain proceedings by the registrar, and certain acts 
 by other persons, shall be conclusive evidence of title. It is 
 plain that up to this time these questions have not been met, 
 when they have arisen. 
 
 § 104. There is certainly a distinction, and perhaps a legal 
 difference, between the Illinois and Oregon acts and the Cali- 
 fornia act. In the latter there is no delegation of power to the 
 registrar or to any other person to determine, in cases as they 
 arise, whether a trustee has a power of sale, but there is a legis- 
 lative declaration that "if the instrument contains the words 
 'with power of sale' the trustee shall have the power to deal 
 with the land as the owner thereof; and a bona fide pur- 
 chaser, mortgagee or lessee is not bound to inquire into or 
 determine whether or not the acts of the trustee are in accord- 
 ance with the terms and conditions of the trust. ' '^^ That part 
 of the opinion and argument of the supreme court of Illinois 
 just quoted would seem to apply to this statutory declaration, 
 
 25 $ 68 California act. 
 
 167 
 
THE TOREENS SYSTEM 
 
 and not to the provisions of the section of the Illinois act, which 
 the court had under consideration. This statute changes the 
 general rule that a power to sell does not include a power to 
 mortgage and it also changes the rule that a purchaser must see 
 that a trustee acts in accordance with the terms and conditions 
 of his trust. A legislature in this country undoubtedly has 
 power to change these rules for the future, but it does not 
 follow that it has power to give to a ministerial officer, or to a 
 person dealing with the land, the right to determine whether a 
 trustee is acting within the terms and conditions of a trust. In 
 examining the section of the California act, just quoted, it is 
 natural to inquire whether the instrument must contain the 
 exact words "with power of sale", in order to bring about 
 the effect of the statutory declaration, or whether this may 
 be effected by the use in the instrument of the words "with 
 power to sell", or by the use of words which give a power of 
 sale by necessary implication. "When a section of an act con- 
 tains such a formulary phrase, it is impossible to tell, until a 
 judicial construction has been given to it, whether the lan- 
 guage is used in a technical or in a broad and general sense. 
 
 § 105. In the New York act there are no special provisions 
 relating to the registration and transfer of property held in 
 trust, on condition or with limitations. It is apprehended that 
 under this condition of the law, a registration of a trust estate 
 must set forth the terms of the trust in a substantial manner 
 and must refer to the instrument creating the trust. Under 
 this act no transfer of land may be made by the registrar unless 
 the parties thereto agree upon a written statement to be enter- 
 ed on the register. It is doubtful whether a trustee may enter 
 into such an agreed statement without statutory authority to 
 do so, and it is probable that a trust estate may be transferred 
 only by direction of a court. 
 
 § 106. General Review of Trust Estates. From this review 
 of the acts, so far as they relate to trust estates, it is evident 
 that, with the exception of the act of Nova Scotia, the foreign 
 acts abolish notice of the particulars of trusts to bona fide 
 purchasers of registered land, and provide that with purchas- 
 ers of registered land trustees have power to deal as the owners 
 
 168 
 
TRUST ESTATES, MORTGAGES, JUDGMENTS, LIENS. 
 
 thereof. But under the acts in this country such notice is not 
 abolished, and a purchaser from a trustee, except under special 
 circumstances in California, must determine at his peril 
 whether the trustee has power to deal with the land in the 
 manner proposed, and, if he has no such power, must insist 
 that the transfer be made pursuant to an order of court. The 
 effect of some of our acts may be to do away with the necessity 
 on the part of the purchaser of seeing to the application of the 
 purchase money, where a power of sale is given in the instru- 
 ment and shown on the register, but this effect arises from im- 
 plication, if at all, and is not entirely clear. Under foreign acts, 
 while no notice of a trust may be placed on the register by the 
 state, such notice may be given by the filing of a caveat by an 
 interested person, and a purchaser is bound by the notice thus 
 given. 
 
 § 107. Mortgages, Original Registration. In Ontario a mort- 
 gagee having a power of selling land may apply to have the 
 mortgagor or other person owning the equity of redemption 
 registered as owner with any title, absolute, qualified or pos- 
 sessory. The costs and expenses properly incurred by the 
 mortgagee in or about the application are ascertained and de- 
 clared by the master of titles, are deemed to be costs and ex- 
 penses incurred in pursuance of the power, and may 
 be collected by him as a part of the debt secured 
 by the mortgage.^^ In England, a mortgagee hav- 
 ing a power of selling land may apply to be reg- 
 istered as first proprietor with any title, with the consent 
 of the persons, if any, whose consent is required to the exercise 
 by the applicant of his power of sale; and the costs and ex- 
 penses, having been ascertained and declared by the registrar, 
 become a part of the debt secured by the mortgage.^^ In On- 
 tario, on the registration of a proprietor of land with absolute 
 or qualified title, any incumbrance on the property is entered 
 on the register, but on registration of the proprietor with pos- 
 sessory title only, any incumbrance on the property may or may 
 not be noted on the register, according to the proof of title 
 made before the registrar, or according to his discretion. The 
 
 26 J 8 Ontario act. 27 § 68 English act, 1875. 
 
 169 
 
THE TORRENS SYSTEM 
 purpose of registration with possessory title is not to declare 
 or establish his title, but is to vest him with such title as he 
 may have at the date of registration. This was formerly the 
 rule in England, but now the incumbrances must be shown on 
 the register. In Manitoba, when land subject to a mortgage 
 is brought under the act, all rights, remedies and matters of 
 contract under the mortgage remain intact, as if the land 
 were still unregistered.^^ In Australasia a mortgagor may 
 not bring his land under any of the acts unless his mortgagee 
 joins in or consents to the application.^* Under the Victorian 
 land transfer act,*" the proprietor of land may apply for regis- 
 tration, "provided always that a mortgagor shall not be enti- 
 tled to make such application unless the mortgagee shall con- 
 sent thereto ' '. But it seems that in Victoria it is the practice to 
 bring the equity of redemption under the act, even thougH 
 the mortgagee may refuse to consent to the registration. When 
 this is done, in the certificate of title issued to the mortgagor, 
 the mortgage is set out as an incumbrance, and the rights of the 
 mortgagee are declared to be unaffected by the bringing of 
 the equity of redemption under the act. The land, so far as 
 dealings by the mortgagee are concerned, remains under the 
 general law. On a sale of the land by the mort- 
 gagee under his power of sale, the land becomes 
 unregistered, and an application is necessary to bring 
 it again under the act. The acts of Massachusetts, 
 Hawaii, the Philippine Islands and Nova Scotia do not require 
 the consent of the mortgagee to the registration of the land on 
 which he holds the lien, but it protects him from any effect 
 or consequence which may flow from such registration by the 
 owner without his consent. The Massachusetts act provides: 
 "If the holder of a mortgage does not consent to the making 
 of the application, it may be entered nevertheless and the title 
 registered subject to the mortgage, which may be dealt with 
 or foreclosed as if the land subject to it had not been regis- 
 tered. The decree of registration in such case shall describe 
 
 28 $ 31 Manitoba act. $ 4 Tasmania act. $ 20 Western 
 
 29 \ 14 New South Wales act. $ Australia act. $ 21 Victorian act. 
 18 New Zealand act. $ 28 South 30 § 21 Victorian act. 
 Australia act. § 16 Queensland act. 
 
 170 
 
TEUST ESTATES, MORTGAGES, JUDGMENTS, LIENS. 
 
 the mortgage, and shall state that it has not been registered 
 and that registration Is made subject to it, and shall provide 
 that no subsequent certificate shall be issued and no further 
 papers registered relative to such land after a foreclosure of 
 such mortgage."*^ In Massachusetts, Hawaii and the Phil- 
 ippine Islands the mortgagor may register the whole title with 
 the consent in writing of the mortgagee, but as the decree for 
 registration becomes effective at once and may not be set aside 
 as against an innocent purchaser for value, it is incumbent on 
 the consenting mortgagee to see that the decree properly 
 describes his mortgage and fixes the priority of his lien. In 
 Nova Scotia an appeal must be taken within three months or 
 the decree is conclusive. 
 
 § 108. Mortgages, Original Registration. In the other acts 
 'in this country it is provided that it shall not be an objection 
 to bringing land under the act, that the estate of the applicant 
 is subject to any outstanding lesser estate, mortgage lien or 
 charge, but any such lesser estate, mortgage, lien or charge 
 shall be noted on the certificate of registration when issued.^^ 
 This provision has been the subject of much criticism and 
 dissatisfaction. It is claimed, and it may be true, that in Mass- 
 achusetts large financial companies and large loaners of money 
 are pleased to make loans on registered lands, but It is also true 
 that many financial institutions and many large money loaners 
 throughout the whole country are unwilling to do so. This 
 unwillingness may arise from prejudice against a new system 
 of dealing with land, from a lack of knowledge of the system, 
 or from a feeling that a new and unknown system of registra- 
 tion detracts from the value and merchantability of land 
 placed under it. Those who do not care to loan money on 
 registered land are not pleased with the thought that the 
 owner of mortgaged property, without the consent of the 
 mortgagee, may involve the title in litigation, place it under 
 a system of registration about which they are doubtful, and 
 
 31 5 18 Massachusetts act, being the Hawaiian act. J 9 Nova Scotia 
 
 original $ 19 as amended. § 19 act. 
 
 Hawaiian act is substantially the 32 § 9 Hlinois act. J 7 Oregon act. 
 
 same, being a copy of original $ 19 § 8 California act. J 2 Colorado 
 
 Massachusetts act. Part of $ 19, act. $ 4 Minnesota act, 1905. $ 10 
 
 Philippine act is substantially like New York act. $ 2 Washington act. 
 
 171 
 
THE TORBENS SYSTEM 
 
 perhaps compel them on foreclosure of the mortgage to take 
 title to registered land. Applicants for registration of title 
 have reason to complain of the provision. Trust deeds and 
 mortgages usually provide that if the trustee, or the owner of 
 the indebtedness, is made a party to any litigation concern- 
 ing the land covered by the instrument, he shall be paid a 
 reasonable sum for the services of his attorney and shall be re- 
 imbursed for any necessary costs expended by him. When the 
 mortgagee is made a party to a proceeding for registration 
 of the title, he employs an attorney who appears and looks 
 after his interests. When the applicant is required to pay these 
 expenses, he is apt to find fault with this provision of the law. 
 If, however, the trust deed or mortgage does not provide for 
 the payment of such expenses by the owner of the land, the 
 mortgagee may be heard to complain that the law subjects him 
 to expense at the discretion and will of the owner of the land. 
 A mortgagee must be made a party to a proceeding in regis- 
 tration of the whole title, and whether he appears voluntarily 
 or after service of process, he is bound to present his interests 
 and to see that his rights are correctly defined in the decree of 
 the court. While in any given case the proceeding in regis- 
 tration may not be brought for the purpose of affecting the 
 status or amount of any mortgage on the property, yet the 
 proceeding is essentially adversary, is governed by all the 
 rules which obtain in chancery and civil cases, and binds all 
 interests as they are determined and set forth in the decree. 
 During its progress many things may happen by mistake or 
 omission, which will affect the rights of some of the parties, and 
 one takes the risk of suffering loss, or of being placed at a 
 disadvantage, if he turns over his interests to be looked after 
 by some other party to the action. An application for regis- 
 tration was made in Chicago,^^ and the mortgagee was made 
 a party defendant. After he was served with process, he was 
 assured that the purpose of the action was to register the title 
 and not to affect his interest, and he concluded that it was 
 safe to let the title be registered in due course, without 
 
 33 Application No 448, filed Nov- tered May 15, 1902, correcting the 
 ember 25, 1901, decree entered amount of the mortgage. 
 January 14, 1902; new decree en- 
 
 172 
 
TRUST ESTATES, MORTGAGES, JUDGMENTS, LIENS. 
 
 having anyone to represent him. A decree was entered estab- 
 lishing the title, subject to his mortgage, which was described 
 as for $1000. and a certificate was issued to the owner of the 
 land in accordance with the decree. Some weeks after- 
 ward the registered owner took the certificate back to 
 the registrar's ofSce and asked that it be corrected, explaining 
 that he had just discovered that the mortgage was described 
 as being for $1000. when it was in fact for $8000. The mort- 
 gagee had never looked into the proceeding, and was entirely 
 ignorant of the mistake. After the expiration of the limitation 
 of two years in that state, he could have enforced his mort- 
 gage against the land for $1000 only, as stated in the decree, 
 and would have been relegated to an action on the note for any 
 remainder of the debt due him.^* 
 
 § 109. Mortgage on Registered Land. A mortgage on regis- 
 tered land may be executed in duplicate so that one copy may 
 be retained in the registrar's office, and one copy marked 
 "mortgagee's duplicate" may be delivered to the mortgagee. 
 If it is not executed in duplicate, the original mortgage is filed 
 and retained in that office, and the registrar may make and 
 give to the mortgagee a "mortgagee's certified copy."^" The 
 mortgage is not recorded, but when it is filed in the registrar's 
 office, he makes a note of it on his list of filed papers, and enters 
 on the proper page of the register, — the last page which has 
 been set apart for that particular tract of land, — and also on 
 
 34 See post, J 194. See J 51, ante. the registrar of titles for the entry 
 36 J J 62 and 63 Illinois act. $5 of a memorial of the instrument 
 61 and 62 Oregon act. §§ 61 and 62 against the title of the registered 
 California act. $ 60 Massachusetts land. The mortgagee was not en- 
 act. $ 61 Philippine act. $ 61 Haw- titled under the Torrens law, to the 
 aiian act. § 56 Washington act. $ possession of the original mortgage, 
 57 Colorado act. § 53 Minnesota so he requested the owner to pro- 
 act, 1905. The New York act does cure for him a certified copy of the 
 not provide for the issue of mort- instrument to place with his papers, 
 gagee's duplicates, but there is no The registrar charged $5.60 for the 
 reason why they may not be issued certified copy. This incident shows 
 when required. An owner gave a clearly the annoyance and expense 
 mortgage on several tracts of land, which dealers with lands will be 
 one of which was registered under put to when two systems of con- 
 the Torrens law. The mortgage veyancing are administered in the 
 was recorded as document number same state and both systems are 
 3,409,543 in the recorder's office in largely used: Many similar incid- 
 Chicago at a cost of $2,45, and was ents may be cited, 
 then, at a cost of $3,00 filed with 
 
 173 
 
THE TOBEENS SYSTEM 
 
 the owner's certificate, a memorial of the purport of it, the 
 date of filing and a reference to it by its file number. It is 
 a lien on the land from the time of the entry of the memorial. 
 "When the mortgage is released, the registrar cancels the 
 memorial and stamps across the mortgage on file and across the 
 mortgagee's duplicate or certified copy the word "cancelled." 
 The Torrens acts provide that "aU instruments, notices and pa- 
 pers required or permitted by this act to be filed in the office 
 of the registrar shall be retained and kept in such office."** 
 The original mortgage is a perpetual deposit in the office of 
 the registrar. When it is paid it is marked "cancelled" and 
 put back among the files. The original notes are held by the 
 owner of the indebtedness, and as they are paid they are sur- 
 rendered to the owner of the land. In this country it has been 
 customary to surrender the mortgage to the owner of the land 
 when the debt is paid, and the retention of it by the registrar, 
 even after it is cancelled, has caused contention now and then ; 
 but there is no real cause for dissatisfaction in this method of 
 dealing. In this country it is generally provided in express 
 terms or by necessary implication, that a trust deed in the 
 nature of a mortgage shall be deemed to be a mortgage and 
 shall be subject to the same rules as a mortgage.*^ A trust 
 deed assumes to transfer land to a transferee as security for 
 a debt, and in some jurisdictions, where no entry of a trust may 
 be made on the register, the registrar will not register such an 
 instrument as a mortgage, and will only register it as an abso- 
 lute transfer of the land to the grantee as the absolute owner.^s 
 The Australasian acts prescribe a statutory form of mortgage 
 and provide that a mortgage is a mere security for the debt 
 and not a transfer of the land. A mortgage confers an inter- 
 est, but not an estate.*^ Where a mortgagee does not take a 
 
 36 § 51 Illinois act. J 50 Oregon act. $ 60 Hawaiian act. $ 47 New 
 acts. J 51 California act. § 47 Col- York act. § 56 WasMngton act. $ 
 orado act. $ 46 Washington act. § 52 Minnesota act, 1905. 
 
 143 British Columbia act. § 46 Sas- 38 Such is the rule in Canada, 
 
 katchewan act. J 23 Alberta act. 39 §^ 113, 114 Victorian act. '?§ 
 
 § 48 Nova Scotia act. Eule 52 On- 3, 56, 60 Queensland act. J$ 128, 
 
 tario act. Eule 162 English act. 132 South Australia act. 5$ 2, 93, 
 
 37 J 60 California act. $ 61 Hlin- 94 New Zealand act. §$ 3, 56, 57 
 ois act. J 60 Oregon act. § 59 New South Wales act. §§ 3, 52, 53 
 Massachusetts act. J 57 Colorado Tasmania act. $5 105, 106 West- 
 
 174 
 
TBU8T ESTATES, MORTGAGES, JUDGMENTS, LIENS. 
 legal estate in the land he may be under some disadvantage; 
 he will not be able to maintain ejectment. But the Torrens 
 acts give him power, on default, to enter, to foreclose and to 
 sell, and he is not likely to find himself in serious difficulties. 
 The entry of the memorial on the register refers to the mort- 
 gage in a brief manner, and the original may be inspected for 
 the particulars contained therein. In England a certificate of 
 title or a certificate of charge may be deposited as a security, 
 and a lien will be created which, subject to any registered 
 estates, charges or rights, is equivalent to that created by a 
 deposit of title deeds. Notice of the deposit may be entered on 
 the register, and when so entered it will operate as a caution.*** 
 § 110. In some jurisdictions a mortgagee or chargee is en- 
 titled to a certificate showing his interest in registered land,*^ 
 but, generally speaking, a mortgagee or chargee is not entitled 
 to any such certificate. Unless there is a valid indebtedness 
 to \)e secured by the mortgage or charge, the mere registration 
 of a memorial of it does not make it a lien on the property. 
 There is no warranty on the part of the state that the me- 
 morial constitutes- a lien. The question of the validity and 
 extent of the lien of the memorial is left open, to be determined 
 in any proper proceeding which may be brought to contest it. 
 The certificate states the ownership of the title, and the effect 
 of the entry of the memorial on it is to certify that there 
 are no prior liens on the title, except the statutory incum- 
 brances and such as may be set forth therein. It is so in title 
 insurance. The insuring company does not guarantee that all 
 the contractual relations between the parties have been carried 
 out, and that the mortgage with respect to which the policy is 
 issued is a valid lien ; it merely guarantees that the ownership 
 of the title to the pledged estate is as stated in the policy, and 
 that there are no prior liens or incumbrances on the title except 
 such as may be scheduled in the policy. The main object of a 
 certificate is to state that the holder of it is entitled to the 
 interest with which he is registered, and the fact that a mort- 
 gagee 's certificate does not do this in a broad sense is probably 
 
 ern Australia act. See alse $ 102 40 $ 243 English rules, 1908. 
 
 Saskatchewan act. $ 61 Alberta act. 4i 40 Act for Ireland, 1891. $ 
 
 $ 100 Manitoba act. 269 English rules, 1908. 
 
 175 
 
THE TOEEENS SYSTEM 
 
 the reason why no such certificate is issued in most jurisdic- 
 tions. It is not unusual for a mortgagee to insist that he shall 
 hold the owner's duplicate certificate during the existence 
 of the lien of the mortgage. Concerning this custom it has 
 
 been said: "The necessity for producing the main certificate 
 of title, for the purpose of effecting registration of some trans- 
 action, with a subsidiary interest, occasionally causes great 
 inconvenience. Since a mortgagee usually insists on having 
 possession of his mortgagor's certificate of title,*^ and since 
 a lessee cannot usually have a separate certificate of title, any 
 transactions by the mortgagor with the mortgaged land, or by 
 the lessee with his own estate, necessitate the concurrence of 
 the mortgagee or the lessor, in order that the certificate of 
 title may be produced at the registry. In Victoria and West- 
 em Australia*^ it is expressly enacted that a mortgagee who 
 holds the mortgagor's certificate of title must produce it 
 (though at the mortgagor's cost) at the registry for the pur- 
 pose of registering transactions subsequent to the mortgage; 
 and this provision overrides any express stipulation in Jhe 
 mortgage instrument that the mortgagee shall keep possession 
 of the certificate of title during the continuance of the secur- 
 ity.** If the certificate of title is actually lying at the registry, 
 though for another purpose, the mortgagee cannot insist on 
 being paid a fee for its production, but a second mortgagee is 
 entitled to have his mortgage duly registered and entered on 
 the certificate of title.*^ It has, however, also been held that 
 the registry officers have not ipso facto authority to make 
 entries on a certificate of title which has been produced for an 
 entirely different purpose."** In some of the Canadian acts 
 
 it is provided that when any mortgage or incumbrance is reg- 
 istered thereunder, the registrar shall retain possession of the 
 duplicate certificate of title on behalf of all persons interested 
 in the land described in the instrument, and that, if desired, 
 the registrar shall furnish to the owner of the mortgage or in- 
 cumbrance a certificate of charge. ^'^ 
 
 § 111. In the Australasian acts provision is made that there 
 shall be an implied covenant on the part of a transferee of in- 
 
 42 Under the English Land Trans- 46 In re "Wright (1894) 12 N. Z. 
 fer Acts a separate certificate of E. 585. 
 
 charge is given to the mortgagee. 46 Citing Ex parte Bettle (1895). 
 
 43 V. 1890, s. 134, W. A. 1893, s. 14 N. Z. E. 129. Hogg, -Australian 
 127. Torrens System, p. 923. 
 
 44 In re Armitage (1891) 17 V. 47 $ 101 Saskatchewan act. $ 71 
 L- R- 77. Alberta act. J 118 Manitoba act. 
 
 176 
 
TEUST ESTATES, MORTGAGES, JUDGMENTS, LIENS. 
 
 cumbered registered land that he will indemnify the transferror 
 against any mortgage or charge on the land. It seems that 
 in some jurisdictions this covenant is not an agreement in 
 favor of the mortgagee or chargee that the transferee will pay 
 the debt, but is an agreement of indemnity with the mort- 
 gagor.** Any such implied covenant is detrimental to active 
 dealing in real estate. Parties to a dealing in land may well 
 be left to form their own agreements as to the payment of 
 incumbrances thereon, and it does not seem wise or expedient 
 to make a general statutory covenant on such a subject. But an 
 implied statutory covenant may be modified or entirely done 
 away with by the agreement of the parties.*^ 
 
 § 112. Under registration acts the doctrine of equity pre- 
 vails that, where the mortgagor has no notice of the transfer 
 of the mortgage, payments made by him to the original mort- 
 gagee, subsequent to the transfer on the register, are to be 
 deemed as payments made to the transferee. Registration of the 
 transfer of a mortgage under the act is not a substitute for 
 notice to the mortgagor of such transfer.^o The rights of a 
 mortgagee of registered land may be barred by lapse of time, 
 where the debt is extinguished under a statute of limitations.^^ 
 
 § 113. Foreclosure of Mortgage. In this country the acts 
 provide that mortgages and charges upon registered land may 
 be foreclosed in the same manner as mortgages upon un- 
 registered land, except that until notice of the pendency of any 
 suit to foreclose or enforce the lien is filed in the registrar's 
 ofi&ce, and a memorial thereof is entered on the register, the 
 pendency of such suit shall not be notice to the registrar or to 
 any person dealing with the land.^^ Under some acts regis- 
 
 48 Hogg, Australian Torrens Sys- be made after express notice in 
 tern pg. 920. writing o£ the equities of others. 
 
 49 J 80 New South Wales act. $ $ 77 Act for Ireland, 1891. 
 
 90 Tasmania act. § 76 Queensland 5i Shirley v. Tapper, 23 N. Z. L. 
 
 act. $262 South Australia act. J R. 849 (1904). See Belize Estate 
 
 158 New Zealand act. § 157 Vic- Co. v. Quilter, 1897 A. C. 367. P. G. 
 
 torian act. § 131 Western Australia 52 J 55 Minnesota act. $ 66 Illin- 
 
 act. Wellington Ey. v. Registrar- ois act. $ 65 California act. $ 65 
 
 General, 18 N. Z. L. R. 250 (1900). Oregon act. § 59 Colorado act. ^ 58 
 
 Staples V. Corby, 19 N. Z. L. R. 517 Washington act. $ 52 New York 
 
 (19001. act. § 62 Massachusetts act. § 63 
 
 50 Nioa V. Bell, 27 V. L. R. 82 Hawaiian act. $ 63 Philippine act. 
 (1901). Future advances may not $ 58 Nova Scotia act. 
 
 177 
 
THE TOEEENS SYSTEM 
 
 tered land may be sold by advertisement or under a power of 
 sale contained in the mortgage. ^^ 
 
 § 114. Deed on Foreclosure, New Certificate. In the Minne- 
 sota act there is the following provision: "Any person who 
 has, by an action or other proceeding to enforce or foreclose 
 a mortgage, lien or other charge upon registered land, become 
 the owner in fee of the land, or any part thereof, may have 
 his title registered. He shaU apply by duly verified petition to 
 the court for a new certificate of title to such land, and the 
 court shall thereupon, after due notice to all parties in interest 
 and upon such hearing as the court may direct, make an order 
 or decree for the issuance of a new certificate of title to the 
 person entitled thereto, and the registrar shall thereupon enter 
 a new certificate of title to the land, or to the part thereof to 
 which the applicant is entitled, and issue an owner's duplicate, 
 as in case of a voluntary conveyance. ' '^* In Colorado no new 
 certificate of title may be issued to one who has obtained a 
 deed under a proceeding for foreclosure, except upon filing 
 in the office of the registrar an order of the district court of 
 the county directtag the entry of such new certificate.^^ The 
 applicant must petition the court for a new certificate, setting 
 forth the facts, and, after notice to all parties in interest, the 
 court may make such an order as the applicant is entitled to. 
 In some other jurisdictions, in ease of foreclosure by entry and 
 possession, the mortgagee or his assigns must petition the court 
 and obtain an order for a new certificate, before it may be 
 issued.^® It is evident that these provisions were enacted in 
 order to escape from any suggestion that, in issuiag a new 
 certificate vesting the title in the holder of the deed obtained 
 under the foreclosure, the registrar is exercising judicial au- 
 thority. It is worthy of note that while the New York act pro- 
 vides for a reference to the court in case the parties to a volun- 
 tary instrument do not agree upon a statement as to the entry 
 to be made on the register, it does not provide for an order of 
 court as authority for the issue of a new certificate to one 
 
 63 $ 55 Minnesota act. J 62 Mas- 60 Washington act. § 87 Oregon 
 
 sachusetts act. $ 63 Hawaiian act. act. § 88 Illinois act. 
 
 54 § 56 Minnesota act. 56 J 62 Massachusetts act. $ 63 
 
 55 J 61 Colorado act. See also 5 Hawaiian act. 
 
 178 
 
TEUST ESTATES, M0ETGAGE8, JUDGMENTS, LIENS. 
 claiming title through a judgment or decree of sale. In some 
 acts it is provided that nothing contained therein shall prevent 
 the mortgagor or other person in interest from directly im- 
 peaching, hy bill in equity or otherwise, any foreclosure pro- 
 ceedings affecting registered land, prior to the entry of a new 
 certificate of titles'^ This provision is in the nature of a statute 
 of limitation. The general laws of most states, concerning the 
 foreclosure of mortgages, might be vastly improved by a suit- 
 able provision that no proceeding to review or to question the 
 sufficiency of a foreclosure proceeding should be brought by 
 any party to the suit after the record of the deed issued on 
 a sale pursuant to the decree. After an order confirming the 
 sale, on a judicial proceeding in foreclosure, and the issue of 
 a deed, the purchaser is entitled to a new certificate.^^ jji 
 Nova Scotia, on production of the sheriff's deed issued pursuant 
 to the sale on the decree of foreclosure, a new certificate is 
 issued to the grantee,'^ but in other provinces no sale of land 
 by a sheriff or other officer under process of law shall be of 
 any effect until it has been confirmed by the court or a judge.^" 
 § 115. Charge, Encumbrance, Mortgage. The word ' ' charge ' ' 
 is generally used in a broad sense to mean any security in 
 land for the payment of money, whether by way of annuity 
 or mortgage, but it may be used in a narrower sense to mean 
 any security in land for the payment of money, except a mort- 
 gage. The word "encumbrance" may be used in a broad 
 sense to include all lesser and prior interests which may be 
 noted on the register, but in a narrower sense it means any 
 charge on land created for the purpose of securing the pay- 
 ment of an annuity or sum of money, other than a debt. A 
 mortgage is any charge on land created merely for securing 
 a debt. A life estate in registered land may be treated as an 
 encumbrance, and not as an estate in land.®^ Charges and en- 
 cumbrances in invitum are effected through the registration of 
 judgments, decrees and executions. 
 
 57 § 62 Massachusetts act. $ 63 60 § 79 Alberta act. $ 129 Sas- 
 Hawaiian act. $ 63 Philippine act. katchewan act. 
 
 58 § 62 Massachusetts act. $ 88 «i $§ 18, 19 Ordinances for Fiji 
 California act. § 63 Philippine act. Islands. 
 
 59 $ 58 Nova Scotia act. 
 
 179 
 
THE TOERENS SYSTEM 
 
 § 116. Judgments, Attachments, Liens. Under the plan 
 of the Torrens system any claim of lien on, or writ or process 
 against, registered land must be entered on the last register 
 of the title, in order to become a lien on the land or to affect 
 the title. It is provided that no judgment or decree or order 
 of any court shall be a lien upon or affect registered land or any 
 estate or interest therein, until a certificate, under the hand 
 and official seal of the clerk of the court in which the same is 
 of record, stating the date and purpose of the judgment, decree 
 or order, or a certified copy of such judgment, decree or order, 
 is filed in the office of the registrar, and a memorial of the same 
 is entered on the register of the last certificate of title to be 
 affected.®^ In some acts it is provided that whenever registered 
 land is levied on by virtue of any writ, a memorial of the fact 
 must be entered on the register, and that no lien shall arise by 
 reason of such levy until such entry is made, any notice thereof, 
 actual or constructive, to the contrary notwithstanding.^^ In 
 other acts this idea is more directly expressed where it is pro- 
 vided that no proceedings under any writ shall be valid as 
 against a purchaser for value before such entry is made, not- 
 withstanding he may have had actual or constructive notice of 
 the writ.^* The general scheme is that no statutory or other 
 lien shall be deemed to affect a registered title until after a 
 memorial of it has been entered on the register. In California 
 an exception is made in case of a lien for labor performed for a 
 corporation, as provided for in a certain act.®^ The California 
 act seems to be the only one in this country which specifically 
 provides that special assessments for public improvements shall 
 be filed with the registrar against the land, in order to create 
 a lien. Whenever any lien arises adversely to the title of the 
 
 62 85 Illinois act. § 84 Oregon Wales act. § 91 Queensland act. § 
 
 act. J 70 Colorado act. § 61 Min- 105 South Australia act. § 16 Tas- 
 
 nesota act. § 91 California act. § mania act, 1893. $ 133 "Western 
 
 69 Washington act. § 49 New York Australia act. 
 
 act. § 70 Massachusetts act. § 71 63 $ 86 Illinois act. $ 85 Oregon 
 
 Hawaiian act. ^ 71 Philippine act. act. $ 92 California act. 
 
 See also § 53 English act, 1875. ^ 64 J 64 Ontario act. $ 105 New 
 
 75 Ontario act. ^ 85 Manitoba act. South Wales act. § 106 South Aus- 
 
 § 110 British Columbia act. J 77 tralia act. $ 16 Tasmania act, 1893. 
 
 Alberta act. 5 129 Saskatchewan § 133 Western Australia act. $ 139 
 
 act. § 59 Nova Scotia act. § 139 Victorian act. 
 
 Victorian act. $ 105 New South 65 § 95 California act. 
 
 180 
 
TRUST ESTATES, MOBTGAGES, JUDGMENTS, LIENS. 
 registered owner without voluntary action by him, and not in 
 pursuance of a judgment or decree of court, the registration of 
 it is not conclusive of the regularity or validity of any proceed- 
 ings or instruments by means of which such lien arose, and the 
 registered owner may contest the validity of such lien.*^ But 
 this doctrine may not apply under foreign acts. It may be that 
 the registration of a writ of execution is conclusive as to the 
 validity of the proceeding under which it was issued. It may 
 be that he acts judicially in making the notation of a writ on 
 the register, and that no question may be raised as to the valid- 
 ity of the writ, or as to the filing of the writ as a memorial 
 against the right land. There seem to be no decisions of courts 
 in foreign jurisdictions throwing light on these matters. In one 
 case a registrar by mistake noted the lien of an execution 
 against registered land belonging to a registered owner of the 
 same name as the execution defendant, and the sheriff sold this 
 land to the execution creditor, who registered the sheriff's deed 
 and became the registered owner. It was held that on the not- 
 ing of the writ, the sale of the land thereunder, and the regis- 
 tration of the sheriff's deed, the certificate of the real owner 
 was superseded, and that he was deprived of his land in conse- 
 quence of the error. ^'^ It is not possible to lay down broad 
 principles of registration from the facts and decision in this 
 ease, and there is no line of cases founded on or collateral to 
 it. After the issuance of a deed on any sale to satisfy a judg- 
 ment or order of court in this country, a new certificate of title 
 may be issued to the purchaser on substantially the same terms 
 and conditions as in case of the foreclosure of a mortgage. A 
 lien may be released at any time on the filing of the certificate 
 of the proper ofl&cer or person. 
 
 A statute provided that a registered judgment should be a 
 lien on the land of the debtor, and a registration act provided 
 that no instrument should pass any estate in land, either at 
 law or in equity, until it was registered. In April, 1907, execu- 
 tion creditors registered their judgment against the lands regis- 
 tered in the name of their debtor. In January, 1906, the debtor 
 
 66 $ 105 California act. 380; 3 A. L. T. 38 (1881). 
 
 67 Hassett v. Bank, 7 V. L. R. L. 
 
 181 
 
THE TOEEENS SYSTEM 
 
 had transferred a certain lot to a person who, through ignor- 
 ance of the registry laws, neglected to register his transfer 
 until August, 1907, when he found this judgment registered 
 against the lot which he had purchased. He brought a suit to 
 set aside the cloud of the judgment, and the court below held 
 that registration of a transfer was a sine qua non to the pass- 
 ing of any title, but on appeal it was held that according to 
 the act concerning the lien of judgments, the judgment cred- 
 itors had a lien only on the land of the debtor, and that the 
 debtor, having transferred the lot before registration of the 
 judgment, was a dry trustee for plaintiff who was entitled to 
 remove the cloud.*® 
 
 "Whenever the laws of a state require the judgment or 
 decree of a state court to be registered, recorded, docketed 
 or indexed in a particular manner, or in a certain office or 
 county, before a lien shall attach, and those laws authorize the 
 judgments and decrees of the federal courts to be so registered, 
 recorded, docketed or indexed, then the judgments and decrees 
 of the United States circuit and district courts are liens on real 
 estate within that state, in the same manner and to the same 
 extent and under the same conditions only, as if they had been 
 rendered by a court of general jurisdiction of that state.*^ 
 But, if the clerk of the United States court be required by law 
 to have a permanent office and a judgment record, open at all 
 times for public inspection, in such county, this general prin- 
 ciple must not be construed to require the docketing of a 
 judgment and decree of the federal court, or the filing of a 
 transcript thereof, in any state office within the same county 
 in which the judgment or decree is rendered, in order that such 
 judgment or decree may be a lien on any property within 
 such county. It is evident that in New York City, Boston, Chi- 
 cago, St. Paul and several other places, transcripts of judg- 
 ments of the federal courts need not be filed in the Torrens of- 
 fices and entered on a certificate of title, in order to be a lien on 
 registered land in the respective counties where they are situ- 
 ated, and that unless a special search is made for judgments in 
 
 68 Entwisle v. Lenz, 14 British Stat. 358. Act Mar. 2, 1895. e. 180, 
 Col. Eepts. 51 (1908). 28 Stat. 814. 
 
 80 Act. Aug. 1, 1888 0. 729, 25 
 
 182 
 
TRUST ESTATES, MORTGAGES, JUDGMENTS, LIENS. 
 
 the federal courts, there can be no assurance that the title is 
 not subject to a judgment of a federal court. Of course, the 
 federal statutes may be changed at any time so as to require 
 transcripts of judgments to be filed and entered under Torrens 
 acts, in order to be liens on registered lands.''" 
 
 70 Concerning judgments. See post §^ 156, 177, 214, 220. 
 
 183 
 
CHAPTER X- 
 
 Caveats, Possession and Transmission 
 of Land. 
 
 § 117. Caveats, Cautions, Notice of Adverse Claims. The 
 
 policy of acts for the registration of titles is, that when once 
 registration is affected, the holder of a certificate of title shall 
 have a good title, whether he had notice of outstanding equit- 
 able interests or not. In order that hardship may not be suf- 
 fered by a diligent holder of an equitable interest adverse to 
 a registered owner, and in order that such holder may have 
 an opportunity to present his claim to a person who may be 
 about to deal with the land, such acts provide for the notation 
 on the register of caveats, cautions or notices of adverse 
 claims. The whole scheme of caveats, cautions or notices is 
 to prevent a person dealing with the land from obtaining a 
 clean certificate while any rights are outstanding in others. 
 Until a transfer is actually registered a person having an equit- 
 able interest in the property, by having a caveat entered, can 
 stop the issue of a clean certificate. A caveat under most of 
 the acts is a notice to the registrar that the caveator claims 
 a specified estate or interest in the land described in a certain 
 certificate, and it forbids the registration of any person as 
 transferee and of any instrument affecting the title, unless such 
 registration be expressly subject to the specified claim of the 
 caveator. While in theory a caveat is directed only against any 
 subsequent transfer of the property, yet in practical effect it 
 clouds the title of the registered owner, and a person may not 
 lodge a caveat unless he has some legal or equitable interest in 
 the land, which he may urge against the registered owner. 
 Each act must be consulted in order to determine what rights 
 
 184 
 
CAVEATS, POSSESSION AND TRANSMISSION OF LAND 
 may be made the subject of a caveat, caution or notice of 
 adverse claim. In Australasia, where caveats are used very fre- 
 quently, there has been a great deal of judicial legislation on 
 the subject of the capacity of persons to lodge caveats for the 
 protection of their interests, and on the subject of the suf- 
 ficiency of the interest to entitle the holder to lodge a caveat. 
 Case after case arising under the registration acts contains a 
 ruling concerning the entry of a caveat, but these rulings arise 
 from the technical language of the different acts, from the local 
 conditions affecting titles and from the particular methods of 
 dealing with lands and land titles, and they give little light 
 for our guidance under our laws. Some cases, however, suggest 
 points which may be of interest. The owner of an easement 
 has no caveating power.^ A judgment creditor may enter his 
 judgment as a memorial on the register, but he has no caveat- 
 ing power.2 A wife may file a caveat against land registered in 
 the name of her husband, to protect her interest therein, where 
 she alleges that the land was purchased with her money held 
 by him upon trusts not committed to writing.* A person may 
 enter a caveat to protect his interest, where he claims a right 
 to specific performance of a contract by the registered owner 
 to sell the land to him.* A caveat may be entered by a person 
 who claims to be entitled to land erroneously included in the 
 certificate of a registered proprietor, where the caveator had 
 no notice of the granting of the original certificate.^ Under 
 special circumstances a registered owner of land subject to a 
 mortgage is entitled to lodge a caveat against a dealing by the 
 registered mortgagee.^ "While the filing of a caveat is the mere 
 act of a person, and not of a court, it nevertheless in legal effect 
 bears an analogy to a writ of injunction, and is an expeditious 
 and inexpensive method of protecting rights in land under the 
 system.'^ As a general principle it may be said that a caveat 
 
 1 Lean v. Maurice, 8 S. A. L. E. 5 Ex parte Soiling, 14 N. S. W. L. 
 119 (1874). B. (L.) 399 (1893). 
 
 2 In re Palmer, 5 S. A. L. E. 80 6 Davies v. Herbert, 11 V. L. E. 
 (1871) 386; 6 A. L. T. 197 (1885). 
 
 3 D'AlbedyhU v. D' AlbedyhU, N. 7 McEaeharn v. Oolton, 1902 A. 0. 
 Z. L. K. 3 S. 0.391 (1885). 104. Davis v. Wekey 1 V. L. E. 1 
 
 4 In re Thomson, ex parte Find- (1870). 
 lay, N. Z. L. E. 5 S. 0. 52. 
 
 185 
 
THE TORREN8 SYSTEM 
 
 may be entered in any ease where a court will issue an injunc- 
 tion to prohibit the registered proprietor from dealing with 
 land. A member of the public has no right to lodge a caveat 
 to prevent the registration of land which is a public road.^ 
 § 118. Effect of Caveat or Caution. Each act must be con- 
 sulted in order to determine the effect of the entry of a caveat, 
 caution or notice of adverse interest. "Where a contract of sale 
 had been made by a registered owner, it was held that the 
 subsequent lodging of a caveat against the registration of any 
 transfer only put a cloud on the registered title and did not 
 amount to such evidence of absolute want of title as to induce 
 the court to refuse to decree to the purchaser specific perform- 
 ance of the contract.® The lodging of a caveat is not notice to 
 the public, and does not affect dealings with the property 
 outside of the office of the registrar. The lodgment of a caveat 
 is merely to give to any person subsequently about to deal with 
 the land notice of the claim of the caveator. If any other effect 
 is to be given to a caveat, notice of the claim of the caveator 
 must be given to the person to be affected. Where there has 
 been no notice, it is unnecessary for a registered mortgagee, 
 who is paying out the money to the mortgagor from time to 
 time in installments, to search the register for caveats before 
 paying over an installment.^" A caveat will suspend the entry 
 of an instrument presented for registration, but it will not 
 affect priority of registration, as against another instrument 
 subsequently presented.^^ The filing of a caveat will not revive 
 rights which have been lost through laches.^^ "WTiile a caveat 
 remains in force, no change in ownership or dealing with the 
 land is to be registered, unless the registration is made ex- 
 pressly subject to the claim of the caveator. In the foreign acts 
 provision is made for the filing of a caveat against the bringing 
 of land under the act, and appropriate proceedings are set forth 
 for the determination of the questions involved. Such a caveat 
 is one against an application for registration; other caveats 
 
 8 In re Innes, 12 N. S. W. L. E. lo Queensland Trustees v. Begis- 
 (L.)108; 7 W. N. 115 (1891). Tier- trar, 5 Q. L. J. 46 (1893). 
 
 ney v. Loxton, 12 N. S. W. L. E. n Kissling v. Mitchelson, N". Z. 
 
 (L.) 308; 8 W. N. 79 (1891). L. B. 3 G. A. 261. 
 
 9 Taylor V. Bank of Victoria, 12 i2 Butler v. Company, N. Z. L. 
 V. L. B. 748; 8 A. L. T. 39 (1886). B. 2 S. C. 296. 
 
 186 
 
CAVEATS, POSSESSION AND TEANSMISSION OF LAND 
 
 are against dealings with the land. In Australia there are 
 official and non-official caveats. An official caveat is lodged 
 by a registry officer to protect some interest, usually a trust 
 in the land, and a non-official caveat is lodged by some other 
 person. Either may be lodged by an order of court. A regis- 
 tered proprietor may enter a caveat to give notice of outstand- 
 ing interests in others and to restrict his own power of 
 disposition. The entry of a caveat is not equivalent to regis- 
 tering an interest, but is in the nature of an injunction to 
 prevent the legal owner from dealing with the land in deroga- 
 tion of equitable rights.^^ Since equitable interests may not 
 be registered, caveats are provided for in order that such 
 interests may be protected, but the interest must be in existence 
 at the time of the filing of the caveat, and the caveat becomes 
 of no effect when the interest ceases. It must set forth explic- 
 itly the interest claimed. 
 
 §119. Caveats or Notices of Adverse Claims. Under the 
 recording system, at least in most states, a person claiming 
 an interest in land may prepare an affidavit, describing the 
 land, and setting forth his interest by attaching certain papers, 
 or otherwise, and file it for record as a notice of his claim 
 against the land. When he has done this, no further duty is 
 imposed on him, and if the owner of the paramount title de- 
 sires to get rid of the cloud on the title, he must take the proper 
 steps to have it removed by proceeding in court. But under 
 the foreign registration acts a caveat is deemed to have lapsed 
 after a certain number of days, unless the caveator within 
 that time institutes a suit in court to establish his claim, title 
 or interest.^* In most of the acts the time within which a 
 caveator must proceed to establish his claim in court is fixed 
 at thirty or sixty days from the entry of it on the register, 
 but under some acts the time within which he must proceed is 
 fixed by the registrar in a notice served on the caveator. As 
 
 13 Hogg, Australian Torrens Sys- torian act. $$ 25, 39 Queensland 
 tern, pg. 802. act. $ 26 New South Wales act. J 
 
 14 § 54 English act, 1875, see rule 145 New Zealand act. J 191 South 
 190. § 76 Ontario act, see rule 22. Australia act. § 83 Tasmania act. 
 J 49 British Columbia act. § 131 $ 32 Western Australia act. 
 Manitoba act. § 94 Alberta act. J 
 
 141 Saskatcliewan act. § 34 Vic- 
 
 187 
 
THE TORRENS SYSTEM 
 
 a matter of practice the filing of a caveat is a notice that a 
 suit is about to be brought to enforce a claim, and the caveat 
 suspends any further registration until the suit can be pre- 
 pared and instituted. It is lodged as auxiliary to the proceed- 
 ing about to be begun in court. By an order of court for good 
 cause shown a caveat may be extended for a longer period than 
 that provided for in the statute.^^ A distinction is made be- 
 tween ordinary caveats to prevent dealings with land and 
 caveats entered for the protection of interests arising under 
 trusts. Ordinary caveats will lapse in a given time, and may 
 be removed from the register, but a caveat to protect a trust 
 does not lapse and is not subject to removal so long as the 
 interest exists.^® 
 
 § 120. Caveats in This Country. In the foreign acts there 
 are many sections devoted to provisions concerning caveats, — 
 who may enter one, the effect of one, priority of rights pro- 
 tected by one, the entry and alteration of one, when required, 
 effect of omission to enter one, form and contents of one, what 
 dealings are affected by one, notice under and procedure on 
 one, lapse of and withdrawal of one, compensation for improper 
 lodgment of one, etc., etc. But in this country the provisions 
 concerning caveats, cautions and notice of adverse interests are 
 quite meager, and unsatisfactory. In New York a person 
 claiming an interest in land may file a caution requiring written 
 notice to be given to him of any application to register the 
 land, and a like cautionary notice may be required by the 
 owner of any land, as to the registration of the title of any 
 or all of the land abutting upon his land.^'^ But in that act 
 there is no provision for cautions against registered dealings 
 with registered lands. In California nothing is said about 
 caveats, cautions or notices of adverse claims. In some states 
 any person claming an interest in registered land, adverse to 
 the registered owner, arising subsequent to the original regis- 
 tration, may file a sworn statement in writing, fully setting 
 forth his claim, its derivation and character, describing the 
 land and the certificate of title, and giving his address, 
 
 15 In re Christie, 23 N. Z. L. R. 16 Hogg, Australian Torrens Sys- 
 
 558 (1903). In re caveat of Harmon tem, p. 974. 
 Lewis, 23 N. Z. L. R. 581 (1903). 17 J 15 New York acjj. 
 
 188 
 
CAVEATS, POSSESSION AND TRANSMISSION OF LAND 
 
 and this statement shall be registered as an adverse claim.^* 
 In all of these states, except in Illinois and Oregon, it is further 
 provided that, upon the petition of any party in interest, the 
 court shall grant a speedy hearing upon the question of the 
 validity of such adverse claim, and shall enter such decree 
 thereon as justice and equity may require. If the claim is 
 adjudged to be invalid, the registration shall be cancelled, and 
 the court may award such costs and damages as it may deem 
 just in the premises, including reasonable attorney's fees.^^ 
 If the court finds that the claim is frivolous and vexatious, it 
 may tax the adverse claimant with double costs,2° or with 
 double or treble costs in its discretion.^! A caveator "without 
 just cause" is liable for compensation for damages.^^ Under 
 acts containing such a provision it would seem that the com- 
 pensation must be recovered by some proceeding or action. 
 This is clearly so where the caveat is withdrawn, and no trial 
 is had on the merits of it. If the caveat is tried, compensation 
 may be fixed by the judge in Manitoba.^^ In some jurisdic- 
 tions compensation may be fixed by a judge on a summons in 
 chambers.^* 
 
 § 121. Registration of Title, Adverse Occupation. The stat- 
 ute of limitations does not run, in favor of a decree of initial 
 registration, against a person in adverse occupation of the land, 
 not served with summons.^s The general theory of the Torrens 
 system in foreign countries is that, unless it is otherwise pro- 
 vided in the act, the issue of a certificate of title extinguishes 
 all right, title and interest of any person in the land in favor 
 of the registered owner. In New South Wales and Queensland 
 
 18 § 68 Minnesota act. § 82 Color- act. § 191 South Australian act. 
 ado act. § 81 Washington act. J 92 $ 98 New South Wales act. § 147 
 Illinois act. 90 Oregon act. § 105 New Zealand act. $ 140 Western 
 Massachusetts act. § 110 Philippine Australia act. 
 
 act. § 106 Hawaiian act. 23 J 135 Manitoba act. 
 
 19 5 68 Minnesota act. § 82 Color- 24 § 85 Tasmania act. $ 47 Vic- 
 ado act. $ 81 Washington act. torian act. § 140 Western Austra- 
 
 20 § 105 Massachusetts act. $ 106 lia act. 
 
 Hawaiian act. 25 State v. Westfall, 85 Minn. 
 
 21 § 110 Philippine act. 437; 89 N. W. Rep. 175; 54 Cent. 
 
 22 $94 Alberta act. §141 Sas- L. ,T. 282 (1902). People v. Simon, 
 katehewan act. $ 89 Ontario act. 176 111. 165; 52 N. E. Rep. 910; 68 
 $ 135 Manitoba act. § 56 English Am. St. Rep. 175; 44 L. R. A. 801 
 act, 1875. ^)147 Victorian act. §85 (1898). 
 
 Tasmania act. § 103 Queensland 
 
 189 
 
THE TOEEENS SYSTEM 
 
 any adverse occupant of the land loses his rights when a cer- 
 tificate of title is issued, but in the other jurisdictions his 
 rights are not prejudiced by the bringing of the land under 
 the act. Some acts provide that a registration of a title shall 
 be subject to any rights subsisting under any adverse posses- 
 sion of such land,^^ and others state that any certificate of 
 title issued upon the first bringing of land under the provi- 
 sions of the act, and any successive certificate, shall be void 
 as against the title of any person adversely in actual occupa- 
 tion of and rightfully entitled to such land at the time of the 
 issue of such certificaj;e.^'^ The meaning of these sections is 
 practically the same.^* A title may be acquired under such 
 sections by prescription either before or after the land is reg- 
 istered under them.^® If a person is in adverse occupation of 
 the land at the time of the original registration, and suit is 
 brought against him in ejectment, he may show that the regis- 
 tration was obtained by fraud, and the certificate wiU be 
 set aside if the fraud is proved.^" Acts providing for the regis- 
 tration of titles are not intended to turn out, by a secret pro- 
 ceeding, persons who have held possession of land for a num- 
 ber of years.^^ In some acts there is a provision that nothing 
 contained therein shall affect any act done or any right of 
 action existing, accruing or accrued, and that rights, estates 
 and interests, existing in any person by virtue of any former 
 law in force relating to titles to real estate, shall be and are 
 preserved, so far as they are consistent with the acts.^^ 
 
 § 122 Prescription, Adverse Possession. In some acts it is 
 provided that no title to registered land, in derogation of that 
 of the registered owner, may be acquired by prescription or 
 adverse possession.^^ In the acts of England, Ontario, Nova 
 
 26 § 74 Victorian act. $ 68 West- (1896). See § 222 Western Austra- 
 ern Australia act. lia act. 
 
 27 $ 67 New Zealand act. § 69 30 Wadham v. Buttle, 13 S. A. L. 
 South Australian act. §135 Tas- E. 1 (1879). Saunton v. Brown, 1 
 mania act. See Harvey v. Williams, V. L. E. (L.) 150 (1875). Ex parte 
 18 S. A. L. E. 8 (1883). Franklin Eigby 9 V. L. E. (L.) 417 (1883). 
 V. Ind, 17 8. A. L. E. 133 (1883). 31 Harvey v. WilUams, 18 S. A. 
 See also $ 81 British Columbia act. L. E. 8 (1884). Sheridan v. Gilles, 
 § 74 Manitoba act. 21 S. A. L. E. 7 (1887). 
 
 28 Hogg, Australian Torrens Sys- 32 § 203 Saskatchewan act. J 154 
 tem, p. 806. . Alberta act. 
 
 29 In re Allen, 22 V. L. E. 24 33 $ 33 New York act. § 41 Ulin- 
 
 190 
 
CAVEATS, POSSESSION AND TRANSMISSION OF LAND 
 
 Scotia and Hawaii it is expressly stipulated that this provision 
 of the law shall not prejudice any adverse claim, as against any 
 person registered as first owner of the land with a possessory ti- 
 tle only, in respect of length of possession of any other person 
 who was in possession of the land at the time when the registra- 
 tion of such first owner took place.^* This proviso is necessary 
 because a person may be registered with a possessory title only, 
 on production of his deed and without strict proof of owner- 
 ship or possession of the land.^^ It will be noticed that the 
 adverse claim is not to be prejudiced as against the first reg- 
 istered owner, and the inference seems to be that if the first 
 registered owner transfers the title to an innocent purchaser 
 for value who relies on the register, the claim of the adverse 
 occupant will be destroyed. Under the "Washington act, reg- 
 istered land and ownership therein is in all respects subject 
 to the same burdens and incidents as unregistered land, and 
 there is no provision that title may not be acquired by adverse 
 possession.*® "Where the general laws provide that twenty 
 years of open, notorious and adverse possession will give a 
 good title to the land as against the record title, and the land 
 registration act does not provide that no adverse title in de- 
 rogation of the registered title may be acquired by prescrip- 
 tion, a person may take possession of registered land, occupy it 
 for twenty years, comply with all the requirements of the 
 general limitation law, and thereby obtain a good and valid 
 title as against the registered owner.*'' "Where the statute 
 provides that no title in derogation of that of the regis- 
 tered owner may be acquired by prescription, no title to an 
 easement may be acquired by user for twenty years.*^ 
 
 §123. Occupation of One Registered under Invalid Title, 
 Right to Value of Improvements. In any case other than the 
 
 ois act. § 40 Oregon act. § 34 Col- Ontario act. $ 42 Nova Scotia act. 
 
 orado act. § 2 Minnesota act. $ 35 §46 Hawaiian act. 
 
 California act. § 45 Massachusetts 35 Ante, $ 13. 
 
 act. « 46 Philippine act. § 81 Brit- 36 § 53 Washington act. 
 
 ish Columbia act. $ 75 Manitoba 37 Belize Estate v. Quilter, L. R. 
 
 act. «251 South Australia act. § A. C. 367 (1897). House of Lords 
 
 45 New South Wales act. $ 57 New and Privy Council; Appeal from 
 
 Zealand act. § 52 Act for Ireland, Supreme Court of British Honduras. 
 
 -. ggi 38 Bannister v. Chiene, 22 N. Z. 
 
 34'«12 English act, 1897 which L. R. 628 (1902). Clark v. Hopkins, 
 
 repealed $ 21 of act if 1875. § 32 17 N. Z. L. R. 201 (1898). 
 
 191 
 
THE TOEEENS SYSTEM 
 
 case of a person registered through fraud, whenever an action 
 of ejectment is brought against a person holding a certificate 
 of title to certain land, if the defendant or any person through 
 whom he claims shall have made improvements on the land, 
 siace he obtained the certificate thereto, whether he admit or 
 deny the plaintiff's title, he may give notice to the plaintiff of 
 the fact of such improvements, and may set a value thereon. 
 If a verdict be found for the plaintiff, the jury must assess the 
 value of such improvements, and the amount of their value 
 will be a lien on the land.*® It seems that in the absence of 
 some such statutory provision, the defendant wiU lose the 
 value of such improvements.*" 
 
 § 124, Possession of Tenant. The rights of a tenant in pos- 
 session of land under an unregistered lease differ under the 
 several acts. In New South "Wales no provision is made for 
 a tenancy under an unregistered instrument. In the other 
 states in Australia short leases of some kind are valid with- 
 out registration. When such a lease is valid, and the tenant is 
 in possession under it, a purchaser of the land must take notice 
 of the rights of the tenant. In some acts it is provided that 
 any certificate of title issued on the first bringing of land under 
 the act, and every certificate of title issued in respect of the 
 same land, or any part thereof, to any person claiming 'or de- 
 riving title through the applicant proprietor, shall be void as 
 against the title of any person adversely in actual occupation 
 of and rightfully entitled to such land at the time when it was 
 so brought under the act, and continuing in such occupation 
 at the time of the issue of any subsequent certificate; but 
 every such certificate is binding and effectual against the title 
 of any other person, as if such adverse possession did not ex- 
 ist.*^ The statutes of Victoria and Western Australia provide 
 that every certificate shall be subject "to any rights subsisting 
 under any adverse possession of such land".*^ A former Vie- 
 so J 47 Queensland act, 1877. $ above $ 47. Hogg, Australian Tor- 
 125 New South Wales act; rens System p. 860. 
 
 40 Oelkers v. Merry, 2 Q. S. C. E. 4i § 67 New Zealand act. § 69 
 
 193 (1872). Merry v. Society, 3 Q. South Australia act. § 135 Tasman- 
 S. C. E. 40 (1872). These actions ia act. $ 81 British Columbia act. 
 were brought before the passage of 42 J 74 Victorian act. J 68 "West- 
 
 the act of 1877, which contains the ern Australia act. 
 
 192 
 
CAVEATS, POSSESSION AND TRANSMISSION OF LAND 
 
 torian act provided and the present Tasmanian act provides 
 that every certificate shall be subject to "the interest of any 
 tenant ' ' in the land.*^ This means that a purchaser of the land 
 must take notice of every possible right, even to the possible 
 acquirement of an absolute ownership, which the person, in ac- 
 tual occupation, holding under some landlord, may have in the 
 land, and that every interest of such tenant in the land, grow- 
 ing out of and not disseverable from his right to continue in 
 occupation as such tenant, is protected by the terms of the stat- 
 ute against the claim of a proprietor under a certificate of title. 
 Where under such a statute a tenant in possession had a con- 
 tract to purchase the land, and the proprietor, who had con- 
 tracted to sell, transferred the land to a new proprietor who 
 brought suit to oust the tenant, it was held that he could 
 not recover the land from the tenant. The court said: "It is 
 impossible in such a case to dissever the tenancy and the con- 
 tract from one another. They together constitute * * * an 
 interest to which the land was subject, and which is entitled 
 to prevail against the claims of the new proprietor under his 
 certificate."** A right of purchase acquired under a lease is 
 as much protected by registration as the term granted by the 
 lease. An option to purchase the land, contained in a lease, is 
 an integral part of the lease itself, and registration of the 
 lease is registration of every right given under it.*^ Under 
 one act all registered land is subject to tenancies created for 
 any term not exceeding thirty one years, or for any less estate, 
 in cases where there is an occupation under such tenancies.*® 
 It is evident that in some foreign states an intending purchaser 
 must examine into the rights and claims of persons in posses- 
 sion, just as he must do in this country under the general laws. 
 Where a tenant occupies land under a lease which by the act is 
 required to be registered, but is not registered, and the land is 
 sold to a new proprietor, the tenant holds at will only, as 
 against the new proprietor.*'' A tenant whose lease is not reg- 
 
 43 §40 Tasmania act. L. E. 134 (1890). Tela v. Knowles, 
 
 44 Sandhurst Bldg. Society v. 26 N. Z. L. R. 604 (1906). 
 Gissing, 15 V. L. E. 329 (1889). See 46 § 47 Act for Ireland, 1891. 
 Eobertson v. Keith, 1 V. L. E. Eq. In England the period is 21 years. 
 11; Colonial Bank v. Eabbage, 5 § 18 English act, 1875. 
 
 V. L. E. li. 462. 47 Edwards v. "Wallace, N. Z. L. 
 
 45Eutu Peehi v. Davy, 9 N. Z. E. 1 S. C. 134. 
 
 193 
 
THE TORRENS SYSTEM 
 
 istered, who knows that the land is about to be sold and 
 transferred, must file a caveat in order to protect his rights. 
 A mere notification to the intending purchaser that he holds 
 a lease is not sufficient to establish the rights of the tenant un- 
 der it.*« 
 
 § 125. Transmission of Land in this Country. Under meth- 
 ods of jurisprudence which follow the Code Napoleon lands of 
 a deceased ancestor are said to go to his heirs "by succession"; 
 under jurisprudence founded on the English common law such 
 lands are said to pass "by descent" ; and under the Torrens sys- 
 tem the registered lands of a deceased owner are said to pass 
 "by transmission". Under this system the word "transmis- 
 sion" has a broad meaning, for it includes the acquirement or 
 passing of title to registered land in any manner other than by 
 transfer, — e. g. — by descent, will, bankruptcy, insolvency, or 
 by virtue of appointment or succession to any office.*^ By the 
 terms of the Oregon act, registered land, on the death of the 
 owner, goes to the personal representative as personalty, ex- 
 cept that the rule of division is the same as m the descent of 
 real property, or as may be provided by will.^'' The original 
 act of Illinois, 1897, contained the same provision, but by 
 amendment it is now provided that registered land shall de- 
 scend to heirs and devisees according to the statutes of descent 
 and of wills in force at the time of the death of the owner, but 
 no transfer to such heirs or devisees may be made until an 
 application for such transfer is filed in the circuit court by 
 some interested person, setting forth all facts as to the inter- 
 ests and interested persons, as in an original application.^^ In 
 all the other states registered land goes to the heirs of a de- 
 ceased owner, according to the general laws of descent, or to 
 the devisees under his will, to be transferred to them on the 
 register in due course on the order of the proper court, en- 
 tered on the application of an interested person.^^ jj^ 'New 
 
 48 Oertel v. Hordern, 2 St. Rep. katchewan act. J 2 Manitoba act. 
 (N. S. W.) Eq. 37 (1902). Lake v. § 5 Alberta act respecting transfer 
 Jones, 15 V. L. R. 728 (1889). and descent of land, 1906. 
 
 49 § 3 South Australia act. § 3 so $ 69 Oregon act. 
 
 New South Wales act. J 3 Queens- 5i j$ 70, 71, 72 Illinois amending 
 
 land act. $ 2 New Zealand act. J act, 1907. 
 
 3 Tasmania act. 5 4 Victoria act. 52 $ 66 Minnesota act. $J 71, 72 
 
 § 4 Western Australia act. § 2 Sas- California act. J 74 Colorado act. 
 
 194 
 
CAVEATS, POSSESSION AND TRANSMISSION OF LAND 
 York and in Illinois the proceedings and action on sucli appli- 
 cation are the same as in case of original registration of a title, 
 except that the certificate of title of the deceased owner is 
 conclusive evidence of his title at the time of his death.^s A 
 certificate issued to heirs or devisees before the fiLnal settlement 
 of the estate of the deceased owner should state expressly that 
 it is subject to the probate and final settlement of his estate, 
 and after final settlement thereof such memorial may be re- 
 moved by order of court on a proper petition and showing. 
 From the language of the sections which have just been cited, 
 it is evident that in some states the court having jurisdiction 
 to administer the estates of deceased persons has jurisdiction 
 also to determine heirship and order the issue of a new certifi- 
 cate to heirs or devisees entitled to it; it is also evident that 
 in some states the probate court has no jurisdiction to enter- 
 tain an application for an order for the issue of a new certifi- 
 cate of title to heirs or devisees. Where the application for 
 such a certificate must be made to a court of general juris- 
 diction, as an independent proceeding, costs and expenses must 
 be borne, which may seem heavy and unfortunate in cases of 
 small holdings. It seems incongruous that an act should pro- 
 vide that, on a successive registration on a transfer of regis- 
 tered land, the registrar shall pass on all the necessary ques- 
 tions in order to determine whether an entry shall be made and 
 what it shall contain, and that at the same time it should pro- 
 vide for a new application to the court for registration of a 
 title on the death of the registered owner. If the registrar may 
 determine all necessary questions of law and fact on a regis- 
 tration of a transfer, it would seem competent for him to deter- 
 mine all questions of heirship on a registration on 
 transmission of registered land. 
 
 § 126. Transmission in Foreign Countries. In England reg- 
 istered land on the death of the owner, notwithstanding any 
 testamentary disposition, devolves to and becomes vested in 
 his personal representative, or any successive personal rep- 
 resentative, as if it were a chattel real vesting in him.^* In 
 
 ^ 73 Washington act. § 55 New act. 
 
 York act. $ 91 Massachusetts act. 53 § 55 New York act. 
 
 § 92 Hawaiian act. J 89 Philippine 54 j§ 1, 2 English act, 1897. 
 
 195 
 
THE TOEEENS SYSTEM 
 
 discussing this feature of the English law, it is often said that 
 it establishes a real representative. The sub-title is "Estab- 
 lishment of a Eeal Eepresentative " and concerning this it has 
 been said: "This is a misleading title, as the object of this part 
 of the act is to abolish the real representative as distinguished 
 from the personal representative, and to endow the 
 latter with the functions formerly exercised by the real repre- 
 sentative. "®^ In many jurisdictions, on the death of a register- 
 ed owner, the executor or administrator of his estate is entitled 
 to be registered as owner in his place. The new registration 
 must describe him as executor or administrator of the estate. 
 If, after the administration of the assets of the estate, with due 
 regard to the laws concerning the application of personal and 
 real property to the payment of debts, the land remains for 
 those who are entitled to it as heirs or devisees, it is transferred 
 to them by the personal representative, and they are registered 
 as the new owners. An executor or administrator registered 
 as owner of land by transmission takes and holds it with the 
 same title and subject to the same equities and obligations as 
 the decedent held it, but for the purpose of any dealing with 
 it he is deemed to be the absolute owner thereof.^® As the ab- 
 solute owner for the purpose of dealing with the land, he has 
 the same power to dispose of it and the same duty to apply the 
 proceeds to the payment of debts of the estate as an executor 
 has, who is given by will the power to sell land to pay debts, 
 and a purchaser from an executor or administrator registered 
 as owner need not inquire into the existence of debts of the 
 estate or see to the application of the proceeds of the sale to 
 the payment of them. In Queensland and Tasmania registered 
 land passes to the administrator as personalty, and rights of 
 courtesy and dower are abolished. The administrator may be 
 registered as proprietor, and for the purpose of dealing with 
 the land is deemed to be the absolute owner.^'' In some of 
 
 B5 Briokdale and Sheldon, Land administration act., 1879, $$ 5, 118, 
 
 Transfer acts, p. 234. 125 Saskatchewan act. § 2 Alberta 
 
 56 § 42 English act, 1875. Eule act respecting transfer and descent 
 
 128 English rules, 1898. $ 60 Ontar- of land. $ 21 Manitoba devolution 
 
 io act. § 96 New South Wales act. of estates act. $J 74, 76 Alberta 
 
 §§ 176-180 South Australia act. $ act. 
 
 193 Victorian act. J 187 Western 57 ^ 11-14, 25, 27, 28 Queensland 
 
 Australia act. J 16 New Zealand intestacy act, 1877. §§ 4, 5 Tasma- 
 
 196 
 
CAVEATS, POSSESSION AND TRANSMISSION OF LAND 
 
 the provinces of Canada, land not only descends to the personal 
 representative of the decedent in the same manner as a per- 
 sonal estate, but, in the absence of a will, it is distributed as 
 such. No devise of land is valid or effectual as against the 
 personal representative of a testator until the land is trans- 
 ferred to the devisee by the personal representative. Such rep- 
 resentative must take out a new certificate, and he is then 
 deemed to be the owner of the land from the date of the death 
 of the deceased owner.^^ In British Columbia land seems to 
 go directly to heirs and devisees.^^ 
 
 nia deceased persons' estates act, descent of land. $J 74, 76 Alberta 
 
 1885. act. Courtesy and dower are abol- 
 
 58 JJ 5, 6, 118-120 Saskatchewan ished. 
 
 act. j 119 Manitoba act. $ 21 Mani- 69 $$ 45, 47 British Columbia act. 
 
 toba devolution of estates act. $ 2 See also J 73 Nova Scotia act. 
 Alberta act respecting transfer and 
 
 197 
 
CHAPTER XI. 
 
 Forgery. 
 
 §127. Forgery. In the report o£ Mr. C. F. Brickdale on 
 the systems of registration of title in operation in Germany 
 and Austria-Hungary, presented to the Parliament of England 
 in 1896, it is said: "With regard to the exact effect of a forg- 
 ery in case the registrar and the state hoth escape liability for 
 neglect, there are two principal classes of cases to he con- 
 sidered, first, where the present registered owner, ignorant of 
 the fraud, derives his title direct from the forger, and, second, 
 where the forgery has taken place some way hack, and the 
 present owner is a transferee from one who was actually on 
 the register at the time of making the conveyance. No instance 
 of any of these cases having yet occurred in practice, my in- 
 formants were only able to give general replies to those ques- 
 tions, but it seems to he considered clear that in the latter case 
 the present registered owner, holding for value and in good 
 faith, would be supported, while in the former case he would 
 not. The injured party in each case would have only his 
 personal action against the wrong-doer. "^ In most of the 
 Torrens acts no reference is made to a forged instrument or 
 to the effect which is to be given to it under any circumstances 
 or conditions. In South Australia, by the act of 1886, under 
 which operations are now conducted, it is declared that in 
 case a certificate or other instrument of title is obtained by 
 forgery, it shall be void ; provided, that the title of a registered 
 proprietor who has taken bona fide for a valuable consideration 
 shall not be affected by reason that a prior certificate was 
 
 1 Observations, 67 and 68, page 17. 
 
 198 
 
FORGEET 
 obtained by forgery.^ The California act contains a similar 
 provision: "If a deed or other instrument is registered, which 
 is forged * * * such registration shall be void; provided, 
 that the title of a registered owner, who has taken bona fide 
 for a valuable consideration, shall not be affected by reason of 
 his claiming title through someone, the registration of whose 
 right or interest was void as provided in this section. ' '^ In On- 
 tario it is provided that "subject to the provisions in this act 
 contained with respect to registered dispositions for valuable 
 consideration, any disposition of land or of a charge on land, 
 which if unregistered would be fraudulent and void, shall, 
 notwithstanding registration, be fraudulent and void in like 
 manner. "4 This is by no means clear and explicit as to the 
 effect of forgery under the act, but it seems to mean that the 
 registration of a forged instrument is void, but that the regis- 
 tration of a person, who takes bona fide for value from the 
 person registered through forgery, is valid and confers upon 
 him the estate with which he is registered. The clause "sub- 
 ject to the provisions in this act contained," etc., seem to 
 refer to a provision which is contained in all Torrens acts, 
 and which will be referred to in the next section. 
 
 § 128. Effect of forgery where the statute is silent on the 
 subject. In Australasia there is a line of cases founded on 
 the principle that a certificate of title obtained on the faith 
 of an invalid instrument is not conclusive, and may be set 
 aside, except as against the intervening rights of a new regis- 
 tered owner in good faith and for a valuable consideration ; but 
 that such new registered owner, taking from a person whose 
 registration is invalid, obtains the estate and title with which 
 he is registered.^ Some of these cases relate to forged instru- 
 ments and some relate to instruments invalid for reasons other 
 than forgery. "We should expect to find this doctrine laid 
 
 2 $ 69 par. 2 South Australia act. (1884). O'Connor v. O'Connor, 9 
 
 8J38 California act. $75 Ohio A. L. T. 117 (1887). Coleman v. 
 
 act was indentical with this. Eiria Puwhanga, N. Z. L. E. 4 S. C. 
 
 4 §124 Ontario act. 230 (1886). Magor v. Donald, 13 
 
 6 HaU V. Loder, 7 N. S. W. L. E. V. L. E. 255; 8 A. L. T. 150 (1887). 
 
 Eq. 44 (1885). Ex parte Davey, Messer v. Gibbs, 13 V. L. E. 854 
 
 Eegistrar, 6 N. Z. L. E. 760 (1888). (1887). Cox v. Bourne, 8 Q. L. J. 
 
 Bailey v. Cribb, 2 Q. L. J. E. 42 66 (1897). 
 
 199 
 
THE TOEEENS SYSTEM 
 
 down in any system of title registration. All Torrens acts 
 provide in substance that the registered owner of any estate or 
 interest in land, except in case of fraud to which he is a 
 party, and except in case of the fraud of the person through 
 whom he claims without valuable consideration paid in good 
 faith, shall hold the same subject only to such interests as may 
 be noted in his certificate and free from all others except the 
 statutory rights and iacumbrances. When there is no express 
 provision in an act, regulating the subject of forgery, the above 
 provision is the one which defines the rights of persons regis- 
 tered as owners in case of a forgery. The declarations of this 
 provision are in harmony with the line of Australian cases 
 referred to, and, when applied to a ease of forgery, are in effect 
 the same as the sections of the South Australia, California and 
 Ontario acts just cited. Forgery is fraud, and, this being 
 admitted, the implied declaration of the provision is that the 
 registration of a forger, or of a person registered under him 
 without valuable consideration paid in good faith, may be set 
 aside ; but a new registered owner for value in good faith regis- 
 tered under either of these, will hold the title as against the 
 victim of the forgery or those claiming under him. While for- 
 gery is fraud and is generally governed by the same rules as 
 fraud, there is one situation in title registration where the 
 result of forgery differs from the result of fraud. Where a 
 person in good faith and for value is registered as owner of an 
 estate or interest in land, as the result of fraud in which he 
 did not participate in any way, he keeps the estate or interest 
 with which he is registered, as against the prior registered 
 owner; but where such a person is registered as the result of 
 a forgery about which he knew nothing, his registration is 
 null and void, as against the prior registered owner. We are 
 now considering Torrens acts which do not specifically men- 
 tion the subject of forgery, and this difference in the results of 
 registration through fraud and through forgery arises from 
 a technical principle of title registration, and not from the 
 general law under which all claim of title based on a forgery 
 is void. This principle, which will be treated at length in the 
 next section, is that a person at his peril must see that he gets 
 
 200 
 
FOBGEET 
 his registration from the prior registered owner. The register 
 is a list of registered owners of estates and interests in land, 
 and it protects those only who take under registered owners. 
 
 Unless otherwise provided in a Torrens act, the rule in 
 case of forgery may be stated as follows : The registration of a 
 forger, or of a person in good faith and for value as the result 
 of a forgery, or of a person claiming under either of them with- 
 out a valuable consideration paid in good faith, may be set 
 aside, but the registration of a person for value and in good 
 faith, claiming under any one of these, will hold the title as 
 against the former registered owner who is the victim of the 
 forgery, and all claiming under him. A forged transfer or 
 mortgage will become the root of a valid title. "While it is 
 plain that a bona fide purchaser for value from an owner regis- 
 tered under a forged instrument does himself take under a null 
 deed, that his vendor has nothing to transfer, and that until 
 the transfer has been duly registered the instrument of transfer 
 necessarily is null, yet when it is registered it takes effect by 
 virtue of the statutory declaration of the conclusiveness of a 
 certificate and the indefeasibility of a registered title, because 
 the transferee has dealt with a registered owner. 
 
 § 129. Forgery, Duty of a New Eegistered Owner or Mort- 
 gagee. A person about to deal with a registered title, and 
 about to be registered as a new owner of an estate or interest 
 in land, must ascertain at his own peril the existence and 
 identity of the registered owner under whom he is to be 
 registered, the authority of any person to act for him, and the 
 validity of the transfer under which he is to claim.® It follows 
 that a person must show that he is registered under the last 
 real registered owner, or he will not be protected by the 
 register. The underlying principle is that, by the registration 
 of a person as the owner of a certain estate or interest in 
 land, the records of a public office are made to certify that 
 such person has the title as registered, and, as against a regis- 
 
 6 Gibbs V. Messer, 1891 A. C. L. R. 760 (1888). Ex parte Batham, 
 
 248, House of Lords and Privy 6 N. Z. L. E. 342 (1888). Attorney 
 
 Council, on appeal from the su- General v. Odell, L. E. 2 Chan. Div. 
 
 preme court of Victoria. See also 47 (1905). This is what he must 
 
 Ex parte Davey, Eegistrar, 6 N. Z. do in case of unregistered land. 
 
 201 
 
THE TOERENS SYSTEM 
 
 tered purchaser in good faith for value from such person, there 
 should be an estoppel to deny that fact. But the instrument 
 purporting to deal with the land is primarily accepted by the 
 purchaser or mortgagee, and not by the registrar, the public 
 officer, and there is no reason why he should not have the bur- 
 den of ascertaining the existence and identity of the registered 
 owner under whom he is to be registered, and the validity 
 of the transfer to him. It is plainly his duty to see that he is 
 taking from one who is on the list of registered owners, and, 
 before he tenders the instrument of transfer to the officer for 
 registration, he must know that it is valid in all respects. The 
 case of Gibbs v. Messer, supra, is the leading case on this 
 subject, and, while the opinion is long, it may be quoted with 
 profit. It is as follows: " This appeal depends upon the con- 
 struction of the Transfer of Land Statute, No. 301 of 1866, 
 which established a register of titles and incumbrances for the 
 colony of Victoria, in order 'to give certainty to the title to 
 estates in land, and to facilitate the proof thereof, and also to 
 render dealings with land more simple and less expensive.' 
 The facts of the case, so far as they bear upon the question 
 which we have to decide, may.be shortly stated. The plaintiff, 
 Mrs. Messer, who resides in Scotland, was entered in the 
 register as proprietor in fee simple, free from incumbrances, of 
 certain parcels of land in the district of Hamilton. In the 
 year 1884, she was joiued by her husband, who left behind 
 him in the colony, in the custody of Charles James CressweU, a 
 solicitor at Hamilton, her duplicate certificates of title, and 
 also a power of attorney, by which she had authorized her 
 husband to sell, mortgage or otherwise dispose of the lands. 
 During their absence from the colony, CressweU forged a trans- 
 fer of the lands by Mr. Messer, as his wife's attorney, to 'Hugh 
 Cameron, of North Hamilton, county of Dundas, grazier.' It 
 is admitted that there was no such person as the transferee in 
 existence. CressweU then, representing himself to be agent for 
 Hugh Cameron, produced the transfer, dated the 11th of 
 August, 1885, along with Mrs. Messer's certificates of title, to 
 the registrar, who cancelled each folio in which her name was 
 entered, registered Hugh Cameron as proprietor upon a new 
 folio, and issued the usual duplicate certificate in his name. 
 Still professing to act as agent for Hugh Cameron, CressweU 
 next arranged with the defendants, the Mclntyres, for a loan 
 of £3000, to be secured by mortgage. He wrote, with his own 
 hand, a deed of mortgage, bearing date the 10th of October, 
 1885, purporting to be executed by Cameron, he himself being 
 
 202 
 
FOEGEET 
 
 the subscribing witness, whose attestation is required by the 
 statute. Upon the faith of that document the Mclntyres paid 
 the money to Cresswell, who forthwith appropriated it to his 
 own purposes. When they presented their mortgage for reg- 
 istration, the registrar declined to enter it until he was satis- 
 fied that the Hugh Cameron registered as proprietor was not 
 identical with a person of the same name who had recently 
 been made bankrupt. They accordingly obtained from Cress- 
 well a statutory declaration, purporting to be sworn by his 
 client Hugh Cameron before himself, as a Commissioner of 
 the supreme court of the colony for taking affidavits, to the 
 effect that the declarant had never been made insolvent, or 
 taken the benefit of any Act relating to bankruptcy or insolv- 
 ency. Upon production of that evidence the registrar duly 
 entered a memorial of the mortgage in the folio containing 
 Hugh Cameron's certificate of title. Mr. Messer returned to 
 the colony in July, 1886, when these frauds were discovered, 
 and Cresswell absconded, leaving no assets. The present suit 
 was then brought by Mrs. Messer against (1) the registrar, 
 (2) the Mclntyres, as mortgagees of Hugh Cameron, and (3) 
 Cresswell. It prays for an order for the calling in and can- 
 cellation of the certificates in name of Hugh Cameron, and 
 also for the issue to the plaintiff of new certificates of title, 
 free from the incumbrance of the Mclntyres' mortgage; and 
 alternately, in the event of the mortgage being held to con- 
 stitute a valid incumbrance upon her title, for a declaration 
 that the plaintiff shall be at liberty to redeem, and that the 
 moneys necessary therefor be paid by the registrar out of the 
 assurance fund created by the act. 
 
 It is clear that the registration of the name of Hugh Cam- 
 eron, a fictitious and non-existing ti'ansferee, cannot impede 
 the right of the true owner, Mrs. Messer, who has been thereby 
 defrauded, to have her name restored to the registrar. Ac- 
 cordingly, in the absence of Cresswell, who has not appeared 
 to defend, the controversy between the litigant parties has 
 been mainly, if not wholly, confined to the question whether 
 the mortgage is or is not an incumbrance affecting Mrs. Mes- 
 ser 's title. If the mortgage is valid, their Lordships see no 
 reason to d,oubt that Mrs. Messer has been deprived of an in- 
 terest in her land, in consequence of fraud, within the mean- 
 ing of sect. 144, and that, failing recovery from Cresswell 
 (against whom she has taken all the proceedings which the 
 clause requires), she. is entitled to receive the amount payable 
 for its redemption out of the assurance fund. On the other 
 hand, if the mortgage does not constitute an incumbrance 
 upon her title, Mrs. Messer will obtain a full measure of relief, 
 and can have no claim against the fund. "Webb, J., the judge 
 
 203 
 
THE TOBEENS STSTEM 
 
 of the first instance, sustained the validity of the mortgage, 
 but ordered that the plaintiff should be at liberty to redeem, 
 and that the defendant, the registrar, should pay to her, out 
 of the assurance fund, her costs of the action, all moneys from 
 time to time paid by her for interest in respect of the mort- 
 gage, and also all moneys necessarily paid by her for principal, 
 interest, and costs in order to its redemption. His decision 
 'was affirmed on appeal by the Full Court, with the variation 
 that the plaintiff was found liable in costs to the mortgagees, 
 to be added to her own costs of suit, and repaid to her by the 
 registrar out of the assurance fund. The registrar has ap- 
 pealed to this Board from the judgment of the FuU Court. In 
 the course of the argument it was maintained, on his behalf, 
 that the protection given by the statute to proprietors of a 
 mere interest in land, such as is created by a statutory mort- 
 gage, which does not operate as a transfer of the legal estate, 
 is less extensive than the protection afforded to proprietors 
 of the land itself. Their Lordships do not find it necessary 
 to determine that point, although, prima facie, it does appear 
 to have been the intention of the act to confer the same kind 
 and degree of security upon all persons who, transacting in 
 reliance on the registrar, acquire either proprietory rights or 
 mere interests in land, in good faith and for valuable consider- 
 ation. They assume, for the purposes of this ease, that the 
 statute, in that respect, makes no distinction between these 
 two classes of proprietors; and that the Mclntyres' mortgage 
 is not liable to impeachment upon grounds which would have 
 been unavailing against a transfer of the land obtained by 
 them, in similar circumstances, from the same author. Their 
 Lordships do not propose to criticise in detail the various en- 
 actments of the statute relating to the validity of registered 
 rights. The main object of the act, and the legislative scheme 
 for the attainment of that object, appear to them to be equally 
 plain. The object is to save persons dealing with registered 
 proprietors from the trouble and expense of going behind the 
 register, in order to investigate the history of their author's 
 title, and to satisfy themselves of its validity. That end is 
 accomplished by providing that every one who purchases, in 
 bona fide and for value, from a registered proprietor, and 
 enters his deed of transfer or mortgage on the register, shall 
 thereby acquire an indefeasible right, notwithstanding the in- 
 firmity of his author's title. In the present case, if Hugh 
 Cameron had been a real person whose name was fraudu- 
 lently registered by Cresswell, his certificates of title, so long as 
 he remained undivested by the issue of new certificates to a 
 bona fide transferee, would have been liable to cancellation at 
 the instance of Mrs. Messer ; but a mortgage executed by Cam- 
 
 204 
 
POEGEEY 
 
 eron himself, in the knowledge of Cresswell's fraud, would 
 have constituted a valid incumbrance in favour of a bona fide 
 mortgagee. The protection which the statute gives to per- 
 sons transacting on the faith of the register is, by its terms, 
 limited to those who actually deal with and derive right from 
 a proprietor whose name is upon the register. Those who 
 deal, not with the registered proprietor, but with a forger 
 who uses his name, do not transact on the faith of the register ; 
 and they cannot by registration of a forged deed acquire a 
 valid title in their own person, although the fact of their be- 
 ing registered will enable them to pass a valid right to third 
 parties who purchase from them in good faith and for onerous 
 consideration. The difficulty which the mortgagees in this 
 case have to encounter arises from the circumstance that Hugh 
 Cameron was, as Mr. Justice Webb aptly described him, a 
 'myth'. His was the only name on the register, and, having 
 no existence, he could neither execute a transfer nor a mort- 
 gage. The mortgagees have endeavored to surmount that diffi- 
 culty by arguing that, in the circumstances of the case, Cress- 
 well must be held to have been de jure, if not de facto, the pro- 
 prietor whose name was on the register, and that their mort- 
 gage, executed by him in the name of Hugh Cameron, is, 
 therefore, as valid as if Cresswell's own name had been on the 
 register, and he, and not Cameron, had been the apparent 
 mortgagor. That argument found favour with both courts 
 below. The views entertained by the learned judges have 
 been very clearly explained by Mr. Justice A. Beckett, who, 
 in delivering the judgment of the full bench, said: 'We, there- 
 fore, feel no doubt that the certificate of title on which the 
 mortgagees advanced their money, though brought into exist- 
 ence by the forgery of the defendant Cresswell, was as effica- 
 cious in their favour as if it had issued upon an honest and 
 regular transaction. That certificate described Hugh Cam- 
 eron as the proprietor, and the mortgagees had the right to rely 
 upon the certificate as evidence of his title to an indefeasible 
 estate in the land mortgaged to them. It now appears that 
 no such person as Mr. Hugh Cameron described in the certifi- 
 cate in fact existed; and the appellants contend that a mort- 
 gage purporting to be by this fictitious person, and affecting 
 land alleged to be his, is a mortgage of a non-existing interest 
 — a mere abstraction which cannot derogate from the rights 
 of the true owner — and that the mortgage is therefore worth- 
 less. This contention appears to us to be answered by the 
 view put forward in the statement of claim inferentially admit- 
 ted by the registrar of title, and sustained by the evidence, 
 that Charles James Cresswell had, for the purpose of dealing 
 with this land, assumed the name of Hugh Cameron. It was 
 
 205 
 
THE TOEEENS SYSTEM 
 
 he who signed the transfer to Hugh Cameron as transferee, and 
 who signed the mortgage to the defendants Mclntyre, as mort- 
 gagor, and he produced the certificate of title of Hugh Cam- 
 eron for the purpose of having the mortgage registered upon 
 it. Upon these facts we think that, in favour of the mort- 
 gagees, he should be regarded as the proprietor of the land 
 with whom they dealt, on the faith of the certificate evidenc- 
 ing his title. ' The opinion thus expressed appears to recognize 
 the principle that a mortgagee, advancing his money on the 
 faith of the register, cannot get a good security for himself ex- 
 cept by transacting with the person who, accordiag to the regis- 
 ter, is the proprietor having title to create the incumbrance. So 
 far their Lordships agree; but they do not concur in the in- 
 ferences which the learned judges have drawn from the facts 
 in evidence, with respect to the position of Cresswell through- 
 out these transactions, and his true relation to the name enter- 
 ed on the register as that of the proprietor. They are unable, 
 upon the facts proved, to affirm that Cresswell 'assumed' the 
 name of Hugh Cameron for the purpose of dealing with Mrs. 
 Messers' land. A man cannot, with any propriety, be said 
 to assume a name, or in other words an alias, unless he acts 
 personally under that name, or asserts it to be his own desig' 
 nation. Nothing could be farther from Cresswell's purpose 
 than his assumption of the name of Hugh Cameron; on the 
 contrary, the mainspring of his fraudulent device consisted in 
 representing Hugh Cameron to be a real person, a grazier, who 
 had no connection with himself beyond that of an ordinary 
 client. In pursuance of that device he professed to transact 
 with the Mclntyres in the capacity of Cameron's law agent, 
 he attested what purported to be Cameron's signature to their 
 deed of mortgage, and he gave them a document, used by 
 them in order to obtain registration of their right, which bore 
 that Hugh Cameron had appeared personally before him, and 
 had signed the document in his presence, after making oath 
 to the verity of its contents. The Mclntyres must, in these 
 circumstances, have understood Cresswell and Hugh Cameron 
 to be distinct individualities. They nowhere allege the con- 
 trary ; and if they had even suspected that Hugh Cameron was 
 only another name for Cresswell, they would not have been 
 justified in completing the transaction without inquiry. The 
 Mclntyres cannot, therefore, as matter of fact, be held to have 
 dealt on the faith of the certificate as evidencing the propri- 
 etary title of Cresswell. The truth is that Hugh Cameron was 
 in no sense an alias of Cresswell's, but a fiction or puppet cre- 
 ated by him, in order that it might appear to be an individual 
 having a separate and independent existence. The reasoning of 
 the learned judges fails to appreciate the difference between 
 
 206 
 
FOEGEBY 
 
 these two things. If Cresswell had, as they_say he did, 'as- 
 sumed' the name of Hugh Cameron, and had used it fraudu- 
 lently, he would not have been a forger. His fraud, in that 
 case, would have lain in the representation that Hugh Cameron 
 was his own designation, and he would, no doubt, have been 
 amenable to the criminal law, in respect of such fraud. But, 
 in first registering a fictitious Hugh Cameron as proprietor 
 of the land, and then executing and delivering a mortgage in 
 the name of Hugh Cameron, Cresswell represented the mort- 
 gagor to be a person other than himself, and committed the 
 crime of forgery. The real character of the criminal acts per- 
 petrated by Cresswell differs in no respect from what it would 
 have been, had Hugh Cameron been a real person, whose name 
 was put upon the register by him, and used by him in a forged 
 deed creating an incumbrance. 
 
 Although a forged transfer or mortgage, which is void at 
 common law, will, when duly entered on the register, become 
 the root of a valid title, in a bona fide purchaser by force of 
 the statute, there is no enactment which makes indefeasible 
 the registered right of the transferee or mortgagee under a 
 null deed. The Melntyres cannot bring themselves within the 
 protection of the statute, because the mortgage which they put 
 upon the register is a nullity. The result is unfortunate, but 
 it is due to their having dealt, not with a registered proprietor, 
 but with an agent and forger, whose name was not on the 
 register, in reliance upon his honesty. In the opinion of their 
 Lordships, the duty of ascertaining the identity of the prin- 
 cipal for whom an agent professes to act with the person who 
 stands on the register as proprietor, and of seeing that they 
 get a genuine deed executed by that principal, rests with the 
 mortgagees themselves; and if they accept a forgery they 
 must bear the consequence."* 
 
 The court thereupon declared the purported mortgage to 
 be invalid and as constituting no incumbrance on the title 
 of Mrs. Messer, and it directed the cancellation of the two 
 certificates in the name of Hugh Cameron and the substitution 
 therefor of certificates of title in the name of Mrs. Messer. 
 
 A person stole a certificate of title, impersonated the register- 
 ed owner, forged the latter 's name to a mortgage, and the 
 mortgage was duly registered in favor of a person who ad- 
 vanced the money in good faith on the supposed security; it 
 was held, that the forged memorandum of the mortgage was 
 
 6 Gibbs V. Messer, 1891, A. C. Council. 
 248, House of Lords and Privy 
 
 207 
 
THE TOEEENS SYSTEM 
 
 invalid and conferred on the mortgagee no title, estate or in- 
 terest in the landJ 
 
 § 130. Some Comment on Gibbs v. Messer, supra. It never 
 has been suggested that the case of Ex parte Davey, supra, was 
 inconsistent with the line of Australasian cases above referred 
 to, which hold that the title of a registered owner who has 
 taken bona fide for value from a person registered through 
 forgery is valid. That case was decided on the ground that 
 the protection of the register is given to those only, who deal 
 with the last registered owner. Gibbs v. Messer, supra, was 
 decided on the same ground, — ^that a mortgagee registered 
 under a fictitious, not a real, prioT registration could take 
 nothing, — and yet it seems to be the opinion of writers on the 
 Australian Torrens system that the latter case overrules the 
 line of cases just mentioned.* The case of Gibbs v. Messer 
 clearly may be distinguished from those cases, because in them 
 real persons registered as owners through forgery procured 
 third persons to be registered as owners of an interest in land. 
 It is clear that the court which rendered the decision did not 
 regard it as overruling those cases, for some four years after- 
 ward, in another case, it said that there is nothing in Gibbs v. 
 Messer which supports the view that a registered owner claim- 
 ing in good faith for value under a prior registered owner does 
 not get a good title against everyone.® 
 
 § 131. Effect of Some Statutes on the Rules Just Laid Down. 
 In some acts it is provided that the production of the owner's 
 duplicate certificate, whenever any voluntary instrument is pre- 
 sented for j-egistration, shall be conclusive authority from the 
 registered owner to the registrar of titles to enter a new certifi- 
 cate or to make a memorial of registration in accordance with 
 such instrument, and that a new certificate or memorial shall 
 be binding upon the registered owner and upon all claiming 
 under him, in favor of every purchaser for value and in good 
 
 7 Ex parte Davey, Eegistrar, 6 In commenting on this case in a 
 N. Z. L. E. 760 (1888). supplementary addendum of March 
 
 8 See Hogg, Australian Torrens 1, 1905, in the first part of the 
 System, p. 829 et seq. Duflfey and book, Hogg, Australian Torrens 
 Eagleson, Transfer of Land Act, System, says that the decisions in 
 1890 pp. 192, 225. Coleman v. Eiria Puwhanga and 
 
 9 See Assets Company v. Mere Magor v. Donald, supra, must now 
 Eoihi, 1905, A. C. 176 on page 204. be regarded as good law. 
 
 208 
 
FORGERY 
 
 faith.!" When a person is dealing with land registered under 
 an act containing such a provision, it seems to be unnecessary 
 for him to require any other evidence of the existence and 
 identity of the registered owner than the production of the 
 owner's duplicate certificate, and it seems that he may rely 
 on the validity of a conveyance from the person producing such 
 certificate. If this is the right construction of this declaration, 
 it validates the title of an innocent person for value, relying 
 on the production of the certificate, who is registered as the 
 immediate result of a forgery committed by some third per- 
 son, and, in doing so, it goes one step beyond the general Tor- 
 rens system, which requires that a registration be made under 
 the last real registered owner, iu order to be valid. If the pro- 
 duction of the last certificate of title makes the new certifi- 
 cate binding on the registered owner whose name has been 
 forged, in favor of the new registered purchaser for value 
 and in good faith, then the latter keeps the title to the land, 
 and the former registered owner is remitted to his remedies 
 against the person causing the loss and against the indemnity 
 fund. In Gibbs v. Messer, supra, and Ex parte Davey, supra, 
 the owners' duplicate certificates were produced at the time of 
 the new registrations, and if the Victoria and New Zealand acts 
 had declared that the production of such a certificate should 
 make a memorial of registration binding on the last registered 
 owner, in favor of a new registered purchaser for value in 
 good faith, the decisions in those cases might have been entirely 
 different. The intention of the legislature must be very clear, 
 before a court will hold that a person registered and claiming 
 immediately under a forged instrument will take an indefeas- 
 ible title by virtue of his registration, and it may be very 
 doubtful whether, in enacting the provisions just referred to, 
 there was really any intent on the part of the legislature to 
 declare that the production of the last duplicate certificate 
 should validate a new certificate, even though it was issued 
 as the result of a forgery. It is much more probable that the 
 purpose of the provisions was to get away from the suggestion 
 that the registrar was acting in a judicial capacity when he 
 
 10 § 50 Colorado act. ? 49 Wash- and in $ 47 Nova Scotia act the 
 ington act. In § 49 Minnesota act word ' ' conclusive ' ' is omitted. 
 
 209 
 
THE TOEEENS SYSTEM 
 
 made a registration, and to have the validity of a transfer 
 declared under the terms of a statute, rather than to have it 
 inferred as a matter of law from the act and determination of 
 the registrar. Nevertheless, the provisions seem to show a 
 clear legislative intent, in any event and under any circum- 
 stances, even in case of forgery, to vest the title in the new 
 registered owner, whenever the last duplicate certificate is 
 produced at the time of registering the transfer. 
 
 While the acts of Massachusetts, Hawaii and the Philippine 
 Islands provide that the production of the owner's duplicate 
 certificate shall be conclusive authority to the registrar to 
 make a new registration, and that a new certificate shall be 
 binding in favor of every purchaser for value and in good faith, 
 there is this qualification: "After the transcription of the de- 
 cree of registration on the original application, any subsequent 
 registration which is procured by the presentation of a forged 
 duplicate certificate, or of a forged deed or other instrument, 
 shall be null and void.''^^ This qualification does not say that 
 any title founded on a forgery shall be nuU and void, but it 
 merely says that a registration procured by a forged certifi- 
 cate or other instrument shall be void, and we may infer that 
 under such a statute the general rule applies, that a registra- 
 tion procured by forgery is void, but that such a registration 
 may be the root of a good title, and that a person registered 
 in good faith and for value under a prior registration pro- 
 cured by forgery, when the last certificate is produced, takes 
 a valid title. Looked at from this point of view, the three acts 
 just mentioned simply declare the general rule where the stat- 
 ute is silent on the subject of forgery, and are in effect the 
 same as the South Australia, California and Ontario statutes.^^ 
 
 § 132. Forgery Declared Void. In England, under the land 
 transfer act of 1875, it is apprehended that a forged transfer, 
 completed by registration and followed by a completed transfer 
 for value in a third person, could not be rectified,^^ but the act 
 of 1897 provides "that where a registered disposition would 
 if unregistered be absolutely void, * * * the register shaU 
 
 11 § 54 Massachusetts act. § 55 is Land Transfer Acts, Briotdale 
 Hawaiian act. J 55 Philippine act. and Sheldon, page 287. 
 
 12 See ante $ 127. 
 
 210 
 
rOEGEKT 
 be rectified and the person suffering loss by the rectification 
 shall be entitled to the indemnity, "i* Since a forged instru- 
 ment is absolutely void under the general laws, it is clear that 
 such a disposition comes within the meaning of this section.^^ 
 There seems to be no limit to the number of successive regis- 
 tered dispositions which may be undone if they are founded 
 on a void disposition, provided a claim for rectification is 
 made before it is barred by the statute of limitations. C, the 
 registered proprietor under the English act of a charge on 
 registered land, was supposed to have transferred the charge 
 by assignment for value to 0., who thereupon left the assign- 
 ment at the land registry for registration, and he was ac- 
 cordingly registered as proprietor of the charge. It was 
 afterward discovered that the assignment was a forgery by 
 C. 's solicitor. There had been no negligence on the part of C, 
 and 0. was perfectly honest in the transaction. On a claim 
 for rectification of the register by C, the registration of the 
 assignment to 0. was set aside. It was held that 0. was not 
 entitled to indemnity from the fund, because, by bringing 
 the assignment of the charge to the registrar, he had affirmed, 
 and warranted it to be a genuine document, and that by that 
 act on his part, although innocent, he had directly brought 
 about the registration of the charge in his name, and so had 
 "caused or substantially contributed to the loss" within the 
 meaning of the provision of the act, which excludes from the 
 fund a person who "has caused or substantially contributed 
 to the loss by his act, neglect or default, "i* It will be noted 
 that 0., the sufferer by the forgery in this ease, was the per- 
 son who had accepted the forged document. Though he was 
 not entitled to compensation from the indemnity fund, a reg- 
 istered purchaser in good faith from him, on rectification of 
 the register, would be entitled to indemnity.^'' 
 
 § 133, Forgery by One's Own Agent. A purchaser of a 
 registered interest in land is bound by the acts of his agent, 
 done in the procurement of the registration of the purchaser 
 as the owner. A. employed B. to purchase and procure the 
 
 14 English Act, 1897, $ 7 sub-see- le Attorney-General v. Odell, L. 
 
 tion 2. See $ 124 Ontario act. E. 2 Chan. Div. 47 (1906). 
 
 16 Briekdale and Sheldon, pg. 287. 17 J 7 English act, supra. 
 
 211 
 
THE TOEEENS SYSTEM 
 
 transfer from Y. and Z. of a mortgage on registered land. B. 
 by misrepresentation procured a transfer of Y.'s interest in 
 the charge, and he then forged the name of Z. to the transfer. 
 He procured the registration of A. as the owner of the mort- 
 gage, obtained from A. the money due as the consideration of 
 the transfer and then misappropriated the money. It was held 
 that as B. was the agent of A. to prepare the transfer and to 
 procure the due execution and registration of it, A. could not 
 take the benefit of B. 's fraudulent acts. The court thereupon 
 ordered that the certificate of title issued to A. be delivered 
 up and cancelled, and that Y. and Z. be registei-ed as owners of 
 the charge.^* 
 
 § 134. Some Comment on Forgery. If a Torrens act makes 
 a title founded on a forged instrument null and void, it renders 
 certificates of title clearly defeasible, and tends to take away 
 the confidence of the public in them ; and if it makes a forged 
 instrument capable of becoming the root of a new title, it up- 
 sets the long-cherished and popular tradition that a forged 
 instrument is absolutely void for all purposes. The English 
 theory that a landed proprietor is to be protected as far as 
 possible in his proprietary rights may be the basis of the deep- 
 seated and general feeling that a person ought not to lose his 
 land, under any possible circumstances, by means of or as 
 the result of a forgery. One who does not understand the rea- 
 sons of the general rule, as to the effect of forgery under the 
 Torrens system, may regard it as a compromise between two 
 different policies, but the rule arises logically from certain 
 principles of title registration. A proposed purchaser of land 
 who becomes registered under an imposter, and not under a 
 real registered owner, gets no title to the land, loses the money 
 he has paid on the proposed purchase, and has no recourse to 
 the indemnity fund.^^ He has been guilty of negligence con- 
 tributing to the loss, and his loss did not arise from operations 
 under the act, because he dealt with a person who was not 
 registered under the act, at least as to the property in question. 
 Whatever may be the practical merits of the theory, his ease 
 
 18 Ex parte Batham, registrar, 6 is Gibbs v. Messer, supra. At- 
 
 New Zealand Law Eeports, 342 torney General v. Odell, supra. 
 (1888). 
 
 212 
 
FOEGEEY 
 
 does not detract from the general proposition that one regis- 
 tered under the last registered owner of an estate in land gets 
 the title to the registered estate. "Where one in good faith for 
 value is registered as a new owner under a person who is reg- 
 istered with a title, invalid because it was procured by forg- 
 ery, one of two innocent persons must lose the land, — either 
 the owner from whom the transfer was forged, or the register- 
 ed purchaser from the registered person, whose title was in- 
 valid while he was so registered. In the absence of any con- 
 stitutional limitation on its powers, it is competent for the leg- 
 islature to say which one shall have the title, and, in estab- 
 lishing a system of title registration, it is proper for it to 
 declare, in favor of the last certificate of title issued under 
 governmental authority, that the new registered owner shall 
 have it, and that the victim of the forgery shall be left to his 
 actions against the wrongdoer and against the indemnity fund. 
 The English act alone declares the other way, — that a registra- 
 tion obtained by forgery is void for all purposes, that in case 
 of forgery the register shall be rectified, and that the person 
 suffering loss by the rectification shall be entitled to the in- 
 demnity. 
 
 §135. The Effect of Forgery in This Country. We have 
 discussed the effect of the forgery of instruments respecting 
 registered land as if the conditions of the law were the same 
 in this and in foreign countries. In foreign countries the leg- 
 islative power may declare that the production of the last dup- 
 licate certificate of title shall be conclusive authority to a 
 registrar to make a new registration, and may declare also 
 that a new registration on a transfer from the last registered 
 owner shall be valid and shall be conclusive evidence of title. 
 When it declares that a registration void for forgery shall be- 
 come the root of a new title, in favor of a bona fide trans- 
 feree for value from the owner whose certificate was issued 
 as the result of the forgery, there is the end of it. But in 
 this country there are constitutional limitations on the power 
 of the legislatures to pass laws, and no law of a state may 
 deprive any person of property without due process of law. 
 There are many decisions of courts in this country on the 
 question as to what is and what is not due process of law, and, 
 
 213 
 
THE TOEEENS SYSTEM 
 
 as the system developes, the Torrens statutes of this country 
 are likely to swell the number of them very greatly. Before 
 it can be said that the Torrens system is a secure method of 
 conveyancing and dealing with land in this country, it must 
 be established firmly that such statutory declarations are 
 valid and effective here. In order to work the system, certifi- 
 cates must vest an indefeasible title, and it will not do to deal 
 with registered land under a system where any registration, 
 no matter how far back, may be set aside as void. In Eng- 
 land landowners cried out vehemently against a statute which 
 gave effect to a title founded on a forgery. They were more 
 concerned about holding the lands they had than about an 
 improved system under which they might take title to other 
 lands, and they refused to put their lands under the act of 
 1875. In framing the act of 1897 due deference was paid 
 to this objection to the Torrens system, and a registration 
 founded on a forgery was declared to be absolutely void for 
 all purposes, and a person suffering loss by the rectification of 
 the register was given compensation from the indemnity fund. 
 This provision, making all registrations under a forgery ab- 
 solutely void, greatly impairs the symmetry and effectiveness 
 of the English system, for it is directly contrary to the car- 
 dinal principle that a bona fide transferee for value from the 
 last registered owner holds a certificate which is conclusive 
 evidence of title to registered land. If such statutory declara- 
 tions as we have mentioned are null and void under our con- 
 stitutional limitations, the American, Ontario and English 
 systems are practically alike as to the result of a forgery, 
 except that no recourse to the indemnity fund is given in any 
 of the American statutes to the person who may suffer loss 
 from the rectification of the register. It may be that Section 
 38 of the California act^** is constitutional and valid, but for the 
 determination of this matter, and of many questions arising 
 under Torrens statutes, we must wait until the supreme court 
 of the United States has rendered its decision. 
 
 20 See ante, § 127. 
 
 214 
 
CHAPTER XII. 
 
 Fraud — Error. 
 
 § 136. Fraud in Original Registration, Statutory Provis- 
 ions. The original act of Minnesota, 1901, and the act of 1905 
 of that state, and the Colorado and Washington acts all pro- 
 vide that every person receiviag a certificate of title pursu- 
 ant to a decree of registration shall hold the same free from 
 all incumbrances, except such as may be noted therein, and 
 except the statutory rights and incumbrances. ^ It will be 
 noticed that these acts contain no exception in case the decree 
 was obtained by fraud. The Minnesota act of 1901 provided 
 that any person having an interest in the land, who was not 
 actually served with process or notified of the application, and 
 who had no actual knowledge of the application or proceed- 
 ings under it, might appear in the proceeding at any time 
 within sixty days after entry of the decree, and not afterward, 
 and procure a review of the proceedings, except as against 
 an innocent purchaser for value, and that no action to set 
 aside the decree should be brought after sixty days from 
 the entry of the decree.^ The Minnesota act of 1905 extends 
 the time for the commencement of any action to set aside the 
 decree for any invalidity to six months from the date of the 
 decree.' The Colorado and "Washington acts are substantially 
 like the Minnesota act of 1901, except that the time is fixed 
 at ninety days after the entry of the decree.* Under several 
 acts any person deprived of any interest in land by a decree 
 
 1 $ 30 Minnesota act, 1901. $ 24 3 J 27 Minnesota act, 1905. 
 Minnesota act, 1905. § 30 Colorado * $$ 28, 29 Colorado act. $J 28, 
 act. § 30 WasMngton act. 29 Washington act. 
 
 2 $ 28 & 29 Minnesota act, 1901. 
 
 215 
 
THE TOEEENS SYSTEM 
 
 of registration procured hy fraud may file a petition for re- 
 view within one year after the entry of the decree, provided 
 no innocent purchaser for value has acquired an interest.^ 
 It is provided in some acts that the registered owner of an 
 interest in land shall hold the same subject to the estates, liens 
 and interests noted in the certificate and to the statutory 
 rights and incumbrances, and free from all others, except in 
 case of fraud to which he is a party, and except in case of the 
 fraud of the person through whom he claims without con- 
 sideration paid in good faith.^ Under the Illinois and Ore- 
 gon acts any person having an interest in the land, who has 
 not been actually served with process or notified of the pro- 
 ceeding, and who had no actual knowledge of the applica- 
 tion or the proceedings under it, may appear in the proceed- 
 ing within two years after the entry of the decree, and not 
 afterward, and procure a review of it. There is no clause 
 saving the rights of innocent purchasers relying on the de- 
 cree, and an innocent purchaser for value during this period 
 of two years stands ia the same relation to the decree as the 
 first registered ownerJ In addition to the above section, in 
 California it is provided: "In ease of fraud, any person de- 
 frauded shall have all the rights and remedies that he would 
 have had if the land were not under the provisions of this 
 act; provided that nothing contained in this section shall 
 affect the title of a registered owner who has taken bona fide 
 for a valuable consideration, or of any person bona fide 
 claiming through or under him."^ In New York a registra- 
 tion procured by or as the result of fraud may be set aside 
 in the same manner and by the same proceedings as in case 
 of a deed obtained by fraud, provided there be no innocent 
 purchaser for value without actual notice of the fraud, and 
 provided the proceeding be commenced within ten years from 
 the entry of the decree.^ 
 §137. Fraud in Original Registration; Decisions On The 
 
 B $ 37 Massachusetts act. $ 38 act. 
 
 Hawaiian act. $ 38 Philippine act. 8 $ 37 California act. This pro- 
 
 §J 28, 29 Nova Scotia act. vision was probably taken from J 
 
 6 § 40 Illinois act. § 39 Oregon 69 South Australia act, 1886, with 
 act. $ 34 California act. which this language is identical. 
 
 7 § 26 Illinois act. § 25 Oregon 9 $§ 24, 32 New York act. 
 
 216 
 
FEAUD— EEEOE 
 
 Subject. When the original registration of a title has been 
 procured by fraud in not notifying the owner of the land of 
 the pendency of the proceeding, as required by the statute, 
 the decree and the certificate of title issued under it may be 
 vacated and set aside, unless an innocent purchaser for value 
 has obtained rights in or title to the land on the faith of the 
 record. As long as the title remains registered in the name 
 of the person who was guilty of the fraud, the decree and cer- 
 tificate of registration may be set aside, in an dction brought 
 by the defrauded person within a reasonable time after notice 
 of the fraud. The mere fact that the statute does not in ex- 
 press words declare that a registration of title procured by 
 fraud may be set aside as between the parties, does not de^ 
 prive a court of equity of its general jurisdiction to protect 
 parties from the consequences of fraud. Fraud vitiates every 
 transaction, and equity will not permit a person to hold the 
 benefits of a fraudulent transaction, obtained under forms of 
 law.i'* A., living in Minneapolis, Minnesota, knew that B., 
 living in Marshall, Michigan, held a mortgage on a certain 
 lot in Minneapolis, and under a forged power of attorney 
 from B., he went through the form of foreclosing the mort- 
 gage for an alleged default in the payment of interest, bought 
 in the land and procured a deed under the foreclosure pro- 
 ceeding. The owner of the equity of redemption was in con- 
 spiracy with A., and the interest on the mortgage was paid 
 to B. until after A. had procured the deed under the fore- 
 closure. On January 23, 1904, A. applied to have his title reg- 
 istered under the act. It was examined and a good title was 
 found in A. On the hearing he testified that he owned the 
 lot free and clear from any incumbrance, and on May 11, 1904, 
 a decree was entered, and the title was registered in A. B. 
 
 10 Baart v. Martin, 99 Minn. Fiji Ordinance it is provided that 
 
 197- 108 N. W. Eep. 945 (1906). a certificate shall be taken by all 
 
 In the opinion in this case it is courts as conclusive evidence that 
 
 said that the Torrens laws of the person named therein is the 
 
 Minnesota (1901), Colorado and absolute and indefeasible owner of 
 
 the Fiji Islands are the only ones the land and that his title "shall 
 
 which do not expressly provide not be subject to challenge, except 
 
 that fraud shall not vitiate a regis- on the ground of fraud or misrep- 
 
 tration of title as between the par- resentation to which he shall have 
 
 ties. This statement does not been proved to be a party," etc. 
 seem to be exact. In J 14 of the 
 
 217 
 
THE TOEEENS SYSTEM 
 
 was not served with process, and he had no knowledge of the 
 proceeding. On October 5, 1904, for the first time, B. learned 
 of the registration of the title in A., and he immediately pro- 
 ceeded to urge his right to set aside the registration on ac- 
 count of the fraud of A. The limitation for a proceeding to 
 set aside a fraudulent registration was at that time sixty 
 days after entry of the decree, and the sixty days had long 
 passed when B. learned of the fraud. In holding that the 
 decree should be set aside, the court said: "The important 
 and controlling question in this case is : Can a decree of regis- 
 tration under the Minnesota Torrens law be attacked on the 
 ground that it was obtained by fraud? The appellants rest 
 their case squarely upon the words of the statute, and earnestly 
 contend that the legislature intended to enact a law which, 
 after the expiration of sixty days from the entry of the decree, 
 would vest in the registered owner an absolutely indefeasible 
 title, even though the registration was secured by the fraudu- 
 lent practices of the person in whose name the land was reg- 
 istered. The Minnesota statute contains no express exception 
 in favor of the owner of land which has been fraudulently reg- 
 istered in the name of some other person. The argument is 
 that the importance of making the title absolutely indefeasible 
 after the expiration of the period of limitation induced the 
 legislature to depart from the ordinary rule, and permit 
 a party who has been guilty of fraud to retain the benefits 
 thereof, saving only for the defrauded landowner his right 
 of action against the party guilty of the fraud, and a claim 
 against the insurance fund provided for by the statute. The 
 present case well illustrates the utter inadequacy of such rem- 
 edy. The legislature never consciously provided a method by 
 which such an unconscionable scheme might be successfully 
 consummated. * * If the legislature intended to protect a party, 
 who, by fraudulent means, obtains the registration of some 
 other person's land in his name, it should have said so clearly 
 and definitely, and left nothing to implication. It must be 
 presumed that the legislature understood and expected that 
 the courts of equity would remain open to parties who were 
 able to bring themselves within the rules which require the 
 granting of equitable relief. The fact that the statute does 
 not expressly provide that fraud shall invalidate acts author- 
 ized to be done under it does not deprive courts of the gen- 
 eral power to protect the rights of parties. * * * The Torrens 
 statute makes the provisions of the general statutes relating 
 to the vacating and opening of ordinary judgments inappli- 
 cable. A person who seeks equitable relief must, therefore, 
 
 218 
 
FRAUD— EEEOE 
 
 proceed promptly after notice of the fraud, and is, of course, 
 subject to all the restrictions and exceptions applicable in pro- 
 ceedings in equity. The sixty-day limitation contained in the 
 statute when these transactions occurred, now made six months 
 by the act of 1905, has no application 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. No public policy requires that 
 such a title be indefeasible, or that so tempting a reward be 
 offered for the stealing of land under the forms of law. "i^ 
 
 § 138. A mere misdescription of the property or a mistake 
 as to facts, contained in an application to bring land under 
 a foreign act is not sufficient to invalidate a certificate of title 
 issued on the application by the registrar, but if it is evident 
 from all the circumstances that the applicant had knowledge 
 of the facts in the ease and willfully mis-stated them, the cer- 
 tificate may be set aside for fraud. If a certificate was ob- 
 tained by fraud and false representation, it may be set aside; 
 If it was not so obtained, it may not be set aside. 
 The question of the conclusiveness of a certificate depends on 
 the settlement of this matter of fact.^^ "W'hile the statutes 
 speak in the most general way of fraud in registration, of cer- 
 tificates obtained by fraud, and of fraudulent transactions, it 
 must be noted that the fraud referred to is that of the appli- 
 cant for registration or of the person registered. The act 
 of registration is made by the state through its duly author- 
 ized officers, and it assumes to protect registered owners from 
 the fraud and false representations of members of the public. 
 Its general policy in registration is, in the absence of fraud 
 on his. part, to give to each registered owner an indefeasible 
 title to an estate or interest in land. A fraud of third persons, 
 in which the registered owner did not participate, and of 
 which he had no knowledge, is not sufficient to avoid a registra- 
 tion. A. applied for the registration of certain land. His sup- 
 posed deed from B., under which he claimed title, was a 
 
 iiBaart v. Martin, supra. 15 A. L. T. 22 (1893). Saunders 
 
 i2Wiggms V. Hammill, 4 V. L. v. Cabot, 4 N. Z. C. A. 19 (1885). 
 
 E. L. 63 (1878). Biggs v. McEllis- Kissick v. Black, 10 N. Z. L. E. 
 
 ter, 14 S. A. L. E. 86 (1880). Ogle 519 (1892). Matai v. Assets Com- 
 
 V. Aedy, 13 V. L. R. 461 (1887). pany, 6 N. Z. L. R. 356 (1887). 
 
 Gregory v. Alger, 19 V. L. R. 365, 
 
 219 
 
THE TOEEENS SYSTEM 
 
 forgery, but he did not know this when he was registered. 
 It was held that his certificate gave him an unimpeachable title 
 as against B.^^ As illustrating the general policy of the sys- 
 tem, in the absence of fraud,| to confer an indefeasible title 
 on the registered owner, it has been held that where a person 
 obtained a certificate without fraud or notice of fraud, the title 
 is indefeasible, notwithstanding irregular or even invalid pro- 
 ceedings prior to the bringing of the land under the act, 
 through which proceedings the person claimed the title, but to 
 which he was not a party, and of the invalidity of which he 
 was not aware.^* A merely erroneous registration will not im- 
 peach the indefeasibility of a certificate.^^ This is an 
 elementary and very important doctrine of registration 
 of titles, and, in order to understand and appreciate the 
 system, it must be thoroughly understood and constantly 
 kept in mind. Of course it does not apply to the 
 original registration of a title under the American Torrens 
 system, where such registration is made under a decree of 
 court. If a person is in adverse occupation of land at the time 
 of the original registration of it, and suit is brought against 
 him iu ejectment, he may show that the registration was ob- 
 tained by fraud, and the certificate will be set aside if fraud 
 is proved.!* 
 
 § 139. Fraud, at any time, Foreign Acts. Under certain sec- 
 tions of some of the acts fraud, wherein the registered owner 
 "has participated or colluded", will vitiate the certificate.^'' 
 In British Columbia, "as against a certificate of indefeasible 
 title, any person may show fraud wherein the registered 
 owner has participated in any degree ".^^ Most of the for- 
 eign acts provide that no action of ejectment or other action 
 for the recovery of any land shall lie or be sustained against 
 the person registered as owner thereof, except in the cases of 
 a mortgagee as against a mortgagor in default, a lessor as 
 
 IS Coleman v. Eiria Puwhanga, v. Williams, 18 S. A. L. E. 8 
 
 4 N. Z. S. C. 230 (1886). (1883). Franklin v. Ind., 17 S. A. 
 
 i4Matai v. Assets Company, 6 L. E. 133 (1883). 
 
 N. Z. L. E. 356 (1887). 17 § 75 Saskatchewan act. $42 
 
 15 See $ 148, post. Alberta act. $ 71 Manitoba act. § 
 
 leWadham v. Buttle, 13 S. A. 14 Fiji Ordinance. 
 
 L. E. 1 (1879). Staunton v. Brown, 18 J 81 British Columbia act. 
 1 V. L. E. (L.) 150 (1875). Harvey 
 
 220 
 
FEAUD— ERROR 
 
 against^ lessee in default, and in the case of a person deprived 
 of any land by fraud as against the person registered as owner 
 of such land through fraud or as against a person deriving his 
 title or interest otherwise than as a transferee bona fide for 
 value from or through a person so registered through fraud.^ 
 The certificate is conclusive evidence of title until it is shown 
 that such fraud exists, and the burden of proving fraud is on 
 the person asserting it.i^ Except as against an innocent pur- 
 chaser for value, under the English and Ontario acts, any 
 disposition of land or of a charge on land, which if unregis- 
 tered would be fraudulent and void, is, notwithstanding reg- 
 istration, fraudulent and void in like manner.^" Any entry 
 on the register, procured to be made by fraud, is void as be- 
 tween all parties or privies to such fraud.^i Any certificate of 
 title obtained by means of fraud or falsehood is null and void 
 for or against all persons other than a purchaser for valuable 
 consideration without notice.^^ In the absence of aqtual fraud, 
 a certificate is not affected in consequence of the holder hav- 
 ing notice of any deed, document or matter relating to the 
 land.2^ Several acts provide that "nothing contained in this 
 act shall take away or affect the jurisdiction of any com- 
 petent court on the ground of actual fraud, or over contracts 
 for the sale or other disposition of land, or over equitable 
 interests therein ".^4 
 
 § 140. Fraud Subsequent to Original Registration. In some 
 of the acts in this country there is an express provision that a 
 purchaser of land which has been registered, who takes a cer- 
 tificate of title for value and in good faith, shall hold it sub- 
 ject only to the noted and the statutory incumbrances and 
 
 a J 205 Victorian act. $ 56 New Assets Company, 6 N. Z. L. R. 356 
 
 Zealand act. J 123 Queensland act. (1887). 
 
 § 199 "West Australia act. § 124 20 § 7 English act, 1897. $ 98 
 
 New South Wales act. § 69 South English act, 1875. § 124 Ontario 
 
 Australia act. $ 147 Saskatchewan act. 
 
 act. § 104 Alberta act. § 76 Mani- 2i § 100 English act, 1875. 
 
 toba act. 22 j 125 Ontario act. 
 
 19 Wadham v. Buttle, 13 S. A. 23 § 34 Act for Ireland, 1891. 
 
 L.R.I (1879). Main V. Robertson, 24 $ 51 Queensland act, 1877. J 
 
 7 A. L. T. 127 (1886). Marsden v. 117 Fiji Ordinance. $ 126 Manitoba 
 
 McAllister, 8 N. S. W. L. R. 300 act. $ 4 Saskatchewan act. § 139 
 
 (1887). Hall v. Loder, 7 N. S. W. Alberta act. § 34 Act for Ireland, 
 
 L. R. (Eq.) 44 "(1885). Matai v 1891. 
 
 221 
 
THE TOERENS SYSTEM 
 exceptions.25 In the other acts in this country the provision 
 is general, that the registered owner, except in case of fraud 
 to which he is a party, or in case of fraud of the person through 
 whom he claims without a valuable consideration paid in good 
 faith, shall hold it subject only to such incumbrances and ex- 
 ceptions.26 The rule relative to the protection which will be 
 afforded by a new registration is that a purchaser for value 
 will be protected in his registered interests unless actual and 
 moral fraud on his part is to be inferred from the circum- 
 stances under which he obtained them. A person taking a 
 mortgage from a registered owner of land is not affected by no- 
 tice of an unregistered interest in another pfferson, whereby 
 such person is the owner of an undivided one-half of the land, 
 but if the mortgagor, when he executed it, expressly told the 
 mortgagee that he owned only an undivided one-half of the 
 land, that he only intended to mortgage his one-half, and that 
 he intended to exempt the interest of his co-tenant, the mort- 
 gagee is guilty of fraud against the unregistered owner in 
 attempting to enforce the mortgage against the whole land.^'^ 
 Fraud on the part of a vendor in acquiring his title cannot 
 affect the statutory protection and indefeasibility of title given 
 to a registered purchaser for value, who had no part in or 
 knowledge of the fraud.^^ This rule is the same as in case of 
 original registration. 
 
 § 141. Fraud, Duty of Purchaser to Make Inquiries. Under 
 the Torrens system of registering estates and interests in land, 
 the register is everything, and, except in case of actual fraud 
 on the part of the person dealing with the last registered owner, 
 such person takes, on registration from such registered owner, 
 an indefeasible title against all the world.^^ One of the gen- 
 eral provisions of the Torrens acts is that, except in case of 
 
 25 5 32 New York act. J 38 Mas- 147 (1879). Gregory v. Alger, 19 
 sachusetts act. 39 Hawaiian act. V. L. E. at page 573 (1893). Cole- 
 § 39 Philippine act. § 30 Washing- man v. Eiria Puwhanga, 4 N. Z. S. 
 ton act. §30 Colorado act. §24 C. 230 (1886). 
 
 Minnesota act. 29 Fels v. Knowles, 26 N. Z. L. E. 
 
 26 J 40 Illinois act. J 39 Oregon 604 (1906). "Western Co. v. Free- 
 act. $ 34 California act. corn, 7 W. A. L. E. 22 (1905). 
 
 27 Independent Lumber Co. v. Eegistrar v. Price, 24 N. Z. L. E. 
 Gardiner, 3 Sask. 140 (1910). 291 (1905). 
 
 28 Cullen V. Thompson, 5 V. L. E. 
 
 222 
 
FRAUD— BEEOR 
 
 fraud, no person taking a transfer of registered land, or any 
 interest therein, from the registered owner shall be held to in- 
 quire into the circumstances under which, or the consideration 
 for which such owner or any previous registered owner was 
 registered, or shall be afEected with notice, actual or construc- 
 tive, of any unregistered trust, lien or interest, and that the 
 knowledge that any unregistered trust, lien or interest is in ex- 
 istence shall not of itself be imputed as fraud.^" It is evident 
 that this section applies to transferees for value only, and not 
 to volunteers. Persons who take without valuable consideration 
 are not entitled to hold the land as against those whose rights 
 have been prejudiced by the transfer. This provision is design- 
 ed for the protection of purchasers who deal on the strength 
 of the register and obtain registration with knowledge of ex- 
 isting unregistered interests in the land, but have no reason 
 to think that the holders of such interests will be damnified by 
 the registration. The theory is that since the holders of such 
 interests have not placed them, or notice of them, in the reg- 
 ister, purchasers may assume that they do not intend to urge 
 them. 
 
 § 142. This section does not provide that the person dealing 
 with a registered proprietor is not affected with constructive 
 notice of a breach of trust, but only that he is not to be affected 
 with notice of the trust. Though the section provides that he 
 is not concerned to inquire, it does not provide that, if he is 
 informed of such breach without inquiry, he shall not be affect- 
 ed. In order to defeat the title of a person dealing with a reg- 
 istered ovraer, fraud on his part is necessary. The fraud must 
 be actual, not merely constructive. The taking of a transfer 
 of the land in the face of knowledge of the existence of a trust 
 affecting the land is of itself a constructive fraud. While 
 gross negligence of the rights of another person in property 
 is often treated as the equivalent of fraud, still there is a 
 well defined distinction between gross negligence and fraud. 
 
 30^42 Illinois act. §41 Oregon §§186, 187 South Australia act. 
 act. § 36 California act. § 34 New § 109 Queensland act. § 140 Vic- 
 York act. § 173 Saskatchewan toria act. § 134 Western Australia 
 act. § 135 Alberta act. § 91 Maui- act. § 114 Tasmania act. § 34 Act 
 toba act. § 43 New South Wales for Ireland, 1891. 
 act. § 189 New Zealand act. 
 
 223 
 
THE TOERENS SYSTEM 
 
 The section selects an extreme case of gross negligence and 
 says that even this of itself shall not be imputed as fraud. 
 This indicates a clear intention to oppose fraud to gross neg- 
 ligence and to establish that the term fraud here indicates 
 actual fraud, or want of personal good faith on the part of 
 the transferee. If the term fraud here includes constructive 
 fraud, the section would in effect say that except in case of 
 fraud, actual or constructive, a transferee shall not be affected 
 by constructive fraud. The matters by which the transferee 
 is not to be affected cover pretty well the whole ground of con- 
 structive fraud. This involves a contradiction and is not to be 
 considered in determining the meaning of the section.^^ Al- 
 though a purchaser from a registered owner is not affected by 
 knowledge of the mere existence of a trust or unregistered 
 interest, he is affected by knowledge that the trust is being 
 broken, or that the owner of the unregistered interest is being 
 improperly deprived of it by the transfer under which the 
 purchaser himself is taking. His acting must be judged by 
 considering what, with the knowledge he possessed, it was 
 reasonable that he should believe respecting the good faith 
 of the transaction. "Where the circumstances are such as 
 should raise in his mind a strong suspicion that the trans- 
 action in which he is engaged is a fraud on the right of another, 
 he is bound to go no further in it without full inquiry. To 
 omit such inquiry is a want of honest dealing, and he will not 
 be entitled to shelter himself under the provisions of the section 
 under discussion.^^ 
 
 § 143. The rule with regard to purchasers from trustees is 
 that the mere fact, that a person dealing with a registered 
 owner knows that such registered owner is a trustee under 
 a will or other instrument, does not make it necessary for him 
 to make inquiries as to the powers of the trustee, unless there 
 is something in the nature of his dealings with the trust pro- 
 perty to give him notice of the fact that the trustee is dealing 
 
 31 Smith V. Essery, 9 N. Z. L. E. Hutchinson, 23 N. Z. L. E. 665 
 
 449 (1890). See Saunders v. Cabot, (1904). Colonial Bank v. Pie, 6 V. 
 
 N. Z. L. E. 4 C. A. 19. National L. E. Eq. 186 (1880). 
 
 Bank v. Company, N. Z. L. E. 3 32 Locher v. Hewlett, 13 N. Z. 
 
 S. C. 257. George v. Society, N. Z. L. E. 584 (1894). 
 L. E. 4 S. C. 165. Kirkpatrick v. 
 
 224 
 
FEAUD— EREOE 
 fraudulently with it.^s The register is the pivot on which the 
 whole Torrens system turns, and the general rule is that a per- 
 son has a right to rely on the face of it, so long as he is acting 
 in good faith, and that he may not he required to make inquir- 
 ies outside of the register. Mere knowledge that there are 
 outstanding unregistered rights is not sufficient of itself to im- 
 pair the title of a new registered purchaser. There are in- 
 stances under the general law where a person acting in good 
 faith may rely on a public record, notwithstanding he may have 
 notice of outstanding equities in third persons. The suing 
 out of a writ of error, without a supersedeas, does not change 
 the rule of law that, until a decree of court has been reversed, 
 everyone may act on it as a valid decree. Any rights acquired 
 in good faith by strangers to the record, whether with or 
 without notice of a pending writ of error, cannot be affected 
 by its reversal. A purchaser of the land will be protected, 
 even though, when he paid out his money, he knew that a 
 writ of error was pending.to reverse the decree.^* But regis- 
 tration acts are not intended to abolish the whole principle 
 of notice, and where one dealing with registered land has no- 
 tice or knowledge that a transfer of the land to him will oper- 
 ate as a fraud on the rights of others, he cannot longer act in 
 good faith and claim the protection of this section. 
 
 § 144. The fraud which must be proved in order to invalid- 
 ate the title of a registered purchaser for value is actual fraud, 
 dishonesty of some sort, mala fides, the shutting of his eyes to 
 what he might have seen if he had been willing to look. It 
 must be brought home to the person whose registered title it 
 is sought to impeach, or to his agent. Fraud by persons from 
 whom he claims does not affect him unless he or his agent had 
 notice of it. The mere fact that he might have found fraud if 
 he had been more vigilant and had made further inquiries 
 which he omitted to make, does not of itself prove fraud on his 
 part. If however it is shown that his suspicions were aroused, 
 and that he abstained from making inquiries for fear of learn- 
 ing the truth, the case is different, and fraud may be ascribed 
 
 33 Fels V. Knowles, 26 N. Z. L. K. rett, 239 111. 297; 87 N. E. Eep. 
 604 (1906). 1009 (1909). 
 
 34 0. & N. W. E. R. Co. V. Gar- 
 
 225 
 
THE TOEEENS SYSTEM 
 
 to him.^^ Fraud in this section means moral turpitude and 
 actual dishonest dealing.^® 
 
 § 145. The statutes of England and Ontario do not abro- 
 gate the doctrine of constructive notice and in terms enact 
 that except in ease of fraud no notice of equitable interests 
 shall aflfect a person dealing with the land. Perhaps it may be 
 inferred from this that the equity doctrine that notice is fraud 
 prevails in these jurisdictions. But the general scheme of the 
 register is that it contains aU that a prospective dealer need 
 know about the main title, and that he may rely on it and 
 assume that the holder of any unregistered rights or interests 
 does not desire to protect them by giving notice of them on 
 the register. If these rights or interests are such as are en- 
 titled to registration, the prospective dealer with the title ought 
 to be able to assume that they are not to be actively prosecuted, 
 and if they are not entitled to be registered, his mere know- 
 ledge of their existence ought not to affect hjs right to acquire 
 the title. The words of the statute*are clear, that "knowledge 
 of any trust or unregistered interest shall not of itself be impu- 
 ted as fraud". It is evident that the scope and idea of this 
 provision is to facilitate dealing with real property.^'' Prom 
 this provision it seems to follow, that where the holder of an 
 unregistered interest in land has the right, by the filing of a 
 caveat or caution, to prevent any dealing with the land, he must 
 give notice of his interest on the face of the register and not 
 otherwise. It has been held that a person having unregistered 
 rights in land under a lease, who knows that the title is about 
 to be transferred, must file a caveat in order to protect his 
 rights, and that a mere notification to the intending purchaser 
 that he holds a lease is not sufficient to invalidate the certi- 
 ficate of the transferee.^* It also seems to follow from the 
 
 35 Assets Co V. Mere EocM, 1905 Finlay, 5 N. Z. S. C. 203 (1886). 
 A. C. 177. Cooke v. Union Bank, Kirkpatriek v. Hutchinson, 23 N. 
 14 N S. "W. L. E. 280 (1893). Crow Z. L. E. 665 (1904). Strang v. Eus- 
 V. Campbell, 10 V. L. E. E. 186; sell, 24 N. Z. L. E. 916 (1906). 
 
 6 A L T. 34 (1884). 3T Cooke v. Union Bank, 14 N. 
 
 36 Gregory v. Alger, 19 V. L. E. S. "W. L. E. Eq. 280 (1893). 
 
 365- 15 A. L. T. 22 (1893). Mc- 38 Oertel v. Hordern, 2 St. Eep. 
 
 Allister v. Biggs, 8 App. Cas. 314 (N. S. W.) Bq. 37 (1902). Lake 
 
 (1883), P. 0. Lake v. Jones, 15 V. v. Jones, 15 V. L. E. 728 (1889). 
 L. E. 728 (1889). Thomson v. 
 
 226 
 
FRAUD— BBROE 
 
 above provision that where the holder of an unregistered right 
 in registered land is entitled to have it registered, an intending 
 purchaser is not bound by notice of it. For instance, no pro- 
 ceeding in court or under any legal writ is valid against a 
 transferee for value until after entry thereof is made on the 
 register, notwithstanding he may have had actual or construc- 
 tive notice of it.^^ "jn^g trouble seems to be with beneficial in- 
 terests, when the registered owner holds the title, not for his 
 own benefit, but for others. The doctrine of equitable estates 
 and interests in land is so deeply imbedded in our jurispru- 
 dence and is so useful and necessary to a scientific dealing with 
 real estate that legislatures and courts, while declaring that 
 they may not be registered under the Torrens system, are still 
 unwilling to say that the registered estate or interest is the 
 only estate or interest in land. Confusion and uncertainty flow 
 from the fact that although notice of a trust may not be placed 
 on the register, notice concerning the terms of it, which comes 
 to an intending purchaser from any other source, may invali- 
 date the acquisition of the title. As has been said, the scheme 
 of the register of titles is the pivot of the whole scheme of 
 registration of titles, and unless it can be stated with exactness 
 and understood with certainty, the entire system of registra- 
 tion is lame and faulty. The subject of the protection which is 
 to be given to a purchaser for value with notice of unregistered 
 rights and interests has been before the Australasian courts 
 many times during the last fifty years, and the cases are not in 
 harmony. Some cases, especially those of New Zealand, hold 
 that it is fraud to acquire a registered title with kaowledge of 
 an unregistered right or interest which will be defeated there- 
 by, and that a certificate of title taken in the face of such know- 
 ledge is voidable.*** These eases are in conflict with the decisions 
 which were considered in the sections immediately preceding 
 this, and they tend to obscure and confuse the whole subject. 
 
 39 « 139 Victorian act. § 133 40 Merrie v. McKay, 16 N. Z. L. 
 
 Western Australia act. § 105 New E. 124 (1897). Louden v. Morrison, 
 
 South Wales act. § 94 Tasmania 14 N. Z. L. E. 245 (1895). Bell v. 
 
 act. « 106 South Australia act. J Beckman, 10 N. S. W. Eq. 251 
 
 64 Ontario act. $ 86 Dlinois act. (1889). Gilbert v. Bourne, 6 Q. L. 
 
 &85 Oregon act. J 92 California J. 270 (1895). It was so held in 
 
 act. § 34 Act for Ireland, 1891. several earlier cases. 
 
 227 
 
THE TOEEBNS SYSTEM 
 
 If it be said that perhaps the courts in these cases merely- 
 intended to find that fraud was to be inferred from the ac- 
 quisition of the title under the circumstances of each trans- 
 action, it must be answered that the general doctrine as 
 stated above was broadly laid down. It is certainly true that 
 each transaction, when questioned, must stand the tests of 
 an examination for fraud, and that in each ease it is a ques- 
 tion of fact whether there was fraud in the dealing; but it 
 is vital to the system of registering titles that there be a firm 
 adherence to the proposition that, in the absence of fraud, 
 a prospective dealer with a registered title need not look 
 beyond the register. 
 
 § 146. No trust or notice of the particulars of a trust may 
 be registered under the system. A person dealing with a reg- 
 istered owner will not discover from the face of the register 
 that the latter is a trustee. If a bona fide purchaser for value 
 discovers from some source other than the register that the 
 registered owner is a trustee, he need not inquire into the 
 terms of the trust, but if he receives notice or knowledge that 
 the trustee, in transferring the title, is violating the terms 
 of the trust, his registration is voidable for fraud. This 
 scheme of dealing with titles is not clear cut and definite. It 
 gives rise to too many distinctions, too much refinement and 
 too much uncertainty. It leaves transactions to be investi- 
 gated and determined by parole and circumstantial evidence. 
 In practice a purchaser should determine whether a registered 
 owner holds in his own right or as trustee, and, if he holds 
 as trustee, the purchaser should have the terms of the trust 
 examined by competent counsel. Such a practice would amount 
 to a registration of the terms of the trust. The registration 
 of land "in trust," as provided for in the American acts 
 and in the act of Nova Scotia, may not tend to facilitate deal- 
 ings in land, but it removes a cause of confusion and uncer- 
 tainty in such dealings.*! 
 
 § 147. Errors and Mistakes. Most of the Torrens statutes 
 make elaborate provisions for the correction of errors and 
 omissions in certificates of title, and for the rectification of the 
 
 41 See St. Germain v. Renault, 2 Alta. 371 (1909). 
 
 228 
 
FEAUD— EEEOE 
 register. The provisions in the Australian and Canadian acts 
 differ from those in the English and Ontario acts, and the 
 American acts have little to say on the subject in a definite 
 way. On reading over the provisions of many foreign acts, 
 concerning errors and mistakes, one is apt to conclude that 
 in case of error, where no intervening rights of third persons 
 arise, the registrar, as a matter of course, may call all inter- 
 ested persons before him and make such corrections as are just 
 and proper in the register, and in the duplicate certificate, and 
 that, if he experiences any difficulty in any way in doing this, 
 he may refer the subject to the court, which will compel the 
 attendance of all persons interested and straighten out the 
 whole matter. But the subject of error in registration of 
 titles is an intricate and difficult one, and a study of the sev- 
 eral statutes will show that there is a wide difference in the 
 way in which errors are to be corrected, and in the effect which 
 is to follow from corrections when made. One test of any 
 system of dealing with titles lies in the way in which errors 
 are overcome and adjusted. Any system is good enough to 
 carry with safety and ease the transactions which are regu- 
 lar and within the contemplated lines, but a good system is one 
 which adjusts errors in such a manner as not to throw its 
 mechanism into disorder. The method of the American Tor- 
 rens system, in providing that the correction of errors shall 
 be made only on an order of court, is not only cumbersome 
 and expensive, but it takes the whole subject out of the Tor- 
 rens system and places it at once in the judicial system of 
 dealing with titles. The New York method of ignoring the 
 whole subject calls to mind the proverbial reasoning of the 
 ostrich. Under a system of formulary laws, where the design 
 is to produce a certificate which shall evidence an indefeasible 
 title, errors will often arise, and the effect of them is bound 
 to be drastic and severe. In practice they are often corrected 
 with the consent of all persons concerned, but when persons 
 stand on their legal rights, as set forth in an erroneous regis- 
 ter, the effect is sometimes rather startling to one who is ac- 
 quainted only with the principles of equity jurisprudence 
 under the recording system. With regard to the power of ex- 
 amining into and correcting errors in certificates of title, there 
 
THE TOEEENS SYSTEM 
 
 is one broad and general rule, that sucli a power may not be 
 exercised to the prejudice of a bona fide transferee or mort- 
 gagee for value.*^ One great virtue of the Torrens system is 
 the principle that, in favor of bona fide third persons for value, 
 the entries on the register are conclusive, no matter what 
 fraud, error or latent equity may lie behind them. Of course, 
 there can be no rectification in any case where the act declares 
 the certificate to be conclusive evidence of title, and where 
 the person injured by the error cannot recover the land. 
 
 § 148. Error in Original Registration in Foreign Countries. 
 It is now necessary to iaquire concerning the effect of an 
 error in registering the title to a piece of land when it is 
 brought under an act. "What is the effect when a person ap- 
 plies to register a certain piece of land which he does not 
 own, or of which he does not own a part, and obtains such 
 registration merely in error and without any fraud on his part? 
 In Australasia there are a few cases holding that, though a 
 person so registered iu error holds a prima facie title which 
 may be dealt with by a bona fide purchaser for value, yet his 
 own title, while he holds it, may be set aside by proper pro- 
 ceedings on the part of the person who is rightfully entitled 
 to the land; that such registered person is a trustee for the 
 rightful owner, and that this resulting trust may be enforced 
 as between the parties.** As a general statement, this view 
 seems conscientious and just, but a system of title registra- 
 tion must be conducted on the principle that, in bringing land 
 under the system, and in passing on all legal questions leading 
 up to the registration, the registrar can make no error which 
 will prevent the vesting of an indisputable title in the first 
 
 42 In re McCarthy, 19 N. Z. L. E. a first registered proprietor, al- 
 545 (1901). though registered with absolute 
 
 43 Ogle V. Aedy, 13 V. L. E. 461 title, cannot be ousted by an ad- 
 (1887). Mere Eoihi v. Assets Co. verse claimant who can prove that 
 21 N. Z. L. E. 691 (1902). Soliei- he would be entitled to the regis- 
 ter-General V. Mere Tini, 17 N. Z. tered land if registration had not 
 L. E. 773 (1899). In England intervened, in other words, wheth- 
 doubts have arisen as to the posi- er he cannot be ousted by a claim- 
 tion of a first registered proprietor ant under the title prior to regis- 
 with absolute title as regards de- tration. Second and Final Eeport 
 fects in the title prior to his regis- of the Eoyal Commission on the 
 tration. It appears to be open to Land Transfer Acts, 1911, pg. 30, 
 question whether having regard to par. 57. 
 
 $J 95 and 96 of the principal act, 
 
 230 
 
FRAUD— EEEOE 
 
 registered owner. For the purpose of registering indefeasible 
 titles we must recognize the doctrine that, in performing his 
 judicial functions in registration, the registrar can make no 
 error of law which may be litigated, just as in a monarchical 
 government we must recognize the doctrine that civily the 
 king can do no wrong. According to the necessities of the 
 Torrens system, when a title is submitted to the proper govern- 
 mental authority under an application for registration, this 
 officer examines it and passes on it once for all, and when he 
 has registered it, it may never be examined again for the pur- 
 pose of affecting or disputing the registration, for the state 
 declares that his certificate vests in the registered owner an 
 indefeasible title as against all the world. It cannot be set 
 aside on the ground of want of notice or of insufficient notice 
 of the application to register the land, or on account of any 
 error, omission or informality in the application, or in the 
 proceedings under the application. The certificate is indis- 
 putable evidence of title, not only in favor of a bona fide, 
 purchaser for value under it, but also in favor of the regis- 
 tered owner, unless it falls within one of the exceptions. In 
 speaking generally, we are accustomed to say that, except 
 in case of fraud, the person named in a first certificate is the 
 owner of the land described in it. The proposition as stated 
 assumes that the certificate is not the subject of certain er- 
 rors of fact, but stated in full it is as follows: Where the 
 registered owner has not been guilty of fraud, the first certifi- 
 cate of title is conclusive unless it contains land misdescribed 
 in the application, or unless a certificate of an earlier date is 
 in existence. Under the American system the proceeding 
 in original registration of a title is hostile litigation in court, 
 intended to establish and declare the title in an applicant as 
 against all the world, but it bars only the rights and inter- 
 ests of those who are parties to the proceeding. In foreign 
 countries, while the proceeding in original registration is less 
 solemn than it is here, the purpose is the same, and it ac- 
 complishes its purpose more thoroughly and directly. When 
 the registrar, in the performance of his functions under a 
 foreign act, issues his certificate, whether it is correct as a 
 matter of law, or whether it is wholly or partially in error, 
 
 231 
 
THE TOEEENS SYSTEM 
 
 it evidences an indefeasible title for all purposes in favor of 
 the registered owner, even though he had no title at the time 
 of his registration, and would have no title at all, but for 
 his certificate.** In other words, the act of registration in 
 foreign countries is an adjudication on the rights of all per- 
 sons in the land, and, unless there is an appeal from his act, 
 the statutory declaration of indefeasibility of title makes his 
 certificate conclusive, even though it be erroneous as to the 
 status and condition of the title. The mere erroneous first 
 registration of a title in a person is not a ground which can 
 be urged by the true owner for an impeachment of the certifi- 
 cate. If this were not the rule, the statutory declaration would 
 not mean what it says so plainly.*^ 
 
 § 149. Misdescription of Parcels or of Boundaries. Apart 
 from other considerations, a certificate is conclusive except 
 so far as regards any portion of land which by wrong descrip- 
 tion of parcels or of boundaries may be included in it. It 
 is not conclusive as to a person claiming any land included 
 in it by misdescription of other land, or of the boundaries of 
 other land contained in it. Where there is a misdescription 
 of the property in an application, and the registration of the 
 property has been made according to the misdescription, the 
 
 44 Assets Company v. Mere Eoi- and received a certificate of title, 
 hi, 1905 A. C. 177, Privy Council, In favor of a third person, this 
 reversing the supreme court of was afterward declared to be evi- 
 New Zealand in Mere Eoihi v. As- dence of an indefeasible title in 
 sets Co., supra, and expressing re- the son. Anderson v. Davy, 1 N. Z. 
 gret that there should be any div- S. C. 302 (1882). 
 
 ision of opinion on a principle so A. purchased a tract of land and 
 
 vital to the system. Bonnin v. received a deed purporting to be 
 
 Andrews, 12 S. A. L. E. 153 (1878). signed by B. The deed was a for- 
 
 Coleman v. Eiria Puwhanga, 4 N. gery, but this fact was not known 
 
 Z. S. C. 230 (1886). Hamilton v. to A., who afterwards filed an ap- 
 
 Iredale, 3 St. Eep. (N. S. W.) 535 plication and had his title regis- 
 
 (1903). J 42 New South "Wales act. tered under the Torrens act. Sub- 
 
 § 55 New Zealand act. § 44 Queens- sequently B. discovered that A. 
 
 land act. § 68 Western Australia claimed to own the land and 
 
 act. $ 74 Victorian act. §$ 33, 40 had his title registered, and he 
 
 Tasmania act. $ 69 South Austra- brought suit to recover the land 
 
 lia act. 5 37 Nova Scotia act. $ 76 and to set aside the registration. 
 
 Manitoba act. §§ 75, 180 Saskatch- It was held that the registration 
 
 ewan act. $J 44, 104 Alberta act. in good faith made A's title un- 
 
 45 The owper of certain land impeachable. Coleman v. Eiria 
 died intestate. His son, represent- Puwhanga, N. Z. L. E. 4 S. C. 230 
 ing himself as the owner, fraudu- (1886). 
 
 lently applied to register the land 
 
 232 
 
FRAUD— ERROR 
 
 certificate does not vest in the registered person the title of 
 the property in respect of which the misdescription has been 
 made. Where land is erroneously described in the application 
 and included in the certificate, the legal estate remains in the 
 true owner, and he may bring an action to recover it from 
 the first registered owner, so long as the latter has not parted 
 with the title for value. Where there is a pure mistake in 
 the description of parcels or of boundaries of land in an 
 application, and in the certificate granted on it, the true 
 owner cannot be deprived of the land by the registration, 
 while the title remains in the first registered person, but if 
 the latter has parted with the land to a bona fide transferee 
 for value, the owner cannot recover it.** This is the same 
 principle which applies in case of fraud, or in case of suc- 
 cessive registration effected on the faith of an invalid instru- 
 ment. The registration affected by the evil may be set aside, 
 but the next registration is valid and confers an indefeasible 
 title. It is easy enough to state the principle underlying mis- 
 descriptions of land and to say that any case which falls 
 within it is an exception to the conclusiveness of a certificate 
 of title, but it is not easy to say just what is a pure mistake 
 in description, and what is an error of title. In Marsden v. 
 McAlister, supra, a piece of land was definitely described 
 in the application and in the certificate by metes and bounds, 
 but by the error of a surveyor one line was put fourteen 
 chains too far to the south, and the description included a 
 strip of land belonging to a neighbor of the applicant. After 
 registration of the land the neighbor brought suit to recover 
 the strip of land. It was held that this was not a mistake 
 of title, but was a pure mistake of description made by the 
 surveyor, and that registration did not divest the title from 
 the true owner. This decision is manifestly vague, and it is 
 not a satisfactory illustration of the rule which we are con- 
 sidering. It was afterward said that, though this case was 
 rightly decided on the facts, the principle of the decision 
 should not be extended.*'' In explaining the rule with regard 
 
 46 Marsden v. McAllister, 8 N. 152 (1888). Hay v. Soiling, 16 N. 
 S. W. L. R. 300 (1887). Rourke v. 8. W. L. R. 60 (1895). 
 Schweikert, 9 N. 8. W. L. R. Bq. •it Hamilton v. Iredale, 3 St. Rep. 
 
 233 
 
THE T0EEBN8 SYSTEM 
 
 to misdescription of land, it was said: "If I apply to bring 
 Blaekacre (to which I am entitled) under the act, and in my 
 application, or in the certificate, Blaekacre is misdescribed, 
 so that a certificate is issued to me of the adjoining "White- 
 acre, or of Blaekacre plus a strip of "^hiteacre, there is 
 plainly a misdescription of parcels or boundaries, which can 
 be rectified as against me or any volunteer claiming under me. 
 If, however, I apply to have land to which, in fact, I have 
 no title, brought under the act, and a certificate is issued to 
 me of that land, it is not a case of misdescription of parcels 
 or boundaries. Misdescription is where, intending to describe 
 A, I describe B, or so describe A as to make it include B ; but 
 it is no misdescription if I describe correctly the land I am 
 applying for, though the land is not mine. It is then a case, 
 not of misdescription, but of no title, and the position depends 
 on my conduct in the matter. If I tried to get a certificate of 
 land to which I knew I had no title, that would be fraud on 
 my part, and in such case, under the express terms of the 
 act, neither myself, nor volunteers claiming under me, can 
 claim to be protected by the certificate. If, however, I acted 
 bona fide, believing, however mistakenly, that I had a title to 
 the land applied for, then the case does not fall within any 
 of the exceptions to the efficacy of the certificate. ' '*^ 
 
 If all the property described in the application is not de- 
 scribed in the certificate of title, it is evident that the error 
 will not affect the conclusiveness of the certificate as to the 
 property described in it, but when the certificate includes 
 land not described in the application, there is a misdescrip- 
 tion which renders it inconclusive as evidence of title to the 
 land not described in the application. In British Columbia 
 a person may show that any part of the land is, by wrong 
 description of boundaries or parcels, improperly included in 
 a certificate.*^ 
 
 § 150. What is Not a Misdescription of Parcels or Bound- 
 aries. Where there is no misdescription of parcels or bound- 
 aries at all, and the registrar was satisfied on the evidence be- 
 fore him, whatever that may have been, that the applicant 
 had made out a good title to a piece of land correctly de- 
 scribed in the application, and has granted him a certificate 
 for the land described, the case does not fall within the ex- 
 ception. The rule is that where registration of a particular 
 
 (N. S. W.) 535 (1903). 49 J 81 British Columbia act. 
 
 48 Hamilton v. Iredale, supra. 
 
 284 
 
FRAUD— EEKOE 
 
 piece of land has been applied for, and that particular piece 
 has been registered, there is no misdescription of the land. It 
 is not a case of misdescription where the applicant correctly 
 described the land, which he applied to register and which 
 he procured to be registered, even though it was not his land 
 when he made the application. Before the registration it was 
 simply a case of the applicant having no title to the land, and 
 the efScacy of the registration of the title in the applicant, de- 
 pends on his good faith. While fraud vitiates a registration, 
 yet the merely erroneous certification of an invalid title as 
 good and valid, will afford no ground for impeaching the 
 statutory title of a person registered as owner, even if he 
 would have no title to the land, except for his registration. 
 The idea and purpose of title registration is to give conclusive 
 evidence of an indefeasible title to land, and courts must lean 
 in favor of the indefeasibility of a title which has been regis- 
 tered. While some acts provide that they shall be construed 
 liberally, so far as may be necessary for the purpose of effect- 
 ing their general intent, no act even suggests that it shall be 
 so construed as to do exact justice in all cases. Through 
 operations under the system, and through the creeping in of 
 some error in registering a title, an occasional injustice may be 
 brought about ; but if a registration, made by a registrar after 
 due examination and adjudication, is to be set aside merely 
 on the ground that an error of title has occurred, the whole 
 system may as well be abolished. "If the applicant has no 
 title at all, and the descriptions in the application and in the 
 certificate of title as issued are identical, the error is not one of 
 misdescription but of title, and the certificate of title is not 
 ipso facto void; ia such a case a defendant registered pro- 
 prietor is entitled to rely on his certificate of title, and can- 
 not be called upon to prove his title. "^^ 
 
 §151. Person Registered in Error Liable For Damages. 
 Where a person in good faith applies to register certain land 
 which does not really belong to him, and the registrar, after 
 examination of the title, issues a certificate to him for it, the 
 title is indefeasible in him. But while his title may not be 
 
 50 Hogg, Australian Torrens Sys- tern, p. 829. 
 
 235 
 
THE TOEBENS SYSTEM 
 
 impeached or set aside on the ground of mere error in regis- 
 tering him as the owner, it must not be supposed that he may 
 keep the land without responding in damages to the person 
 wrongfully deprived of it. He is liable for the value of it, to 
 the person ousted of the right of ownership. In case the writ 
 of execution against him is unavailing, the person so ousted 
 is entitled to compensation from the indemnity fund for the 
 damage sustained by the bringing of the land under the 
 act. When a person procures a registration fraudulently he 
 is liable to the person injured until the action is barred by the 
 statute of limitations, but where he acts in good faith and is 
 erroneously registered with a title which does not really be- 
 long to him, upon a transfer of the land bona fide and for 
 value, he ceases to be liable for damages to the person injured 
 by the erroneous registration.^^ It is a fixed principle of the 
 Torrens system that nothing contained in any act may be so 
 interpreted as to leave subject to any action for recovery any 
 mortgagee or purchaser for value. 
 
 § 152. Erroneous first Registration in this Country. These 
 principles relating to misdescriptions of parcels or boundaries 
 do not apply to original registration in this country. The dec- 
 laration and certification of a title is founded on a decree of 
 registration, and the force and effect of this decree depend 
 upon the jurisdiction of the court over the person of the true 
 owner of the title in the proceeding in which it was rendered. 
 Errors in the description of land contained in the decree are 
 governed by the rules relating to the correction of decrees of 
 court, and by the limitation prescribed in the act for proceed- 
 ings to set aside or modify the decree. And there is another 
 important difference between the erroneous registration of a 
 title in this country and in foreign countries. If an invalid 
 title was erroneously registered here, and the true owner was 
 not a party to the proceeding, the subsequent registration of a 
 person as the owner in succession to the first registered owner 
 will not create a new and valid title, even though he was a 
 transferee for value and in good faith. 
 
 51 § 126 New South Wales act, Victorian act. § 201 Western Aus- 
 Bub-sect. 4. § 204 South Australia tralia act. See post, $ 195. 
 act. \ 125 Tasmania act, § 207 
 
 236 
 
FRAUD— EEEOE 
 
 § 153. Earlier Certificate in Existence. A certificate is not 
 conclusive evidence of title if it is shown that the same land 
 had already been registered, and that an earlier certificate 
 for the same land is in existence. Where two certificates 
 purport to include the same land, the earlier in date prevails.^^' 
 This rule is modified to this extent, however, that if it clearly 
 appears from the ordinary rules of construction of written in- 
 struments that the land was included by mistake in the earlier 
 certificate, the mistake may be rectified, and l^he later certifi- 
 cate may be permitted to prevail.^^ In successive registrations, 
 where more than one certificate is issued in respect of a parti- 
 cular estate or interest in land, the person claiming under the 
 prior certificate is entitled to the estate or interest; and that 
 person is deemed to hold under the prior certificate, who is the 
 holder of, or whose claim is derived directly or indirectly 
 from the person who was the holder of, the earliest certificate 
 issued in respect thereof.^* "While the acts in this country 
 do not expressly cover the case of the issue of two certificates 
 for the same land, they provide that a registered owner 
 shall hold the title, and the effect of this undoubtedly is that 
 where two certificates purport to include the same registered 
 land, the holder of the earlier one continues to hold the title. 
 
 § 154. Error in Including Unregistered Land. If, in the 
 original or in any subsequent certificate, the registrar by mis- 
 take describes land which has never been brought under the 
 act, the title of the true owner of the land is not divested. 
 Land is not affected by operations under the system unless 
 there has been an application to register it, and registration 
 has been made pursuant to such application. Ejectment may 
 be maintained against a registered owner by the true owner to 
 recover the possession of land which has never been brought 
 under the act, but which has been erroneously described in a 
 
 52 $§42, 124 New South "Wales 7 A. L. T. 48 (1885). §95 English 
 
 act. §§ 44, 123 Queensland act. §§ act, 1875. § 7 English act, 1897. 
 
 55, 56 New Zealand act. § 69 South § 119 Ontario act. §5 75, 180 Sas- 
 
 Australia act. §§ 33, 40 Tasmania katehewan act. $ 44 Alberta act. 
 
 act. §§ 74, 205 Victoria act. §§ § 76 Manitoba act. 
 68, 199 "Western Australia act. 53 Overland v. Lenehan, 11 Q. L. 
 
 Oelkers v. Merry, 2 Q. S. C. E. 193 J. 59 (1901). Pleasance v. Allen, 
 
 (1872). Miller v. Davy, 7 N. Z. L. 15 V. L. R. 601 (1889). 
 R. 155 (1889). Lloyd v. Mayfield, 54 See §$72, 76 Manitoba act. 
 
 237 
 
THE TOERENS SYSTEM 
 
 certificate. The person taking the first certificate containing 
 the error may possibly have no recourse to the indemnity 
 fund, because he failed to note the error. However this may 
 be, it seems certain that a transferee from him bona fide and 
 for value would have access to the fund for compensation. In 
 this country all instruments relating to unregistered land 
 must be filed in the recorder's office, and unregistered land 
 cannot be affected by operations in the registrar's office. 
 
 § 155. Error in Matter of Law on Transfer in Succession. 
 We have seen that, according to the principles of the Torrens 
 system and under foreign acts, when a title is presented to the 
 registrar for original registration, and he passes upon it and 
 registers it, the statutory indefeasibility of title is conferred 
 on the certificate issued by him, even though in his conclusion 
 on the validity of the title he made an error of law; that the 
 merely erroneous certification of the title by him does not 
 affect this indefeasibility, and that the holder of the certifi- 
 cate has a good title to the land by virtue of the statutory de- 
 claration, in spite of the fact that he had no title at all, or 
 no such title to the land, before he obtained his certificate. It 
 is the function of the registrar to determine questions of title, 
 and his mere error of judgment on a question of title does 
 not invalidate the certificate. According to the same prin- 
 ciples and under foreign acts, it is the function of the regis- 
 trar to pass on the validity and legal effect of all instruments 
 of title respecting land already registered and thereby to 
 bind the rights of all interested persons. His functions are 
 the same whether he brings land under the act by original 
 registration, or whether he registers one owner in succession 
 to another registered owner. There is no distinction or differ- 
 ence, with respect to indefeasibility of title, between the first 
 certificate and any subsequent one issued by the registrar. 
 A right of appeal is given in the matter of a registration in 
 succession, and subject to an appeal from his decision, when 
 the registrar passes on the validity and legal effect of an in- 
 strument executed by the last registered owner, and makes 
 a registration of it, the statutory indefeasibility of title is 
 conferred on the certificate, even though he erred in his judg- 
 ment and by his registration vested in the new owner a title 
 
 238 
 
FRAUD— EEEOR 
 which he was not entitled to under the terms of the instru- 
 ment of transfer.Bs Some of the earlier cases in Australasia 
 did not recognize this doctrine^s and regarded an error of law 
 made by the registrar in his interpretation of an instrument 
 just as they would regard an error made by him in stating 
 a fact on the face of the register. But the Privy Council of 
 England in Assets Company v. Mere Roihi, supra, makes clear 
 the principle as stated. It has not been established by a line 
 of decisions treating it from several points of view, but it is 
 evident that such an error may not be reached by a proceeding 
 to rectify the register, and correct the error, and that it can 
 only be remedied by appeal from the decision of the registrar. 
 None of the statutes prescribes any time within which such 
 an appeal must be taken, and it is therefore an open question 
 whether an appeal may be taken at any time, so lohg as the per- 
 son registered in error holds the title, or whether it must be 
 taken at the time the registration is made. By all analogies 
 it should be taken at such a time as to be part of the act of 
 registration. If no appeal is taken and noted on the register, 
 the certificate of title is conclusive in favor of the person 
 registered, and in favor of any transferee taking subsequently 
 under him. The statutory declaration oi, conclusiveness of a 
 certificate operates on all certificates alike, whether the first 
 or any subsequent one, and a mere error of title will not 
 vitiate a new certificate issued in succession to a former one 
 on a transfer of the land. While the person registered under 
 the erroneous certificate may keep the title, he must respond 
 in damages to the true owner for the value of the interest or 
 estate wrongly vested in him, provided an action is brought 
 against him before he sells the land in good faith. 
 
 § 156. Error in Noting Mortgages and Charges. If a regis- 
 trar makes a memorial of a mortgage on the register as secur- 
 ing an indebtedness of $500., when in fact it secures an indebt- 
 edness of $5,000., and the mortgaged property is transferred 
 to a new registered owner for value in good faith, relying on 
 the face of the register, one of two results will follow: Either 
 
 55 In re Okirae Block, 10 N. Z. 56 Ex parte Bond, 6 V. L. R. L. 
 
 L. R. 677 (1892). Assets Company 458 at page 463 (1880). In re Car- 
 V. Mere Roihi, 1905, A. C. 177, P. C. gill, 7 N. Z. L. E. 481 (1889). 
 
 239 
 
THE TOEEENS SYSTEM 
 
 the mortgagee will lose his lien to the amount of $4,500. and in- 
 terest on that sum, or the new owner will take the property 
 subject to the lien of $5,000. and interest. Since the general 
 design of the Torrens system is to protect tlie new registered 
 owner in his registered interests, one is inclined to jump to 
 the conclusion that the mortgagee would lose his lien pro 
 tanto, and that the new owner would take the title subject to 
 the lien of $500. only. But this general design, like the theory 
 that title follows the issue of a new certificate, must not be 
 relied on too implicitly. It seems that a memorial of a mort- 
 gage noted on the register is a mere note of reference, and, 
 that a purchaser is bound to search the original instrument. 
 If it is his duty to inspect the original mortgage in order to 
 find out the terms and conditions thereof, the mistake on the 
 register would have been discovered by search, and the neg- 
 lect to search will make the land subject to the mortgage of 
 $5,000., and will also constitute such contributory negligence 
 as will bar him from recovery from the indemnity fund.^^ 
 It is apprehended that in noting a mortgage on the register 
 the registrar acts judicially, but the whole subject of the 
 security afforded to mortgagees is so vague and unsettled 
 that much complaint and dissatisfaction with the Torrens sys- 
 tem has arisen in England. 
 
 In foreign jurisdictions, where a registrar, after having 
 searched his list of registered owners, or on the suggestion of 
 the judgment creditor, notes a judgment on a certificate of 
 another person of the same name as the judgment debtor, it 
 may or may not be that the notation may be set aside by a 
 proper proceeding for that purpose by the holder of the cer- 
 tificate; there is no decision on this point. But in such a case 
 where there has been a sale of the land to the judgment creditor 
 on execution, and he has registered his transfer, and has sold 
 
 57 If such a mistake is made in mistake of the recorder in tran- 
 
 recording the mortgage under the scribing an instrument does not 
 
 recording system, in some states a affect the rights of the mortgagee, 
 
 subsequent purchaser for value iu but in others the contrary rule ob- 
 
 good faith will take the property tains, and the burden is cast on the 
 
 subject to the lien of $500. as re- grantee in an instrument to see 
 
 corded, but in other states he will that it is properly recorded. Dev- 
 
 take it subject to the actual indebt- lin on Deeds, 2nd. Ed. §§ 680-690. 
 
 edness of $5000. as shown in the See Prouty v. Marshall, 225 Pa. 
 
 mortgage. In some jurisdictions a 570; 74 Atl. Eep. 556 (1909). 
 
 240 
 
FRAUD— EEROE 
 
 the land to a new transferee, the latter takes a valid title.''^ 
 It does not seem possible that the validity of such a title may 
 be sustained in this country. 
 
 § 157. Correction of Errors in this Country. In several of 
 the acts in this country it is provided that no erasure, alteration 
 or amendment shall be made upon the register of titles after 
 the entry of a certificate of title, or of any memorial thereon, 
 and the attestation of the same by the registrar, except by 
 order of the court ; that a registered owner or other person in 
 interest may apply at any time by petition to the court upon 
 the ground that an error or omission was made in entering a 
 certificate or any memorial thereon, or on any duplicate certi- 
 ficate ; that the court may hear and determine the petition 
 after notice to all parties in interest and grant proper re- 
 lief; but that the provisions of the section shall not give the 
 court authority to open the original decree of registration, and 
 that nothing shall be done or ordered by the court which will 
 impair the title or other interest of a purchaser who holds 
 a certificate for value and in good faith, or of his heirs or 
 assigns, without his or their written consent.^® In California 
 it is provided that whenever it appears to the registrar that 
 there is an error or omission in any certificate or memorial, he 
 may apply to the court for an order summoning all persons 
 registered as interested in the lands to appear and produce 
 their duplicate certificates and show cause why such mistake 
 or omission should not be corrected. With the consent of 
 all parties the court may order any such error, omission or 
 mistake to be corrected by the registrar, but if the parties 
 fail to appear or do not consent, the court may proceed to 
 hear the matter and to order such correction to be made by 
 the registrar. If the error or mistake was caused by the 
 fault or neglect of the registrar, the costs shall be paid by the 
 state ; if by the fault of any person registered as interested in 
 such land, the costs shall be paid by such person.®" No pro- 
 se Hassett v. Bank, 7 V. L. E. L. 59 § 69 Minnesota act. $ 89 Col- 
 380; 3 A. L. T. 38 (1881). See Ante orado act. § 88 Washington act. $ 
 $ 116. In so holding the court says 107 Massachusetts act. J 108 Haw- 
 that the judgment creditor ob- aiian act. § 112 Philippine act. 
 tained a valid title by his regis- 60 $$ 97, 98, 99 California act. 
 tration. 
 
 241 
 
THE TORBBNS SYSTEM 
 
 vision is made in this connection, saving the rights of a pur- 
 chaser for value and in good faith, and no rule or basis is 
 laid down for the court to proceed upon in fixing the rights of 
 the parties. In Illinois and Oregon whenever any person 
 interested in registered land shall be entitled to have any cer- 
 tificate, memorial or other entry upon the register, cancelled, 
 removed or modified, and the registrar or other person whose 
 duty it shall be to cancel, remove or modify the same shall 
 upon request fail or refuse so to do, or is absent, or cannot be 
 found, the circuit court of the county where the land is reg- 
 istered, on petition, shall make such order as may be accord- 
 ing to equity in the premises.^i The court which entered 
 the decree of registration of the land shall retain jurisdiction 
 in the proceeding to enter orders under this seetion.^^ There 
 is no provision under the New York act which covers the 
 correction of errors and mistakes in registration. It is evi- 
 dent, however, from what has been said in the preceding 
 paragraphs on the subject of error, that in this country any 
 error made by the registrar, a ministerial officer, may be cor- 
 rected by a proceeding under the Torrens act, or under the 
 general law. Courts of general jurisdiction have full power 
 to correct errors and to compel ministerial officers to perform 
 their duties properly. 
 
 § 158. Correction of Errors in Foreign Countries. We have 
 seen that under the foreign acts there is a distinction between 
 errors of law, which are mistakes of title, and errors of fact, 
 made by a registrar in the performance of his prescribed duties, 
 and this distinction must be kept distinctly in view. An error 
 committed by a registrar in bringing an invalid title under the 
 act and registering it as good and valid, and an error in con- 
 struing the legal effect of an instrument of transfer made by 
 the last registered owner, and in registering it accordingly, 
 are errors of law, mistakes of title, which courts can correct 
 only when a right of appeal from his decision is given by the 
 statute. But in exercising any other function in or about 
 registration, — as in entering the name of the person regis- 
 tered, or in describing the land in the certificate or in omitting 
 
 61 § 93 Illinois act. § 92 Oregon 62 ^ 93 Illinois act, as amended 
 
 act. in 1907. 
 
 242 
 
FRAUD— EEROE 
 
 to make a memorial of a mortgage or lien, or in issuing a 
 duplicate certificate, etc., he acts in a purely ministerial capac- 
 ity, and between the parties to the registration, hut not to the 
 prejudice of any interest of a bona fide transferee for value, 
 such errors may be corrected, either by the registrar himself 
 in suitable eases and under certain restrictions, or by the court 
 in a proceeding under the act for the rectification of the regis- 
 ter, or in a proceeding under the general law to compel the 
 registrar to do his duty properly. A registrar may correct 
 errors on the register when an obvious mistake has been made, 
 and no rights of third persons have intervened. He may, 
 upon such evidence as appears to him sufficient, correct errors 
 in certificates of title, or in the register, or in the entries made 
 in them, and may supply entries omitted to be made under the 
 provisions of the act, provided always that in the correction of 
 any such errors he shall not erase or render illegible the ori- 
 ginal words, and shall affix the date of such correction or 
 entry, and shall affix his initials.** The registrar's power to 
 amend certificates is not confined to obvious blunders or mis- 
 takes due to his officers, but extends to mistakes induced by 
 acts of persons dealing with the land. He is a judicial officer 
 and has wide jurisdiction in rectifying certificates of title.®* 
 If it appears to the satisfaction of the registrar that any certi- 
 ficate of title or other instrument has been issued in error, 
 or contains any misdescription of land or boundaries, or that 
 any entry or endorsement has been made in error, or that 
 any endorsement or entry has been made wrongfully or fraud- 
 ulently obtained, he may require such certificate to be de- 
 livered up for correction; and in case of a refusal to deliver 
 up such certificate or instrument, he may refer the matter to 
 the court.®^ He has no power to determine controverted 
 questions of fact concerning errors, and he must refer such 
 questions to the court to be passed on and adjudicated. He 
 
 63 § 11 Tasmania act. § 11 act. § 144 British Columbia act. 
 
 Queensland act. J 12 New South $ 114 Alberta act. § 160 Saskatch- 
 
 Wales act. J§ 194, 195 Victorian ewau act. 
 
 act. §§ 188, 189 Western Australia 64 National Company v. Hassett, 
 
 act. $ 220 South Australia act. $§ 1907, V. L. E. 404; 28 A. L. T. 232. 
 
 296 341 English rules, 1908. § 34 65 §5 69, 70 New Zealand act. $$ 
 
 Act for Ireland, 1891. § 108 Fiji 136-139 New South Wales act. $ 
 
 Ordinance, 1876. § 49 Manitoba 136 Tasmania act. 
 
 243 
 
THE TOEEENS SYSTEM 
 
 may have all interested persons summoned into court for the 
 correction of errors in much the same way as is provided for in 
 this country.** 
 
 66 ^ 136, 137 Tasmania act. JJ Wales act. $J 60, 62 South Austral- 
 
 70, 71 New Zealand act. $J 82, 83 ia act. $ 95 English act, 1875. $ 7 
 
 Victoria act. §§ 76, 77 Western English act, 1897. § 119 Ontario 
 
 Australia act. $ j 130, 132 Queens- act. 
 land act. §$ 136, 139 New South 
 
 244 
 
CHAPTER XIII. 
 
 Concerning Torrens Systems. 
 
 § 159. Different Torrens Systems. In a general way it may 
 be said that there are four Torrens systems — the Australian, 
 Canadian, English and American. Such a distinction is found- 
 ed merely on geographic lines, and is used because it is often 
 convenient and useful. The acts of the six states of the Com- 
 monwealth of Australia, the act of the independent state of 
 New Zealand, and the Fiji Ordinance, 1876, are similar in 
 their main purpose or registering indefeasible titles only, and in 
 many of their principal provisions. They have been compiled 
 and treated of in the same volumes, and their points of Sim- 
 ilarity and difference have been referred to and discussed in 
 the judicial decisions of the several jurisdictions. It is conven- 
 ient to speak of them as the Australian Torrens system, though 
 they do not differ in any radical way from the acts of Mani- 
 toba, Alberta, Saskatchewan or the Northwest territory of 
 Canada, which are founded on the Australian methods and 
 principles of registration. The act for Ireland, 1891, greatly 
 resembles the Australian acts. The Ontario act adopts the 
 principles and phraseology of the English acts, though it dif- 
 fers from them in minor details. Both jurisdictions provide for 
 registering absolute, qualified and possessory titles, and in 
 this they are followed by Nova Scotia and Hawaii, and, in 
 a modified way by British Columbia which registers titles as ab- 
 solute or as indefeasible. The American acts, except in Hawaii, 
 provide for registering indefeasible titles only, and under all 
 American acts original registration must be made by a decree 
 of court, instead of by an officer clothed with power to perform 
 that function. Thus it will be seen that it is possible to con- 
 
 245 
 
THE TOBRENS SYSTEM 
 
 vey a distinction by the use of the terms, Australian Torrens 
 system, English Torrens system, and American Torrens sys- 
 tem. With regard to the effect of registration, there are two 
 distinct schemes. Under the general scheme, registration 
 makes the title indefeasible as against all the world, and un- 
 der the English scheme, titles are registered as indefeasible 
 or as defeasible, — absolute, qualified or possessory. "With re- 
 gard to the method of original registration, there are two 
 schemes. Registration is made by an officer under one, and it 
 is made by a decree of court under the other. But, so far 
 as the system itself is concerned, these are all subordinate 
 schemes and minor matters, and they do not make different 
 Torrens systems. 
 
 §160. Variance Between Provisions of Torrens Statutes. 
 There is a certain similarity between all Torrens acts, and yet 
 the provisions of these acts on many subjects are wholly dis- 
 similar or directly at variance. Under some acts, fee simple 
 titles only may be registered, under some, lesser estates and 
 interests are entitled to registration, and under others, lesser 
 estates and interests may be registered when the fee sim- 
 ple has been registered first. ^ Tax titles are discriminated 
 against or favored.^ Land subject to a mortgage may be reg- 
 istered only with the consent of the mortgagor in some juris- 
 dictions, and without his consent in others.^ Generally only 
 indefeasible titles may be registered, but titles which are 
 defeasible may be registered also.* Registration is usually 
 made by a registrar, but in some places it may be made only 
 pursuant to a decree of court. Sometimes this court is one of 
 general jurisdiction and again it is one of special jurisdiction.^ 
 The registrar is generally an officer with judicial powers under 
 the act, but he is sometimes a ministerial officer only.® He 
 usually passes on instruments and registers them, if satisfied 
 that registration should be made, but he may have no power to 
 register tinless all parties agree.'^ Production of the duplicate 
 certificate is essential to successive registration under some 
 
 1 See ante $ 20 et seq. 5 Ante U 23, 28, 45. 
 
 2 See ante $ 20. 6 Ante U 65, 68. 
 
 3 See ante j 107. 7 Ante U 65, 71. 
 
 4 See ante $ 13. 
 
 246 
 
CONCEENING TOEBENS SYSTEMS 
 
 acts, and under others it is not necessary. ^ The registrar is 
 given power to issue a new certificate on the foreclosure of a 
 mortgage, and a new registration in such ease may be made 
 only by order of court.^ A person aggrieved by a decision, 
 neglect or refusal to act on the part of a registrar, may apply 
 to court for a review or for directions, but some acts make no 
 such provision.^" A registrar may correct errors by the terms 
 of some acts, and under others errors may be corrected only 
 by an order of court.^i Generally a duplicate certificate of 
 title is issued only to one who holds the paramount estate, but 
 it is also issued to the holder of a lesser estate or interest and 
 to the holder of a charge. ^^ Under most acts statutory forms 
 and instruments must be used in dealing with land, but deeds 
 and other forms of conveyancing in use under the general laws 
 are sufficient under some statutes.^^ As a general rule, in- 
 struments may contaiu conditions, limitations and restrictions 
 running with the land, and these may be placed on the register, 
 but und«r some acts this is not permissible.^* Under most 
 acts no notice of a trust may be registered, but under some 
 acts lands are registered "in trust ".^^ Some acts contain pro- 
 visions with regard to the effect of forgery, but others are 
 silent on that point. Under some acts a forgery is void only 
 as to the first registration under it, and it is also declared to be 
 void for all purposes.^® A bona fide purchaser for value with 
 notice of unregistered rights and interests is protected in his 
 registration under the same acts, but he is not protected under 
 others.^'' In some jurisdictions he is protected in an error of 
 the registrar in a matter of law and in others he is not.i* In 
 some places an adverse occupant of land loses his rights when 
 the land is brought under the act, but in others registration is 
 void as to him unless he is notified. ^^ It is provided that a will 
 shall take effect from the date of the death of the testator 
 and also that it shall take effect from registration only.^" On 
 the death of a registered owner, land is transmitted to his 
 
 8 Ante ? 80. is Ante $J 98, 101. 
 
 9 Ante $ 114. le Ante 5 127 et seq. 
 
 10 Ante 4 72 it Ante j 53 et seq. 
 
 11 Ante $158. 1 8 Ante §147 et seq. 
 
 12 Ante $ 21. 19 Ante ^ 121. 
 
 13 Ante § 93. 20 Ante § 77. 
 
 14 Ante $87. 
 
 247 
 
THE TOEEENS SYSTEM 
 
 heirs, and it is also given to the personal representative as 
 personalty.^^ Some acts provide for an assurance fund and 
 others do not. Access to the fund is given for loss sustained 
 by the wrongful bringing of land under the act, and such access 
 is confined to losses sustained after original registration.^^ 
 
 § 161. Essential Elements of the Torrens System. There are 
 undoubtedly many other subjects on which the Torrens stat- 
 utes do not agree, but the instances of variances and contrar- 
 iety just enumerated are sufficient to cause us to inquire what, 
 if any, are the fundamental and essential elements of the Tor- 
 rens system. "While there are many and important statutory 
 provisions concerning registration of titles according to the 
 Torrens system, which regulate administrative matters and 
 supply minor functions, there are only six essential features 
 of the system itself. These essential features are: 
 
 1. The creation and recognition of one estate in land, — 
 the registered title — , in lieu of a legal and an equitable estate. 
 
 2. The creation of a governmental certificate of title, con- 
 sisting of a public register and an owner's duplicate certifi- 
 cate, on which the condition of the title is set forth to some 
 certain extent required by the law. 
 
 3. Indefeasibility of title to the estate or interest in land, 
 with which the owner is registered, except as to matters de- 
 clared in the statute, and as to burdens noted on the certifi- 
 cate. 
 
 4. The transfer of an interest in land only by entry on the 
 register, in lieu of transfer by the execution of instruments. 
 
 5. The creation of liens on land only by notation on the 
 register. 
 
 6. The protection of unregisterable rights in land by ca- 
 veats, cautions or notices of adverse claims. 
 
 Another feature is generally considered essential: The cre- 
 ation of an indemnity fund by contributions from registered 
 owners, and the payment from it of compensation for certain 
 losses occasioned by operations under the act. But in this 
 connection the omission of this feature from the Fiji Ordin- 
 ance, 1876, the English act, 1875, and the California act, can- 
 
 21 Ante § 125. 22 Post § 193 et seq. 
 
 248 
 
CONCEENING TOEEENS SYSTEMS 
 
 not be ignored. The doctrine of indefeasibility of a regis- 
 tered title, and the policy of protecting a bona fide purchaser 
 for value from a registered owner, in some cases must divest 
 estates and interests from innocent persons and work hardship 
 in the operations of the system, and the indemnity fund is 
 necessary to round out the system, but it may be carried on 
 without such a fund. The indemnity fund is merely ancillary 
 to the system of registering indefeasible titles.^s 
 
 § 162. A Single Estate in Land. As is well kiiown, there 
 was originally in England only one estate in land, namely, 
 the legal estate. Courts of chancery gradually developed a 
 system of equitable estates in land by enforcing rights against 
 the owner of the legal estate. Many equitable estates thus 
 developed were recognized by acts of parliament, and many 
 were created by such acts. At the present time, under the 
 general laws in countries which have followed the English 
 system of jurisprudence, there are both legal and equitable 
 estates in lands. The Torrens system is an attempt to return 
 to the early English doctrine of one single estate in land, and 
 this estate is called a registered estate.^* If there had been 
 registers of land titles for the past four hundred years, and 
 on these registries all titles had been transferred, just as cor- 
 porate stock is transferred on the books of corporations, there 
 would be little difficulty in maintaining the policy of having 
 but one estate in land, — the registered estate. There is per- 
 haps nothing in the natures of real estate and personal prop- 
 erty, which creates a substantial distinction between modes 
 of transferring and dealing with them. The differences in the 
 modes and methods of dealing with them have arisen from arti- 
 ficial theories and designs for the accomplishment of certain 
 objects, and their legal qualities have been developed in order 
 to accomplish these objects. For four centuries trained minds 
 and a succession of great judges have developed the doctrine 
 of legal and equitable estates and have given them a place 
 in the foundation of the rights of private property in land. 
 Perhaps it would be better today if this work had never been 
 done, but it would seem almost impossible to obliterate by 
 
 23 Post $183. tern, pp. 6, 7 & 780. 
 
 24 Hogg, Australian Torrens Sys- 
 
 249 
 
THE TOEEBNS SYSTEM 
 
 legislative enactment the results of so extended a labor. The 
 complex conditions of modern life and modem jurisprudence 
 make it impossible to return wholly to a system with one 
 estate only. The principles of equitable estates are too well 
 established to be swept aside, and they are too valuable to 
 those who own land to be abandoned by courts in administer- 
 ing the laws of real estate. These facts are taken into con- 
 sideration, in the framing of registration acts under this sys- 
 tem, and we find that certain rights and interests in land, quite 
 apart from the registered estate, are recognized and enforced 
 in some manner. Under this system these rights are con- 
 sidered as mere rights and equities, and not as estates in land, 
 and while they are enforced as between the parties to them, 
 the theory of the system is that they must not operate against 
 the indefeasibility of the title of a certificate holder or of a 
 transferee of the land for value and in good faith. These 
 rights and equities give rise to much trouble and perplexity, 
 and the decisions of courts are far from uniform in the treat- 
 ment of them. This arises partly from the different language 
 of the different acts, but courts have differed greatly in ad- 
 ministering the same act.^^ 
 
 § 163. Concerning the registered estate and equitable rights 
 and interests it has been said: "The erection of one estate — 
 the registered estate, — in place of two, legal and equitable 
 estates, is not, however, allowed to interfere with the creation 
 of trusts and other equitable rights or interests. These no 
 longer constitute 'estates' properly so called, but provision 
 is made for the effectual protection of beneficial rights by 
 entries being made on the certificate of title relating to the 
 estate of the registered proprietor. In effect, what was form- 
 erly an equitable estate becomes, for the most part, under the 
 Torrens system, an equitable right rather in the nature of 
 an incumbrance on the estate of the registered proprietor 
 than part of the ownership of the land. It is true that inter- 
 ests in the nature of equitable estates may still be created 
 with respect to land under the system; but these, as will b? 
 subsequently pointed out, have not all the characteristics o'^ 
 the true equitable estate of English law. It will hi found that 
 this view of regarding trusts and other equitable interests, 
 as in the nature of incumbrances on the registered estate, 
 
 25 Crowley v. Bergtheil, 1899 A. 20 Chan. Div. 562 (1882). Eogers 
 C. 374. London S. W. Ey. v. Gomm, v. Hosewood, 2 Ch. 405 (1900). 
 
 250 
 
CONCERNING TOEEEN8 SYSTEMS 
 
 removes many difficulties which exist in the practice and 
 theory of the system, and in many cases reconciles conflicting 
 judicial decisions. These difficulties and conflicting decisions 
 have usually arisen from the impossibility of giving the pro- 
 visions of the statutes an interpretation consistent with the 
 strict preservation of all the rules of the English law of real 
 property. ' '^^ 
 
 The Torrens system does not aim primarily at the simpli- 
 fication of titles. It is a method of conveyanjcing and of deal- 
 ing with land. The logical principle of title registration is 
 that no estates or interests in land may be registered except 
 those which are authorized by statute, and that no estates 
 or interests need be noticed except those which are registered. 
 It will do little practical good to regard an equitable estate 
 as "an equitable right, rather in the nature of an incumbrance 
 on the estate of the registered proprietor than part of the 
 ownership of the land," and it seems vain to hope that such 
 a distinction will remove "many difficulties which exist in 
 the practice and theory of the system." In practice an un- 
 registered equitable right ia the nature of an incumbrance 
 on land is quite as dangerous and burdensome as an unregis- 
 tered equitable estate in land. The doctrine of one estate 
 in land will not be relieved of many of its difficulties unless 
 and until the legislative tendency of the people reaches the 
 point where all equitable estates and rights in land are swept 
 away. Unfortunately for the complete development and suc- 
 cess of the system, neither the legislative nor the judicial tend- 
 ency seems to be toward the recognition of the registered es- 
 tate only in land. § 49 of the English act, 1875, expressly pro- 
 vides for dealing with registered land off the register. This 
 section is a sop to the prejudice of the English against public- 
 ity in the matter of titles and in dealing with land, and it is 
 repugnant to the principles of the system of title registra- 
 tion. In deciding some questions of rights in registered land, 
 the courts of British Columbia expressly have denied the 
 doctrine that registration is the operative act to transfer a 
 title and have introduced some of the same doctrines of 
 
 26 Hogg, Australian Torrens Sys- tem p. 772. 
 
 251 
 
THE T0EEEN8 SYSTEM 
 
 equity, which took away much of the supposed strength and 
 usefulness of the recording acts.^^ 
 
 § 164. It is sometimes said that Torrens certificates of title 
 to registered land are like certificates of corporate stock. It 
 is true that they have some points of similarity. In its simplest 
 form a certificate of title is a certificate of ownership, just as 
 a corporate stock register is a register of ownership. Neither 
 a purchaser of registered land nor a purchaser of certificates 
 of stock need look back of the last registry of transler, and 
 a breach of trust, or an ordinary invalidity of title back- of 
 that does not affect his title. Under a forged instrument of 
 transfer, according to the general Torrens system, and under 
 a forged assignment of a stock certificate, the person who ob- 
 tains the first registry has no rights, except as against his 
 transferror, but any subsequent purchaser without notice is 
 fully protected in his title. But beyond this, few points of 
 similarity may be found, and any claim that the laws govern- 
 ing Torrens certificates of title and certificates of corporate 
 stock are identical arises from enthusiasm and not from ac- 
 curate knowledge. The law respecting the ownership and 
 transfer of corporate stocks is of modern origin, while the law 
 of real property has come down to us through the centuries, 
 full of history, theories, complications and technicalities. The 
 method of transferring and dealing with registered land is an 
 approach to the method of transferring and dealing with cor- 
 porate stock, but in order to make the title to land approxi- 
 mate to the title to stock, the laws governing real estate must 
 be made as simple as the laws governing personal property, 
 and the power of the owner of land to contract with respect 
 to it must be as limited as his power to contract with respect 
 to his personal property. Transactions in land must be lim- 
 ited to dealings with absolute ownership; conveyances or 
 transfers must be limited to fee simple titles, or to leases for 
 a term of years; estates for life, and in remainder, and a 
 mortgage and other lien, — in fact all estates or interests in 
 land, except a fee simple and a lease for years, — must be 
 equitable interests only, like a life interest in stock, and not 
 
 27 See Entwisle v. Lenz, 14 Brit- v. Stewart, 13 British Col. Eepts. 
 ish Col. Keps. 51 (1908). Westfall 111 (1907). See $75, ante. 
 
 252 
 
CONCEBNING T0EREN8 SYSTEMS 
 legal interests; and it must be possible to create them only 
 by a declaration of trust delivered to a trustee with the cer- 
 tificate of title. If conditions, limitations, restrictions, for- 
 feitures and other beneficial interests may be preserved in 
 dealing vi^ith land, manual possession of the certificate of title 
 must be given to the holder of the equitable interest, or to 
 some one for him, on the execution of a suitable deposit agree- 
 ment. While this plan may be worked out in detail with 
 ingenuity and skill, it will not simplify dealings with land so 
 completely as it may seem to at first impression. Results 
 which are accomplished directly through the present land 
 laws will be worked out indirectly, and new inconveniences 
 and complications will arise in the place of the old ones. When 
 we come to the point, no one wants a system which will re- 
 strict registry of land titles to a mere list of owners of land, 
 which will limit transactions in land to transfers of absolute 
 and unconditional ownership, and which will abolish the inci- 
 dents of the ownership of heritable property. Whenever we 
 may desire such a system, in this country, we may work it 
 out, as to future interests in land, by making the law of real 
 estate the same as the law of personal property. A registry 
 of title is valuable, which will enable intending purchasers of 
 or dealers with registered land to deal with it by a mere 
 entry on the register, without a retrospective examination of 
 the title, and with the simplicity and cheapness of dealing with 
 corporate shares; the only question is whether we are willing 
 to pay the price for it. 
 
 §165. The Registered Estate. The Registered Proprietor. 
 It has been said that the Torrens system is an attempt to re- 
 turn to the system of one single estate in land, the registered 
 estate, and to do away with the system of legal and equitable 
 estates. While this is undoubtedly a general object of regis- 
 tration acts, there are phrases in some of the acts, which speak 
 of estates at law and in equity. Thus, in some acts a proprietor 
 or owner is held to mean "any person seized or possessed of 
 any estate or interest in land at law or in equity. "^^ In 
 other acts a registered proprietor or owner is declared to be 
 
 28 See 5 3 New South Wales act. land act. $ 3 Tasmania act. 
 J 3 Queensland act. § 2 New Zea- 
 
 253 
 
THE T0EBEN8 SYSTEM 
 
 any person appearing by the register to own the interest in 
 land with which he is registered, whether the interest be in 
 possession, remainder, reversion or otherwise, in land or in 
 a lease, mortgage or charge.^® There are several references 
 to legal and equitable estates in different statutes,^" and in 
 some decisions,^^ but they merely indicate confusion of ex- 
 pression and not an intent to describe an estate in land under 
 the Torrens system.^^ 
 
 § 166. Creation of an Indefeasible Title to Land. Under 
 foreign acts, except in certain cases heretofore stated, a certifi- 
 cate confers on the registered owner an unimpeachable and 
 indefeasible title to the estate or interest with which he is 
 registered. It follows from this that where the person regis- 
 tered had no title at all, except for his registration, the certifi- 
 cate divested all estates and interests in the land from other 
 persons, and created the title for him. The creation of a cer- 
 tificate which is conclusive evidence of an indefeasible title is 
 an essential object of the system.^* In order to attain this 
 object, the state creates an ofiiee, confers on such officer the 
 power to pass on questions of title submitted to him in his 
 official capacity, authorizes him to issue a certificate evi- 
 dencing his decision as to the ownership of land and as to 
 matters which affect the title, and declares his certificate con- 
 clusive evidence of the condition of the title as determined 
 by him. In foreign countries there is no limitation on the 
 power of the legislature to make laws, and it is no objection to 
 the scheme, that the object is attained by a statutory declara- 
 tion of the indefeasibility of a title registered through the 
 exercise of judicial functions by the designated officer. In 
 this country it is held that such an officer is not authorized 
 to exercise judicial functions, that his functions in bringing 
 land under the act are judicial, and that original registra- 
 
 29 See §4 Victorian act. H 9 Q. L. J. 125 (1899). Eowe v. 
 Western Australia act. § 3 South Trustees, 21 V. L. R. 762 (1895). 
 Australia act. In re Bosquet, 17 S. A. E. 177 
 
 30 §§91, 124 Victorian act. §5 (1883). 
 
 Tasmania act. $ 60 New South 32 Hogg, Australian Torrens Sys- 
 
 Wales act. tem, p. 767 et seq. 
 
 31 Staples V. Corby, 19 N. Z. R. 33 Ante J 161. 
 517, 537 (1900). Allison v. Petty, 
 
 254 
 
CONCERNING T0EREN8 SYSTEMS 
 tion of a title under such a scheme is void.^* The reasoning 
 in the opinion in People v. Chase, supra, should be studied 
 most carefully. It seems to apply equally to registrations 
 made by a registrar on original applications and on transfers 
 of registered land. The opinion is long, but it may be em- 
 bodied here with propriety. 
 
 § 167. The act concerning land titles which was passed in 
 Illinois in 1895, provided that the registrar should bring land 
 under the act by original registration in the same manner as 
 foreign registrars issue original certificates of title. Section 
 14 provided that upon the filing with the registrar of an ap- 
 plication for registration, he should cause examination to be 
 made into the applicant's title to the land, and as to the truth 
 of the matter set forth in the application, and particularly, 
 whether the land was occupied and the nature of the occupa- 
 tion, if occupied, that he should notify all persons apparently 
 interested in the land of the filing of such application, and 
 that he should cause a copy of the notice to be posted on the 
 premises, etc. Section 15 of the act provided that if it should 
 be made to appear to the registrar that the facts stated in the 
 application were true, and that the applicant was the owner 
 of the land, or interested therein as set forth in the applica- 
 tion, he should issue a certificate of title and proceed to bring 
 the land under the operation of the act; otherwise he should 
 dismiss the application without prejudice. In considering 
 these and some other provisions of the act, the supreme court 
 of Illinois, in People v. Chase, supra, said: "Under these 
 several provisions of the act, if A B claimed to be the owner 
 of a lot in the city of Chicago as devisee, in fee simple, and 
 as such wished to have his title registered as authorized by 
 section 7, his application, in conformity with section 11, would 
 be substantially as follows: 'A B, a resident of Chicago, Cook 
 County, Illinois, unmarried, is the owner of lot (describ- 
 ing it) in fee simple, not subject to an estate of homestead, 
 unincumbered, subject to no liens or incumbrances; that C D 
 claims to own said lot in fee simple, and his post-office address 
 
 is No street, Chicago, Illinois; that this applicant is 
 
 of the full age of twenty-one years. (Sworn to) — ^A B.' Sup- 
 
 34 People V. Chase, 165 111. 527; 52 N. E. Eep. 910; 68 Am. St. Eep. 
 46 N. E. Eep. 454 (1897). Eeaffirm- 175; 44 L. E. A. 801 (1898). 
 ed in People v. Simon, 176 111. 165; 
 
 255 
 
THE TOEEEN8 SYSTEM 
 
 pose the applicant claimed such ownership as devisee under the 
 will of John Doe, deceased. If the will was not recorded in 
 the office of the recorder of deeds (the registrar) it would be 
 the duty of the applicant to furnish a copy thereof, with his 
 application, and any other instruments in his chain of title not 
 then of record in that office, (part of Sec. 14). Under other 
 provisions of that section it would then become the duty of 
 the registrar to cause an examination to be made as to the 
 truth of the facts set forth in the application, and also whether 
 the lot was occupied, and if so, the nature of the occupancy. 
 He would next be required to notify C D, and all other persons 
 whom he might find to be interested, by reason of possession 
 or otherwise, and post a copy of the notice on the premises at 
 least ten days before granting the certificate of registration. 
 Jf C D, being under no disability, appeared before the regis- 
 trar in obedience to that notice, and set up claim to the lot 
 as the only heir of John Doe, deceased, claiming that the will 
 accompanying the application was not legally executed as pro- 
 vided by the statute, and that it did not, by a proper con- 
 struction, devise the lot to A B, or if he was an infant, lunatic 
 or under other disability, and no appearance was made for 
 him by guardian, conservator or next friend, it would be the 
 duty of the registrar, aided by his two examiners, to inquire 
 into the matter, and settle, in the one case, the issue made be- 
 tween the parties, and in the other, ex parte, the claim of 
 ownership set up in the application. If, upon such investiga- 
 tion, he should find the facts stated in the application to be 
 true, 'and that the applicant is the owner of the land in fee 
 simple, as set forth in the application,' he must issue a cer- 
 tificate of title and proceed to bring the lot under the opera- 
 tion of the act, as thereinafter provided. But if, upon such 
 examination, he should find that the facts stated in the appli- 
 cation are not true, or that A B is not the owner of the lot, 
 it would be his duty to dismiss the application without pre- 
 judice, returning the papers to the applicant. If he granted 
 the certificate it would be substantially in the following form: 
 'State of Illinois, Cook County. A B, of Chicago, Cook County, 
 Illinois, unmarried, is the owner of an estate in fee simple in 
 the following land, to-wit : Lot in the city of Chi- 
 cago. "Witness my hand and official seal, this day of 
 
 , 1896. Seal. Samuel B. Chase, Registrar.' In obedi- 
 ence to the provisions of section 17 of the act, this certificate 
 could only be issued upon the written opinion of two examin- 
 ers, appointed under section 5, filed with the registrar, 'to 
 the effect that the applicant has a good title to the estate or 
 interest in the land, as stated in the application.' Upon the 
 issuing of the certificate, A B, in the absence of fraud to 
 
 256 
 
CONCERNING TOEEENS SYSTEMS 
 
 which he is a party, etc., would hold the lot in fee, free from 
 all others, except, first, any subsisting lease, etc. ; second, all 
 public highways; third, any subsisting right of way; fourth, 
 any tax or special assessment; fifth, 'such right of action or 
 counter-claim as is allowed by the act;' and sixth, the right 
 of any person in possession of and rightfully entitled to the 
 land, or any part thereof or interest therein, adverse to him at 
 the time when the certificate was issued, as provided by section 
 29. With the exceptions mentioned in this section, neither 
 C D nor any other person claiming the lot could commence 
 any action at law or in equity for the recovery thereof, or 
 assert any interest, right in or lien or demand upon the same, 
 or make any entry thereon adversely to the title of A B, un- 
 less the action should be brought within five years from that 
 date (sec. 37) ; or, if the right existed at the time of the issu- 
 ing of the certificate, but no cause of action had then accrued, 
 such party might, prior to the expiration of said five years, 
 file in the registrar's office a notice, under oath, setting forth 
 his interest, etc., and might then bring his action at any time 
 within one year after the right accrued. (Sec. 38.) It is in- 
 sisted by counsel for appellant, that in such a proceeding be- 
 fore the registrar he would exercise judicial functions, and 
 that the certificate so issued would be, in effect, an adjudica- 
 tion that A B was the owner of the lot in fee simple. It is 
 contended, on the other hand, on behalf of appellee, by the 
 several counsel representing him, that the acts of the registrar 
 and his examiners are only ministerial, and, though performed 
 by the exercise of judgment and discretion somewhat judicial 
 in character, are in no way violative of the foregoing provision 
 of the constitution. Their contention is, that the statute giv- 
 ing effect to the certificate of registration is nothing more or 
 less than a statute of limitations, and it is said : ' Under the act 
 in question the registrar's certificates do not bind any one for 
 the first five years. During that time they may be attacked 
 directly or in a collateral proceeding. The sole object of the 
 first certificate of title is to start the running of the statute 
 of limitations. It is only by virtue of the limitation thus ex- 
 pressed that the certificate ever attains its conclusive effect. 
 The registration of the land and the issuing of the certificate 
 of title start the running of the statute of limitations, and 
 nothing will arrest its operation except the interposition of 
 some adverse claim, which must be made to appear upon the 
 register. Therefore, when the five years have expired and 
 nothing appears upon the register to the contrary, the con- 
 clusion is inevitable that nothing can ever be brought forward 
 to disturb the registered title. The advantage of this limita- 
 tion over our other statutory or common law limitation is, that 
 
 257 
 
THE TOEEENS SYSTEM 
 
 it is based entirely upon matter of record, namely, the regis- 
 tration of the first certificate of title. As it is started by only 
 matter of record, so, if arrested at all, it will be arrested by a 
 matter that will appear upon the same record. Therefore, 
 whether all adverse claims are barred or not can be told by 
 looking at the register.' Conceding all this to be true, it 
 does not, in our opinion, follow that the proceeding before 
 the registrar is not judicial in its character, within the mean- 
 ing of the constitution, nor that the registrar and examiners 
 upon whose opinion the validity of A B 's title is determined, 
 are not clothed with judicial powers. Whether the principal 
 thing to be determined by them be the ownership of the land, 
 or merely whether it shall be brought under the provisions 
 of the act, or only when the statute of limitations shall 
 begin to run, it seems clear that the adjudication is upon 
 the rights of the parties claiming as owners, by construing and 
 applying the law to the facts of the case. The definition of 
 judicial power given by Judge Cooley in his work on Con- 
 stitutional Limitations, held by this court to be sufficiently 
 accurate for the purposes of the question then before the court, 
 which was in substance the same as that now under considera- 
 tion, is as follows: 'The power which adjudicates upon and 
 protects the rights and interests of individual citizens, and to 
 that end construes and applies the laws.' (Owners of Lands 
 V. People ex rel., 113 111. 296.) We do not understand that 
 under this definition, or under any definition of the term 
 'judicial powers,' it is necessary that the adjudication be- 
 tween the parties shall be conclusive of their rights put in 
 issue ; but if the party or officer is clothed with the power of 
 adjudicating upon and protecting the rights or interests of 
 contesting parties, and that adjudication involves the con- 
 struction and application of the law and affects any of the 
 rights or interests of the parties, though not finally determin- 
 ing the rights, it is still a judicial proceeding or the exercise 
 of judicial functions. The question, therefore, in the supposed 
 case is, not whether the registrar finally determines the owner- 
 ship of the lot, but whether his decision affects the rights of 
 the parties claiming that ownership. As we understand the 
 argument of counsel for appellee, their position is, that the 
 proceeding before the registrar is not to determine the owner- 
 ship of the lot, but simply to ascertain whether, under the ex- 
 isting facts, the lot shall be brought under the act, and that the 
 determination of the ownership is merely incidental to the min- 
 isterial act of bringing the property into registration, and that 
 the courts are left open to all parties claiming any interest 
 adversely to the holder of the certificate of title. It is never- 
 theless true, that the rights in the case stated of C D are sub- 
 
 258 
 
CONCERNING TOEEENS SYSTEMS 
 
 stantially and conclusively affected by the decision that A B is 
 the owner and entitled to have the lot brought under the act 
 in question. It will not be denied that the issuing of the cer- 
 tificate puts in operation the statute of limitations against C 
 D, and that it in effect amounts to a determination that if 
 his rights are not asserted in the courts within five years 
 thereafter (unless within the provisions of section 38) he shall 
 be forever barred. In other words, if it be true that, the issue 
 before the registrar is whether the property shall be regis- 
 tered and whether the statute of limitations shall from that 
 time begin to run, the decision of that question involves the 
 determination of the ownership of the property; and if it be 
 conceded that the courts are left open to C D for a period of 
 five years from that date, the decision nevertheless takes 
 away from him the existing right to bring his action without 
 that restriction. The decision against him that the property 
 shall be brought under the provisions of the act is as fatal to 
 his right of ownership as though that question were finally 
 and conclusively settled, except that he still has a limited 
 time in which to have his title settled in a court of law or 
 equity. In case of disability at the time the registrar issues 
 his certificate, the right reserved to bring the action within 
 five years may be of no benefit whatever. Section 37 ex- 
 pressly provides, that 'it shall not be an exception to this 
 rule' (that is, that the requirement that the action must be 
 brought within five years,) 'that the person entitled to bring 
 the action or make the entry is an infant, lunatic or is under 
 any disability, but action may be brought by such person by 
 his next friend or guardian.' Let it be supposed, in the case 
 put, that C D, at the time of registration is a child one year 
 of age, without guardian, and, of course, incapable himself 
 of procuring the appointment of one. The registrar decides, 
 and issues a certificate which starts the running of the statute 
 of limitations against him. As to that fact his decision is 
 conclusive. When the statute has run C D is six years of 
 age, still without guardian and still incapable of procuring 
 the appointment of one, — incapable of knowing or protecting 
 any of his rights, — and yet, by the determination of the regis- 
 trar that A B was the owner of the lot and entitled to a cer- 
 tificate of registration, his rights are absolutely and forever 
 barred. How did the registrar arrive at the conclusion that 
 A B was the owner of the property? Clearly, by the examina- 
 tion of the facts and by construing and applying the law to 
 those facts, in doing which he adjudicated upon the rights and 
 interests of A B and C D, and decided in favor of A B and 
 against C D in a matter of most vital importance. It seems 
 to us that the reading of this act forces the mind to the con- 
 
 259 
 
THE TOEEENS SYSTEM 
 
 elusion that it confers upon the registrar and his examiners 
 judicial powers for the purpose of determining the rights of 
 adverse parties. If, as is contended, the duties of the regis- 
 trar are purely ministerial, why should he have heen required 
 to call to his assistance 'two or more competent attorneys' to 
 be examiners of title, as his legal advisers ? Why, if his duties 
 are merely ministerial, should he be limited in his right to 
 bring the property within the provisions of the act, to cases 
 in which he should have the favorable opinion of at least two 
 of these examiners? Manifestly, the act contemplates that he 
 shall consider and apply the law to the facts presented by the 
 applicant, and, lest he should not be able to do so himself, he 
 is required to call to his aid those learned in the law. In the 
 case supposed, whether the will was legally executed would 
 to a lawyer be a simple question, but in its determination it 
 would be necessary to understand and apply the provisions of 
 the statute ; and whether, by a proper construction of the in- 
 strument, a devise was legally made to a particular person, 
 every lawyer knows would often become a matter most diffi- 
 cult of solution. We are not unmindful of the well settled 
 rule that there are many cases in which ministerial officers 
 exercise quasi judicial powers or discretions and yet the laws 
 conferring such powers are held to be no violation of the con- 
 stitutional provision under consideration. These cases are 
 referred to and commented upon in Owners of Lands v. People 
 ex rel. supra. But what we have already said sufficiently dis- 
 tinguishes the powers conferred upon the registrar by this act 
 from all such cases. It seems to us that it would be difficult 
 to more clearly and positively confer judicial powers upon a 
 person unqualified, under the constitution, to exercise those 
 powers, than is done by this law. This doubtless, resulted from 
 an attempt to adopt the provisions of a similar law in force 
 in Australia, Canada, England, and perhaps other countries, 
 by which the certificate of title issued becomes conclusive as 
 to the ownership of the property, and in which countries no 
 constitutional or other restriction exists against the legisla- 
 tive grant of such powers upon non-judicial officers. The 
 powers of the registrar are no less judicial under our statute 
 than those in the countries referred to. The only difference 
 is, there this is no valid objection to the validity of the law, 
 while here it is fatal. In In re, etc., ex parte Bond, 6 V. L. E. 
 (L.) 458, in construing the transfer of land statute, it is said: 
 'The intention of the legislature was obviously to impose the 
 duty upon the registrar to prevent instruments being regis- 
 tered which, in law as well as in fact, ought not to be registered 
 in the first instance, and to determine the validity of the in- 
 struments, as well as the priority of registration in point of 
 
 260 
 
CONCERNING TOEEENS SYSTEMS 
 
 time. He has therefore to discharge not merely ministerial, 
 but judicial, duties. ' Without further discussion of the ques- 
 tion we are of the opinion that this law, for the reasons stated, 
 IS obnoxious to the constitution, and therefore void." 
 
 § 168. Under American System New Certificate is Not Con- 
 clusive. The registrar exercises functions of the same kind and 
 nature in passing on the validity and effect of an instrument 
 of transfer of registered land, and in passing on the validity 
 and effect of each instrument in the history of a title presented 
 for original registration. These functions are held to be ju- 
 dicial in all foreign acts. The exercise of his functions is 
 absolutely necessary to the issue of a new certificate, since 
 he alone may make a new registration. He adjudicates on the 
 rights of all persons in the land, and the statute declares all 
 certificates issued by him to be conclusive evidence of title. 
 From these facts we should expect the courts in this country 
 to hold that, in making a new registration on a transfer of 
 registered land, the registrar adjudicates on the rights of par- 
 ties, concludes such rights under the very terms of the stat- 
 utes, exercises judicial functions, and falls within the pro- 
 hibition of the constitution. This would seem to be the broad 
 and logical effect of the decision in People v. Chase, supra. 
 Nevertheless, in a general way, where the constitutionality of 
 the whole acts was challenged, and where no specific function 
 of the registrar was under consideration, the courts have 
 held that where he registers a transfer of registered land from 
 the last registered owner, or where he notes on a certificate 
 a mortgage or lien, his functions are not necessarily judicial, 
 but are ministerial, executive, quasi judicial and discretion- 
 ary, and incidental to the issue of a new certificate, and to 
 the noting of the mortgage or lien, and that his decision in 
 such matters is not conclusive, but may be litigated in any 
 proper manner.^^ When it was decided that, under the stat- 
 utes in this country, the registrar necessarily did not exercise 
 judicial functions in making a new registration, many per- 
 
 35 People V. Simon, 176 111. 165; 90 Pae. Eep. 129 (1907). State v. 
 
 52 N. E. Eep. 910; 68 Am. St. Eep. Westfall, 85 Minn. 437; 89 N. W. 
 
 175; 44 L. E. A. 801 (1898). Ty- Eep. 175; 54 Cent. L. J. 282 (1902). 
 
 ler V. Judges, 175 Mass. 71; 55 N People v. Crissman, 41 Colo. 450; 
 
 E. Eep. 812; 51 L. E. A. 433 (1900). 92 Pac. Eep. 949 (1907). See § 68, 
 
 Eobinson v. Kerrigan, 151 Cal. 40; ante, et seq. 
 
 261 
 
THE TOREBNS SYSTEM 
 
 sons jumped to the conclusion that the way was clear to put 
 the Torrens system in operation here. "When a ministerial 
 officer acts in a quasi judicial manner, his action is not an 
 adjudication, and is not conclusive on the rights of the par- 
 ties concerned. At most if may be prima facie correct, for 
 there may be a presumption that he performed his duty prop- 
 erly in the premises. It may be set aside in all cases where, 
 in pleading and in evidence, specific acts of fraud, or particular 
 errors and mistakes are shown to have affected it.*® This 
 prima facie evidence, — this presumption, — so far as the law 
 of evidence is concerned, — ^merely means that any person at- 
 tacking the certificate has the burden of showing that it is 
 wrong, and is a mere rule as to the duty on his part of pro- 
 ducing evidence and of persuading the tribuiial before which 
 the attack is made. Prima facie evidence is binding only 
 until contrary evidence is produced. It determines the find- 
 ing of fact if no other evidence is introduced, but the moment 
 other evidence is brought forward, the case is to be deter- 
 mined on all the evidence, — prima facie evidence and all other 
 evidence, — and the question is whether the weight prepon- 
 derates in favor of the party having the burden of proof.*^ A 
 patent issued by a commissioner of patents is prima facie 
 valid, but it may be set aside for lack of patentability, novel- 
 ty or priority of the invention, as against the original paten- 
 tee, or against any purchaser and transferee for value. A 
 title founded on a grant from the government, signed by a 
 commissioner of the land office, may be litigated and im- 
 peached for error, no matter how many conveyances have been 
 made under it. When a registrar issues a new certificate of 
 title under general orders or rules of a court having super- 
 vision over him,** he obtains the power to make the registra- 
 tion from the terms of the statute, and the general orders or 
 rules of court are a mere guide for him in the exercise of the 
 power. Such orders or rules are not operative against per- 
 sons who are not before the court on due process, and they 
 
 36 state V. Illinois Central, 246 Inhabitants of Cohasset v. Moors, 
 111. 188; 92 N. E. Bep. 814 (1910). 204 Mass. 173; 90 N. E. Eep. 978 
 
 37 See instruction of the court (1910). 
 
 on a petition to register a title in 38 See Tyler v. Judges, supra. 
 
 262 
 
CONCEENING TOERENS SYSTEMS 
 
 do not make a certificate conclusive evidence of title against 
 anyone. Where a registrar submits for the decision of the 
 court any question arising under an act, the opinion so ob- 
 tained, without hearing persons interested, cannot be looked 
 upon as anything more than a rule to guide the registrar, 
 and will not bind that court or any other in any litigated 
 case, in which the question may be raised by persons actually 
 interested in its determination.ss The statutes declare that a 
 certificate is conclusive evidence of an indefeasible title in all 
 courts and in all places, but a certificate issued on the trans- 
 fer of registered land must present the adjudication by the 
 registrar on the rights of all interested persons in order to 
 attain this statutory force and effect. In this country a cer- 
 tificate issued on the transfer of registered land presents, 
 not an adjudication by, but merely the discretionary action 
 of, the registrar, which can be only prima facie binding on 
 persons interested, notwithstanding the statutory declaration 
 of indefeasibility of title. This declaration is to the Torrens 
 system all that a keystone is to an arch. "Without an incon- 
 testable certificate, evidencing an indisputable title, a pur- 
 chaser for value of registered land may not assume that the 
 last registered owner has an indefeasible title to the estate or 
 interest with which he is registered, and there must be a retro- 
 spective examination of the title. It is evident that this state 
 of the law is highly unsatisfactory and that, instead of clear- 
 ing the way for the establishment of the Torrens system of 
 conveyancing on a working basis, it destroys its working ca- 
 pacity. With regard to the nature of the functions of the 
 registrar in this country, the situation seems to be that if they 
 are judicial they may not be exercised under our constitu- 
 tions, and if they are ministerial and quasi judicial, they 
 never can be the foundation for a conclusive certificate. Since 
 the scheme of operation absolutely requires incontestable cer- 
 tificates, it cannot be worked under our system of jurispru- 
 dence. We must wait with patience until the courts show 
 us a way out of this dilemma, remembering that it took more 
 than forty years to settle some fundamental questions of title 
 
 39 In re The Land Transfer act, 
 1885, 25 N. Z. L. E. 385 (1905). 
 
 263 
 
THE TOEEENS SYSTEM 
 
 registration under the Australasian acts,*" 
 
 As to the statutory declaration that the bringing of land 
 under the act shall imply an agreement running with the 
 land, that it shall be subject to the terms of the act and aU 
 amendments and alterations thereof, it is manifest that only 
 those terms of the act, which are valid and legal, are bind- 
 ing on the land. No invalid phrase or section in the act may 
 be held to be technically a part of it. 
 
 § 169. Effect of General Laws on the Torrens System. It 
 
 is evident that one great element of difficulty in returning to 
 the system of one estate is the fact that the general laws con- 
 cerning real estate are still in force in most countries and are 
 administered concurrently with the new laws. The tendency 
 is to apply the old laws and the theories of the old laws, 
 which are better understood, to the evolution and develop- 
 ment of the new system. Even though this tendency may 
 be avoided, it is still difficult to determine what general laws 
 relating to land affect and govern land which has been regis- 
 tered under the system. The evils and difficulties arising 
 from the concurrent administration of two different systems 
 of real estate laws are referred to in appropriate places in 
 this work, but a learned writer, who has had an extended 
 experience under the new system in states where general real 
 estate laws are also in force, has treated of them in a much 
 more comprehensive manner. He says: "The complete suc- 
 cess of the Torrens system is at present retarded by the fact 
 that it is only 'a' system, and not 'the' system. Until all land 
 in any particular jurisdiction has been brought under the 
 Torrens system, so that no conveyancing transactions can take 
 place in that jurisdiction except subject to the rules of the 
 system, difficulties will continue to crop up. These difficulties 
 are principally due to the undefined nature of the relation be- 
 tween the Torrens Statutes and other legislation, and to the 
 fact that analogies are constantly drawn by the courts from 
 the 'general law' relating to land, which includes the techni- 
 cal rules derived from the feudal system. The tendency of the 
 Torrens system is to throw off these technical rules, and this 
 process would be greatly facilitated if there were no occas- 
 ion, — as there frequently is at present, — to apply the feudal 
 rules to land which is under the Torrens system. I have 
 
 40 See ante, § 148. 
 
 264 
 
CONCEENING TORRENS SYSTEMS 
 
 endeavored to point out, in the course of the book, what I 
 conceive to be the best way of meeting these difficulties, and 
 possibly the very difficulty of doing this satisfactorily may 
 have its effect in inducing an alteration in the direction sug- 
 gested, i. e. that the old system of conveyance by assurance 
 should no longer be permitted to exist alongside the Torrens 
 system of registration of title. The way might thus be made 
 clearer for the total abrogation, in theory as well as practice, 
 of the feudal tenure of land in England and territories under 
 the English common law. "*i 
 
 § 170. And again he says : ' ' One difficulty in deciding ques- 
 tions relating to rights in land under the Torrens system is 
 the difficulty of determining how much of the general law of 
 the land continues to apply to land under the system. No 
 such question would have to be determined if all the land 
 within the jurisdiction of a legislature were under the sys- 
 tem, but until this is an accomplished fact, cases must con- 
 tinue to arise in which the decision will depend on whether 
 a particular proposition of law still holds good with respect 
 to land under the Torrens system. All the existing statutes 
 (except that of New Zealand) agree in purporting to repeal, 
 so far as relates to land under the system, such parts of the 
 general law as are inconsistent with the provisions of the 
 statutes, though in some cases modifications are introduced. 
 These enactments, however, are not of much practical value, 
 or of much help in determining what parts of the general law 
 are inconsistent with the statutes. So far as relates to the 
 general law, — both statute and common law, — as it existed 
 at the date of the system coming into operation in each juris- 
 diction, questions of the extent of its applicability to land 
 under the system are referred to in their appropriate places. 
 Prima facie all such acts of Parliament relating to land in- 
 clude and apply to land under the system; but, — in accord- 
 ance with the maxim, 'Generalia Specialibus Hand Derogant,' 
 — the special provisions of the Torrens statutes will take effect 
 so as to exclude the operation of the general statutes when- 
 ever such exclusion is essential to the due operation of the 
 special enactments. The real difficulty here, of^^ course, as 
 always, lies in applying the rule; occasionally also it may be 
 difficult to say which is the general, and which the special, 
 statute.*^ It can hardly be doubted that enactments on the 
 subject of conveyancing procedure, registration, etc., and other 
 matters which are provided for in the Torrens statutes, only 
 apply to land under the system so far as they are not incon- 
 
 41 Hogg, Australian Torrens Sys- 42 See Neill v. Lindsay, 13 S. A. 
 
 tern, preface, p. Vlll. R. 196, 201 (1879). 
 
 265 
 
THE TOEEENS SYSTEM 
 
 sistent with the express provisions of the Torrens statutes.*^ 
 Provisions in the general statute which are not inconsistent 
 with the provisions of the Torrens statute, and which can 
 he carried into effect as regards land under the system hy 
 adaptation to the procedure prescribed by the Torrens stat- 
 ute, may often be held to apply to land under the system as 
 well as to other land; as where a particular procedure is 
 laid down for obtaining a 'conveyance' of land.^* As the 
 area of land under the system increases in any particular juris- 
 diction, the Torrens statutes necessarily tend to lose their 
 character of 'special' statutes, and there is less difficulty in 
 making the provisions of general statutes apply to land under 
 the system, so far as no express provision of the Torrens stat- 
 utes is thereby abrogated. There is a growing disposition, 
 however, as the area of land under the system increases, on 
 the part of the legislatures to include in general statutes 
 express references to land under the system, and prescribe 
 the procedure to be adopted where this would necessarily 
 differ from the procedure relating to land under the general 
 law. On the other hand, the difficulty of deciding whether 
 the provisions of a general act do or do not apply to land 
 under the system is sometimes made greater by reason of 
 particular sections of the act expressly excluding such land 
 from their operation, thereby leaving room for a possible 
 inference that other sections do apply to land under the system, 
 though they might not otherwise be thought to do so. There 
 are, however, cases in which not mere matters of form and 
 procedure, but substantial rights, are in question, and where 
 there is an absolute inconsistency between the provisions of 
 the Torrens statute and the general statute. In such eases, 
 whenever the general enactment has been held to override the 
 Torrens statute, the general statute has been either of later 
 date than the Torrens statute, or of later date than a pro- 
 vision re-enacted in the Torrens statute.*^ Sometimes it is 
 clear from the language of the Torrens statute that the enact- 
 ment in the general statute has been wholly or partially 
 anticipated, and if the provision made on the subject by the 
 Torrens statute is inconsistent with the provision made by the 
 general statute, the Torrens enactment will usually prevail; 
 
 43 See Sander v. Twigg, 13 V. L. 44 In re Paten 17 N. S. "W. B. 90 
 
 R. at 774 (1887). In some cases (1896). 
 
 there are express enactments on 45 gee Neill v. Lindsay, 13 S. A. 
 
 this point: (New South Wales) r. 196 (1879); Kirkham v Julian, 
 Eegistration Act 1897 (1897 No. n v. L. E. 171 (1885). 
 22), s. 6, sub-s. 5; V. 1890, s. 59; ^ ' 
 
 (New South Wales) Wills, Probate, 
 and Administration Act 1898 (1898 
 NO. 13), s. 83. 
 
 266 
 
CONCEENING TOREENS SYSTEMS 
 
 contradictions of this kind are illustrated by the bankruptcy 
 and insolvency legislation."*® 
 
 The relation of Torrens acts to general subsequent legis- 
 lation is not only ill-defined, but it is nowhere defined at all. 
 General statutes dealing with land, passed subsequent to a 
 Torrens act, may or may not apply to registered land, and 
 it is impossible to decide whether or not it does, until the 
 supreme court has determined the question. Since one- legis- 
 lature cannot impose limitations on the power of future legis- 
 latures to pass laws, it may be that any statutory provision 
 is void, which attempts to declare that registered land shall 
 not be affected by subsequent legislation unless registered 
 land is referred to in apt words. 
 
 § 171. The general policy of the real estate laws of a state 
 should be xmiform. If it is considered to be the better policy 
 to abolish the rule that possession of land is evidence of all 
 the rights and estates of the person in possession, it should 
 be abolished entirely. It seems incongruous that the general 
 laws should have one rule on that subject, and that the Tor- 
 rens laws should establish another rule. In Illinois, in appli- 
 cations to register land, abstracts of title, made by makers 
 of abstracts in the ordinary course of business, are prima facie 
 evidence of the instruments and proceedings shown therein,*'^ 
 while in suits at law or in equity under the general laws they 
 are not admissible as evidence of title. In making them 
 prima facie evidence only in applications to register land, 
 the legislature does not distinguish between registered and 
 unregistered land, for the land is not registered until the appli- 
 cation has been passed on, the decree rendered, and the cer- 
 tificate issued. The distinction is between Torrens applica- 
 tions for registration and other proceedings in court. If ab- 
 stracts of title are suitable evidence of title in one proceed- 
 ing, they should be made evidence in all proceedings in court. 
 
 § 172. Concurrent Administration of Two Sets of Laws. In 
 connection with the suggestion that, in the concurrent admin- 
 istration of two radically different systems of real estate laws 
 by the same courts, there is a tendency to modify the provis- 
 
 46 Hogg, AustraUan Torrens Sys- 47 J 18 Illinois act, as amended in 
 
 tern, pp. 80, 81, 82. 1907. 
 
 267 
 
THE TOEEENS SYSTEM 
 
 ions of one system by the application of the principles of the 
 other, it is worthy of note that in the first case determined in 
 the court of appeal of England, construing the provisions of the 
 English land transfer acts, and discussing the principles of the 
 Torrens system, it was held that, notwithstanding land has 
 become registered land, it may still be dealt with by deeds 
 having the same operation and effect as they would have if 
 the land were unregistered, subject only to the risk of the 
 title being defeated or impaired by the exercise of the statutory 
 power of disposition given to a registered owner, against which 
 the grantee must protect himself by notice on the register; 
 that conveyancing may proceed after registration, just as if 
 the land transfer acts had not been passed; that the owner 
 of the legal title, whether registered or not, may convey such 
 title.** This decision was made in order to protect a person 
 who had advanced the money to pay for certain land, and 
 who would be protected under the general law. He was neg- 
 ligent in obtaining registration of his interest, and clearly 
 had no claim to the indemnity fund. The court found cer- 
 tain sections of the acts, some vague, and some referring 
 to unregistered rights and claims, but not to unregistered es- 
 tates in land, and so construed them as to maintain his in- 
 terest in the land. The court undoubtedly administered equity, 
 but not Torrens law. It is submitted that such a holding 
 is subversive of the whole Torrens system, under which regis- 
 tration is the necessary act to transfer or affect a registered 
 title, and under which one must deal with a registered owner 
 in order to obtain any interest in registered land.*® 
 
 § 173. What General Laws Apply to Registered Land. In 
 
 the absence of express enactment to the contrary, limitation 
 acts apply to land under the Torrens system.^" Where the 
 laws of descent of real property are not set forth in the Tor- 
 rens act, land will descend according to the general laws. 
 
 48 Capital and Counties Bank v. of the Torrens system. 
 
 Ehodes, 1 Chan. 631 (1903). 50 In re Bartlett, 4 Tas. L. E. 26 
 
 49 It must be observed, however, (1908). Belize Estate Co. v. Quilt- 
 that in the case last cited the court er, 1897 A. C. 367 P. C. Shirley v. 
 was construing $49 of the English Tapper, 23 N. Z. L. E. 849 (1904). 
 act, 1875, and that this section is 
 
 repugnant to the spirit and object 
 
 268 
 
CONCERNING TOBRENS SYSTEMS 
 
 Where other remedies are not specially provided, the rem- 
 edies under the general law will be applied to rights in regis- 
 tered land. It has been held that there is a right to distrain 
 for rent of registered land.^i The mere fact that a Torrens 
 act does not declare in express words that a registration of 
 title procured by fraud may be set aside as between the par- 
 ties, does not deprive a court of equity of its general juris- 
 diction to protect parties from the consequences of fraud.^^ 
 Courts have jurisdiction of equitable estates, even though the 
 statutes do not expressly so provide, and in many acts there 
 are provisions which treat of equitable estates in such a man- 
 ner as to suggest that they are made the subject of equity 
 jurisdiction.53 Courts of equity wiU exercise general juris- 
 diction in matters of fraud and error, and, giving attention 
 to the special provisions of the Torrens act, will issue such 
 orders and directions to all parties to the proceedings as 
 may seem just and proper under the circumstances. They 
 may order parties to make deeds of conveyance, and if the 
 order is disobeyed, they may cause proper conveyances to 
 be made by a master in chancery or commissioner, in accord- 
 ance with the practice in equity. They have power to declare 
 instruments and transactions void and ineffectual.^* Some 
 acts expressly declare that nothing therein contained shall 
 take away or affect the jurisdiction of any competent court 
 on the ground of actual fraud, or over contracts for the sale 
 or other disposition of land for which a certificate of title has 
 been granted.^^ Mandamus, to compel the registrar to regis- 
 ter an instrument or make an entry on the register, lies under 
 the general jurisdiction of courts,^^ and, by analogy, injunc- 
 tion will lie to restrain the registrar from dealing with regis- 
 tered land.^''' Acts for the registration of titles give to a 
 registered owner immense power to bar clear equities, where 
 
 51 Bushnall v. Eeid, 10 S. A. E. 55 § 34 Act for Ireland, 1891. $ 
 
 188 (1876). 4 Saskatchewan act. § 126 Mani- 
 
 52Baart v. Martin, 99 Minn. *°'^3' ^?*- * 1^? ^"ll^*^,^,";*; i^.l 
 197; 108 N. W. Eep. 945 (1906). Queensland act, 1877. § 117 Fijx 
 
 53 See § 51 Queensland act. ^249 ' _ 
 South Australia act. M9 English „„5^^?^, P^^^^ Clark, 17 V. L. E. 
 act, 1875. 82 (1891). 
 
 54 Hogg, Australian Torrens Sys- ^ 5J McEacharn v. Colton, 1902 A. 
 tern, p. 847. ^- ^'^^■ 
 
 269 
 
THE TOEEENS SYSTEM 
 
 no entry of beneficial interests may be made on the face of 
 the register, and this power presents a reason for a court of 
 equity to interfere readily by injunction or otherwise.^* Where 
 under the provisions of a statute the onus is thrown upon the 
 registrar to be judicially satisfied as to certain matters be- 
 fore he acts in regard thereto, the court will not interfere. ^^ 
 After the San Francisco fire, an act was passed in Cali- 
 fornia "to provide for the establishment and quieting of title 
 to real property in case of the loss or destruction of public 
 records." It covered the whole subject matter, and was 
 doubtless intended by its framers to stand alone. Among 
 other things, it provided that the judgment in the proceed- 
 ing "shall be binding and conclusive upon every person who, 
 at the time of the commencement of the action, had or claimed 
 any estate, right, title, or interest in or to said property, or 
 any part thereof, and upon every person claiming under him 
 by title subsequent to the commencement of the action." 
 Nevertheless the court read into the act, as applying to it, a 
 provision of the civil code,®" that any person interested in 
 the property, and having had no actual notice of the decree, 
 may come in at any time within a year after its rendition, 
 and by showing that he had not been personally served with 
 process, and stating facts constituting a good defense to the 
 proceeding, — that is, facts sufficient to show that he had a 
 valid interest in the property, may have the decree vacated 
 as to him, and may answer to the merits.^^ This interpola- 
 tion established a rule of limitation repugnant to the very 
 terms of the act. It is evident that as the Torrens system 
 stands in our jurisprudence today, the neutralizing or modi- 
 fying force of general legislative enactments must be consider- 
 ed in construing Torrens acts. In British Columbia it has 
 been held that the provisions of a general act concerning the 
 lien of judgments on land override and subordinate a pro- 
 vision of the land registry act which declares that no instru- 
 
 58 Davis V. Wekey, 3 V. L. E. E. eo J 473 Code of Civil Procedure. 
 
 ^ ^' 61 Hoffman v. Superior Court, 151 
 
 59 Ex parte Gallagher, 8 St. Eep. Cal. 386; 90 Pao. Eep. 939 (1907). 
 (N. S. W. )230 (1908). 
 
 270 
 
CONCERNING TOREENS SYSTEMS 
 
 ment shall transfer any interest or estate in land until it is 
 registered. ®2 
 
 § 174. Alphabetical and Tract Indices. All the acts in this 
 country provide that the registrar shall keep alphabetical 
 indices in which shall be registered in alphabetical order the 
 names of all registered owners and of all other persons inter- 
 ested in or holding mortgages or liens on registered land.*^ 
 Under the recording system a list of grantors and grantees 
 is required to be kept, but it will be observed that under the 
 Torrens system only a list of persons interested in registered 
 land must be kept. The purpose of the list is not to disclose the 
 deraignment of titles, but to show the names of persons as 
 they become interested in registered land. Such a list can 
 be kept down to date only by means of a card system, and 
 by adding to the list and taking from the list the proper 
 names each day. Mady acts provide that he shall keep tract 
 indices in which shall be entered the lands registered, in 
 numerical order of the sections, townships and ranges, and, 
 in cases of subdivisions, the lots and blocks therein, and the 
 names of the owners, with a reference to the volume and page 
 of the register in which the lands are registered.^* These 
 indices are just as necessary under the Torrens system as they 
 are under the recording system, and the necessity for them 
 arise from the same cause. Instruments relating to titles 
 are recorded in a record book, and instruments under the 
 system are registered in the register book, without any re- 
 gard to the location of the land in the county. When a book 
 is filled, the information contained in it is hidden between 
 its covers, and when these books are numerous the only 
 practical way to find the information in them is by means 
 of a set of tract indices kept down to date. In large com- 
 
 62 Entwisle v. Lenz, 14 British ippine act. The three last sections 
 Col. Eeps. 51 (1908). See Westfall merely provide that the registrar 
 V. Stewart, 13 British Col. Reps. shall make and keep indices under 
 111 (1907). See ante § 75. the direction of the court. 
 
 63 J 98 Illinois act. $ 97 Oregon 64 $ 97 Illinois act. 5 96 Oregon 
 act. § 103 California act. $ 36 act. § 102 California act. $ 36 Min- 
 Minnesota act. J 44 Colorado act. nesota act. § 44 Colorado act. $ 43 
 § 41 New York act. $ 43 Wash- Washington act. See § 41 New 
 ington act. See J 48 Massachusetts York act. 
 
 act. § 49 Hawaiian act. § 49 Phil- 
 
 271 
 
THE TOREENS SYSTEM 
 
 munities alphabetical indices become so large that they are 
 practically useless, and tract indices are indispensable. In 
 this respect the system of registering titles and the system of 
 recording instruments are on the same footing. 
 
 § 175. The Accumulation of a Mass of Records. Several 
 acts provide that when a registered owner transfers his land, 
 the duplicate certificate shall be surrendered and cancelled, 
 and the original certificate shall be cancelled, and a new cer- 
 tificate shall be issued to the transferee ; and when only a part 
 of the land described in a certificate is transferred, or some 
 estate or interest in the land remains in the transferror, a 
 new certificate shall be issued to him for the part, estate 
 or interest remaining in him.*^ Operations under this method 
 of registration in succession tend to accumulate a large num- 
 ber of register books. A certain decree of registration is 
 frequently referred to as showing the economy and simplicity 
 of the Torrens system, because by it the seven hundred lots 
 in one subdivision were brought under the act at one time. 
 One certificate of title was issued to the owner for all the lots. 
 Under the above method, whenever he may sell one of the lots, 
 he must make a deed, surrender his certificate, take out a new 
 certificate for his six hundred and ninety-nine remaining lots, 
 and get a new page for them in the register. The transferee 
 will be given a new page in the register for his one lot, and 
 he will get a certificate of title. When the subdivider sells 
 another lot, he must make a deed, surrender his certificate, 
 take out a new certificate for his six hundred and ninety-eight 
 remaining lots, and get a new page in the register. The 
 transferee will be given a new page in the register for his 
 one lot and he will get a certificate of title. If the sub- 
 divider sells all the lots, one at a time, and makes registra- 
 tions according to this method, his transactions in the regis- 
 trar's office will take up fourteen hundred and one duplicate 
 certificates and pages in the register. Large records which 
 are used for similar purposes contain about six hundred and 
 
 65 § 52 Colorado act. ^ 48, 49 § 50 Queensland act. § 79 New Zea- 
 
 California act. $ 50 Minnesota act. land act. § 45 Tasmania act. § 50 
 
 §§ 46, 47 Oregon act. § 51 Washing- New South Wales act. 
 ton act. §§ 38, 39 New York act. 
 
 272 
 
CONCERNING TOEEENS SYSTEMS 
 
 forty pages, so that in the transactions more than two volumes 
 of the register will be used up. The Illinois act originally- 
 prescribed the same method of procedure, but by the amend- 
 ment of 1907 it is provided that when the registered owner 
 of subdivided land transfers one or more of the lots or blocks 
 described in his certificate, the registrar, instead of cancel- 
 ling such certificate and entering a new certificate to the 
 transferror for the remaining lots or blocks, may enter on the 
 register and on his duplicate certificate a memorial of the 
 transfer and of the cancellation of his certificate as to the lots 
 or blocks transferred; and such process may be repeated so 
 long as there is convenient space on the register for making a 
 memorial of a sale and cancellation.^® In the New York act 
 it is provided that "if the property is so described as to per- 
 mit it, the property transferred may be cancelled on the certifi- 
 cate of the transferror without the issue of a new certificate 
 for the residue. "^'^ In Australasia, on the transfer of the 
 land described in a certificate, a new certificate may be issued 
 to the transferee, or an entry of the transfer may be made 
 on the register and on the transferror's duplicate certificate, 
 and this entry takes the place of a new certificate.®* When 
 part of the land is transferred, a new certificate may be issued 
 for the part transferred, and the old certificate for the remain- 
 ing land may be suitably endorsed and retained by the trans- 
 ferror, or a new certificate may be issued for the remain- 
 ing part.®* 
 
 A registered owner holding one duplicate certificate for 
 several distinct parcels of land may surrender it and take out 
 several certificates for portions thereof; a registered owner 
 holding several duplicate certificates for distinct parcels of 
 
 66 § 48 Illinios act as amended 68 § 17 Queensland act. $ 99 
 in 1907. § 46 Oregon act, as amend- South Australia act. § 48 New 
 ed in 1907. The same provision South Wales act. § 94 Victorian 
 is contained in § 57 Massachusetts act. $ 87 Western Australia act. 
 act, in § 58 Hawaiian act and in § 77 New Zealand act. § 12 Tas- 
 § 58 Philippine act. See also ^ 50 mania act. 
 
 Nova Scotia act. $ 51 Alberta act. 69 § 93 Victorian act. § 86 West- 
 
 §§ 85, 169 Saskatchewan act. $ 73 em Australia act. § 13 Tasmania 
 
 British Columbia act. § 78 Mani- act. § 79 New Zealand act, 1885. 
 
 toba act. § 43 Fiji, 1876 Ordinance. § 4 New Zealand act, 1888. § 43 
 
 J 35 Act for Ireland, 1891. Fiji Ordinance. 
 
 67 J 39 New York act. 
 
 273 
 
THE TOEBENS SYSTEM 
 
 land may surrender them and take out a single duplicate cer- 
 tificate for all of said parcels, or several certificates for dif- 
 ferent portions thereof.''*' Under some acts such an exchange 
 of certificates may be made only under an order of court, 
 on petition for its approval.''^ Some method of exchang- 
 ing certificates obviously is necessary under a system of reg- 
 istering titles, but it does not tend to lessen the mass of 
 records pertaining to registered lands. In all registrations 
 in succession and in all exchanges of certificates such ref- 
 erences must be noted in the register and on certificates as 
 will permit the title to be traced either upward to or down- 
 ward from the original certificate. 
 
 A little reflection will make it clear to anyone that the Tor- 
 rens system will accumulate register books as rapidly as the 
 recording system accumulates record books, and yet the com- 
 plaint is often made that the recording system accumulates 
 records. Further reflection will clearly show that under the 
 Torrens system a mass of documents and papers must be stored 
 in the registry office. "When an instrument has been recorded 
 in the recorder 's office, it is sent or handed to the person whose 
 interest in the land has been disclosed on the record by the 
 recording of it, but all instruments, notices and papers re- 
 quired or permitted to be filed in the registry are retained in 
 the office as a perpetual deposit. They must be numbered 
 consecutively and listed in a book, with a notation of the char- 
 acter of the instrument. Deeds, mortgages, certified copies 
 of orders, judgments and decrees of court and of wills, notices 
 of liens, tax sales and caveats, certificates of levies under 
 executions, and all papers filed in the registry must be pre- 
 served and stored away. 
 
 §176, Lost or Destroyed Certificates. Under the system 
 of title registration, where a certificate is issued to the owner 
 of an estate or interest in land, setting forth the condition 
 
 70 $ 57 Illinois act. § 56 Oregon New Zealand act. J 78 South Aus- 
 act. § 26 California act. J 40 Min- tralia act, $ 99 Tasmania act. § 77 
 nesota act. § 45 New York act. J Victorian act. $ 71 Western Aus- 
 39 Washington act. $ 122 Alberta tralia act. § 111 Fiji Ordinance, 
 act. § 168 Saskatchewan act. J 21 7i § 40 Colorado act. § 43 Mas- 
 British Columbia act. J 50 Nova sachusetts act. § 44 Philippine act. 
 Scotia act. J 110 New South Wales § 44 Hawaiian act. 
 act. § 94 Queensland act. $ 74 
 
 274 
 
CONGEENING TOKEENS SYSTEMS 
 
 of the title, it is necessary to provide for the issue of a sub- 
 stituted certificate in case of the loss or destruction of the 
 one issued at the time of the registration. The acts all pro- 
 vide for the issue of such substituted certificates to stand in 
 the place of, and have like effect as, the missing duplicate 
 certificates, but -while some of the acts provide that they shall 
 be issued by the registrar of titles on an affidavit or a proper 
 shov7ing,''2 other acts provide that they shall be issued only 
 under an order of court obtained on petition filed and heard. 
 Some of the acts in this country declare that the production 
 of the duplicate certificate of title at the time of any dealing 
 with registered land shall be conclusive authority from the 
 registered owner to the registrar to register the transaction, 
 and it is perhaps because of this that some acts provide that 
 no substituted certificate may be issued until an order of 
 court has been obtained, directing the issue of it.'^^ The sub- 
 stituted certificate is an exact copy of the one first issued and 
 lost or destroyed, except that it contains a statement that it is 
 substituted for one lost or destroyed. Care should be ex- 
 ercised to deliver it to the person who is entitled to it, but 
 there seems to be no reason why it may not be issued by the 
 registrar, or why the court should be called on for a mere 
 mechanical detail in the administration of the system. 
 
 § 177. Making a Judgment a Lien. A judgment creditor 
 must ascertain whether any land of his debtor is registered 
 under the system. If he has a description of the lands of the 
 debtor he can obtain this information from the tract index 
 which the law requires the registrar to keep in his office, but 
 if he does not know what land his debtor owns, he must 
 resort to the alphabetical list of owners which is also required 
 to be kept. If his debtor has a common name he may find 
 that several similar names appear on the list of owners, and 
 
 72 § 58 Illinois act. J 57 Oregon em Australia act. § 112 Fiji Or- 
 
 act. $ 55 Manitoba act. § 170 Sas- dinance. 
 
 katehewan act. $ 123 Alberta act. 73 § 42 Minnesota act. $ 51 Col- 
 
 $ 82 British Columbia act. J 92 orado act. $ 27 California act. J 
 
 Nova Scotia act. $ 75 Tasmania 50 Washington act. 104 Massachu- 
 
 aet. $ 111 New South "Wales act. setts act. $ 105 Hawaiian act. $ 
 
 $100 Tasmania act. $ 79 "South 109 Philippine act. $ 46 New York 
 
 Australia act. § 117 Queensland act. 
 act. J 81 Victoria act. $ 75 West- 
 
 275 
 
THE TOEEENS SYSTEM 
 
 he must determine by inquiry or otherwise which one of the 
 registered owners, or whether any one of the registered own- 
 ers, is his judgment debtor. In making this determination 
 he acts at his peril, for if he files the certified copy of his 
 judgment as a memorial on the register of the land of some 
 other person than his debtor, he obtains no lien in this country. 
 If, because of the similarity in names, he should file the copy 
 against the land of a stranger to the suit, he would do just the 
 reverse of what the abstract maker does when he shows on 
 an abstract a judgment against some other person with the 
 same name as the owner of the land. In commenting on the 
 section of the act concerning the lien of judgments, it has been 
 said:''* "By tiis section is also avoided the confusion and 
 annoyance arising from identity or similarity of name of the 
 judgment debtor and the land owner." "Whatever this may 
 mean, it certainly cannot be said that there is any less con- 
 fusion or uncertainty in trying to determine whether an owner 
 of land with an identical or similar name is the judgment 
 debtor than there is in trying to determine whether a judgment 
 debtor is the identical person who is the registered owner of 
 certain land. In the steps which must be taken in order to find 
 land to satisfy the judgment, one system has necessarily no 
 advantage over the other, but everything which the judgment 
 creditor is required to do under the Torrens system, in order 
 to obtain a lien on land, is just so much more than is required 
 of a judgment creditor under the general laws, when a judg- 
 ment is a general lien.'''' 
 
 74 Land Registration in Illinois. process in rem (partition, etc.), ir- 
 
 Sheldon, page 57. regularities in judicial transfers 
 
 T5 Concerning judgments. See (execution sales, etc.), unknown 
 
 ante $§ 116, 156, post, 214, 220. heirs, or any other latent title de- 
 
 T6 Much has been written about feet whatsoever. J 8. In exting- 
 the Torrens system. It usually has uishing contravening rights the sys- 
 been treated of in a common-place tern of title registration merely 
 way, but one author has consider- brings to a logical climax the pros- 
 ed it from a sociological standpoint ent system of registering the doc- 
 in the following sections. § 2. umentary evidence of title and the 
 The Torrens acts aim first at com- constructive notice resulting there- 
 plete extinguishment, once for all, from. The expediency, however, 
 of rights adverse to the record of final judgments, in fact of all 
 title, whether arising from void- destruction of rights, because of 
 able transactions (fraud, etc.), mere omission to claim them (irre- 
 legal incapacity to transfer (cover- spective of negligence), depends 
 ture, etc.), incomplete service of upon the following fluctuating fac- 
 
 276 
 
CONCERNING TOBKENS SYSTEMS 
 
 tors: First, intelligence and ener- 
 gy in individuals (especially min- 
 ors and females) who are entitled 
 to such rights; second, intelligence 
 and integrity in the judges to 
 whom are entrusted the delimi- 
 tation and protection of such 
 rights; third, human criminality 
 in general; and, fourth, chance, 
 in the occurence of evidence, losses 
 and insanity. Economy of State 
 administration as well as efficient 
 aid to the poorer plaintiffs demand 
 speedy justice but not so insist- 
 ently as real justice. The rapid 
 changes of modern society oblit- 
 erate evidence, and without evi- 
 dence human beings can but 
 leave matters as they find them 
 lest they wrong the innocent; but 
 society was created because of the 
 everlasting necessity of protection 
 for the weak against the strong, 
 to the end that a hundred frag- 
 mentary minds and wills might be 
 made into a human salvage equal in 
 social efficiency to ten of the 
 stronger minds; and the lapse of 
 time or the failure of the weak to 
 cry out against the oppressor does 
 not alter one iota the social exped- 
 iency of such salvage. Thus, cut- 
 ting off rights, where the result is 
 practically a pardon for the wrong- 
 doer, is simply a confession of so- 
 cial blind haste or social poverty 
 in the lack of some class which 
 can afford to and will devote its 
 lives and property to justice. Over- 
 looking the smallest wrong, slight- 
 ing the most insignificant right, 
 whether known or undisclosed, al- 
 ways does a certain amount of 
 harm to society in the proportion- 
 ate crippling of an individual. 
 Just how much harm is done by 
 the extinguishment of individual 
 rights by constructive notice un- 
 der the documentary registration 
 system, with its utter lack of 
 compensation therefor, the au- 
 thor is unable to say. In so far 
 as the title registration system 
 cuts off even more rights ad- 
 verse to the record title, it 
 obviously would do more harm, 
 even considering the increased 
 benefits to the innocent purchas- 
 
 er of real estate, if no compensa- 
 tion were provided for such losses 
 of those whose property is sold. 
 Here, however, appears the real 
 strength of the Torrens system, i. 
 e., reimbursement of wronged in- 
 dividuals by the State out of a 
 fund collected by the State from 
 those who desire such extinguish- 
 ment of contravening rights. 
 
 $ 9. The State indemnity fund is 
 partially socialistic, i. e., it is half 
 inexpedient because of the possible 
 inefficient or corrupt collection, 
 safe-keeping, and disbursement of 
 the fund and because of the vast 
 machinery necessary with its fre- 
 quent interference and possible 
 blocking by stupidy or venality 
 of an individual's freedom of title 
 transfer; and half expedient for 
 the reason that by such a method 
 the harm of extinguishing the con- 
 travening realty rights would be 
 neutralized. It is true that a sum 
 of money, though fairly determined 
 to be the market value of a given 
 piece of land, is not as desirable, 
 not as valuable an asset for a per- 
 son unaccustomed to or incapable of 
 the ceaseless vigilance required to 
 guard it against accidental loss, 
 theft, and destruction by fire, flood, 
 or any catastrophe of nature; but 
 the present progressive state of in- 
 dustry and banking, utilizing as 
 they do vast amounts of floating 
 capital as well as fixed capital 
 (land), makes it a simple matter 
 nowadays to turn money into real- 
 ty and vice versa, and the tempor- 
 ary inconvenience or danger of 
 loss caused by reimbursement for 
 extinguished realty rights by mon- 
 ey is a low price to pay for the 
 State's administrative convenience 
 of reimbursement, not to mention 
 the social indirect benefit which 
 even the individual so reimbursed 
 gets from the improvement of title 
 transfer methods and hence of all 
 business through the Torrens sys- 
 tem. 
 
 § 10. The ultimate cost of the 
 system is nil, except to the state 
 where it furnishes the owner's in- 
 demnity below actual administra- 
 tion cost and makes up the deficit 
 
 277 
 
THE TOREENS SYSTEM 
 
 from the general State funds (and far over the price he pays into the 
 
 with honest and efficient assurance indemnity fund. The demand in 
 
 administration this is a most un- real estate is overwhelming for ab- 
 
 likely condition). For the owner solutely clear titles. The Torrens 
 
 gets an immediate increase of mar- System of Eealty Titles, by Wm. 
 
 ket value for his realty when freed F. Beers, Jr. (1907). 
 of all possible contravening rights. 
 
 278 
 
CHAPTER XIV. 
 
 Removal of Titles from Register; 
 Compulsory Registration. 
 
 § 178. Removal of Titles Prom the Register. None of the 
 acts which have been passed in this country provides for re- 
 moval of titles from the register, and the Australasian acts 
 are also without any such provision. Lord Westbury's act 
 of 1862 gave the owner of land the right to take his title from 
 the register,^ and the English land transfer act, 1897, con- 
 tains the following clause: "The registered proprietor of 
 land not situated in a district where the registration of title 
 is compulsory, may, with the consent of the other persons, if 
 any, for the time being appearing by the register to be inter- 
 ested therein, and on delivering up the land certificate or office 
 copy of the registered lease and certificates of charge, if any, 
 remove the land from the register. After land is removed 
 from the register no further entries shall be made respecting 
 it, and inspection of the register may be made and office copies 
 of the entries therein may be issued, subject to such regula- 
 tions as may be prescribed. ' "^ Concerning the right to remove 
 titles, it has been said: "If the adoption of the system is to 
 be voluntary, there must be complete liberty to remove titles 
 from the register too. No harm could be caused by giving 
 this power, as, if the registration worked well, it would not 
 be acted upon, whilst, if the operation of the act were other- 
 wise, it would be only fair. The want of this power (in the 
 act of 1875) has, in the opinion of every witness who was 
 questioned on the subject by the committee of 1878-1879, ex- 
 ercised a deterrent effect on intending applicants. They have 
 done without such a power in Australia it is true ; but consid- 
 
 1 $ 34 English act, 1862. 2 § 17 English act, 1897. 
 
 279 
 
THE T0EEEN8 SYSTEM 
 
 ering the deservedly bad name that registration of title has 
 obtained in England, no voluntary system is likely to succeed 
 without its insertion."^ In Ontario, where special circum- 
 stances appear, which make it inexpedient that the land should 
 continue under the act, the owner may apply to the master 
 of titles for the withdrawal of the land from the registry. 
 The owner must prove such circumstances and show that all 
 interested persons consent to the withdrawal.* A recent law 
 of Oregon provides that any owner of real property, which 
 has been or hereafter shall be registered, shall have the right 
 and power to withdraw it from the registry system and to 
 restore it to the recording system, by making an application 
 in a prescribed form. Thereupon the registrar shall issue a 
 prescribed certificate, stating that it has been so withdrawn 
 and restored, and the certificate shall be recorded in the re- 
 corder's office in the proper county. Such a withdrawal 
 shall not disturb the effect of any proceeding under the regis- 
 try system, wherein the question of title to the land has been 
 determined.^ This act does not provide for the withdrawal 
 and recording of instruments of transfer filed in the regis- 
 trar's office, and where registered land was transferred and 
 afterward withdrawn, title probably must be deraigned part- 
 ly through the register. In one of the Australian acts it is 
 provided that "no land once subject to the provisions of this 
 act shall ever be withdrawn therefrom."® Of course, one 
 legislature by its statutes cannot bind future legislatures, 
 and it is competent for the legislature of a state at any time 
 to provide for the removal of land from the register. 
 
 §179. Compulsory Registration. In Australasia when 
 crown lands are sold, the government requires that the pur- 
 chaser shall register his title under the Torrens system. This 
 has been the law with respect to crown grants practically ever 
 since the registration acts came into operation. All other 
 lands may remain under the general laws at the option of the 
 owner. In Ireland the adoption of the Torrens system is 
 compulsory only in the case of tenant-purchasers assisted by 
 
 3 Eegistration of Title to Land, 5 Oregon Statutes, 1911, p. 473. 
 Brickdale, pp. 55, 56 6^8 South Australia act. 
 
 4 $ 136 Ontario act. 
 
 280 
 
BEMOVAL FROM REGI8TEE; COMPULSORY REGISTRATION 
 the government under any of the purchase of land acts, but all 
 other landowners may or may not adopt it. In the county 
 of London, England, registration under the Torrens system 
 is compulsory on sale; not on a conveyance of property by 
 way of settlement, or by way of mortgage, or by the personal 
 representative of a deceased person to those beneficially en- 
 titled to the land ; not on an exchange or partition of the prop- 
 erty, but only on a sale of the property, in the popular and com- 
 mercial sense, for money or money's worth; so that a person 
 does not acquire the legal estate in any freehold land under any 
 conveyance on sale, unless and until he is registered as proprie- 
 tor of the landJ Concerning this subject it has been said: 
 ' ' The system of compulsory registration of titles has never been 
 extended to any other county in England and Wales. Accord- 
 ing to reports received in November and December, 1907, from 
 U. S. Consular officials at Bristol, Leeds, Liverpool, Nottingham 
 and Manchester, the sentiment of landowners, banks, building 
 societies and land companies is generally adverse to any further 
 extension of the compulsory area, while voluntary registra- 
 tion has been practically abandoned."^ In Ontario registrar 
 tion is compulsory as to crown grants in certain districts 
 specified in the acts,® but is otherwise voluntary. It is com- 
 pulsory as to all land alienated by the crown subsequent to 
 1885 in Manitoba, and to 1886 in Alberta and Saskatchewan, 
 and is voluntary as to other lands. In British Columbia reg- 
 istration is compulsory as to all instruments executed or tak- 
 ing eflfeet after June 30, 1905. 
 
 § 180. Compulsory Registration in Illinois. In Illinois an 
 act of the legislature was passed in 1903, with a referendum 
 to the voters of any county which may have adopted the 
 Torrens system, providing that "it shall be the duty of all 
 executors and administrators, appointed after the adoption 
 of this act, and trustees holding title or power of sale under 
 wills admitted to probate after that date, to apply within six 
 months after their appointment, to have registered the titles 
 
 7 Land Transfer Acts, Brickdale igate the Torrens System of regis- 
 and Sheldon, p. 312. J 20 English tering titles, in his paper entitled 
 act, 1897. "Land Title Registration." 
 
 8 Henry Pegram, member of the 9 See §$ 169-173 Ontario act. 
 N. Y. State commission to invest- 
 
 281 
 
THE TOEEENS SYSTEM 
 
 to all non-registered estates and interests in land, situated 
 in any county in which this act at the time is in force, which 
 the several decedents they represent might have registered 
 in their lifetime in their own right. Such application shall 
 set forth the names and addresses of the persons entitled to 
 the estate or interest sought to be registered, and any such 
 person not joining in the application shall be made a defend- 
 ant. The court in its final decree, in addition to what is pro- 
 vided in the subsequent sections of this act, shall determine 
 the several titles and interests of the persons claiming under 
 the decedent, and declare the same, and decree in whom reg- 
 istration shall be made. Land so registered shall be subject 
 to be sold for the debts of the estate of the decedent, as now 
 provided by law. Provided, that the court of probate juris- 
 diction of the county in which the land is situated, in cases 
 where registration may appear to be a hardship, may, by an 
 order entered of record, excuse such application for registra- 
 tion as to the whole or any part of the land. ' ' 
 
 It was urged against the adoption of this act by the voters 
 of Cook county that it compelled widows, heirs and trustees 
 under wills to bring lawsuits, inviting claimants to come iuto 
 court and litigate claims which they were not pressing and 
 which might be barred by the statute of limitations; that it 
 compelled them to pay off stale tax claims which had ac- 
 crued long before they became seized of the land;^" that such 
 classes of landowners should not be put to the anxiety and 
 expense of lawsuits ; that all titles were not equally capable 
 of being registered, and that such owners should not be com- 
 pelled to have their titles examined by their lawyers in order 
 to determine whether they were the subject of registration 
 or not ; that they should not be compelled to exhibit in a pub- 
 lic record, based on a petition, an acknowledgment that their 
 titles were such as to preclude registration, as they should 
 have to do in order to be excused by the court from register- 
 ing their lands; that the courts of original jurisdiction were 
 already behind with their dockets, and that the adoption 
 of the compulsory act would require more judges, clerks, 
 bailiffs, etc., etc. It was urged also that the Torrens system 
 
 10 Ante, §52. 
 
 282 
 
REMOVAL FROM REGISTER; COMPULSORY REGISTRATION 
 
 was new and untried in this country, that the sections of the 
 act creating it had never been construed by the courts, and 
 that it had not reached a status of certainty and success, which 
 showed clearly and unmistakably that it should be adopted 
 as our only method of conveyancing and dealing with land 
 in the near future. On the other hand, it was urged that the 
 new system was altogether desirable, and that the adoption 
 of the act by the people would result in bringing all the land 
 in the county under the Torrens system within one generation. 
 On a referendum to the voters of Cook county, the vote stood 
 241,924 for the adoption of the act and 30,043 against it. The 
 supreme court of the state held that the submission of the act 
 to the people was invalid, because the form prescribed in the 
 act for presenting the question to vote had not been followed, 
 and because the ballot had not been placed on the ticket as 
 prescribed in the act.^^ At the November election, 1910, the 
 question of the adoption of the act for compulsory registra- 
 tion was again submitted to the voters of Cook County. There 
 had been no demand on the part of newspapers, civic societies, 
 or members of the public that it be put to vote again at that 
 time, but the board of election commissioners were induced 
 to place it on the ballot. Just before election day one or 
 two references were made to it in the public press, as one of 
 the questions to be voted on. Some 360,448 votes were cast 
 at the general election, and on this question 47,740 votes were 
 in favor of it and 11,059 votes were against it. The probate 
 court of that county grants all applications to be excused 
 from registration, on the ground that the constitutionality 
 of the act should be established before anyone should be com- 
 pelled to register his title. It will be noted that the act for 
 compulsory registration quoted above provides that the pro- 
 bate court, in cases where registration may appear to be a 
 hardship, by an order entered of record, may "excuse such 
 application for registration." It may be unconstitutional and 
 void thus to leave the question of hardship to the arbitrary and 
 unregulated will of the magistrate, without making the exer- 
 cise of the power of relief in such cases to depend on proof of 
 
 11 Harvey v. County of Cook, (1906). 
 221 111. 76; 77 N. E. Rep. 424 
 
 283 
 
THE TOEEENS SYSTEM 
 
 any prescribed facts, giving him power to make one rule in 
 one case and another rule in another case.^^ The provisions of 
 this act seem so mutually connected with and dependent on 
 each other, as conditions, considerations and compensations 
 for each other, as to warrant the belief that the legislature 
 intended them as a whole, and that it would not have passed 
 the act if the proviso had been known to be void. In such a 
 case, if the proviso is void, the whole act falls.^^ 
 
 §181. Generally Concerning Compulsory Registration. 
 Many years ago it was said: "The first step toward making 
 a registration of titles practicable is to make a clean sweep 
 of our present real property laws."^* As a permanent con- 
 dition, two concurrent systems of conveyancing in any com- 
 munity present an intolerable situation, but, when it is said 
 that there should be but one system, it is not meant that there 
 should be no attempt to find a better system than the one we 
 may have. Progress is not made by theorizing merely, and it 
 is proper that experiments should be made in conveyancing 
 and dealing with land, as well as in other things. It is not 
 necessary to sweep away our present laws in order to try some 
 other system. The Torrens system has commended itself to 
 discriminating minds in intelligent and progressive commun- 
 ities, and it should be tried in this country. The test of the 
 value of any system is its adaptability to the conditions under 
 which it must be worked. Conditions in this country differ 
 from those in other countries at least in this, that they have 
 no written constitutions, and that they do not have and never 
 have had a recording system founded on the doctrine of con- 
 structive notice, supplemented with contracts of title insur- 
 ance. Any new system should be put in direct competition 
 with our own system, so as to give every landowner the option 
 to avail himself of its privileges and advantages. It should 
 secure support from the public, not through compulsory leg- 
 
 12 Cicero Lumber Co. v Cicero, U. S. 354. See cases cited in these 
 
 176 111. 9, 26. Hubbard v. Hubbard, decisions. 
 
 77 Vermont, 73. City of Plymouth is Cooley on Constitutional Limi- 
 
 V. Sohultheis, 135 Ind. 339. Mayor tations, pp. 178-9. 
 
 V. Eadecke, 49 Md. 217; 33 Am. i4 Torrens, Transfer of Land, p. 
 
 Eep. 243. In re Wo Lee, 26 Fed. 32. 
 Eep. 471. Yick Wo v. Hopkins, 118 
 
 284 
 
EEMOVAL FEOM REGISTER; COMPULSORY REGISTRATION 
 islation, but through the greater advantages which it offers.^^ 
 It should be made to stand the test of all constitutional ques- 
 tions which may arise under it in this country, and to demon- 
 strate clearly its superiority to the recording system, before 
 any step is taken toward making it our one and only system 
 of dealing with land. "When it has stood these tests, it will 
 be time enough to consider the best method of sweeping away 
 our present laws in order to install it. Up to the present 
 time the decisions of our courts have been confined to ques- 
 tions relating to the original registration of lands under the 
 Torrens system, and nothing has been decided which shows 
 its adaptability to dealing with lands which have been regis- 
 tered under it; and since the whole object of this system is 
 to bring lands under it, so that they may be dealt with as 
 registered lands, it is taking a good deal for granted to insist 
 that it has proved its adaptability to the conditions here. The 
 governmental register of titles is the central object of the 
 Torrens system, — the pivot on which all its operations turn, — 
 and it is at least premature to think of the compulsory adop- 
 tion of the system, so long as there can be the slightest doubt 
 about the power of a registrar to transfer lands and vest 
 titles by the act of registration. The logic of the case of 
 People V. Chase^® would seem to indicate that, in making a 
 registration from the last registered owner to a new regis- 
 tered owner, the registrar must exercise judicial power,!'' 
 and the case of Assets Company v. Mere Roihi,i* expressly 
 holds that a registrar acts judicially within his limited juris- 
 diction when he makes a registration in succession as well 
 as when he brings land under a Torrens act, that a certifi- 
 cate may not be impeached for error of law in either case, 
 and that a certificate evidences an indefeasible title for all 
 purposes, even though the holder of it would have no title at 
 all, but for his certificate. "While under conditions in foreign 
 countries the Torrens system may be called a great system, 
 it is evident that it is still in process of evolution and develop- 
 ment, even in its elementary principles. The effect of a reg- 
 is Gov. Wm. E. Russell, in a (1897). 
 special message to the legislature it Ante, ^167. 
 
 of Massachusetts, Feb. 17, 1891. is 1905, A. 0. 177, P. 0. 
 
 16 165 111. 527; 46 N. B. Rep. 454 
 
 285 
 
THE TOERENS SYSTEM 
 
 istration by a registrar and the nature of Ms powers under 
 the system were the subject of conflicting decisions in the 
 courts of Australasian states, until in 1905, in the case last 
 cited, the Privy Council of England settled the question for all 
 states, colonies and dependencies under English jurisdiction 
 by declaring that a registrar acts judicially in his limited 
 sphere of registering titles, and that his certificate is conclu- 
 sive evidence of title. 
 
 § 182. Duffy and Eagleson, annotators of the Victorian acts, 
 
 in 1895 said: "That the system has practically attained its 
 objects is shown by the evident favour with which its guar- 
 anteed titles are viewed by purchasers and lenders of money, 
 by its rapid adoption in all the Australasian colonies, by the 
 general use of the simple forms in its schedules, by the pro- 
 gressive increase of the amount of land under the old law, 
 which is being brought under its provisions, by the rare in- 
 stances of actions against the assurance funds, by the num- 
 ber of subdivisional sales carried out with scarcely a hitch 
 under its rules, by the fact that instances of fraud are cer- 
 tainly not more numerous in regard to land under the act 
 than in regard to other land, and by the trifling cost of trans- 
 actions under it as compared with that of those under the 
 general law, even with modern improvements. Under it there 
 are in most cases no doubts as to the prior title of one 's vendor, 
 or fears of being able to give a good title to possible pur- 
 chasers. * * * With reference to what has been said as 
 to the advantages of the Torrens system it must, of course, 
 be remembered that it is young and perhaps on its trial yet. 
 It is in some respects a system of formulary law, and may 
 prove itself open to defects and abuses like those of other 
 formulary systems. And outsiders are likely to have sneers 
 for a system scarcely forty years old, which in Tasmania, 
 for instance, is already spread over seven acts. "^^ The Eng- 
 lish act, 1897, provides for compulsory registration on sale 
 of land, and thousands of titles have been registered with pos- 
 sessory title under compulsory registration, and yet, after 
 several years of criticism of the acts and of possessory regis- 
 tration, a parliamentary commission was appointed in 1908 
 to consider the whole question of title registration. Por more 
 than two years this commission worked with an assiduity 
 and vigor which caused much favorable comment. In Janu- 
 
 18 Transfer of Land Act, 1890, Melbourne, 1895. 
 
 286 
 
BEMOVAL TEOM BEGISTEE; COMPULSOEY EEGISTEATION 
 
 ary, 1911, the commission reported to Parliament, and, among 
 other things, recommended: "The system of registration of 
 title to he amended according to oiir recommendations; and 
 if after sufficient experience the amended system is found 
 to work satisfactorily in the existing compulsory area, Parlia- 
 ment to he invited to consider the gradual extension of com- 
 pulsion to the rest of the country. "2" The committee quotes 
 with approval a phrase in the report of th^ royal commission 
 of 1868, that "for an institution to flourish in a free country, 
 it must offer to people the thing that they want," and it 
 says : ' ' The system as it stands is, in our judgment, imperfect, 
 and we cannot recommend the compulsory extension of an im- 
 perfect system. "2^ Those who read the legal and real estate 
 periodicals and journals published in England observe that 
 the Torrens system in that country is the subject of contin- 
 ued agitation. Many of the discussions are ably conducted 
 and suggest changes in or substitutes for the present laws. 
 Two quotations from a well-known review will show the gen- 
 eral trend of the discussions. "There seems at last to be 
 some hope of an inquiry being held as to the working of the 
 land transfer acts. * * * The main objections which the 
 Law Society urge against the system of registration intro- 
 duced by the land transfer act, 1897, are, that it adds to the 
 expense of transferring land; that it is too complicated; and 
 that registration with possessory title is a delusion and a 
 snare. The first objection is undoubtedly well founded. * * * 
 The second objection — that it is too complicated — is equally 
 well founded. It is sometimes said that the transfer of land 
 ought to be as simple as the -transfer of stock, and although 
 this is only possible up to a certain point, yet it is useful 
 to keep the system of transferring stock before our minds, 
 as an indeal which we should seek to attain. Judged by this 
 ideal the system introduced by the land transfer act, 1897, 
 is not a success," etc.22 These suggestions are answered as 
 follows: "The land registry has failed so far to make the 
 system of registration of title as smooth-working and as popu- 
 lar as it ought to be, principally because practioners have 
 taken advantage of the provisions of the act of 1875 to insist 
 
 20 Eecommendation 32, p. 56, report. 
 
 Second and Final Eeport of the 22 An article by Charles Sweet, 
 
 Eoyal Commission on the Land in Vol. 24 Law Quarterly Eeview, 
 
 Transfer Acts, 1911. P- 26, in which he advocates an- 
 
 21 Pages 10 and 48 of the above other reform. 
 
 287 
 
THE TOEEENS SYSTEM 
 
 on registration with possessory title when the act of 1897 
 has made registration compulsory. This is really the chief 
 cause of nearly all complaints made against the land trans- 
 fer acts and the land registry. Mr. Sweet, perhaps unwitting- 
 ly, admits this in effect when he speaks of 'the system of 
 registering possessory titles under the land transfer acts' as 
 having broken down. The essence of any really useful sys- 
 tem of registration of title is that the title which passes by a 
 transaction being recorded in a public register should be 
 ipso facto a good title, and should not require extrinsic investi- 
 gation at the hands of a purchaser. Registration with merely 
 possessory title does not ipso facto enable a purchaser to dis- 
 pense with investigation of his vendor's title prior to the first 
 registration. It is possessory registration that should be con- 
 demned, not the whole system of registration of title as it 
 might be carried out even under the existing land transfer 
 acts. No real trial of the advantages of the acts has yet been 
 made on any adequate scale," etc.^^ The system in this coun- 
 try is only some fourteen years old. Its evolution and develop- 
 ment have only begun, and "no real trial of the advantages 
 of the acts has yet been made on any adequate scale." The 
 courts here have already laid down the doctrine that a regis- 
 tration is not conclusive between the parties, but may be chal- 
 lenged by "mandamus, injunction, rescission, cancellation, biUs 
 of relief and the like, ' '^* so that the title which passes by reg- 
 istration in a public record is not ipso facto a good title, and 
 if, following the logic of the ease of People v. Chase, supra, 
 they shall hold that the registrar has no power to issue a 
 certificate which, though invalid itself, will confer an inde- 
 feasible title on a bona fide transferee for value, the whole 
 scheme of the system must fall, as being unsuitable to the con- 
 ditions under which it must be worked. Surely, this is no time 
 to begin to sweep away our present laws in order to make 
 way for the Torrens system. Any measure is likely to be 
 injured rather than benefitted by overenthusiastic and impa- 
 tient advocates. 
 
 In making registration compulsory in this country another 
 feature must be considered. "We register indefeasible titles 
 
 23 An article by James Edward p. 173; 52 N. E. Eep. 910; 68 Am. 
 Hogg, Author of Australian Tor- St. Eep. 175; 44 L. E. A. 801 
 rens System. Vol. 24 Law Eeview (1898). Eobinson v. Kerrigan, 151 
 Quarterly, pp. 290, 291. Cal. 40; 90 Pac. Eep. 129 (1907). 
 
 24 People V. Simon, 176 111. 165, 
 
 288 
 
REMOVAL FROM REGISTER; COMPULSORY REGISTRATION 
 
 only, except in Hawaii, and as many titles are not clear and 
 merchantable, and can be made so only by the expenditure 
 of money in doing equity and in the purchase of outstanding 
 interests, some provision must be made to take care of such 
 cases. It will be difficult to formulate a method of taking 
 care of them, which will not present their defects in a glar- 
 ing and damaging manner. 
 
 289 
 
CHAPTER XV. 
 
 Indemnity Fund. 
 
 § 183. Assurance Fund, Indemnity Fund, Insurance Fund. 
 
 The special fund, which is created under the Torrens system 
 for the compensation of certain persons for losses sustained by 
 operations under the system, may be called an assurance fund, 
 an indemnity fund or an insurance fund. The reason for the 
 creation of such a fund is obvious. The act of registration is 
 the operative act, and the transfer and vesting of the title is 
 effected, not by the execution of an instrument of transfer, 
 not by the act of the owner of the land, not by the transfer of 
 a valid title from the transferror, but by the state acting 
 through its officer, the registrar; and because it transfers and 
 vests the title by the issue of a certificate which is declared by 
 statute to be conclusive evidence of an indefeasible title to 
 land, the state creates a fund for the compensation of such 
 persons as may be injured by the divesting and cutting off of 
 rights, interests and estates under this statutory declaration. 
 The purpose of registration acts is two-fold, to give certainty 
 to the title to estates in land by registering the title after it has 
 been examined into and established by proofs which are 
 deemed to be requisite by the registrar, and also to facilitate 
 the proof of titles and the transfer thereof by issuing to the 
 owner a certificate which is conclusive evidence of the owner- 
 ship and character of the title as registered, except in certain 
 specified cases. No action for possession or other action for the 
 recovery of the land will lie against the registered owner, ex- 
 cept in these specified cases, and, except in these cases, the 
 production of a certificate of title is an absolute bar to any 
 such action, any rule of law or equity to the contrary not- 
 withstanding.i The legislatures foresaw that in some instances 
 
 1 Ex parte Metropolitan Bldg., Attorney-General v. Goldsbrough, 
 Society, 10 V. L. E. L. 361 (1884). 15 V. L. E. 638 (1889). 
 
 290 
 
INDEMNITY FUND 
 the creation of an indefeasible title in the registered owner 
 might occasion hardship, for, despite every precaution, mis- 
 takes may be made in vesting such a title, and, as ancillary to 
 this scheme, they provided that in certain cases, as fraud, 
 error and misdescription, a right of action should accrue to 
 injured persons against persons causing the injury, and that 
 an indemnity fund should be created, out of which in certain 
 cases compensation should be made to those who might suffer 
 loss by the divesting of estates and interests under the opera- 
 tions of the acts.^ In a broad and general statement of the 
 scheme of indemnity under the system, it is sometimes said 
 that any person sustaining a loss in dealing with registered 
 land is entitled to compensation from the fund. Perhaps this 
 is a general theory of what such a system might be in its per- 
 fection, but no legislative act establishing the system has ever 
 declared for so general a principle of compensation for losses, 
 and each act specifically defines the classes of persons who 
 may have access to the fund. In practical working under the 
 terms of different acts, it has been found that a person may be 
 the victim of a forgery, fail to get the title which he supposed 
 he was purchasing, and have no right to compensation from the 
 fund.^ No system of conveyancing and of dealing with land is 
 perfect in the sense that losses may not occur to those who use 
 it. It must be remembered that the recording system has its 
 scheme of public records and its doctrine of constructive notice 
 of the contents of those records, and that losses sometimes 
 are sustained under it by those who deal with land. It is mani- 
 festly the proper function of a Torrens act to provide for access 
 to the indemnity fund, in certain cases only, even though some 
 case may arise which is not provided for. The general scheme 
 of indemnity is that any person deprived of any interest in 
 land through the bringing of it under the system, or by the 
 registration of any other person as owner, or any person sus- 
 taining loss through any mistake, omission or misfeasance of 
 the officers or assistants in the registry, or by any error in 
 any certificate, or in any entry or memorial on the register, 
 
 2 Hassett v. Bank, 7 V. L. E. L. s Ante § 129. 
 
 380; 3 A. T. L. 38 (1881). 
 
 291 
 
THE TOEEENS SYSTEM 
 and who is barred from bringing any action for the recovery 
 of his interest in the land, may obtain compensation from the 
 fund, according to the terms and provisions of the acts. 
 
 § 184. It is often said that the Torrens system is a scheme of 
 guaranty of title, with an indemnity fund to make good the 
 guaranty of the state. Some years ago it was said : ' ' Guaran- 
 teed title is the proper name for the system now in nse in 
 Australia, and which we want, — a system, namely, which con- 
 fers on a bona fide registered owner, either a right to the 
 land, or a proper compensation for his loss if he cannot be 
 given the land. We must look upon our register of titles as 
 essentially a list of guarantees; it is also a list of estates and 
 rights in land, but this is secondary ; the attempt to work it on 
 any other principle must end in confusion. ' '* But such nomen- 
 clature tends to confuse us in this country. Under our system 
 of title insurance or guaranty of title, the holder of the guaran- 
 teed certificate of title or policy of title insurance is paid when 
 it is detemined that he is not seized of some interest or estate in 
 land, with respect to which he was guaranteed or insured. 
 But under the Torrens system the holder of a certificate, which 
 is not the subject of some exception, needs no guaranty or in- 
 surance, because it is declared by statute to be conclusive 
 evidence of title. The holder of a certificate which falls within 
 one of the exceptions is a certificate holder in a sense, but he is 
 not the holder of a certificate which is conclusive evidence of 
 an indefeasible title. He may recover compensation from the 
 fund, in case he is deprived of land through a misdescription, 
 or because of the existence of a prior certificate for the same 
 land, except where the same land may have been included in 
 two or more grants from the Crown, where it is proved that 
 the person liable for compensation and damages for having 
 caused the loss through his mistake, is dead, is insolvent or has 
 absconded. Where one person is erroneously registered as 
 owner of registered land in place of another, the latter is en- 
 titled to compensation from the fund in case he cannot recover 
 damages from the person who caused the loss. The guaranty of 
 
 4 Kegistration of Title to Land, so Transfer of Land Act, Duffy 
 Charles ¥, Brickdale, 1886. See al- & Eagleson, p. 8, (1895). 
 
 292 
 
INDEMNITY FUND 
 
 title, therefore, under the Torrens system is restricted to 
 holders of certificates which are not conclusive for some reason, 
 and to persons who have been deprived of some interest by the 
 issue of a certificate, and it has nothing to do with a valid last 
 certificate of title. In its general scheme the system is not so 
 much one of guaranteed title as it is one of indemnity for 
 interests and estates in land, which, through the acts of the 
 registrar, have been taken from some persons in order to vest 
 indefeasible titles in the holders of certificates.^ A certificate 
 of an indefeasible title confers on the holder an absolute right 
 to the land against all the world, but a guaranteed title does 
 not protect the holder of the guaranty from attack; it merely 
 entitles him to compensation in case of disturbance or ouster. 
 
 § 185. Generally speaking, the person entitled to indemnity 
 is not a certificate holder, but is some person who has been 
 deprived of some interest or estate in land by the issue to an- 
 other person of a certificate which vested such interest or 
 estate in the holder. This scheme of indemnity will work only 
 in states where, in making a registration which the statutes de- 
 clare to be conclusive evidence of title, the registrar adjudi- 
 cates on the rights of all interested persons, and where, as a 
 necessary consequence, rights and estates in land are wrested 
 by force of the statutes from one person, in order to vest them 
 in the person registered as owner. It is at least doubtful 
 whether such a scheme will work under our laws. If a person is 
 deprived of land by a decree of registration, under which land 
 is brought under the act, he sustains a loss for which there is 
 no legal remedy; and it is difficult to see how a certificate of 
 title to registered land issued by a registrar in this country 
 may take away any interest or estate in land belonging to a 
 person, and thus give him a right of action against the fund for 
 damages. It is generally considered that there are seven essen- 
 tial features of the Torrens system, and that the indemnity 
 fund is one of them.* Nevertheless, the Fiji Ordinance of 1876 
 and the California act, 1897, make no provision for the creation 
 of such a fund, and the British Columbia act, 1906, provides 
 that the assurance fund shall apply only to lands registered 
 
 5 Ante J 73. 6 Ante $ 161. 
 
 293 
 
THE TOEEENS SYSTEM 
 
 in the register of indefeasible fees, and not to those registered 
 in the register of absolute fees.'' The English act, 1875, com- 
 monly known as Lord Cairn's act, did not provide for an indem- 
 nity fund. 
 
 § 186. The Scheme of Indemnity in this Country. In this 
 country the scheme of indemnity under the Torrens system has 
 been vigorously attacked as unconstitutional and void. It 
 might have been considered in each of the cases which passed 
 on the constitutionality of a Torrens act in this country, but 
 most of the courts passed over the indemnity feature of the 
 acts without mentioning it. The supreme court of Illinois 
 merely said: "In our view of the case, the indemnity fund 
 feature of the law need not be considered. The law can, as we 
 think, stand and accomplish its purpose without it." The 
 supreme court of Ohio came to the conclusion that it was un- 
 constitutional, and said:* "The provisions of the act with re- 
 spect to an assurance fund attract attention. * * * Those 
 for whose indemnity this fund is raised are described in sec- 
 tion 146: 'Any person deprived of land or of any estates or 
 interest therein in consequence of fraud, or misrepresentation 
 in bringing such land under the operation of this act, having 
 had no notice of the proceedings, or by the registration of any 
 other person as owner of such lands, estate or interest, or in 
 consequence of any error, omission, mistake or misdescription 
 in any certificate of title, or in any entry or memorandum in the 
 register of titles, or by being omitted in proof of heirship or 
 certificate thereof as provided in section ninety-eight of this 
 act may, ' resort to the fund within the time and in the manner 
 specified. It is not likely that the legislature has thought itself 
 authorized to provide for making whole those who have been 
 defeated in judicial proceedings of an adversary character, in- 
 volving only private rights, and conducted according to the law 
 of the land. The terms of these sections of the act show that 
 the funds is to be raised to indemnify those whose lands have 
 been wrongfully wrested from them under the earlier pro- 
 visions of the act, and without due process of law. When the 
 provisions of the constitution are applied to this penitential 
 scheme it at once becomes apparent that it is both inadequate 
 and forbidden." 
 
 Quoting from the bill of rights, which ordains that private 
 
 7 5 108 British Columbia act. 575; 47 N. E. Eep. 551; 60 Am. St. 
 
 8 State V. Guilbert, 56 Ohio St, Eep. 756; 38 L. E. A. 519, (1897). 
 
 294 
 
INDEMNITY FUND 
 property shall ever be held inviolate, and, when taken in time 
 of war, or other public exigency, a compensation therefor shall 
 first be made in money or first secured by a deposit of money, 
 except in certain specified cases, the court holds that the scheme 
 is invalid on the grounds above quoted, and also, for the reason 
 that there is no provision for compensation to be first made, 
 the owner's recourse being to a subsequent action to be insti- 
 tuted by himself, and subject to a limitation, and there being 
 no assured compensation at any time. And again the court said : 
 
 "In yet another aspect the scheme is violative of the same 
 section of the bill of rights. Whether the assurance fund 
 would be adequate or inadequate, it is, in part at least, to be 
 derived from forbidden sources. The real estate in the hands 
 of an assignee for the benefit of creditors belongs to the 
 assignor and his creditors. These lands, by the terms of the 
 act, are subjected to a charge or contribution payable through 
 the recorder to the treasurer of the county. That is, to the 
 extent of such assessments, this property is to be taken by 
 public authority and without the consent of the owners. For 
 what public purpose? Primarily the purpose is to indemnify 
 private persons whose lands have been wrongfully taken from 
 them under the provisions of the act. If the act were other- 
 wise constitutional, the ultimate benefit would accrue to those 
 who, as the result of registration which gives conclusive effect 
 to mistake, fraud or forgery, have acquired lands which be- 
 long to others. That this is in no sense a public purpose seems 
 clear. Considering the purposes for which government is in- 
 stituted and the high conception of individual right which 
 prevailed at the time of the adoption of the constitution, it 
 would be strange if authority had been conferred upon the 
 state to carry on the business of an insurer of private titles. 
 No such authority is implied in any of the terms of the con- 
 stitution. It is not implied in any of the enumerated pur- 
 poses for which government is formed. It is entirely foreign to 
 those purposes. The legislature may by law authorize the 
 organization of corporations for the purpose of carrying on the 
 business of insurance, but this grant of power is rather an 
 implied negation of its authority to conduct such business itself. 
 The functions of the state are governmental only. Its powers 
 are embraced within the three familiar divisions of legislative, 
 judicial and executive. He who afSrms the existence of the 
 power in question must be able to find it embraced in one of 
 these divisions. And since the insuring of titles does not essen- 
 tially differ from any other insurance, nor indeed from any 
 
 295 
 
THE TOBRENS SYSTEM 
 
 other business or occupation, he must find authority in whose 
 exercise the state may become the competitor of the citizen iq 
 every vocation."^ 
 
 § 187. Creation of Indemnity Fund. In Alberta no con- 
 tribution to the fund is made at the time of the original regis- 
 tration, but upon any absolute transfer of the land after the 
 issue of the first certificate of title therefor, one-fifth of one 
 per cent of the value of the land must be paid if the value does 
 not exceed $5,000, and one-tenth of one per cent on the value in 
 excess of $5,000 must be paid. Upon every subsequent transfer 
 payment must be made of one-fifth of one per cent on any in- 
 crease in value since the granting of the last certificate, if the 
 increase does not exceed $5,000, and of one-tenth of one per 
 cent on any increase in value above $5,000.1" Jq British Colum- 
 bia a schedule of fees is established, and fees must be paid 
 towards the assurance fund as follows : On all registrations up 
 to $1,000 in value, fifty cents ; from $1,000 to $2,500, seventy- 
 five cents; from $2,500 to $5,000, one dollar; from $5,000 to 
 $10,000, one dollar and one-half; from $10,000 to $20,000, two 
 dollars, and for every $10,000, or part thereof, over $20,000, 
 fifty cents. Twenty per cent of all fees paid under the act is 
 set apart as an assurance fund. "When this fund, with the 
 accumulated interest, reaches the sum of $50,000, nothing more 
 
 9 In February, 1898, after this express provisions to which the 
 
 decision, the Torrens act was re- scheme was repugnant, and clearly 
 
 pealed by the legislature of Ohio. indicated the "express prohibi- 
 
 This decision has been highly com- tions" which limited the power of 
 
 mended and severely criticised. legislation. The opinion meets all 
 
 One writer says: "The court here the requirements of proper judicial 
 
 fails to distinguish between the ope- and constitutional construction, but 
 
 ration of constitutional limitations there may be easily a difference of 
 
 on the acts of the federal and state opinion as to whether the argu- 
 
 legialatures. While the former are ments and considerations of the 
 
 compelled to find in the constitu- court are sound. It may be cogently 
 
 tion their authority for every at- maintained that a state has power 
 
 tempt at legislation, the latter to go into the insurance business if 
 
 have an unlimited range save as to it desires to do so. The California 
 
 its express prohibitions. There is act was approved on March 17, 
 
 nothing to prevent state legisla- 1897, and the Guilbert case was 
 
 tures from guaranteeing titles." not decided until June 22, 1897. 
 
 Note in Central Law Journal, Vol. It is evident, therefore, that this 
 
 54 page 294. The court did not de- decision had nothing to do with 
 
 cide the case on the ground that the omission of the indemnity fea- 
 
 the scheme was contrary to the ture from the California act. 
 spirit and policy of the constitu- lo § 117 Alberta act. 
 
 tion of Ohio. It pointed out the 
 
 296 
 
INDEMNITY FUND 
 
 is added, but when this sum is diminished, twenty per cent 
 of the fees is again added until it reaches $50,000, and so on 
 in perpetuity." The English act establishes "an insurance 
 fund to be raised by setting apart at the end of each financial 
 year such portion of the receipts from fees taken in the land 
 registry as the Lord Chancellor and the Treasury shall by order 
 determine. "12 Upon granting an application for amendment 
 of a certificate, or for the exercise by the commissioner of cer- 
 tain powers conferred on him by the acts, the commissioner 
 may grant such application conditioned upon the applicant con- 
 tributing to the fund such a sum of money as the commissioner 
 shall certify to be in his judgment a sufficient indemnity by 
 reason of the non-production of any document, or inability to 
 obtain consent, or by reason of the imperfect nature of the 
 evidence of title, or as against any uncertain claim which may 
 arise upon the title, or any risk to which the fund may be 
 exposed.^* 
 
 § 188. Creation of Indemnity Fund, Original Registration. 
 Generally speaking, the indemnity fund is created by the levy 
 of a small tax or contribution, based on the value of the land, 
 and paid into a special fund for the purpose of indemnity 
 under the act. Such a contribution is usually levied at the 
 time of the original registration. Under the Australian acts the 
 sum of one halfpenny in the pound sterling upon the value of 
 the land brought under the act is levied at the time of the issue 
 of the first certificate, i* In Manitoba, where the original 
 grantee from the Crown applies for registration and no trans- 
 action or instrument affecting the land has been registered ex- 
 cept mortgages or leases, one-tenth of one per cent is paid into 
 the fund, and in all other cases one-quarter of one per cent 
 is levied. 1^ Any excess above $75,000 in the fund is trans- 
 ferred to the consolidated revenue. In Saskatchewan, upon the 
 first registration, there must be paid for the assurance fund 
 
 11 5 109 British Columbia act. 191 Western Australia act. § 119 
 
 12 J 21 English act. New South Wales act. §? 41, 140 
 13 1 203 Victorian act. § 197 Queensland act. This is about 
 
 Western Australia act. twenty cents on each hundred dol- 
 
 14 § 177 New Zealand act. $ 201 lars. 
 
 South Australia act. § 108 Tas- is J 154 Manitoba act. 
 mania act. $ 197 Victorian act. § 
 
 297 
 
THE TOEEENS SYSTEM 
 
 one-fifth of one per cent on property worth $5,000 or less, and 
 one-tenth of one per cent on any excess in value over $5,000, 
 and on any absolute transfer of the land there must he paid on 
 the increase in value since the last certificate one-fifth of one 
 per cent up to $5,000, and one-tenth of one per cent on any 
 increase in value over $5,000.^® Any excess over $75,000 in 
 the fund is transferred to the consolidated revenue. In On- 
 tario, on the first registration with an absolute or qualified 
 title, one-quarter of one per cent of the value of the land, 
 apart from the buildings or fixtures thereon, and one-tenth 
 of one per cent of the value of the buildings and fixtures, is paid 
 into the fund; and on the first registration with a possessory 
 title one-eighth of one per cent of the value of the land, apart 
 from the buildings or fixtures thereon, and one-twentieth of one 
 per cent of the value of the buildings and fixtures, is paid into 
 the fund. The payment may not be less than one doUar.^^ 
 In Nova Scotia, on the first registration of land with an 
 absolute or qualified title, one-fourth of one per cent of the 
 value of the land is paid into the fund ; and, ou the first regis- 
 tration with a possessory title, one-eighth of one per cent of 
 such value is paid. No payment of less than one dollar may 
 be made.^^ In this country one-tenth of one per cent of the 
 value of the land must be paid into the fund on the bringing 
 of it under the aet.^'^ This value is variously determined on the 
 basis of the last assessment for local taxation, for municipal 
 taxation, and for general taxation. In Illinois and Oregon the 
 value is to be determined by the registrar. In Minnesota the 
 value of the improvements is excluded. In New York a person 
 registering his title may elect to take it "without recourse to 
 the assurance fund," in which case the certificate is plainly 
 marked with those words. But any owner of registered prop- 
 erty may pay to the registrar one-tenth of one per cent of its 
 local assessed value, whereupon the registrar shall cancel the 
 words "without recourse to the assurance fund" from the 
 
 16 § 163 Saskatchewan act. nesota act. 82 Washington act. § 
 
 17 j 130 Ontario act. 93 Massachusetts act. $ 94 Hawaii- 
 18^83 Nova Scotia act. an act. $99 Philippine act. "As- 
 19 § 99 Illinois act. §98 Oregon sessed value of the land" in the 
 
 act. § 83 Colorado act. § 72 Min- Massachusetts act means the as- 
 
 298 
 
INDEMNITY I'UND 
 certificate, and the owner thereafter may avail himself of any 
 right to recover compensation from the fund, which right 
 may thereafter arise.^o 
 
 §189. Creation of Indemnity Fund, on Transmission, on 
 Registration of Tax Title, on Settlement. In most of the Aus- 
 tralian acts, in addition to the contribution at the time of the 
 first registration of the title, the sum of one half penny in the 
 potind sterling on the value of the land must be paid upon 
 the registration of the title to an estate in freehold in pos- 
 session in land, derived through transmission in consequence 
 of the death of a registered owner, whether by will or intes- 
 tacy.2i Nova Scotia is the only Canadian province which 
 levies a contribution to the fund on transmission of land, and in 
 that province one-eighth of one per cent on the value of the 
 land must be paid into the fund on the registration of any 
 title acquired by will or descent, and no payment of less than 
 one dollar may be made.^^ In most of the acts in this country 
 an additional levy of a contribution of one-tenth of one per 
 cent on the value of the land is made on the issue of a new 
 certificate of title to a person who acquires it by devise or 
 descent.^* A third levy is made under the Illinois and Oregon 
 acts when a tax deed is registered pursuant to an order of 
 court on a sale of registered land for taxes or assessments,^* 
 and a third levy is made under two Australian acts when a 
 title is registered on any instrument making a settlement of 
 land.25 
 
 § 190. How Value of Land is Determined. Under most of 
 the foreign acts the value of the land for the purpose of levy- 
 ing the sum for the fund is ascertained by the oath or affirma- 
 
 sessed value of the land and build- 23 § 99 Illinois act. § 98 Oregon 
 
 ings. Wachusetts National Bank, act. § 83 Colorado act. § 72 Min- 
 
 Petitioner, Land Court Decisions, nesota act. § 82 Washington act. 
 
 (Mass.) pg. 149 (1904). J 93 Massachusetts act. § 94 Haw- 
 
 20 5 58 New Tork act. aiian act. $ 99 Philippine act. 
 
 21 J 119 New South Wales act. There is no such levy in the New 
 § 191 Western Australia act. § 201 York act, and California has no 
 South Australia act. § 108 Tasman- fund. 
 
 ia act. ^ 41, 140 Queensland act. 24 § 99 Illinois act. 5 98 Oregon 
 
 No contribution on transmission of act. 
 
 land is made in Victoria or New 25 § 119 New South Wales. J 
 
 Zealand. 108 Tasmania act. 
 
 22 J 83 Nova Scotia act. 
 
 299 
 
THE TOEEENS SYSTEM 
 
 tion of the applicant, or the registrar may require the certifi- 
 cate of a sworn valuator, or he may deem the price paid for 
 the land to be the value thereof. In this country the acts usual- 
 ly provide that the assessed value of the land for the pur- 
 poses of taxation shall be taken as the basis of computation 
 of the amount of the contribution to the fund. 
 
 §191. Nature of Losses for Which Fund is Liable. As a 
 general statement, without reference to any particular legis- 
 lative act, it may be said that the grounds upon which pro- 
 ceedings may be had against the indemnity fund are "depriv- 
 ation of land" and "sustaining loss" by operations under the 
 system of registration. In most cases there may be little 
 difference between these grounds, which may be worked out 
 into a clear legal distinction. The owner of land is not the 
 only one who may sustain loss by being deprived of land; a 
 mortgagee or person holding some registered right against 
 land may sustain loss by being deprived of land pro tanto.^^ 
 A statute may be so drawn as to make the fund liable for loss 
 or damage in cases where there has been no deprivation of 
 an interest in land once vested in the person suffering a loss, 
 as in case of misdescription of land, or the issue of two cer- 
 tificates for the same land, and it may provide for compensation 
 from the fund where a person suffers loss or damage through 
 the error or misfeasance of the registrar, by failing to be 
 placed on the register at all. It is competent for the legisla- 
 ture to make the assurance fund liable for money loss as well 
 as for loss of land,^'' and for loss of that which one dealing 
 with land might expect to get as the result of operations 
 under the system. The scheme of indemnity should be con- 
 sidered broadly, and no qualification of it should be read into 
 the acts. 
 
 § 192. Action Against Fund Not a Common Law Action. In 
 order to maintain an ordinary common law action, the trustee 
 of an express trust must sue for and on behalf of the benefic- 
 iaries, but an action against the indemnity fund is an action 
 under a statute, and not a common law action. "Where the 
 
 26 Queensland Trustees v. Eegis- Q. 75 (1902). 
 trar, 5 Q. L. J. 46 (1893). Tolley 27 Hogg, Australian Torrens Sys- 
 
 V. Byrne, 28 V. L. E. 95 (1902). tem, pp. 853, 855. In re Jackson, 
 
 rinucane v. Eegistrar, 1 St. Eep. 10 N. Z. L. E. 148 (1890). 
 
 300 
 
INDEMNITY FUND 
 
 statute vests a cause of action in any person deprived of land 
 or sustaining loss, etc., these V7ords include the beneficiaries 
 of an express trust, -who have sustained loss by reason of the 
 failure of the registrar to register the trustee of a rent charge 
 on certain land, whereby they lost the benefit of the rent 
 charge, and the beneficiaries jointly may bring an action 
 against the fund for their own benefit.^^ 
 
 § 193. Recourse to Indemnity Fund, Original Registration. 
 
 According to the general trend of the foreign acts, an appli- 
 cation for registration is referred by the registrar to an ex- 
 aminer of titles who exaniines the records, deeds and such 
 documentary evidences of title as are presented to him. If, 
 as the result of his work, the examiner finds the title good 
 and valid in the applicant, he makes a report to the registrar, 
 recommending that the title be registered. This method of 
 determiniag the condition of the title by examination of the 
 records is not precarious. It is the same method which is 
 used by an attorney in examining a title for a client, and it 
 is the same method which is used by title insurance companies 
 in determining the condition of a title for the purposes of title 
 insurance. The conduct of a proceeding in court for registra- 
 tion of a title under the acts in this country is founded on the 
 condition of the title as disclosed by an examination of the ab- 
 stract of title to the property, and the efficacy of the pro- 
 ceeding depends in part on the correctness and thoroughness 
 of such examination. Under foreign acts, when the registrar 
 registers and certifies the title according to the opinion and 
 report of the examiner, he vests it in the applicant by govern- 
 mental authority, under the statutory declaration of inde- 
 feasibility, and the certification bars all unregistered inter- 
 ests and estates in the land, in favor of the registered owner. 
 But since the indefeasibility of a registered title arises from 
 a general statutory declaration, which is effective even though 
 persons interested in the land had no notice of the application, 
 and since the registration does not have the sanctity of a judg- 
 ment or decree of court, which binds only those who are 
 properly notified, it is in harmony with a sense of propriety 
 
 28 Papworth v. "Williams, 20 N. Papworth, 23 Weekly Notes, (N. S. 
 S. W. L. E. 280 (1899). See Daly v. W.) 187 (1906). 
 
 301 
 
THE TOEEENS SYSTEM 
 
 and natural justice that the system requires the creation of 
 an indemnity fund, out of which may be compensated "any 
 person wrongfully deprived of any land, or any interest there- 
 in, by the bringing of the same under" any act establishing 
 the system.2® By the words, "who shall sustain damage by 
 the bringing of land under the act," it is intended that every 
 person, who is deprived of any interest in land through the 
 bringing of the same under the act,, shall be enabled to bring 
 his action for recovery of damages from the indemnity fund. 
 The scheme of the act is to provide a fund for compensating 
 all persons who are deprived of an interest in land by the 
 operation of the act, and reason and justice require that the 
 words shall be broadly construed, and that no qualification 
 shall be put upon the right so given, which is not imposed by 
 statute in express terms.*" 
 
 § 194. Recourse to Indemnity Fund, Original Registration. 
 In this country such a proceeding for bringing land under 
 the system is not consonant with our system of government, 
 and a proceeding in court to establish and register a title is 
 necessary. If this proceeding is not conducted with due pro- 
 cess of law against a person interested in the land, the decree 
 in it does not deprive him of his interest; if it is so con- 
 ducted, he is bound by the finding and decree of the court. 
 In a technical and legal sense it is impossible for any person 
 
 29 The case of Anderson v. Davy, titled to recover. The registration 
 
 1 N. Z. S. G. 302 (1882), illustrates of the land vested the title in the 
 
 how a person may be deprived of son, and the innocent incumbrancer 
 
 land in Australasia by the bringing took the title in satisfaction of his 
 
 of land under the registration acts. debt. The right of the administra- 
 
 The owner of land died intestate. trix to sue for the value of the 
 
 His son, representing himself as land arose under the laws of New 
 
 the owner, fraudulently brought Zealand. 
 
 the land under the provisions of A. applied for the registration 
 
 the act. He mortgaged it, and of certain land. His supposed deed 
 
 failed to make his payments under from B., under which he claimed 
 
 the mortgage. The land was there- title, was a forgery, but he did not 
 
 upon sold under foreclosure. _A11 know this when he was registered, 
 
 these transactions were without It was held that his certificate gave 
 
 notice of the fraud. Subsequently, him an unimpeachable title as 
 
 some four years after the death of against B. Coleman v. Eiria Puw- 
 
 her husband, the widow of the hanga, 4 N. Z. S. C. 230 (1886). 
 
 original owner took out letters of so Public Trustee v. Registrar 
 
 administration and brought suit General, 17 N. Z. L. E. 577 (1899). 
 
 against the assurance fund for the Main v. Eobertson, 7 A. L. T. 127 
 
 recovery of the value of the land, (1886). 
 and it was held that she was en- 
 
 302 
 
INDEMNITY FUND 
 
 to be wrongfully deprived of any interest in land by a decree 
 of court. But in some of the acts in this country "a person 
 wrongfully deprived of land by the bringing of the same under 
 the provisions of this act" is among those who may have 
 compensation from the indemnity fund.^^ This designation 
 of a person who may be a beneficiary of the fund seems to be 
 meaningless as applied to registration of title under our laws, 
 and it was doubtless copied from foreign acts into some of our 
 statutes without due consideration. In some of the acts in this 
 country provision is made for recourse to the indemnity fund, 
 only in matters arising after the bringing of land under the act, 
 and no compensation is provided for any injury by or through 
 the original decree of registration. Under these acts an action 
 for compensation from the fund may be brought by a person 
 who sustains loss or damage or is deprived of land, or any 
 estate or interest therein, after the original registration, 
 through fraud or in consequence of any error, ete.^^ While it 
 is not possible, in any legal sense, for a person to be wrongfully 
 deprived of land by a decree of court, yet a person may be 
 deprived of land in consequence of fraud or misrepresentation 
 in obtaining a decree of court. The Ohio act provided that 
 "any person deprived of land, or of any estate of interest there- 
 in, in consequence of fraud or misrepresentation in bringing 
 such land under the operation of this act, having had no notice 
 of the proceedings, ' ' might bring an action for the recovery of 
 damages so by him sustained against the tort-feasor and the 
 county treasurer, and ultimately recover from the fund.^^ This 
 provision does not appear in any of the other acts. In this 
 country it would seem to be entirely just and proper to leave all 
 panties to their ordinary legal remedies for injuries arising 
 prior to the first registration of a title, and to reserve the 
 indemnity fund for compensation for losses arising after that 
 time. 
 
 §195. Recourse to Indemnity Fund, Loss After Original 
 Registration. Generally speaking, the provisions of the Tor- 
 si § 101 Illinois act. § 100 Oregon 32 § 59 New York act. § 95 Mas- 
 act. § 74 Minnesota act. § 85 Col- sachusetts act. § 96 Hawaiian act. 
 orado act. f 84 Washington act. § S3 J§ 146, 147 Ohio act; 
 101 Philippine act. 
 
 303 
 
THE TOEEBNS SYSTEM 
 
 rens acts, giving access to the indemnity fund for loss or dam- 
 age on certain conditions to certain persons, are complex and 
 difficult to construe.^* They may be analyzed so as to show 
 that they provide for compensation for persons who have 
 been injured (1) by the bringing of land under the act, (2) by 
 fraud, (3) by the registration of another as the owner, and 
 (4) by error.^^ 
 
 (1). We have already discussed the bringing of land under 
 the act as a cause of loss in foreign jurisdictions and under 
 court proceedings in this country. 
 
 (2). Fraud is a cause of loss, enumerated in almost all 
 the acts, for which compensation may be made on certain 
 conditions and in certain cases. In every case in which fraud 
 occurs upon a transfer for value, the person who is guilty of 
 the fraud, whether or not he be the one who acquired the title 
 through the fraud, is primarily liable to an action for the loss 
 sustained. When damages cannot be recovered from the per- 
 son who caused the loss, on account of death, insolvency, ab- 
 sence from the jurisdiction, etc., recourse may be had against 
 the fund.^® Under one act the loss occasioned by fraud is 
 recoverable directly from the fund, but the amount paid from 
 the fund is a debt due to the Crown from the person who caused 
 the loss.^'^ In the original act in Illinois fraud was mentioned 
 as one of the causes of loss for which compensation could 
 be made from the indemnity fund, but in the amending act 
 of 1907, all mention of fraud was omitted. The Illinois act 
 
 34 §{ 126-135 New South Wales 35 See $ 126 New South "Wales 
 
 act. §5 126-128 Queensland act. §§ act, and other acts'. 
 
 178-187 New Zealand act. J? 203- 36 §$ 126, 133 New South Wales 
 
 218 South Australia act. $$ 125-133 act. i 127 Queensland act. § 205 
 
 Tasmania act. §§ 202-217 Vie- South Australia act. $ 127 Tasman- 
 
 torian act. §§ 196-211 Western ia act. §§ 202-207 Victorian act. ^ 
 
 Australia act. J 7 English act, 196, 201 Western Australia act. j 
 
 1897. J 132 Ontario act. §J 96- 98 British Columbia act. $ 132 On- 
 
 107 British Columbia act. J§ tario act. § 107 Alberta act. $ 146 
 148-167 Saskatchewan act. §§ 105- Manitoba act. J 150 Saskatchewan 
 
 108 Alberta act. §J 146-151 Mani- act. § 86 Nova Scotia act. § 97 
 toba act. $§ 85-91 Nova Scotia Massachusetts act. J 98 Hawaiian 
 act. ?§ 101, 102 Illinois act. §§ 100, act. § 102 Philippine act. § 85 
 101 Oregon act. J§ 74-77 Minnesota Washington act. § 60 New York 
 act. ?§ 85-88 Colorado act. §? 84- act. § 75 Minnesota act. § 86 Col- 
 87 Washington act. §§ 58-61 New orado act. J 101 Oregon act. 
 York act. § 95 Massachusetts act. 37 J 182 New Zealand act. 
 
 ^ 101-107 Philippine act. U 96-103 
 Hawaiian act. 
 
 304 
 
INDEMNITY FUND 
 
 seems to be the only one in which fraud is not named as a 
 cause of loss for which compensation from the fund may be 
 made.^s The first clausfe of section 101 provides that any per- 
 son may have a claim on the fund for any loss suffered through 
 any misfeasance of any officer or clerk in the registry office in 
 the performance of his duties, and this expression probably 
 will cover any fraud of such officer or clerk in the line of his 
 duties under the act, but there is no expression in the act 
 broad enough to give access to the fund, in any event or 
 under any conditions, to one who has been injured by the fraud 
 of any person other than such officer or clerk. A person in- 
 jured by the fraud of another will have a right of action 
 against him under the general laws of the state. The power 
 of a state in this country to create a fund for the compensation 
 of persons who have been defrauded by others in dealing with 
 land is not clear, and the Illinois act may have been amended 
 in this way in order to avoid any constitutional question on this 
 point. 
 
 (3). Since provision is made for indemnity for the wrong- 
 ful bringing of land under the act, it is evident that loss "by 
 the registration of another person as the owner of the land" 
 refers to a registration subsequent to the first. A"s the regis- 
 tration of another person as owner can take place only through 
 error, whether superinduced by fraud or not, it might seem 
 that this designation of a cause of loss is superfluous. But an 
 examination of the statutes will show that the errors, mistakes 
 and omissions therein referred to in apt words are those made 
 by the registrar or his assistants in the performance of their 
 duties, and there is no provision in exact language that the 
 fund may be liable for errors of those who may deal with the 
 land. The designation under consideration covers such con- 
 tingencies, and where another person is registered as the owner 
 of the land, the fund is liable to the true owner for the loss, 
 though there was no error, mistake or omission on the part 
 of the registrar or any of his assistants.^^ Under the statutes 
 of Australasia, where another person is registered as the 
 
 38 §§ 101, 102 Illinois act, as L. E. 134 (1890). Queensland Trust- 
 amended in 1907. ees v. Registrar, 5 Q. L. J. 46 
 39Butu PeeM v. Davy, 9 N. Z. (1893). 
 
 305 
 
THE TOEKENS SYSTEM 
 
 owner, and the true owner is deprived of his land by the 
 error of a person dealing with the land and not connected with 
 the registry, the person causing the loss is primarily liable 
 for it.*" An execution on a judgment was presented to a 
 registrar, and he was directed by the judgment creditor to 
 register it as a memorial on a certificate of title of a person 
 with the same name as the judgment defendant. The land 
 described in this certificate was sold to pay the judgment and 
 was bought in by the judgment creditor, who registered his 
 deed and received a certificate of title for the land. He after- 
 ward sold the land to a third person, to whom the real owner 
 gave up possession on the presentation of his certificate. In 
 a suit by the real owner against the judgment creditor, it 
 was held that by the registration of the writ and of the trans- 
 fer from the sheriff, the title of the real owner was superseded, 
 that he was deprived of his land by the erroneous registration 
 of another as the owner of it, and that he was entitled to 
 recover the value of it from the judgment creditor, notwith- 
 standing the subsequent sale by the latter.*^ A registration 
 obtained by or through a forgery is void; but a bona fide 
 transferee under such a registration takes a good title. In 
 the latter case the true owner loses his land through the 
 registration of another as owner, and is entitled to recover 
 damages from the fund for the value of his land, if he can- 
 not recover from the forger and his accomplices. "Where the 
 true owner has been deprived of his land by the registration 
 of another as owner, as the result of the fraud or error of some 
 one not connected with the registry, the state will pay him 
 for it, if he cannot recover damages from the person register- 
 ed as owner, who thereby deprived him of his property.*^ F. 
 was registered as sole devisee of land under a will, and the 
 will was subsequently set aside in favor of C, the heir. C. 
 sued P., who had derived benefit by the erroneous issue of the 
 certificate and the sale of the land, and recovered judgment 
 for the value of his land. F. was adjudged insolvent and 
 had no assets. C. thereupon brought an action against the 
 fund for the erroneous issue of a certificate of title by the 
 
 40 Hassett v. Bank, 7 V. L. E. L. 4i Hassett v. Bank, supra. 
 
 380; 3 A. L. T. 38 (1881). 42 See § 151 ante. 
 
 306 
 
INDEMNITY FUND 
 
 registrar to another person, and recovered judgment against 
 the fund for the value of the land.*^ By the words, "by the 
 registration of any other person as owner of the land," it is 
 intended that every person who is deprived of his land by 
 the erroneous issue of a certificate of title to another shall 
 be enabled to bring his action against the fund for recovery 
 of damages. The scheme of the system is to provide a fund 
 for compensation of every person who is deprived of his land 
 by the operation of the act, and justice requires that this 
 designation of persons be liberally construed, and that no 
 qualification be put upon the rights so given, which is not 
 imposed by statute in express terms. ^* 
 
 So far we have considered from the point of view of for- 
 eign acts the provision, that a person sustaining loss by the 
 registration of another as owner of land may have compensa- 
 tion from the indemnity fund. Is such a provision workable 
 under the condition of the law in this country? In order to 
 inflict a legal injury on the true owner and give him a right 
 of action against the fund, the registration of another as the 
 owner must divest the title from him and vest it in the other, 
 to whom it does not really belong. The cases of Hassett vs. 
 Bank and Queensland Trustees vs. Eegistrar, supra, and a valid 
 new registration under a void registration, are plain and logical 
 as a part of a foreign system, but, in this country under the 
 same facts, it seems to be impossible to follow the same princi- 
 ples and to arrive at the same results. It is quite possible that 
 this cause of loss, the registration of another as owner, for 
 which compensation from the fund is provided in our acts, 
 has been copied iuto them without due consideration, and that 
 in them it is as inapplicable and meaningless as the phrase, 
 that any person wrongfully deprived of any land through the 
 bringing of the same under the act may bring an action against 
 the fund. 
 
 (4). The indemnity fund is liable for loss which may be 
 sustained by any person through any error, omission or mis- 
 feasance of anyone connected with the registry office, in the 
 
 43 Queensland Trustees v. Eegis- General, 17 N. Z. L. E. 577 (1897). 
 trar, 5 Q. L. J. 46 (1893). Main v. Eobertson, 7 A. L. T. 127 
 
 44 Public Trustee v. Eegistrar- (1886). 
 
 307 
 
THE TOBEENS SYSTEM 
 
 performance of his duties ; and it is liable for a loss sustained 
 through any error, omission or misdescription in any certifi- 
 cate, or in any entry or by any cancellation. The last clause 
 may refer to an error by the the registry office, in which 
 case the fund is primarily liable for the loss; or it may refer 
 to an error of some person dealing with the land, who causes 
 another person to be registered as owner, in which case the 
 person causing the loss is primarily liable, and the fund is only 
 conditionally and ultimately liable for the loss. These pro- 
 visions are workable under foreign acts, but a doubt must arise 
 about the working of them under our system of jurisprudence. 
 The doctrines of constructive notice of entries on the register 
 and of estoppel must be greatly developed under the Torrens 
 system in this country, before it can be said that errors on the 
 register bind anyone and bar anyone "from bringing any 
 action for the recovery of his interest in the land. ' ' 
 
 An innocent purchaser for value may rely on the public 
 register, and if entries thereon have been obtained by fraud, 
 or if errors of fact have crept into the record, possibly he may 
 take a good title to the estate as registered therein, not because 
 the register is conclusive evidence of an indefeasible title to the 
 estate as registered, but because there is an estoppel of record 
 against the person who was the victim of the fraud or error. 
 
 § 196. Indemnity Fund in This Country, Comment. The 
 
 Torrens system is established on the theory that the making of 
 land readily saleable without question as to the validity of the 
 title, and without any necessity for a retrospective examination 
 of it, by making its certificates conclusive evidence of such 
 validity, outweighs in public convenience the possibility of oc- 
 casional losses of interests and estates in land by operations 
 under the act; and to mitigate the harshness and severity of 
 the system, in making registration under the last registered 
 owner vest indefeasible titles, it provides an indemnity fund, 
 from which compensation in damages may be made to persons 
 sustaining loss thereby.*^ 
 
 It "may be that in this country a state has power to create 
 such a fund, and that it is only the novelty of the idea, which 
 
 45 King V. Price, 24 N. Z. L. E. v. Eegistrar, 5 Q. L. J. 46 (1893). 
 291 (1904). Queensland Trustees 
 
 308 
 
INDEMNITY FUND 
 
 makes it appear to anyone that such a creation is not the exer- 
 cise of a governmental function. But it is evident that in this 
 country the system has not evolved and developed to a point 
 where we may say that there is a balance of convenience, with 
 conclusive certificates of title, as declared hy the statutes, in 
 one scale, and a possibility of a loss of interest in land, with 
 an ancillary indemnity fund, in the other. Leaving out all 
 reference to fraud and error as causes of loss, we may set 
 forth in more ample terms the other two causes, as follows: 
 Any person deprived of any land or of any estate or interest 
 therein, by the first registration thereof under the act, or by 
 the subsequent registration of any other person as owner 
 thereof, through the error of some one not connected with the 
 registry, * * * * aaid who by the act, that is, by the declaration 
 of conclusiveness of certificates issued under the act, is barred 
 from bringing any action for possession or recovery thereof, 
 may obtain compensation for his loss from the indemnity fund. 
 The intent seems to be that any true owner, deprived of any 
 interest in land through the issue to another of a first or sub- 
 sequent certificate which ipso facto gives to the registered 
 person the ownership of the registered estate in land, may 
 receive compensation from the fund. On first registration of a 
 title in this country, indefeasibility of title arises, if at all, by 
 reason of the force and effect of a decree of registration, and 
 not by reason of the statutory declaration of conclusiveness 
 of the certificate of title. If the registration of another as 
 owner of registered land bars the true owner, it is not because 
 of the statutory declaration of conclusiveness, but because 
 some one, not connected with the registry, committed a fraud 
 or made a mistake, and an innocent purchaser for value relied 
 on a governmental register and, before the register was cor- 
 rected, obtained a good title, under the doctrine of estoppel 
 of record. A third person may rely on the record under the 
 recording system, and take a good title, though the title of his 
 grantor was subject to defeat while it remained in him. But 
 these are principles of estoppel and constructive notice under 
 the recording system, and though possibly they may obtaiu 
 under the Torrens system, they are not contained within the 
 
 309 
 
THE T0REEN8 SYSTEM 
 
 phrase "and who are barred by this act." There is nothiag 
 in any act referring to such principles of law. The eases cited 
 in the preceding section clearly show that the phrase, "by 
 the registration of another as owner," in foreign jurisdictions 
 covers cases in which a certificate would not be conclusive 
 in this country, and that it has a primary and essential mean- 
 ing in those jurisdictions, which it cannot have here. 
 
 It is undoubtedly true that in this country, whether the title 
 is registered or unregistered, an owner may lose his land 
 through fraud or error. But the error which is the primary 
 cause of his loss of registered land must be one of fact, commit- 
 ted either by some one in the registry office, or by some third 
 person dealing with the land, and must not be error of title, 
 error of law, committed by the registry.*® 
 
 When we reflect on the uncertainty of access to the fund in 
 this country, we must conclude that, in omitting the feature 
 of the indemnity fund as ancillary to our scheme of registering 
 titles, the framers of the California act may have been more 
 discerning than at first they seemed to be. 
 
 § 197. Loss after Original Registration, Forgery in England 
 and Ireland. A person who deals with registered land is bound 
 at his peril to see that he deals with the last registered owner. 
 If he is imposed upon and accepts a forged instrument of 
 transfer or mortgage, he is not entitled to recover his loss from 
 the indemnity fund. In the English act, 1897, and in the act 
 for Ireland, 1891, it is provided that the fund shall be liable 
 for a forgery, but there is also a provision in each act that a 
 person shall not be entitled to indemnity for a loss where he has 
 caused or substantially contributed to it by his act, neglect or 
 default. By implication in the act for Ireland, and in express 
 terms in the English act, a forged transfer is absolutely void 
 for all purposes, and a registration may be set aside for forgery, 
 no matter how many subsequent transfers have been made. It 
 would seem to be a proper construction of these provisions, that 
 in case of forgery any person suffering by the rectification of 
 the register will have a right of action against the fund, ex- 
 cept the first person registered tinder the forged instrument. 
 If he committed the forgery he can have no right of action, and 
 46 See § 148 et seq. 
 
 310 
 
INDEMNITY FUND 
 
 if he was an innocent person, registered as the result of a for- 
 gery, he would seem to be barred for having contributed 
 substantially to the loss by his act and neglect in dealing with 
 an impostor.*'' 
 
 § 198. Recourse to Indemnity Fund, Only When One is Bar- 
 red by the Act. In defining the persons who may become a bene- 
 ficiary of the indemnity fund, this qualification is made in some 
 of the acts, ' ' and who, by the provisions of this act, is barred 
 and precluded from bringing any action for the recovery of 
 such land, or interest therein or claim thereon. ' '** This clause 
 would seem to limit and qualify all the preceding clauses, for 
 it cannot be said that one has sustained a loss or has been 
 deprived of land so long as he has a right of action to recover 
 his property. It would seem to be axiomatic under the Torrens 
 system that when the estate or interest in land is recoverable, 
 no damages against the indemnity fund are recoverable. A 
 person may be said to have sustained a loss by an error, omis- 
 sion or misfeasance of an officer of the registry only in case the 
 entry on the register is not capable of rectification. ** Accord- 
 ing to the scheme of the Torrens system, a person must be bar- 
 red and precluded by the provisions of the act from recovering 
 his interest in the land, before he is entitled to resort to the 
 fund. "When the new certificate is not conclusive evidence of an 
 indefeasible title in favor of the holder, no recovery from the 
 fund may be had by the true owner, and this principle seems to 
 stand in the way of recovery from the fund in this country in 
 all cases involving the essential elements of the Torrens system. 
 
 § 199. Recourse to Indemnity Fund, Other Remedies Must 
 be Exhausted. In Australasia the statutes give a right of action 
 against any person who procures a registration by fraud, or 
 through his error, and they provide that damages may be re- 
 covered from the fund only in case recovery from the person 
 
 47 $ 7 English act, 1897, sub- 211Victoriaii act. § 205 Western 
 sections 2, 3. § 93 Act for Ireland, Australia act. ? 99 British Colum- 
 1891. bia act. § 146 Manitoba act. $ 108 
 
 48 § 101 Illinois act. § 100 Ore- Alberta act. § 151 Saskatchewan 
 gon act. § 84 Washington act. $ 74 act. 
 
 Minnesota act. $ 85 Colorado act. 49 § 7 English act, 1897. § 99 
 
 § 127 New South Wales act. $ 178 British Columbia act. § 108 Alber- 
 
 New Zealand act. § 208 South Aus- ta act. § 151 Saskatchewan act. 
 tralia act. § 128 Tasmania act. § 
 
 811 
 
THE TOEEBNS SYSTEM 
 
 causing the loss cannot be had on account of death, insolvency 
 or absence from the jurisdiction of the courts.^" While all acts 
 do not provide in express terms that a person must exhaust 
 all his remedies before resorting to the fund, this is the obvious 
 implication.^! This is also the intendment of the Canadian 
 statutes.52 
 
 According to the scheme of the Torrens system, the indem- 
 nity fund is merely ancillary to the system of registering and 
 transferring titles to real estate. It is intended to relieve in- 
 nocent persons from the harshness of the doctrine that a certifi- 
 cate is conclusive evidence of an indefeasible title to land, and 
 from any injustice which may arise to them by operations under 
 the act, making for the conclusiveness of a certificate, whether 
 such injustice arises from the fraud or error of some one con- 
 nected with the registry office, or of some third person dealing 
 with the land. It is not intended to relieve from the legal con- 
 sequences of his act any third person who perpetrates a fraud 
 or commits an error, and it is not intended to relieve a person, 
 who is injured by operations under the system, from the burd- 
 en of prosecuting the remedies given to him by the general laws 
 or by the act establishing the system. This is a statement of 
 the general purpose and function of an indemnity fund. Where 
 an act provides for any other remedy for an injury, and also 
 provides for access to the fund for the same injury, the general 
 purpose of the act prevails and, in construing the act, will be 
 taken to imply that the other remedy must be exhausted before 
 access may be had to the fund. The general scheme of the sys- 
 tem is that when a certificate may be rectified, or when damages 
 may be recovered from the person who caused the loss, no re- 
 covery may be had against the fund. But this is a minor 
 scheme, and in any particular case a statute may give a direct 
 remedy against the fund in the first instance.^^ When a per- 
 son procures a registration through fraud, he is liable for the 
 injury inflicted until the statute of limitations intervenes. But 
 if an applicant applies for registration in good faith and makes 
 
 50 See ante $ 195. act. $ 148 Saskatchewan act. J 86 
 
 51 Fotheringham v. Archer, 5 W. Nova Scotia act. $ 132 Ontario act, 
 W. & a'B. V. L. 95 (1868). sub-section 3. 
 
 52 § 96 British Columbia act. 5 63 § 182 New Zealand act. 
 105 Alberta act. § 146 Manitoba 
 
 312 
 
INDEMNITY FUND 
 
 no misrepresentations or misdescription of land, in his appli- 
 cation, and, by an error of the registrar, he is registered with 
 a good and valid title, when in fact he had no title, upon a 
 transfer of the land bona fide for value, he ceases to be liable 
 for the payment of any damages which might have been recov- 
 ered from him by the person with whose title he was regis- 
 tered.^* Where a person, without fraud on his part and by an 
 error of the registrar, is registered in succession to the former 
 registered owner with a greater estate or interest than he was 
 entitled to, upon a transfer of such land bona fide for value, 
 he ceases to be liable for the payment of any damages which 
 might have been recovered from him by the person injured by 
 such error.^^ 
 
 Under the English act there is no requirement that a person 
 deprived of an interest in land or sustaining loss shall exhaust 
 his other remedies before he may resort to the fund. On the 
 other hand, direct access to the fund is given in case of loss 
 and it is then provided: "Where indemnity is paid for a loss, 
 the registrar, on behalf of the Crown, shall be entitled to 
 recover the amount paid from any person who has caused or 
 substantially contributed to the loss by his act, neglect or 
 default. ' '^* Direct access to the fund is given in two Australian 
 acts under certain technical conditions.^'' The Illinois act, as 
 amended in 1907, gives direct access to the fund for all causes 
 of loss enumerated in the act.^® 
 
 §200. It was just said that the indemnity fund is not in- 
 tended to relieve a third person, — a person not connected with 
 the registry, — from the legal consequences of his fraud or er- 
 ror, and we must now consider the fraud and error of the regis- 
 trar in connection with the requirement that all remedies must 
 be exhausted before resort may be had to the fund. If a fraud 
 in registration is perpetrated by the registrar or one of his 
 agents, the registrar is liable therefor. The fund is not intend- 
 ed to relieve the registrar in case of fraud on his part, or on the 
 part of his agents. Where direct access to the fund is not given 
 
 54 $ 126 New South Wales act, 56 § 7, sub-section 6 English act, 
 sub. sect. 4. 5 204 South Australia 1897. See also J 182 New Zealand 
 act. $ 125 Tasmania act. ^ 207 act. 
 
 Victorian act. § 201 Western Aus- 57 ^ 212, 213 Victorian act. ^ 
 
 tralia act. 206, 207 Western Australia act. 
 
 55 Idem, supra. 58 J 101 Illinois act. 
 
 313 
 
THE TOEEENS SYSTEM 
 
 in case of fraud, the person sustaining loss by the fraud of the 
 registrar, or one of his assistants, must exhaust his remedy 
 against the registrar personally or on his official bond, before 
 he may resort to the fund. But the situation seems to be dif- 
 ferent in case of a mere error on the part of the registrar or 
 his assistants. Under the common law and under the general 
 law, a registrar would be liable on his official bond for any 
 error made by him, or any of his agents, in the performance of 
 his duty, whereby loss or damage was sustained by any person 
 dealing with the register. However, all the acts give direct 
 access to the fund in case of loss or damage through any omis- 
 sion, mistake or misfeasance of the registrar, or of any deputy 
 or clerk, in the performance of their respective duties under 
 the acts, and it would seem to be a part of the scheme of the 
 system by the indemnity fund to relieve the registrar from the 
 legal consequences of any honest error made in his office. Some 
 acts provide that no officer or assistant in the registry shall be 
 liable to any action in respect to any act or matter bona fide 
 done or omitted to be done by him in the exercise or supposed 
 exercise of powers vested in him under the acts.^® "Where 
 there is no express statutory exemption of registry officers from 
 liability .on account of errors honestly committed, the giving of 
 a direct remedy against the fund for losses sustained by such 
 errors may be held to exclude any remedy against any person 
 connected with the registry. Under all the acts nearly every- 
 thing in the administration of the system is left to the satisfac- 
 tion, discretion and judgment of the registrar, and it is evident 
 that there is no intention that the registrar shall be liable for 
 errors. 
 
 § 201. In order to have access to the fund for a fraudulent 
 deprivation of land or for a loss sustained by fraud, a person 
 need only show that he has exhausted his remedies against the 
 person who caused the loss, and he need not show that he has 
 proceeded against some third person who derived some bene- 
 fit from the fraudulent transaction.®** 
 
 59 J 220 New Zealand act. $ 137 act. $ 86 English act, 1875. § 106 
 
 Queensland act. $134 New South Ontario act. § 120 Fiji Ordinance 
 
 Wales act. $ 134 Tasmania act. J § 90 Act for Ireland, 1891. 
 
 24 South Australia act. § 204 Vic- 60 Cox v. Bourne, 8 Q. L. J. 66 
 
 toriau act. $ 198 Western Australia (1897). 
 
 314 
 
INDEMNITY FUND 
 
 § 202. Recourse to Indemnity Fund, Other Remedies Must 
 be Exhausted, Statutes in this County. In some of the acts in 
 this country it is provided that if a person deprived of any in- 
 terest in land has a right of action or other remedy for the re- 
 covery of such interest, he must exhaust such remedy hefore 
 resorting to an action against the fund.«i These acts further 
 provide that an injured person shall have his action ia tort 
 against any person who caused the loss, hut if he pursues 
 his remedy in tort and also hrings an action against the fund, 
 the latter action shall be continued to await the result of the 
 action in tort. Another act provides that if the person depriv- 
 ed of property has any other right of action, or other remedy 
 for recovery on account of such loss or damage, he shall 
 exhaust such remedy before resorting to his action against 
 the fund.®^ Under most of the acts, the person sustaining 
 loss may join as defendants the person causing the loss and 
 the custodian of the fund, and if he recovers judgment he 
 may recover from the fund only in case no recovery can be had 
 on execution against the person causing the loss.^^ The Illi- 
 nois act gives direct access to the fund in case a loss is sustained 
 by any person dealing with the register, and there is no clause 
 in it which suggests that any other remedies must first be ex- 
 hausted.®* 
 
 §203. Recourse to Indemnity Fund, Contributory Negli- 
 gence. Under some foreign acts a person who has notice or is 
 aware that an application has been brought to register land, 
 and who does not file a caveat and otherwise protect himself 
 against such registration, has no right of access to the indem- 
 nity fund, for any loss he may sustain by such registration.®^ 
 All the acts provide for the registration of caveats, cautions, 
 and notices of equities in and adverse claims to registered land, 
 for the protection of such rights and interests as may be out- 
 
 61 § 95 Massachusetts act. $ 96 65 $ 188 New Zealand act. $ 216 
 Hawaiian act. South Australia act. § 21 Queens- 
 
 62 § 59 New York act. land act. § 217 Victorian act. J 
 
 63 J 85 "Washington act. J 101 211 Western Australia act. § 130 
 Oregon act. § 86 Colorado act. J New South Wales act. $ 130 Tas- 
 75 Minnesota act. § 102 Philippine mania act. $ 107 British Columbia 
 act. act. $ 132 Ontario act. $ 153 Man- 
 
 64 J 101 Illinios act, as amended itoba act. $ 7, sub. J 3 English 
 in 1907. act, 1897. 
 
 315 
 
THE TOEEENS SYSTEM 
 
 standing, but some acts in express language bar access to the 
 indemnity fund where a loss arises from the omission to regis- 
 ter them.*® In the Australian acts there is no statutory declar- 
 ation that a person may not recover from the fund for a loss 
 caused or contributed to by his negligence in not protecting his 
 rights in registered land by caveat or otherwise, but the courts 
 have held that the fund is not liable for such a loss. The fund 
 is not liable for a loss occasioned by a mistake of an officer of 
 the registry, if the person suffering the loss, by the exercise of 
 reasonable diligence and caution, could have discovered the 
 mistake and prevented the loss.®'' To all persons dealing with 
 land, the register is notice of all which would be discovered by 
 a search. A person proposing to deal with registered land 
 should make proper inquires and searches at the registrar's 
 office, or he must take the consequences of his neglect to do so. 
 He must inquire and find out at his peril whether any instru- 
 ments affecting the title to the land have been filed for regis- 
 tration, though not yet registered, and he must examine the 
 original mortgages, leases and caveats in order to discover 
 the contents of them and to determine their legal effect. 
 He must bear in mind that the transferror's interest may 
 be affected by the registration of an instrument between his 
 search and the presentation of his transfer for registration.®^ 
 The fund is intended to compensate rightful owners and dili- 
 gent persons who have sustained loss by operations under 
 the act, without their fault, and it seems just and proper 
 to bar a claimant when it is shown that he has not exercised 
 ordinary care and caution in the protection of his rights and 
 interests. The Australasian cases just cited seem to sustain the 
 proposition that the doctrine of contributory negligence is ap- 
 plicable to claims against an indemnity fund, and that if it be 
 shown that a person was negligent in sustaining a loss under 
 the act, he may not recover from the fund, even though there is 
 no declaration in the statute that negligence on his part will de- 
 feat his claim. The effect of declaring in the statute that a 
 
 68 ^ 7 sub. ? 3 English act, 1897. Gibbs, 8 V. L. E. L. 380, 399 
 
 § 132 Ontario act. (1890). Mills v. Eenwick, 1 S. E. 
 
 67 Miller v. Davy, 7 N. Z. L. E. Eq. (N. S. W.) at 177 (1901). 
 
 515 (1889). In re Jackson, 10 N. 68 In re Jackson, 10 N. Z. L. E. 
 
 Z. L. E. 148 (1890). Oakden v. 148 (1890). 
 
 316 
 
INDEMNITY FUND 
 
 claimant against the fund must be without negligence on his 
 part is to put upon him the burden of showing that he was 
 without negligence. When the statute does not say that a 
 claimant must be without negligence, the burden is on the cus- 
 todian of the fund to show that the claimant was negligent in 
 sustaining the loss. In a general treatise, and without decis- 
 ions of courts oh the subject, it is difficult to state what acts or 
 omissions on the part of a person dealing with the register are 
 to be considered as negligent. 
 
 § 204. Many acts provide that the person sustaining loss 
 must be without negligence on his part in order to obtain in- 
 demnity from the fund.®" In the English and Ontario acts it 
 is provided that "a person shall not be entitled to indemnity 
 for any loss where he has caused or substantially contributed 
 to the loss by his act, neglect or default. ' '''° It may be a ques- 
 tion whether the last three words qualify and define the con- 
 tributory .'act," or whether a blameless contributory act will 
 bar him from a recovery. The wording of these sections last 
 cited is very different from the wording of the corresponding 
 sections of the other foreign acts and of the acts in this coun- 
 try. C, the registered proprietor under the English act of 
 a charge on registered land, was supposed to have transferred 
 the charge by assignment for value to 0., who thereupon left 
 the assignment at the land registry for registration, and he was 
 accordingly registered as propietor of the charge. It was after- 
 ward discovered that the assignment was a forgery by C 's solic- 
 itor. There had been no negligence on the port of C, and 0. 
 was perfectly honest in the transaction. It was held that 0. 
 was not entitled to indemnity from the fund, because, by bring- 
 ing the assignment of the charge to the registrar, he had 
 affirmed and warranted it to be a genuine document, and by 
 that act on his part, although innocent, he had directly brought 
 about the registration of the charge in his name and so had 
 "caused or contributed to the loss" within the meaning of the 
 above provision of the act.''^ It is not contributory negligence 
 
 69 § 59 New York act. § 95 Mas- $ 132 Sub § 3 Ontario act. See also 
 
 sachusetts act. ^ 96 Hawaiian act. ^ 93 Act for Ireland, 1891. 
 101 Philippine act. § 74 Minnesota 71 Attorney-General v. Odell, L. 
 
 act. § 88 Nova Scotia act. E. 2 Chan. Div. 47 (1905). 
 
 70 § 7 Sub 5 3 English act, 1897. 
 
 317 
 
THE TOEEENS SYSTEM 
 
 for a purchaser, mortgagee or lessee to neglect to compare des- 
 criptions and plans of land on file in the registrar's office, in 
 order to determine whether the land of the last registered own- 
 er is correctly described. Certain land was described in two 
 last certificates of title, and, while it actually belonged to one 
 registered proprietor, it was also registered as belonging to an- 
 other, from whom A took a lease for a term of years of all 
 the land described in the certificate. He was evicted from 
 the strip of land described iu both certificates, and he brought 
 suit against the fund. It was held that, even if A could have 
 discovered from a comparison of the two plats and descriptions 
 that his lessor did not have the title to this strip of land, he was 
 under no duty to search the title of the transferring party or of 
 his transferror, and that he was entitled to recover.''^ 
 
 §205. Becovery from Fund, Statutes of Limitation. In 
 
 most of the acts the period withiu which an action may be 
 brought against the ffmd is fixed at six years after the right of 
 action accrues.''* In some acts this period is fixed at ten 
 years,^* and in one act it seems to be fixed at twenty years.'^s 
 Under some acts the time for bringing an action is not extended 
 because of any disability on the part of the person entitled to 
 bring the action,''^ but under the Australian and Canadian 
 acts a person under the disability of infancy, unsoundness of 
 mind, or absence from the state or province, may bring such 
 action within six years from the date on which such disability 
 ceases.''^ Some acts provide that an action may be brought 
 withiu two years after similar disabilities are removed,''* and 
 one act provides that it may be brought within five years after- 
 ward.''® A person deprived of land or sustaining a loss must 
 
 72 Eussell V. Eegistrar, 26 N. Z. Ontario act. $ 7 sub J 7 English 
 L. E. 1223 (1906). act. $ 93 Act for Ireland, 1891. 
 
 73 ^ 102 Massachusetts act. § 74 $ 103 Blinois act. $ 102 Ore- 
 103 Hawaiian act. $ 107 Philip- gon act. §$ 150 Manitoba act. 
 pine act. § 61 New York act. § 87 75 $ 215 South Australia act. 
 Washington act. § 88 Colorado act. 76 j 61 New York act. J 102 Mas- 
 J 77 Minnesota act. ^ 130 New sachusetts act. J 103 Hawaiian act. 
 South Wales act. § 130 Tasmania 77 See sections of Australian and 
 act. i 217 Victorian act. § 211 Canadian acts just cited. 
 Western Australia act. $ 187 New 78 § 103 Hlinois act. $ 102 Ore- 
 Zealand act. J 127 Queensland act. gon act. § 77 Minnesota act. § 87 
 $ 103 British Columbia act. § 153 Washington act. $ 88 Colorado act. 
 Saskatchewan act. § 91 Nova Sco- § 107 Philippine act. 
 
 tia act. $ 110 Alberta act. $ 132 79 § 150 Manitoba act. 
 
 318 
 
INDEMNITY .FUND 
 bring an action against the fund within the period of limita- 
 tion, or be forever barred, even though he has no notice or 
 knowledge, during that period, of the invasion of his rights.^o 
 Under the English act, for the purposes of limitation, the cause 
 of action is deemed to arise at the time when the claimant 
 knows, or but for his own default might know, of the existence 
 of his claim.81 The date of the deprivation of land is the date 
 of the issue of the certificate of title, and the action must be 
 brought within the period of limitation from that time.82 
 
 § 206. Recovery from Fund, Measure of Damages. Where 
 a person has been wrongfully deprived of land by operations 
 under an act, the measure of damages, generally speaking, will 
 be the value of the land at the time of the deprivation.^* But 
 viewed as a matter of insurance, the amount of the indemnity 
 should bear a certain proportion to the contribution paid into 
 the assurance fund and should be limited to the valuation of 
 the property at the time when the amount of such contribution 
 was fixed. Accordingly, some acts provide that a person sus- 
 taining loss shall not recover from the fund any greater sum 
 than the fair market value of the real estate at the time of the 
 last payment into such fund on account thereof.^* The Ontario 
 act provides that in case of deprivation of mining lands, the 
 compensation to be paid from the fund shall not exceed eight 
 hundred times the amount paid into the fund in respect of the 
 land. *^ Under some acts the proportion between the compen- 
 sation to be paid in case of loss and the amount of the con- 
 tribution to the fund is somewhat crudely adjusted by provid- 
 ing that, on every transfer, the increased value of the property 
 since the date of the last certificate shall be the basis of a new 
 contribution to the fund.** 
 
 In the absence of any statute on the subject, the general 
 rule for the measure of damages in actions for conversion or 
 deprivation of property undoubtedly obtains in actions against 
 
 80 Bonnin v. Andrews, 12 8. A. Hawaiian act, $ 106 Philippine act 
 li. E. 153 (1878). and $ 61 New York act. 
 
 81 § 7 sub $ 7 English act, 1897. 84 § 76 Minnesota act. $ 87 Col- 
 
 82 Eutu Peehi v. Davy, 9 N. Z. L. orado act. $ 86 Washington act. 
 E. 134 (1890). 85 § 133 Ontario act. 
 
 83 It is so provided in § 186 New 86 § 163 Saskatchewan act. § 117 
 Zealand act, § 89 Nova Scotia act, Alberta act. 
 
 § 101 Massachusetts act, § 102 
 
 319 
 
THE TOEEENS SYSTEM 
 
 the fund, and the recovery will be for the value of the interest 
 at the time of the deprivation. Even if it be admitted that the 
 measure of damages against a wrongdoer for fraudulent de- 
 privation of land be the highest value of the land between 
 the date of deprivation and the date of the trial of the cause, 
 or that it may include all expenses of getting the land back 
 from the wrongdoer or of obtaining judgment for damages 
 against him, the right against the fund is not co-extensive with 
 the right against a wrongdoer, and the recovery against the 
 fund cannot exceed the value of the land at the time of the 
 deprivation.^'^ From what has just been said it is evident that 
 the statute must be consulted in order to determine whether 
 the value of the improvements made before deprivation or no- 
 tice thereof may be included in any claim against the fund,^* 
 but it is clear that the value of buildings and other improve- 
 ments, erected or made subsequent to deprivation and with no- 
 tice thereof, should be excluded.^® "Where title to part of the 
 land is taken away, the measure of damages is the difference be- 
 tween the value of the whole land prior to eviction and that of 
 the portion remaining in the transferee after eviction.'^ Plaint- 
 iff is not entitled to recover from the fund loss of profits in busi- 
 ness due to the stoppage of the business, and he is not entitled 
 to the repayment of damages and costs with which he was 
 mulct in an action for trespass.®^ 
 
 "Where a person sustains a loss in respect of a mortgage or 
 other lien, the amount of money actually lost will be the meas- 
 ure of his damages, and if the loss sustained arises because of 
 the existence of a mortgage or lien on the land, which was 
 not noted on the register, the recovery may be for the amount 
 necessary to redeem from the mortgage or lien.®^ 
 
 87 Cox V. Bourne, 8 Q. L. J. 66 tered under an invalid certificate, 
 (1897). Eussell v. Eegistrar, 26 N. See ^ 125 New South Wales act, 
 Z. L. E. 1223 (1906). and $ 47 Queensland act. 
 
 88 See Eussell v. Eegistrar, supra, 89 $ 209 South Australia act. ^ 
 Spencer v. Eegistrar, 1908 A. C. 207, 211 Victorian act. ^ 201, 205 
 235. Under J 186 New Zealand act, Western Australia act. 
 
 the value of improvements so made, 90 Eussell v. Eegistrar, supra, 
 
 with interest from the date of de- 9i Eussell v. Eegistrar, supra, 
 
 privation to the date of judgment, 92 Cox v. Bourne, 8 Q. L. E. 66 
 
 may be allowed against the fund. (1897). Papworth v. Williams, 20 
 
 As to recovery for improvements N. 8. W. L. E. 280 (1899). 
 made by an occupying owner regis- 
 
 320 
 
INDEMNITY FUND 
 
 § 207. Recovery From Fund, Notice of Loss Must be Given. 
 In many acts it is provided that notice of the loss must be given 
 to certain officers for a certain period of time, from one to three 
 months, before commencement of an action against the fund.^* 
 If it appears to certain officers that the fund is clearly liable 
 for the loss, it may be paid on the certificate of these officers.^* 
 In Illinois a claim for damages may be presented to the county 
 board, virhich may pay or reject the claim. But a rejection 
 of it is no bar to the bringing of a suit in a court of competent 
 jurisdiction.^^ 
 
 § 208. Who May Have Recourse to Indemnity Fund— Omit- 
 ted Heir. In one of the acts it is provided that before mak- 
 ing distribution of undevised registered land the executor or 
 administrator shall file in the registrar's office a certified 
 copy of the proof of heirship made in the proper court, which 
 shall be conclusive evidence, in favor of all persons thereafter 
 dealing with the land, that the persons therein named as the 
 only heirs at law of the deceased owner are such heirs.^** In 
 this act there is no special provision for compensation from the 
 fund for an heir omitted from such proof. But under the 
 Ohio act any person deprived of any interest in land by being 
 omitted in such proof of heirship, or such certified copy there- 
 of, might within a given time bring an action for compensation 
 from the fund.^'^ A statute making proof of heirship conclus- 
 sive against all interested persons is valid, provided such reas- 
 onable notice of the proceeding is given to such persons as will 
 constitute due process of law. 
 
 § 209. Payment of Claim Against the Fund. The fund is 
 deposited with some official as custodian, and is invested by 
 him, sometimes under the direction of some higher authority. 
 After judgment is obtained against the fund, a warrant is 
 drawn against it by certain officers. Under some acts, when 
 the fund is clearly liable for the loss, a warrant may be drawn 
 
 93 § 147 Manitoba act. § 99 Brit- 94 § 180 New Zealand act. $ 214 
 
 ish Columbia act. J 108 Alberta Victorian act. § 208 Western Aus- 
 
 act. § 151 Saskatchewan act. § 128 tralia act. $ 106 British Columbia 
 
 New South Wales act. § 128 Queens- act. § 152 Manitoba act. 
 
 land act. § 128 Tasmania act. § 208 95 § 102 Illinois act. 
 
 South Australia act. $ 180 New 96 $ 75 Oregon act. 
 
 Zealand act. § 215 Victorian act. 97 j 98 Ohio act. 
 § 209 Western Australia act. 
 
 321 
 
THE TOERENS SYSTEM 
 
 against it by certain ofiSeers, without the bringing of a suit 
 and the obtaining of judgment.^® If the amount in the fund 
 is inadequate to pay the claim, such sum as may be necessary 
 for that purpose is paid out of the general revenue, and the 
 sum so advanced is repaid out of the fund as it accrues.^^ In 
 other acts it is provided that if the amount in the assurance 
 fund at any time is insufficient to pay any judgment in full, 
 the balance unpaid shall draw interest at the legal rate, and 
 be paid with such interest out of the money coming into the 
 fund.^ The Oregon act provides merely for the payment of 
 a loss from the indemnity fund.^ The Illinois act provides 
 that claims for losses under the act may be presented directly 
 to the board of county commissioners, that actions for such 
 losses may be brought against the county, and that the in- 
 demnity fund is to be held to satisfy judgments obtained or 
 claims allowed against the county for such losses, as far 
 as it will go. Until the indemnity fund is exhausted, pay- 
 ment for such losses is to be made from it, but the county is 
 liable for any remainder.* "When any sum of money has been 
 paid out of the fund on account of the fraud or error of any 
 person, it may be recovered from him, or, if dead, from his 
 estate, at the suit of the registrar or the custodian of the fund.* 
 §210. When Damages May Not be Recovered From the 
 Fund. Damages may not be recovered from the indemnity 
 fund (1) when the interest in the land is recoverable, or to put 
 it in another form, when the new certificate is not conclusive 
 evidence of an indefeasible title as against the person injured, 
 (2) when damages may be recovered from the person who 
 caused the loss, (3) where the loss was caused or contributed 
 
 08 § 180 New Zealand act. J 214 Act for Ireland, 1891. 
 
 Victorian act. $ 208 Western Aus- l § 75 Minnesota act. J 86 Col- 
 
 tralia act. § 106 British Columbia orado act. $ 85 Washington act. § 
 
 act. $ 152 Manitoba act. J 102 lUi- 60 New York act. 
 
 nois act. 2 § 98 Oregon act. 
 
 90 § 42 Queensland act. $ 186 3 §§ 101, 102 Illinois act, as 
 
 New Zealand act. J 216 Victorian amended in 1907. 
 
 act. § 129 New South Wales act. 4 § 183 New Zealand act. $ 132 
 
 $l210 Western Australia act. J 21 New South Wales act. ^ 217-219 
 
 English act, 1897. § 98 Massa- South Australia act. §§ 155, 156 
 
 chusetts act. $ 99 Hawaiian act. Saskatchewan act. $ 111 Alberta 
 
 J 103 Philippine act. J 148 Mani- act. $ 90 Nova Scotia act. 5 7 sub 
 
 toba act. § 99 British Columbia § 6 English act, 1897. 
 act. 5 86 Nova Scotia act. J 92 
 
 322 
 
INDEMNITY FUND 
 
 to by the person who makes the claim, or by a person under 
 whom he claims, (4) and when the loss was occasioned by 
 any breach of trust.^ In British Columbia it is provided that 
 no access shall be had to the fund for any error or shortage 
 in area in any lot, block or subdivision, according to any map 
 or plan filed or deposited in the of&ce of the registrar.* If 
 a person had notice or knowledge that the registrar was about 
 to commit the act complained of, and took no steps to pro- 
 tect his interests, he ^lay not recover from the fund. As 
 will be seen by reference to some of the sections just cited, 
 under foreign acts the fund is not liable for any loss oc- 
 casioned by the inclusion of the same land in two or more 
 grants, or by any land being included in the same certifi- 
 cate of title with other land through misdescription of boun- 
 daries or parcels of any land, unless it is proved that the 
 person liable for damages is dead, or insolvent, or has abscond- 
 ed. Some of the sections -just cited provide that the fund shall 
 not be liable for the improper exercise of any power of sale in 
 a mortgage. No person may sustain any loss or be deprived 
 of any interest in land by a judgment or decree of court estab- 
 lishing the rights and interests of the parties to the proceeding. 
 The theory of the law is that a court having jurisdiction of the 
 subject matter and of the parties, finds and establishes the 
 rights of the parties, and that one who is not a party to the 
 proceeding is not bound by its judgment or decree. In this 
 country no person may be wrongfully deprived of any interest 
 in land through the bringing of it under the provisions of an 
 act, by the order of a decree in registration, and no damages 
 
 5 In some of the acts it is provid- § 102 Hawaiian act. § 106 Philip- 
 ed that the fund shall not be liable pine act. § 86 Washington act. $ 76 
 for any loss occasioned by any Minnesota act. § 87 Colorado act. 
 breach of trust, whether express, § 61 New York act. $ 105 British 
 implied or constructive, or for a de- Columbia act. § 151 Manitoba act. 
 fault committed by any trustee, § 88 Nova Scotia act. J 167 Sas- 
 guardian, committee of a lunatic or katchewau act. $ 121 Alberta act. 
 of a person of unsound mind, exe- § 42 Queensland act. § 133 New 
 cutor, administrator or other per- South Wales act. J 133 Tasmania 
 son standing in the relation of act. J 211 South Australia act. $ 
 trustee to any other person. This 185 New Zealand act. § 202 Victor- 
 is mere ampliflcatioii, and is equiv- ian act. J 196 Western Australia 
 alent to declaring that the fund act. 
 
 shall not be liable for any breach 6 $ 105 British Columbia act. 
 of trust. § 101 Massachusetts act. 
 
 323 
 
THE TOKEENS SYSTEM 
 
 may be recovered from the indemnity fund for any cause aris- 
 ing prior to the original registration. This fact was fully real- 
 ized by the framers of some of the acts in this country, wherein 
 compensation from the fund is expressly limited to persons who 
 may suffer loss or deprivation after the original registration 
 of the titled 
 
 §211 Registration Without Recourse to Indemnity Fund. 
 Since in this country the benefit of the indemnity fund is limit- 
 ed to those who deal with the land after the original registra- 
 tion of it, it is proper to give to the first registered owner the 
 privilege to elect whether he will register his land with or with- 
 out the right of access to the fund. The New York act contains 
 this provision: "Any person who states, at the original regis- 
 tration of property, that he takes such property without re- 
 course to any action to recover compensation out of the assur- 
 ance fund for any loss or damage or deprivation, shall not be 
 required to make any payment on account of said fund, in 
 which case the registrar shall plainly place on the certificate 
 of registration of such property or any duplicate or certified 
 copy thereof, the words 'without recourse to the assurance 
 fund'. Nothing hereiu shall prevent any person owning regis- 
 tered property from making payment to the registrar of the 
 said one-tenth of one per centum of the said local assessed value 
 thereof, whereupon the owner of said property may thereafter 
 avail himself of any right to recover compensation from the 
 assurance fund, which right may thereafter arise ; and on re- 
 ceipt of such payment the registrar shall cancel the words 
 'without recourse to the assurance fund' from the certificate 
 of registration, any duplicate or copy thereof."^ The first 
 certificate issued under the New York act was dated December 
 9, 1910, and was without recourse to the indemnity fund. 
 
 V J 95 Massachusetts act. § 96 8 § 58 New York act. 
 
 Hawaiian act. § 59 New York act. 
 
 324 
 
CHAPTER XVI 
 
 Exposition 
 
 § 212. Essential Qualities of a System of Dealing With Land. 
 
 The establishment of records of deeds and of other instru- 
 ments respecting land was coeval with the creation of many 
 of the provinces along the Atlantic coast of this country. The 
 establishment of such records and the creation of the office of 
 custodian of them for Pennsylvania was agreed upon in 1662 
 in England between William Penn and the first purchasers of 
 land from him, and after various efforts the keeping of different 
 records and the doctrine of constructive notice was reduced to 
 a system in 1715. For a great many years communities were 
 small, land was cheap for the most part, and. laws were di- 
 rected more to effectuate general policies respecting lands 
 and dealings with them than to form and establish a scientific 
 system of conveyancing. The principles of the recording sys- 
 tem, which are found in the statutes and decisions, have never 
 been reduced to a specific code, and the requirements and con- 
 veniences of this system have never been considered in any 
 proposed legislation. The system as an entity has never been 
 kept in view in legislative enactments. It arises out of the 
 laws concerning public records, the record of instruments, con- 
 veyancies, mortgages, liens, courts, civil actions, chancery, ad- 
 ministration of estates, wills and various other subjects which 
 affect titles to land. In legislating on these subjects the con- 
 trolling idea has been to formulate certain statutory require- 
 ments and to fix certain statutory rights, according to some 
 general policy and public interest and utility, without any 
 regard whatever to the effect of them on the established 
 method of conveyancing and dealing with land. The result 
 is that a system, simple in its elementary principles and 
 capable of adaptation to varying conditions of public pol- 
 
 325 
 
THE TOREENS SYSTEM 
 
 icy, has been lost sight of and neglected in legislative pol- 
 icy. Some sixty years ago a code of laws was enacted in 
 South Australia, estahlishing a system of conveyancing, the 
 central feature of which was a governmental register on which 
 the state fixed and exhibited the status and ownership of titles. 
 This register was a dominant force in everythiag relating to the 
 title to real estate, and for the first time a system of dealing 
 with land became the subject of legislative care and solicitude 
 for the perfection of the system itself. After it had been made 
 workable and practicable, it attracted the attention of lawyers 
 in this country, where a feeling against the lack of scientific 
 method in our dealing with land titles had developed. Many 
 persons thought that our system should be simplified and im- 
 proved, that more insistence should be made on having the 
 public records show all matters affecting title to and rights in 
 land, and that more attention should be given to the recording 
 system for the sake of the system itself. Others thought that 
 the true way to deal with land titles was to subordinate any 
 system to the demands of public policy, as they might be de- 
 termined by acts of the legislature, and to supplement this elas- 
 tic and pliable system with private contracts of title insurance. 
 But there were others who thought that land titles should be 
 made the subject of governmental certification, insurance and 
 indemnity, and the Australian Torrens system, with certain 
 necessary modifications, was adopted in several states of this 
 country. 
 
 For several years there has been a vigorous discussion of the 
 comparative merits of the Torrens system and the recording 
 system, and it has not always been carried on temperately or 
 with a display of great knowledge of either system. The 
 books which have been published in this country on the Tor- 
 rens system, and the articles and treatises on it, which have 
 appeared in legal and real estate journals, have taken partisan 
 views, and are mere briefs and arguments for or against the 
 system.! They abound in general assertions, and they praise 
 or decry in such a wholesale and indiscriminate way that their 
 deductions are of little value. They are full of misconceptions 
 
 1 Mblack on the Torrens System, a fair sample. 
 Its Cost and Complexity, 1903, is 
 
 326 
 
EXPOSITION 
 
 and misstatements, due to lack of knowledge and discern- 
 ment. They fail to distingmsh between those features which 
 are essential to the Torrens system or to the recording sys- 
 tem, and those features which have been attached to each 
 system by specific legislative enactments or by a course of 
 judicial decisions. Our judgments concerning the qualities of 
 any system of conveyancing vary according to our knowledge, 
 experience, interests and points of view, and a discussion of 
 them by one person may not be satisfactory to other persons. 
 But a work which assumes to be an analysis of the Torrens 
 system should contain an exposition of its qualities as a system 
 of conveyancing, and this exposition should be made in a fair 
 and painstaking way. Special attention should be given to de- 
 tails, exact statements and full explanations, even to the point 
 of prolixity and irksomeness. The best method of measuring 
 and checking up the qualities of a new or proposed system 
 is to distinguish it from a system with which we are familiar, 
 and it is proposed to analyze the qualities of the Torrens sys- 
 tem and of the recording system. A desirable system of con- 
 veyancing and of dealing with land must possess four qualities ; 
 it must be simple, secure, rapid and cheap. In order to con- 
 fine our labors within bounds, we shall treat only of such 
 matters as may throw light on these qualities in the two 
 systems. 
 
 § 213. Simplicity in a System of Dealing With Land. Sim- 
 plicity is a relative term. "What seems simple to one person 
 may seem complex and intricate to other persons. Those things 
 which we know and are familiar with are simple to us. No 
 system of conveyancing is simple in an elementary sense. A 
 simple system will give direct and positive results, without 
 undue labor and inconvenience to those who deal with it, and 
 it will not conflict with the duty of the legislature to pass such 
 laws as are necessary for the general interests and well being 
 of its citizens with respect to dealings with land. In an acad- 
 emic way it may be said that of the four qualities which a 
 system of conveyancing and dealing with land should possess, 
 simplicity is the least essential, but complexity in dealing with 
 titles is apt to lead to insecurity and expense. The great claim 
 for simplicity in the Torrens system lies in the fact, that, 
 
 327 
 
THE TOEEENS SYSTEM 
 
 where its principles can be carried out under the laws of the 
 country, it presents a result, a product, a certificate which, with 
 certain familiar exceptions, is conclusive evidence of title in 
 favor of the person registered as owner, and in favor of a 
 bona fide purchaser for value. On the other hand, it is to 
 be noted that the acts which declare certificates to be con- 
 clusive evidence of an unimpeachable title consist of from 
 one hundred to two hundred or more sections, and that some 
 of them are supplemented by numerous rules j^ and from this 
 point of view the Torrens system is not simple. "When we 
 reflect that there are more than six hundred adjudicated cases 
 under the Australasian acts, we must conclude that the system 
 is simple only sub modo and to a certain extent in general. 
 But in all fairness it must be said that in an off-hand discus- 
 sion of the Torrens system one may conjure up a thousand 
 difficulties which appear to be almost insuperable, but which 
 may be solved easily by practical application of the provisions 
 of the acts. Study, with consequent knowledge, helps to simpli- 
 fy the Torrens system, just as it helps to simplify other things. 
 
 § 214. Simplicity in Foreign Jurisdictions. Under foreign 
 statutes the registrar acts as a judge in matters pertaining to 
 registration of a title, and his decision is binding on all persons 
 interested in the land, whether they are present or absent, 
 and whether or not they had notice of his proposed action. 
 He has jurisdiction to register titles, and to perform every act 
 leading up thereto, as and when such matters are presented 
 to him under the terms of the act. No want of notice, or in- 
 sufficient notice of any application, no error, omission or in- 
 formality in any application or proceeding, and no error of law 
 as to the validity of the title may be urged to defeat an origi- 
 nal registration by him. No error of law as to the construction 
 and legal effect of an instrument may defeat a registration 
 made by him on a transfer of an estate in land from the last 
 registered owner. When he has performed his functions under 
 the act, the statute declares his handiwork to be conclusive 
 evidence of title. The state vests the title through the func- 
 tions of the registrar. His power to pass on the rights of per- 
 
 2 The English rules of 1908 num- forty, and they have the same force 
 ber more than three hundred and and dignity as statutory provisions. 
 
 328 
 
EXPOSITION 
 sons in land, in their absence and without notice, has been 
 characterized in periodicals in this country as "ezarlike" and 
 "autocratic," but it is strictly judicial. In the absence of con- 
 stitutional limitation, such a scheme of vesting title is a mat- 
 ter of legislative policy, and it is no abuse of general legisla- 
 tive power to declare that the decision and act of such an 
 officer, within his limited sphere of action, shall be binding 
 on the rights of all persons. He is supposed to follow the 
 law in construing instruments, and, like other judicial officers, 
 he must apply it in his own way in each case before him. The 
 scheme of registration of indisputable title is feasible and sim- 
 ple, under the circumstances mentioned, and it is a great 
 achievement. 
 
 The feature of the Torrens system, which creates one estate 
 in land, — the registered estate, — instead of the legal and equit- 
 able estates, is simple in theory, but it has been modified in 
 practice. While, for the purposes of dealing with land, a 
 trustee may be regarded as the absolute proprietor, still this 
 feature has been modified, sometimes by statute, and generally 
 by custom and in practice, until at the present time notice 
 of an equitable interest may be given by a beneficiary of the 
 trust by filing a caveat which does not lapse, or it may be 
 given by the state as a part of the registration by designating 
 the registered proprietor as trustee, or by registering co- 
 trustees with the words "no survivorship." No broad claim to 
 simplicity in dealing with the registered estate may be sus- 
 tained where there is a relation of trust on the part of the 
 registered owner. Foreign writers merely say that the system 
 is an attempt to return to the ancient doctrine of one owner- 
 ship in land, but they do not claim that the return is com- 
 plete^. The acts say that registration is a sine qua non to 
 the transfer of estates or interests in registered land, and 
 yet some courts hold that equitable estates may be transferred 
 off the register.* 
 
 The principle of protecting by caveat or notice of adverse 
 claim such rights and equities in land as may not be regis- 
 
 3 See ante 5 162. Stewart, 13 British Col. Eepts. Ill 
 
 4 Entwisle v. Lenz, 14 British (1907). See ante J 75. 
 Col. Eepts. 51 (1908). Westfall v. 
 
 329 
 
THE TOEEENS SYSTEM 
 
 tered seems simple, but it is in itself a recession from the doc- 
 trine of one estate in land. True enough, the state does not 
 register rights and equities in land, but it permits interested 
 persons to give notice of them on the register, and it refuses 
 to make further registrations unless they are made subject 
 to the rights disclosed in the caveat.^ In this country we have 
 had little or no experience with this feature of the system, 
 but in Australasia caveats are in common use. We have reg- 
 istered comparatively very few titles here, and have only 
 begun to develop the system. The language in all the acts 
 establishing this method of protecting rights is very simple, 
 but there are in Australasia many more than two hundred 
 eases which have passed on the sufficiency of registered caveats 
 and on the caveating capacity of persons who have filed them. 
 
 The method of creating liens on registered land only by 
 noting them on the register seems very simple. At first im- 
 pression such an entry seems to be only a ministerial act, biud- 
 iag the land if everything is correctly done, but having no 
 effect on the land in ease of error. Nevertheless, it must be 
 remembered that if the scheme of indefeasible titles is to be 
 carried out, on foreclosure of the lien the new certificate must 
 be conclusive evidence of title. There is no line of foreign 
 decisions explaining the doctrines which apply to the entry 
 of liens, and it is said that one cause of dissatisfaction with 
 the Torrens system in England arises from the uncertainty of 
 the effect of the provisions respecting notation of mortgages 
 and other burdens on land. It is apprehended that the entry 
 of a mortgage or lease on the register gives notice of the instru- 
 ment, but is not conclusive evidence of the existence of a lien 
 in favor of the mortgagee or lessee; that it does not give 
 validity to the instrument, and if the latter is invalid for any 
 reason, or has ceased to be a lien, the fact may be shown; 
 that such entry has substantially the same effect as the record- 
 ing of a mortgage or lease under the general law. All liens 
 on registered land arising adversely to the registered owner 
 must be noted in the same way on the register, but if a sup- 
 posed lien arises without voluntary action by him, and not 
 pursuant to any decree or judgment of court, specifically fix- 
 
 6 Ante § 117. 
 
 330 
 
EXPOSITION 
 ing the lien on the land, is the notation conclusive of the 
 regularity of any proceeding or instrument by means of which 
 such lien arose, or of the validity of the lien? Has such a nota- 
 tion any greater force and effect than the recording or entry 
 of a similar lien on unregistered land under the general laws? 
 It would seem that such notations made by foreign registrars 
 in their judicial capacities would have a very different effect 
 from those made by executive registrars in this country. The 
 creation of a lien by notation on the register is especially simple 
 when the certificate is produced for entry of the notation, or 
 where the description of the land is known to the person who 
 desires to register the lien. In the latter case the page of the 
 register can be located from the tract index in the ofSee. But 
 in case of a judgment, or of a proposed attachment, when it is 
 not known what land, if any, the defendant has, the system 
 does not afford any particular facility for obtaining a lien. 
 The creation of a general judgment lien on the lands of the 
 debtor is certainly very simple, but it is open to serious objec- 
 tions. Perhaps the only real advantage of the Torrens system 
 with respect to liens is the grouping of them on one page of 
 the register according to priority, instead of having them 
 scattered through different records, to be brought together in 
 an abstract of title to the land. 
 
 It cannot be claimed yet that the scheme of the indemnity 
 fund is simple. All rights in the fund are purely statutory 
 and are set forth in apt words in the sections of the acts direct- 
 ly relating to the subject, but they are also affected by some 
 provisions of the acts, relating to other subjects. In the early 
 acts in Australasia the scheme of indemnity was academic, 
 but it has developed considerably by amendment of the statutes 
 and by judicial construction during the past sixty years. The 
 American acts and most of the Canadian acts follow the Aus- 
 tralasian method of indemnity, but the English and Ontario 
 acts differ greatly from these. Since a whole chapter in this 
 work has been given to the subject of the indemnity fund, no 
 analysis of it need be given here. 
 
 § 215. Simplicity of Torrens System, Matters Affecting the 
 Title in One Place, Condition of Title Shown at a Glance. The 
 great claim for simplicity in the foreign Torrens system lies 
 
 331 
 
THE TOEEEN8 SYSTEM 
 
 in the fact that it presents a result, a product, a register of 
 estates ia land, which, as a general rule, gives to the person 
 registered as proprietor an indefeasible title to the estate 
 registered. The exceptions to this rule are (1) the existence 
 of a prior certificate for the same land, (2) a mistake in the 
 description of boundaries, (3) fraud in procuring registra- 
 tion, and (4) error as to matters of fact, which may be rectified 
 on the register.® This register of estates in land may be 
 relied on by a purchaser in good faith for value. He need not 
 make a retrospective search of the history of the title and 
 he will take an indefeasible title to the registered estate 
 through registration in succession under the last registered 
 proprietor. Perhaps the only exceptions , to this rule atre 
 where unregistered land by mistake is contained in the regis- 
 ter, and where two certificates are issued for the same land.'' 
 The accomplishment of these two objects, except in such rare 
 cases, is a great achievement, and it has caused enthusiastic 
 admirers of the system to assert that everything relating to 
 the title must be contained within the four corners of the page 
 of the register, which has been set apart last for a particular 
 piece of land, and that everything relating to the title may 
 be found in one place on the register. This assertion must be 
 distinguished. All estates in and liens of private persons on 
 land must be registered in order to have any validity, and if 
 the words "everything relating to the title" mean "every- 
 thing relating to estates in and private liens on land," there 
 can be no objection to it. But there are many rights and 
 interests in land which need not be registered, and if these 
 are to be included in the words "everything relating to the 
 
 6 Ante J 62 et seq. thereby shall be entitled to be in- 
 
 7 Ante $ 148 A purchaser in good demnified in the manner in this act 
 faith for value does not always ob- provided. Provided that where a 
 tain an indefeasible title under registered disposition would if un- 
 the English acts. In § 7 English registered be absolutely void, or 
 act, 1897 it is declared: Where where the effect of such error, 
 any error or omission is made omission or entry would be to de- 
 in the register, or where any prive a person of land of which he 
 entry in the register is made is in possession, or in receipt of the 
 or procured by or in pursuance rents and profits, the register shall 
 of fraud or mistake, and the be rectified, and the person suf- 
 error, omission, or entry is not cap- fering loss by the rectification 
 able of rectification under the prin- shall be entitled to the indem- 
 eiple act, any person suffering loss nity." 
 
 332 
 
EXPOSITION 
 title," the assertion is entirely too broad. It is sometimes, 
 though infrequently, said that the condition of the title to a 
 piece of registered land may be seen at a glance at the regis- 
 ter. Prom any point of view this statement is incorrect. The 
 terms of mortgages and leases must be examined, and there 
 may be instruments filed, but not yet entered. While one 
 must look to the register for any estate in land, there are 
 many things which do not appear on it, — taxes and special 
 assessments for which the land had not been sold at the date 
 of the certificate, public highways and public rights of user, 
 rights of way or other easements, any subsisting lease or 
 agreement for a lease for a time within a certain period fixed 
 by statute, where there is actual occupation of the land under 
 the lease or agreement, and the possibility of mechanics ' liens. 
 Conditions, restrictions, limitations and covenants running 
 with the land are merely noted on the register, and the instru- 
 ment containing them must be inspected in the registrar's 
 office in order to determine their scope and legal effect. A 
 writer who has given the subject of the register a thorough 
 consideration has said: "Eegistered estates and interests 
 and equitable rights * * * do not together exhaust the 
 field of possible rights in or to land under the (Torrens) sys- 
 tem. There is a residuum of rights, neither registered nor 
 merely equitable, which closely resemble 'legal' rights of the 
 general law ; they are not liable to be defeated by any change 
 of ownership of the land, but remain inherent in, or attached 
 to, the land in the hands of each successive owner. * * * 
 The chief characteristic common to all these inherent rights 
 is that their existence can be ascertained with comparative 
 facility;* in their constituting an exception to the general 
 rule of the Torrens system which requires all interests to be 
 registered as a condition of binding land into whosesoever 
 hands it may come, the principle on which that rule rests is 
 not unduly violated. Inherent rights are either (1) connected 
 with the visible user or actual occupation of land; or (2) in 
 the nature of public rights created by the general statutes 
 and ascertainable without difficulty. T'hey appear to consist 
 of the six following classes: (1) Rights arising from mere 
 occupation, and also from the existence of a tenancy of some 
 kind under another person, (2) easements, (3) public rights 
 of user, (4) taxes and other public burdens, (5) estates created 
 
 8 See Martin v. Cameron, (1893) 12 N. Z. E. at page 772. 
 
 333 
 
THE TOEEENS SYSTEM 
 
 on ex-propriation of the land for public purposes under powers 
 conferred by the general statutes, (6) rights of the Cro-wm."® 
 In dealing with land, whether registered or unregistered, all 
 these matters must be inquired into, and the inquiry must be 
 made in the same way in each case. In urging that the weak- 
 ness of the recording system lies ia the fact that the state? does 
 not insist on the public record of all matters affecting the 
 title to land, the statement has been made ad captandum that 
 an intending purchaser under the recording system at his 
 peril must examine every person who may reside on, or who 
 may be in partial possession of the property, to see "whether 
 by chance he has not an unrecorded contract of purchase or 
 deed to the property concealed about his person." Under 
 the Torrens system rights under a contract of purchase may not 
 be registered, but they may be protected by caveat, and a deed 
 must be registered in order to vest title in the grantee. An 
 intending purchaser of registered land under most acts need 
 not inquire of persons in possession as to these matters, but 
 in order to ascertain the exact condition of the property he 
 must inquire into rights of possession. "With "comparative 
 facility" and "without difficulty," — to use the expressions 
 contained in the last quotation above, — ^this inquiry may be 
 extended to include a contract of purchase or an unrecorded 
 deed. The burden of making inquiries of occupants of regis- 
 tered land is not measurably increased by extending it to 
 both rights of possession and estates in land. The main point 
 is that under the Torrens system there is no escape from the 
 necessity of inquiry of parties in possession, unless the system 
 is made so tight as to be unworkable and cumbersome. If 
 under this system there were no need of inquiry as to rights of 
 persons in possession and as to the condition of the property 
 at the time of the sale, mechanic 's lien laws would be absolutely 
 inapplicable to registered land. At the registry offices in this 
 country persons about to deal with registered land are plainly 
 told that the register relates to estates in land and private liens 
 only, that searches must be made for taxes and special assess- 
 ments, and that inquiries must be made as to rights of pos- 
 session, and as to mechanic's liens, public highways and ease- 
 
 9 Hogg, Australian Torrens Sys- tern, pp. 804, 805 Ante, JJ 62, 121. 
 
 334 
 
EXPOSITION 
 ments. In Chicago certificates of title under the Torrens sys- 
 tem have the following notice printed on them: "Caution. 
 This certificate does not certify to special assessments or cur- 
 rent taxes. Upon each transfer a search is made by the reg- 
 istrar showing them. Prospective purchasers of registered 
 property may obtain the same on application prior to transfer." 
 A person does not purchase a piece of real estate merely be- 
 cause he has examined the register and is pleased with the 
 condition of the title. He buys it because of its location, im- 
 provement, rent roll, etc., and because, after inspection, he 
 desires it. The dedication of a public road is not affected by 
 the registration acts. The existence of a road through a piece 
 of land puts an intending purchaser on inquiry.^" He must 
 also inquire about the possibility of mechanics' liens on the 
 property. Under one act all registered land is subject to ten- 
 ancies created for any term not exceeding thirty-one years, 
 or for any less estate, in cases where there is occupation under 
 such tenancies.il Other acts provide for unregistered leases 
 for three years or more. It is not an essential feature of the 
 Torrens system that possession of land shall not be notice of 
 the rights of the occupant to an estate in the land. In some 
 of the states of Australia a certificate of title is declared to be 
 subject "to any rights subsisting under any adverse posses- 
 sion, ' '12 and in those states inquiry must be made of an occu- 
 pant as to his rights in and claims on the land. 
 
 § 216. Simplicity in Non-Essentials of Torrens System. "We 
 
 have now treated of the simplicity of the seven essential fea- 
 tures of the Torrens system. We have heretofore referred to 
 the mass of provisions contained in the Torrens statutes which 
 determine matters of general policy respecting dealings with 
 registered land, or which regulate mere matters of detail 
 respecting such dealings. i^ As determining matters of policy 
 we have seen that under some acts fee simple titles only may 
 be registered, while under others lesser estates may be regis- 
 tered ; generally only indefeasible titles may be registered, but 
 
 10 Martin v. Cameron, 12 N. Z. 1875. 
 
 L. E. 769 at page 772 (1893). 12 See ante $$122, 124. 
 
 11 $ 47 Act for Ireland, 1891. 21 i3 Ante $ 160. 
 years in England, See $ 18 act of 
 
 335 
 
THE TOEEENS SYSTEM 
 
 titles which are defeasible are registered also; some acts de- 
 clare the effect to be given to forged instruments, and others 
 are silent on the subject; an adverse occupant of land may lose 
 his rights when land is brought under the act, or the registra- 
 tion may be void as to him unless he is notified, etc., etc. As 
 regulating minor details we have seen that a certificate may 
 or may not be issued to a mortgagee; that statutory forms 
 must be used under some acts, and that ordinary forms of 
 conveyancing may be used under others, etc., etc. Such mat- 
 ters are controlled by the framers of the acts, and may be 
 fixed at their discretion. "While they may tend to make the 
 system work easily or clumsily, in considering the simplicity 
 of the system they are non-essentials. 
 
 §217. Simplicity in the American Torrens System. The 
 simple method of original registration by the state through 
 the act of the registrar is not adapted to our laws under our 
 constitutional liinitations, and such registration may be made 
 only by a decree of court, obtained in an adversary proceed- 
 ing against all the world. The entrance to the Torrens sys- 
 tem is not simple, rapid or cheap, where it is through and by 
 means of a law suit, — hostile litigation, — in which stale and 
 unenforceable claims may be revived and enforced, and to 
 which no one can foresee the end. In simplicity, the method 
 of original registration in this country is far removed from 
 the foreign method. The incapacity of the registrar to exer- 
 cise judicial power here affects also the simplicity of succes- 
 sive registrations of registered land. Since no act of his, in 
 passing on the legal effect of an instrument and registering 
 it, has any binding force as an adjudication on rights or inter- 
 ests in land, no vesting of an indefeasible title in a new regis- 
 tered purchaser of the land takes place by the mere fact of 
 his registration, and, the statutory declaration of the conclu- 
 siveness of the certificate is unconstitutional and void. Our leg- 
 islatures are powerless to declare a certificate conclusive evi- 
 dence of title, when it is issued by a ministerial officer and 
 without due process of law. In this country legislative at- 
 tempts to make the production of a certificate of title author- 
 ity to a registrar to make a new registration, and to vest inde- 
 feasible titles through the functions of the register itself, are 
 
 336 
 
EXPOSITION 
 abortive. It is apprehended that no record may be made con- 
 clusive here, in favor of a stranger to it, who deals with the 
 subject matter of it, except a judicial record which is not ap- 
 pealed from, and concerning the execution of which no super- 
 sedeas has been issued, and such a record binds those only who 
 are parties to it. There can be no application here of the 
 elementary principle of the Torrens system, that a bona fide 
 transferee for value of registered land takes the title with 
 which he is registered, provided only he has dealt with the last 
 registered owner. 
 
 "With respect to the feature of the system, which creates one 
 estate in land, the American system does not make for sim- 
 plicity. When the land is registered "in trust," "upon con- 
 dition," or "with limitations," it may be dealt with only on 
 an order of court, except that a trustee with power of sale 
 generally may alienate the land pursuant to his power. 
 
 § 218. Simplicity, Essential Elements of the Recording Sys- 
 tem. The essential principles of the recording system are: 
 
 First: Voluntary instruments affecting titles to land may 
 be executed in any place where the parties meet, and they take 
 effect on and by the execution of them by the parties. Since 
 the act of the parties to an instrument, in delivering it on the 
 one part and in accepting it on the other, operates on the title 
 to land, the transfer and conveyance is made in virtue of the 
 estate, interest or power vested in the party making the grant. 
 Generally speaking, no person can convey to another an estate 
 or interest in land, which is not vested in him, unless he has a 
 power to convey it. 
 
 Second. A public office is established in which voluntary 
 instruments affecting titles to land may be filed, to be tran- 
 scribed in full on permanent and public records. The act of 
 filing or transcribing an instrument in this office does not 
 give to it any added force or validity, but it gives to the world 
 constructive notice of the contents of the instrument, and of all 
 rights which may be claimed under it. Recording an instru- 
 ment is not compulsory, but a person claiming under it im- 
 perils his interest in the land by failing to record it. As 
 against the grantee in a prior unrecorded instrument, a pur- 
 chaser for value without notice from the same grantor, on 
 
 337 
 
THE TORRENS SYSTEM 
 
 the record of his instrument, takes a good and valid title to 
 the estate or interest in the land described therein. The record 
 preserves to persons claiming under the instrument the evi- 
 dence of its contents. 
 
 Third: Records of writs, proceedings, judgments and de- 
 crees of courts, records of the probate of estates, and records 
 of commissioners of highways in counties and cities, have such 
 effect on land titles, and such effect as constructive notice, as 
 is prescribed by law. 
 
 Fourth: Notices of special liens are filed and recorded in 
 the offices prescribed by law. 
 
 Fifth: Taxes and special assessments on land are spread 
 of record in public offices and are liens on land. 
 
 §219. Simplicity, Recording System. A general principle 
 of the recording system is that a grantor in a sufficient deed, 
 having an interest in land or a power to convey it, conveys it to 
 the grantee by the delivery of the deed. Most statutes on 
 the subject of conveyances in this country prescribe the ele- 
 ments which make a deed sufficient. They may require that 
 deeds shall be under seal, that they shall be subscribed by 
 witnesses, that they shall contain certain words of grant, that 
 they shall be acknowledged before certain officers in a certain 
 manner, and that a certificate of acknowledgment shall be in a 
 certain form. When such requirements are made they become 
 a part of the recording system of conveyancing, but they are 
 merely incidental. For the working of this system the re- 
 quirements as to forms of conveyances should be few and sim- 
 ple. In this country all the Torrens acts provide that like 
 forms of deeds and other instruments as are now or here- 
 after may be sufficient in law for the purpose intended may 
 be used in dealing with registered land and any estate or 
 interest therein; and no other form of instruments is pro- 
 vided in the acts. The recording system establishes public and 
 permanent records, on which may be set out in appropriate 
 ways estates in, liens on and claims to lands. "With respect 
 to these records the laws are not the same in all states, but 
 the variations do not affect the system materially; it adapts 
 itself to the laws as they are established. It does not require 
 any particular set of laws with respect to constructive notice 
 
 338 
 
EXPOSITION 
 
 of instruments filed for record. In some states a person does 
 his whole duty when he files an instrument for record, and 
 the filing of it gives constructive notice of its contents to all 
 the world, whether it is recorded correctly, or whether it is 
 ever actually recorded; in other states the burden of seeing 
 that it is recorded correctly is on the person who claims under 
 it. The law may declare that a deed or mortgage shall not 
 be constructive notice until it is filed for record, or it may 
 declare that anyone claiming under such an instrument shall 
 have a certain number of days in which to file it for record, 
 and thus give notice of his rights under it.^* It may declare 
 that a mechanic's lien shall operate only from the time of fil- 
 ing notice of it in the proper office, or it may declare that, if 
 it is filed within a certain number of days after completion 
 of the building, the lien shall relate back to the time of the 
 commencement of work on the building. This retroactive 
 force and relation back of constructive notice of a deed or 
 lien interferes greatly with the scientific working of the sys- 
 tem, but in such matters the recording system follows the leg- 
 lative policy for the public interest. It has been insisted that 
 it is contrary to the elementary principles of the Torrens sys- 
 tem that a mechanic's lien shall relate back, and that any 
 such effect is obstructed by the provision of the Torrens stat- 
 utes, that "until filed and registered, no such lien shall be 
 deemed to be created." But the better opinion seems to be 
 that when such a lien is registered and created, it relates back, 
 because a purchaser is bound to make inquiry into the con- 
 dition of the property and into the rights of persons in regis- 
 tered land, and because a statutory lien is governed by all 
 the terms of the act under which it arises. 
 
 §220. The history of the early recording acts shows that 
 when they were passed it was supposed that persons dealing 
 with land might rely on the records to show all matters affect- 
 ing estates in or liens on land. But most of the acts did not 
 contain a statutory declaration, direct or indirect, that no 
 notice of matters off the record should affect the right of per- 
 
 14 In Indiana a grantee in a deed within that time it is constructive 
 has forty-five days in which to file notice from the date of the de- 
 it for record, and if it is filed livery to him. 
 
 339 
 
THE TOBEENS SYSTEM 
 
 sons to deal with estates in land as disclosed by the record, 
 and in most of the early cases courts construed the statutes 
 to make them conform to equity and good conscience. In most 
 states the doctrine became firmly established that a dealer 
 with land was affected with notice of an unrecorded instru- 
 ment respecting the title, whether his notice was actual or con- 
 structive. But where the statute provided that instruments 
 should have no validity against purchasers for value and cred- 
 itors until they were recorded, and where they provided that 
 the priority of instruments should be fixed by the order in 
 which they were filed for record, it was held that instruments 
 become operative only after they have been recorded, and 
 that no notice, however full and formal, will supply the place 
 pf recording.15 Rights and claims of persons in possession 
 of land had been protected by the laws for centuries. Livery 
 of seisin under the old law stood in place of our modem 
 recording acts. It was a rule of public policy that possession 
 of land was constructive notice to all persons of the rights and 
 claims of the person in possession. It was judicially declared 
 that this rule was not abrogated by the recording acts, and 
 that strict inquiry as to all rights and estates in land must be 
 made of all persons in possession of it. It is competent for the 
 legislature to prescribe laws respecting dealings in and con- 
 veyance of lands within its jurisdiction for the best interests 
 of the citizens of the state, and it may declare that one who 
 deals with land may rely solely and implicitly on the public 
 records for all estates or interests in land. An unrecorded deed 
 is good as against the grantor and his heirs; the record is 
 intended for the benefit of purchasers and creditors. The stat- 
 ute may modify the principle that an instrument affecting 
 land takes effect on and by its execution, by declaring that 
 the record of it shall be one of the essential elements of its 
 execution, and upon such statutory modification the recording 
 becomes a condition precedent, and no title passes unless and 
 until the instrument is recorded.^® The statute may forbid 
 the question of notice, other than that furnished by the records, 
 
 15 Eobinson v. Willoughby, 70 F. 16 Morton v. Edwin, 19 Vt. 81. 
 
 G. 358. Bercaw v. Coekrill, 20 Giddings v. Smith, 15 Vt. 344. 
 
 Ohio St. 163 Stansell v. Roberts, Nichel v. Brown, 75 Md. 172. Gage 
 
 13 Ohio 148; 42 Am. Dec. 193. v. Eeid, 118 HI. 35. 
 
 340 
 
EXPOSITION 
 
 to be litigated, and may declare that instruments respecting 
 land shall take effect in the order in which they are filed, aside 
 from any inquiry as to other notice. Such a declaration would 
 restore the original intent of the recording acts and would 
 render the recording system more simple and effective as a 
 system. It is a general rule of the recording system that a pur- 
 chaser of land in good faith for value may rely on the condi- 
 tion of the title as disclosed by the record. This does not mean 
 that a purchaser must actually examine the records and know 
 what is contained in them, in order to be protected by them. 
 He may purchase the land ■\yithout inspecting the records, and, 
 under the doctrine of constructive notice, still be entitled to 
 all the protection afforded by them.^'^ 
 
 Proceedings in court are instituted and conducted accord- 
 ing to the law of the land, and there is nothing in either the 
 recording system or the Torrens system, which deijaands that 
 such proceedings shall be conducted in any particular man- 
 ner. These systems are concerned only with notice of the insti- 
 tution of suits affecting land, and with the determination of 
 suits which affect or may affect land. Notice of lis pendens 
 as to registered land must be entered on the register in order 
 to affect persons subsequently dealing with it. Under the 
 recording system, the law in some states requires notice to be 
 entered in a lis pendens docket, and in other states service 
 of process on the record owner of the land gives notice of lis 
 pendens according to practice in chancery. On the determina- 
 tion of a suit affecting specific land, the judgment or decree 
 of court at once becomes effective on the title if it is unregis- 
 tered; if it is registered a certified copy of the judgment or 
 decree must be filed with the registrar, and a suitable entry 
 must be made on the register. Under the Torrens system, 9, 
 judgment of court does not become a lien on land until it has 
 been noted on the register. In some states, but not in all, 
 a judgment for damages rendered by a court of general juris- 
 diction is a lien on all the lands standing in the name of and 
 owned by the judgment debtor. In counties where land is 
 subject to the lien of judgments rendered in one or two courts 
 
 IT James v. Newman, 147 Iowa Mann v. Jummel, 183 111. 523; 56 
 574; 126 N. W. Bep. 781 (1910). N. E. Rep. 161 (1899). 
 
 341 
 
THE TOEEENS SYSTEM 
 
 only, the scheme of general judgment liens is defensible, but 
 in most counties and states, the scheme may be characterized 
 properly as diabolical. Any suggestion that it is a part of the 
 recording system is erroneous. The legislature in its discre- 
 tion may establish or may abolish the general lien of judg- 
 ments. 
 
 §221. Comparative Simplicity of Torrens System and Be- 
 cording System. Enough has been said of the recording sys- 
 tem to show that as a system it has been neglected, and that 
 general legislation concerning lands in this country has been 
 directed toward the accomplishment of some particular object, 
 and has been enacted without any view to the requirements 
 and conveniences of any method of dealing with lands. But 
 neither the Torrens system nor the recording system can re- 
 quire the records to show everything affecting title to or rights 
 in land, without making it harsh, drastic, unattractive and 
 cumbersome. "When a system is very strict and inelastic, courts 
 distinguish and legislate in construing the strict letter of the 
 law, just as they have done with the Torrens statutes respect- 
 ing notice of trusts, and respecting knowledge on the part of 
 purchasers of rights and equities not shown on the register,^^ 
 and just as they did in construing the early recording laws. 
 They are inclined to insist that there is a general system of 
 jurisprudence which must be administered, as well as a system 
 of conveyancing. "While the Torrens system does not require 
 that all matters affecting the land shall be shown on the regis- 
 ter, it is insisted in most countries that all estates in land 
 shall be exhibited there.^^ But it has no monopoly of this meth- 
 od. Everything which is required to be of record under the 
 Torrens system may be required to be of record under the re- 
 cording system. "With respect to mechanical features, one 
 system has no particular superiority over the other. Bach 
 system requires large space in public buildings, many assist- 
 ants and clerks and large alphabetical and tract indices, and 
 each accumulates a mass of records.^" Great vigilance and 
 care are necessary under both systems, but the character of the 
 
 18 Ante 5 141. and estates of the occupant. See 
 
 19 But in Tasmania, Victoria and ante, §? 122, 124. 
 Western Australia the occupation 20 Ante §§ 174, 175. 
 of land is notice of all the rights 
 
 342 
 
EXPOSITION 
 
 work under the Torrens system demands that many of the as- 
 sistants shall be persons of skill and learning in the law of 
 real property. 
 
 When all is said which can be said about the comparative 
 simplicity in elemental qualities of the two systems, the sub- 
 stantial result narrows down to a small compass. The Torrens 
 system presents one record which certifies to an indefeasible 
 title to the registered estate in land, save as to three exceptions, 
 and shows the condition of the title, except as to a few things 
 which must be found aliunde.^i The weakness of the record- 
 ing system is that it has several records on which the history 
 of the title is written, that the essential minutes of these rec- 
 ords must be gathered into an abstract of title, and that this 
 absract gives no direct results or finished product in the way 
 of an authoritative declaration of the title. Title by deed 
 cannot be demonstrated as an ascertained fact, but presents 
 a fact deducible from documentary evidence. An abstract 
 of title means nothing to a man merely because he has educa- 
 tion and intelligence, but it must be examined by some person 
 learned in the law of real property, in order that the resultant 
 facts as to the title may be ascertained. Custom and prudence 
 have ordained that there must be a repetition of this examina- 
 tion on nearly every transaction with the land. An examina- 
 tion is made in order to determine two things, — ^whether the 
 title is safe-holding, and whether it is marketable and mer- 
 chantable, so that the next purchaser will accept it. Such 
 examination usually will include all the records of evidence 
 of title, and will be made by the attorney of the person about 
 to part with his money, even though the title may have been 
 examined for some other person in like circumstance a few 
 days before. The intending purchaser or mortgagee may not 
 know the attorney who made the last examination, or he may 
 have special confidence in the opinion of his own attorney, and, 
 again, he has no contractual relation with the attorney who 
 made the examination for some other person and he has no 
 protection in relying on the opinion of that attorney. Under 
 foreign Torrens systems, on the other hand, an examination 
 of the title is made once for all, the retrospective character of 
 
 21 See ante J 215. 
 
 343 
 
THE TOKEENS SYSTEM 
 
 titles is eliminated, and any examination is confined to the 
 possession of the land, to certain rights which may not he 
 registered, to the special terms of mortgages and leases, and, 
 in some cases perhaps, to the legal sufficiency of involuntary 
 liens which may he noted on the register. When this inde- 
 feasibility of title presented on one register is compared with 
 the dependent character of titles derived from many sources 
 and from many records under the recording system, the sim- 
 plicity of the Torrens system of conveyancing and dealing 
 with land appears clearly. In this country, where there is 
 no examination of the title by the government once for all, 
 we have established the scheme of title insurance to cure the 
 lack of simplicity in dealing with land under the recording 
 acts. As to dealings with land under our Torrens acts, we are 
 confronted with the question whether there can be such a 
 thing as a registrar's certificate which is conclusive evidence 
 of an indefeasible and indisputable title to land against all the 
 world. 
 
 § 222. Recording System Supplemented by Title Insurance. 
 In small communities, where titles are simple, the recording 
 system works well and satisfactorily, and efforts to improve 
 it are not appreciated. In the cities and older communities, 
 where abstracts of title are long and complicated, and titles 
 are complex, the weakness in the recording system, which we 
 have just noted, was felt long before there was any suggestion 
 of adopting the Torrens system in this country. It was recog- 
 nized that this weakness was inherent in the system itself 
 and could not be overcome directly by modification or amend- 
 ment. A plan was devised to supplement it by the issue of col- 
 lateral contracts of title insurance by a private company. Title 
 insurance is a contract to indemnify the insured, within a spec- 
 ified amount, in his interest in real estate as therein set forth, 
 against loss by reason of defects in the title existing at some 
 date stated therein. The first of such contracts was issued by 
 The Eeal Estate Title Insurance and Trust Company, of Phil- 
 adelphia, Pa., on June 24, 1876, but many similar companies 
 now do a title insurance business. A title declared by the state 
 to be indefeasible seems to be much more desirable than one 
 which is guaranteed merely by a private corporation. It is 
 
 344 
 
EXPOSITION 
 pleasing to think of a certificate which, in all courts and in all 
 places, is conclusive evidence of the title with which we are 
 registered, but it is somewhat startling to remember that, as a 
 result of the quality of conclusiveness, the certificate of a per- 
 son registered as owner of our land may vest our title in him 
 and deprive us of our property. As an auxiliary to indefeasi- 
 bility of title, there is an indemnity feature to the Torrens sys- 
 tem, and from the indemnity fund compensation may be paid to 
 a person from whom an interest or an estate in land has been 
 wrested by the operation of a certificate. The registered owner 
 holding the certificate, takes the title, and needs no indem- 
 nity, but since his certificate does not include within its pro- 
 visions taxes, special assessments, easements, public highways 
 or mere rights of possession, he must see to these things him- 
 self. Title insurance operates on directly opposite principles, 
 and only the holder of a policy is entitled to compensation 
 under it. "While the scheme of title insurance does not pre- 
 sent any official or governmental declaration of the validity 
 or merchantability of a title, or any indisputable certificate 
 of an indefeasible title, yet a title policy of a company with 
 large capital and experienced examiners, insuring the condi- 
 tion of a title on a certain date, is recognized generally as 
 fixing on that date the status of the title for the purposes of 
 holding it or of dealing with it, and is an acceptable substitute 
 for a government certificate of indefeasibility of title. When 
 it is so recognized, it does away with the necessity for an ex- 
 amination of the title prior to that date, and presents the con- 
 dition of the title in one guaranteed certificate. Title insur- 
 ance takes the laws of the recording system as it finds them, 
 presents a definite result, a finished product, a certificate which 
 guarantees the condition of the title as it presents it. It covers 
 a loss which may be sustained by reason of any defect in the 
 title, not specifically excepted by its terms. It covers loss by 
 forgery, whether the forged deed is the last instrument in the 
 title or is back in the chain of title. Under the general Tor- 
 rens system, a person claiming immediately under a forged 
 instrument of transfer or mortgage takes no interest in the land 
 by his registration, and can obtain no compensation from the 
 
 345 
 
THE TOEEENS SYSTEM 
 
 indemnity fund when his registration has been set aside.^^ 
 In Australia title insurance companies have been characterized 
 as "peculiar institutions * * * evolved to protect owners 
 and purchasers of land.''^^ Title insurance is the product of 
 our own laws and the outgrowth of our own system of deal- 
 ing with land, and it supplements and simplifies the working 
 of the recording system. 
 
 § 223. Simplicity in Titles. It is necessary to bear in mind 
 that simplicity in a system of conveyancing and dealing with 
 land is one thing, and that simplicity in titles to land is an 
 entirely different thing. The simplification of titles to land 
 may be accomplished only by eliminating from them all the ele- 
 ments which make them complex, namely, trusts, conditions, 
 limitations, equities, covenants, reservations and forfeitures. 
 Simplification of land titles is not necessarily a part of any 
 system of conveyancing, but may be provided for under any 
 system. Many of the registration acts were entitled as acts 
 to simplify titles to land, but the acts themselves contained 
 no suitable provisions for that purpose beyond prohibiting 
 the entry of trusts on the register and establishing one estate 
 in land, the registered estate, instead of legal and equitable 
 estates. Concerning the general intent of the framers of the 
 early acts to revolutionize the law of real property, as well 
 as to establish a new system of dealing with land, it has 
 been said : ' ' There can be little doubt that Torrens intended, 
 and that a possible result of the 1857 statute standing alone 
 would have been, to effect a much greater revolution in real 
 property law than has been effected by the Torrens system 
 as it now exists. It has been said^* that the preamble (to the 
 original act)^^ is not found in the later statutes 'because at- 
 tempts were made to follow out its spirit so as to cause § 1 
 to be construed as an enactment to not only sweep away the 
 whole body of English conveyancing practice, but the prin- 
 ciples of English law also, which latter it was found could not 
 be entirely ignored with advantage, even under the new sys- 
 tem.' The 1857 statute seems to have been intended to effect 
 a reform, somewhat analogous to that effected by the statute 
 of frauds in abrogating oral conveyances, by which no trans- 
 
 22 See ante $ 203. S. A. E. at p. 79, and Cuthbertson 
 
 23 Duffey and Eagleson, Transfer v. Swan (1877) 11 8. A. E. 102. 
 of Land Act, 1890, (Victoria) p. 3. 25 See Appendix. 
 
 24 Citing In re Martin, (1900) 27 
 
 346 
 
EXPOSITION 
 
 action of any kind with land could be effected without regis- 
 tration. * * * Some of the provisions which have been ex- 
 pressly abrogated, or have become obsolete, are interesting, 
 besides beiug curiosities of legislation, as indicating that the 
 intention of the framers of the statute was literally to revolu- 
 tionize the whole law of real property, so far as it concerned 
 land under the new system. This intention, however, was not 
 carried out, chiefly because it would have been almost impos- 
 sible for judicial tribunals to place any construction on the 
 enactment which would make it at once intelligible and con- 
 sistent with itself. Notwithstanding the progress of the sys- 
 tem towards consistency and intelligibility since its inception 
 in South Australia in 1858, it can hardly be doubted that many 
 of its existrug imperfections are due to the lack of technical 
 legal knowledge, which is displayed in the draftsmanship 
 of the original statute. In England, on the other hand, the 
 presence of a high degree of technical legal knowledge in the 
 framers of analogous acts appears to have contributed in 
 some measure to some of the imperfections of the English sys- 
 tem of registration of title, by tending to preserve legal formal- 
 ities which are really unnecessary, "^e For some time after 
 the passage of the early acts it was supposed that they abol- 
 ished all trusts in registered land, but the statutory provision, 
 that no notice of any trust shall be entered on the register, 
 has been whittled away by construction of other provisions 
 in the acts and by statutory amendments, until little sub- 
 stantial is left of it and of the theory that a purchaser may 
 deal with a trustee as the absolute owner of the land.^^ There 
 was a feeble attempt to hold that covenants, conditions, reser- 
 vations, etc., in an instrument could not be noted on the reg- 
 ister,28 but most acts expressly provide that they may be. The 
 evolution and development of Torrens acts have been along 
 the lines of freedom of contract with respect to registered 
 land, and not toward the elimination of elements which make 
 titles complex, and it cannot be said today that registered 
 titles are any more simple than those wheh are not registered. 
 Anyone who has studied the Torrens system of conveyancing, 
 and has directed his attention to the necessities which are re- 
 quired for its full development, is impressed with the close 
 connection between the laws regulating the registry of titles 
 
 26 Hogg, Australian Torrens Sys- 27 Ante $ 97 et seq. 
 
 tern, pp. 23, 24. 28 Ante § 87. 
 
 347 
 
THE TOEEENS SYSTEM 
 
 and the general laws of real property. Facility of transfer 
 of land, facility in registering titles, and simplification of titles 
 act and re-act upon each other, and the laws governing real 
 estate should be simplified prior to or concurrently with the 
 establishment of the Torrens system.^^ On this subject it has 
 been said: "To establish a register of title before reforming 
 the law so as to render the success of such a system possible, 
 would be to put the cart before the horse. "^^ If we admit 
 that there should be a reform of the law of real property, we 
 shall disagree hopelessly as to the nature and extent of the 
 reformation. "We may agree that we should abolish the anti- 
 quated and partially understood doctrines of tenure, seizin and 
 uses, but we may not agree on abolishing executory devises 
 and contingent remainders, and on retaining only an absolute 
 ownership in land, a simple mortgage and leases — say not ex- 
 ceeding a term of ninety-nine years. Titles may be simplified 
 whenever land owners, and members of the public who hope 
 to be such, are willing to give up the privilege of creating 
 trusts by deed or will, and of carving out lesser estates and in- 
 terests than a fee simple. "We can simplify titles by prohib- 
 iting the conveyance of land otherwise than absolutely and 
 unconditionally. In this country we cannot convert com- 
 plicated titles into simple ones, but we can prevent complicat- 
 ed titles being created in the future. The literature of the 
 law of real property is full of suggestions for reform and sim- 
 plicity in titles, and full of criticisms of and objections to 
 these suggestions. In the process of time and evolution, doubt- 
 less, titles to land will be simplified, but in the past our efforts 
 have been feeble and spasmodic. 
 
 § 224. Security in Dealing With Registered Land. It is fre- 
 quently said that security of tenure is the main object in any 
 system of dealing with titles to land. This is a vague state- 
 ment. Does it mean that by following the processes of the 
 system a person should be able to take an indefeasible title 
 to land purchased by him, or does it mean that he should 
 
 29 § 97 Eeport of Royal Commis- tion of title in Ireland. Eight Hon. 
 sion on the Transfer of Land Acts, Dogdson H. Madden, M. P., Attor- 
 1911, page 49. ney-General for Ireland, 1892, page 
 
 30 Land Transfer and Eegistra- 24. 
 
 348 
 
EXPOSITION 
 be able to hold his title, when once acquired, except as against 
 his own acts or his culpable negligence? These two principles 
 are conflicting, and both may not exist in the same system. 
 Under the general Torrens system the object is to produce a 
 register of title, on which a purchaser for value or a creditor 
 may rely implicitly, and when he is registered in due course 
 he takes the estate or interest with which he is registered. 
 It follows from this that a former registered owner may be 
 deprived of his estate or interest in the land by the registra- 
 tion of another person as owner of an estate or interest in the 
 land. He may be deprived of his land by the combined result 
 of a forgery and successive registrations,*^ or by the levy on his 
 land of an execution really issued against another person.^^ 
 "We must conclude from this that the security of tenure aimed 
 at by the Torrens system is that of taking with certainty an 
 indefeasible title by the last registration, that, in accomplish- 
 ing this, the system sacrifices the security of tenure under 
 prior registrations, in favor of the last registered owner, and 
 that the system is merely one of conveyancing and not one of 
 holding safely and securely titles once acquired. There are 
 only a few exceptions to the rule of the system that a new reg- 
 istered owner takes the registered estate or interest in land 
 securely. (1) He must take under a transfer from the last 
 registered owner. (2) A registered owner must be able to trace 
 a line of registrations back to the first original registration 
 of the title, and if by mistake registered land is described in 
 two last certificates, the person who can so trace his title will 
 be able to set aside the registration of the other. (3) If un- 
 registered land is included by mistake in a certificate, the reg- 
 tration may be set aside. These exceptions are neither numer- 
 ous nor likely to arise in practical operation of the system, 
 and it may be said most confidently that the security of a 
 person dealing in good faith for value with registered land 
 is almost perfect under the general foreign system. But the 
 English act modifies the rule of indefeasibility of title in the 
 new taker in some instances,** viz, — in cases where there is 
 an error, and in cases where the purported instrument of trans- 
 si S 127 et seq. ** See note to § 215, ante. 
 32 Ante $ 116. 
 
 349 
 
THE TOEEENS SYSTEM 
 
 fer is void, — and, with respect to security of tenure, places 
 titles to registered land on the same plane with titles to un- 
 registered land. In this country also a certificate of title, for 
 lack of conclusiveness, gives no special security to the person 
 who takes the title on a transfer of land,** and leaves the rule 
 as to security of tenure as it is under the recording system. 
 Under this, the transfer may or may not convey an indefeasi- 
 ble title, according to the whole history of the title, and no one 
 may be deprived of his land except by his own act or through 
 his culpable negligence. But the general foreign system helps 
 to market titles by vesting them,' under the statutes, through 
 the functions of the registrar, in persons dealing with land, 
 and, when necessary to accomplish this result, it divests titles 
 from innocent persons who have no chance to be heard or to 
 protect themselves. 
 
 § 225. Security Under the Recording System. The defects, 
 dangers and anomalies of the old system of conveyancing in 
 England and Australasia have been pictured very vividly. It 
 has been said : ' ' The old system of conveyancing was responsi- 
 ble for great delay, expense and uncertainty. It militated 
 against the marketableness of land. It led to elaborately plan- 
 ned concealments extending over generations. It placed the 
 sword of ruin over every solicitor's head. * * * This pro- 
 cess of examining and abstracting all previous titles and facts 
 relevant thereto had to be gone through whenever a new sale 
 or mortgage took place, for a mistake in a link of title would 
 probably make the solicitor liable to a ruinous action for neg- 
 ligence. Add to the uncertainty, complication and expense 
 inevitable in such a system, the lengthy recitals and parcels 
 of the purchase-deed, its formality of seal and delivery, the 
 doctrine of constructive notice, the technicalities of the word- 
 ing in premises and habenda, the fiction of the legal estate and 
 its sequelae in the case of mortgages, the shadowy equities 
 'born of fraud and fear' haunting the most perfect convey- 
 ances, the subtleties of the judicial amendments and repeals 
 of the statute of uses, weak-kneed remainders without an ante- 
 cedent estate, or limitations of chattels real without a trust, re- 
 ceipts for consideration sacreligiously omitted from the in- 
 dorsement of a deed, scholastic 'possibilities on possibilities' 
 stalking through modern daylight, unusual covenants, ' fruitful 
 mother of costs, ' and estate clauses barren of estates, covenants 
 
 34 Ante §? 83, 166. 
 
 350 
 
EXPOSITION 
 
 for title that may be construed as notice of a flaw in title, and 
 the constant fear of long and complex proceedings in the 
 courts from some unsuspected deed coming to light — add these, 
 and it is not difficult to sustain the proposition that reform 
 was desirable, and that a system which has got rid of most 
 of these incubi, with at least as much security as before, has 
 claims for, as it has been found worthy of imitation, "^s 
 
 This arraignment of the old English system may seem to 
 be rather hysterical, but at any rate it has only a modicum of 
 application to the recording system in this country. Under this 
 system the process of examination must be gone through al- 
 most every time property is sold or mortgaged, and the bur- 
 den of determining the condition of the title devolves on a 
 lawyer. But lawyers who are prepared for the work are not 
 overwhelmed with the sense of responsibility, and they are 
 able to find in the statutes and in the decisions of courts the 
 landmarks which show the way of the title. The system of 
 records is adapted to our jurisprudence, and the rules of con- 
 structive notice are well settled. "While the recording system 
 is capable of a high degree of perfection, and has been develop- 
 ed in a more scientific way in some states than in others, yet it 
 needs thorough overhauling and extension everywhere. Though 
 there is no general complaint against the lack of security of 
 the recording system as a system, lawyers in each state know 
 points at which it is weak and lame, and they guard against 
 them in their examination of titles. In Illinois notice of lis 
 pendens is given in the chancery method, by service of pro- 
 cess on the owner of the land as shown by the record. This 
 method makes it possible for the owner to convey the land 
 to another record owner between the issue and the service of 
 process, especially where service is by publication of notice, 
 and gives an opening for delay, expense and a miscarriage of 
 the whole proceeding. And again, where lands of tenants in 
 common lie in more than one county in the state, a suit for par- 
 tition of all the lands may be brought in any county where part 
 of the land lies, and there is no statutory requirement that a 
 notice of lis pendens shall be filed in the other county or 
 counties, in order to affect the lands which lie therein. A ten- 
 ant in common appeared of record to be the owner of an un- 
 
 35 Duffy & Eagleson, Transfer of Land act, 1890, Victoria pp. 6, 7. 
 
 351 
 
THE TOEEENS SYSTEM 
 
 divided interest in valuable land in one county and lie mort- 
 gaged it for a large sum of money. At the time this mortgage 
 was given, proceedings were pending in another county for 
 partition of land in both counties, including the land so mort- 
 gaged, and the court had obtained jurisdiction of the mort- 
 gagor. Consequently, the purchaser at the partition sale took 
 a good title, free from the lien of the mortgage, and the mort- 
 gagee lost the security for his debt, though he relied on a 
 record which showed that the mortgagor had an estate in the 
 land.^* This case illustrates that where a system is so framed 
 as to give notice on the record of everything which may affect 
 the title to land, a burden may be taken from the shoulders 
 of one person only to be placed on the shoulders of some 
 other person. If the law had required a notice of the 
 pending suit in one county to be filed in the other county 
 where the land was mortgaged, in order to affect the land 
 there, — and this is the requirement of all Torrens acts, — the 
 purchaser at the partition sale would have been obliged to 
 know at his peril that notice had been given as required, or 
 that no dealing with the land had taken place during the 
 pendency of the suit. But it is no hardship to require that 
 an intending purchaser shall search the records, and it is a 
 hardship for the state to furnish records which may not be 
 relied on when searched.^'^ 
 
 § 226. While the system of recording instruments is defec- 
 tive in perhaps all the states, no general charge of insecurity 
 of titles under the recording system may be made. Immense 
 sums of money are invested in real property without the slight- 
 est misgivings as to the validity of titles. When we consider 
 the vast number of dealings with land, which take place on 
 every business day of the year, we must expect to find many 
 cases of litigation over questions of title, and taking into ac- 
 count the comparative number of dealings with land, we find 
 quite as much litigation over real property in Australia under 
 the Torrens system as we find here under the recording sys- 
 
 36 A case mentioned by E. W. 37 It may be noted that no notice 
 
 Boddinghouse in an address before of the right to contribution as be- 
 
 the Illinois Abstracters Assoeia- tween tenants in common is pro- 
 
 tion, Eeal Estate News, Chicago, vided for under either system. 
 July 1910. 
 
 352 
 
EXPOSITION 
 
 tern. It is a mistake to suppose that a mere system of con- 
 veyancing will prevent litigation concerning lands. Titles 
 may be indefeasible whether or not they are declared by the 
 state to be so. Most litigated questions are not concerning 
 the validity of the main title to land, but relate to collateral 
 matters, and the statutory declaration of indefeasibility will 
 not simplify all questions of this character, or give security 
 against the litigation of them.^* A study of the decisions under 
 the Torrens statutes gives one the impression that while the 
 system solves certain complications in titles on the one hand, 
 it brings in new complications on the other hand. For in- 
 stance, it introduces caveats, about which there are scores of 
 decisions; it introduces an officer, the registrar, who acts both 
 judicially and ministerially, and it creates an indemnity fund 
 against which statutory claims only may be made. After all 
 is said, the great achievement, main strength and chief merit 
 of the foreign system is the security it affords in vesting titles 
 in new registered owners, without requiring a retrospective 
 examination of them. The great weakness of the recording 
 system lies in the facts that there is no recognized authority 
 
 the title, and in the first proceed- 
 ings the trick succeeded, for the 
 Court of Appeal refused to relieve 
 the purchaser. Owing to the skill 
 and pertinacity of his solicitor the 
 defect was discovered, and in the 
 second action the Court of Appeal 
 refused to order specific perform- 
 ance. But the Court allowed the 
 vendor to retain the deposit, appar- 
 ently as a reward for her ingenuity 
 in attempting to foist a rotten 
 title on the purchaser. The loss in- 
 curred by the pureha,ser in deposit, 
 costs, etc. must have far exceeded 
 the value of the property. I sub- 
 mit that it is not creditable to us, 
 as a business people, that such a 
 case as this should be possible. 
 Cases in which purchasers and mort- 
 gagees have actually lost money 
 owing to defective titles, or ab- 
 sence of title, are by no means un- 
 common. Most of these cases do 
 not come into court, and are known 
 only to the parties themselves. "- 
 Vol. 24 Law Quarterly Eeview p. 
 35 (1908). 
 
 38 "Other illustrations of the 
 working of the (Torrens) system 
 may be found in the pages of the 
 law reports. Take the case of the 
 attempted sale of the Savernake 
 estate. This sale gave rise to five 
 or six distinct lawsuits, one of 
 which went to the House of Lords, 
 and after several years of litiga- 
 tion, the purchaser (an extremely 
 willing purchaser) threw up his 
 contract because he despaired of 
 getting a good title. It would be 
 interesting to know how many 
 thousands of pounds were wasted 
 over this abortive sale. The case 
 of Scott v. Alvarez (1895) 1 Ch. 
 596; 2 Ch. 603, is even more in- 
 structive, because it shows the 
 risks to which a purchaser of land 
 may be exposed under the present 
 system. In that case the sale gave 
 rise to two distinct lawsuits, both 
 of which went to the Court of Ap- 
 peal. The contract of sale had 
 been carefully framed by the vend- 
 or in order to prevent the purchaser 
 from discovering a fatal defect in 
 
 353 
 
THE TOEEENS SYSTEM 
 
 which may declare the condition and status of a title, so that 
 a person dealing with it will feel that he need not examine the 
 whole history of it ; that when the title has heen examined the 
 lawyers foir the buyer and the seller may disagree as to the 
 condition of the title ; and that it is possible that both lawyers 
 may not have discovered some serious defect in the title. While 
 this is a fair statement, it must not be supposed that the re- 
 cording system detracts from the natural value of real prop- 
 erty, and gives little security to titles. In practice, lawyers 
 do not disagree frequently and seriously about titles, real prop- 
 erty passes freely from owners to purchasers all over the coun- 
 try, and ownership of and mortgages on land are favorite forms 
 of investment. However, the lack of an authoritative arbiter 
 on questions of title has brought about the formation of title 
 insurance companies in many of our cities, and if the local 
 company will insure the title the purchaser is usually willing 
 to take it. But it must not be supposed that title insurance 
 is eagerly sought for whenever a company is established in a 
 community. It is a business of slow growth. "While it was 
 started in 1876, its great progress has been made within the 
 past ten years. The Real Estate Title Insurance and Trust 
 Company, of Philadelphia, which issued the first policy in 
 1876, issued but twenty-six policies in the first seven months 
 of its business, and every company which has started into 
 the business has found that it must educate the public in the 
 advantages of its system. No company confines its business 
 to title insurance only. Some title insurance companies are 
 also trust companies, banks, surety companies and makers of 
 abstracts of title. While title insurance policies or guaranteed 
 certificates of title are used extensively in New York, Philadel- 
 phia, Boston, Washington, Detroit, Chicago, Colorado Springs, 
 Los Angeles, San Francisco, Seattle and many other places, yet 
 the ordinary methods of the recording system are in use even 
 in most places where title insurance is written. Despite every 
 precaution mistakes may be made under any system of deal- 
 ing with land. This fact is recognized in the Torrens system 
 by the creation of an indemnity fund by the state, and title 
 insurance by private companies supplies indemnity under the 
 recording system. If the recording system were not practic- 
 
 354 
 
EXPOSITION 
 
 ally secure as a method of dealing with land, title insurance 
 would not be written for the small premium which is demanded 
 for it. 
 
 § 227. Rapidity in Bringing Land Under the Torrens Acts. 
 
 In foreign jurisdictions notice of an application to register 
 land must be given by publication. The length of time for 
 which the notice must be given varies in different states.^^ It 
 usually requires from sixty to ninety days after filing of the 
 application to bring the land under the system. Contested 
 applications generally must be referred to a judge or to a 
 court, and such applications take a longer time. Proceedings 
 in registration are not necessarily long, but they scarcely can 
 be said to be rapid. In this country an application to register 
 land is a lawsuit, and, as to rapidity, it stands just as any 
 other lawsuit concerning a land title. Notice of the application 
 may bring defendants actually into court for a vigorous defense 
 and a long contest, though in most eases of voluntary appli- 
 cation the title is clear, and no persons are made defendants 
 except unknown owners. The following table concerning ap- 
 plications for registration in Chicago was prepared down to 
 December 31, 1911, and it may be of interest. 
 
 Year. 1899 1900 1901 1902 1903 1904 1905 1906 
 Applications filed during year. 155 151 152 375 411 329 366 240 
 Of these there were dismissed- 5 5 11 20 27 9 10 2 
 Of these there were appealed.. 21496642 
 Of these there are still pending 7 13 18 31 11 29 9 
 
 Year. 1906 1907 1908 1909 1910 1911 Total 
 
 Applications filed during year' 240 233 420 552 614 649 4887 
 
 Of these there were dismissed 2 14 6 5 1 108 
 
 Of these there were appealed 2 2 7 9 9 None 61 
 
 Of these there are still pending— 9 11 18 30 44 189 410 
 
 § 228. Rapidity in Dealing With Registered Land. The Tor- 
 rens system has won its reputation for rapidity in other coun- 
 tries. If we are wrong in our idea of the slow and dignified 
 ways in which dealings in land were conducted in England and 
 its colonies, and on the continent of Europe, under the sys- 
 tem of examination of title by solicitors and notaries, no one 
 is to blame except the writers on the laws and customs jf 
 those countries. It is interesting to note what has been said 
 
 39 Ante § 23 et seq. 
 
 355 
 
THE TOEEENS SYSTEM 
 
 about rapidity of operations under registration laws in foreign 
 countries. Dumas says: "When compared with the practice 
 of countries where conveyancing is still a private business, 
 transfer under the registration system is of wonderful sim- 
 plicity. Instead of applying to solicitors or to notaries, or 
 to any other sort of business-men who require weeks and 
 months before making the title clear, any man purchasing a 
 registered property can save himself all other trouble than a 
 simple call at the registry, where a few miuutes' search in the 
 books shows him what right the vendor is really able to grant. 
 After this the two parties need only agree upon a notary to 
 draw up the contract, which will serve as a document to be 
 produced with the application for registration; and before a 
 week is passed, the notary may have done the work, and this 
 may be signed and entered at once.*" 
 
 In 1896, Sir Charles Portesque Brickdale, now registrar in 
 London, went on behalf of the English Government to Ger- 
 many, Austria and Hungary, to study the systems of registra- 
 tion of land titles in those countries. He studied those sys- 
 tems closely, and made many inquiries into the rapidity with 
 which business was conducted under them. Some parts of his 
 report — the only parts touching on the subject of rapidity of 
 transfer — will now be quoted: "Dr. von "Winiwarter, who is 
 legal adviser to the British Embassy at Vienna, has a large 
 practice as combined barrister and solicitor. I asked him to 
 tell me how the system of registration of title operated in 
 regard to time, cost, security and general convenience to the 
 legal profession and the public. "With regard to time, he said 
 a week or ten days from the drawing up of the contract down 
 to the final completion of everything and return of the docu- 
 ments from the land registry was the usual thing — any longer 
 delay than that would be most exceptional — almost unknown. 
 If special dispatch was required, and there was no unusual 
 complication, the matter could be completed in two or three 
 days, or he had known it accomplished in one. The officials 
 were very obliging in this respect, and would always do their 
 best if told that a matter was really pressing. "*i "Most peo- 
 
 40 Eegistering Titles to Land. Chicago. 
 Jacques Dumas, Callaghau & Co., 4i Pages 24 and 25 of his Eeport. 
 
 366 
 
EXPOSITION 
 pie are content to complete their transactions as soon as the 
 register has been searched and the formal document signed. 
 Some, however, more scrupulous, do not complete until they 
 see the entries made in the register, which is usually a day or 
 two after the documents are left for registration. Sometimes 
 land banks, which are very particular, require the actual mort- 
 gage certificate, 'hypotheken brief,' to be delivered to them 
 before they advance the money ; these are sometimes not ready 
 for a week or a fortnight. * * * The papers are returned 
 completed from the registry, usually in a week or ten days; 
 but where expedition is required, the officials will give a 
 matter precedence. "*2 "In Austria and Hungary, there is 
 an interval, varying from thirty to sixty days, after the leav- 
 ing of a document for registration in the office, within which 
 objections may be made to its registration."** In his general 
 report, he says: "As a general rule ten or fifteen days is the 
 outside time occupied in transactions relating to land, from 
 the first begioning of the negotiations down to final completion 
 of the record in the land register. * * * if expedition is 
 required, a matter can be carried through in three days, and 
 sometimes in one day. "Mortgages to the Land Banks are com- 
 pleted in about three days. ' ' In Budapest, Hungary, the banks 
 which are very cautious, do not, as a rule, lend money on the 
 security of a mortgage until the mortgage has been registered 
 and a period of fifteen days, which is allowed for objections, 
 has also elapsed.** 
 
 § 229. The Torrens system requires that when anything is 
 done which affects a title, notice of it must be filed in the reg- 
 istry immediately. The record of the title is thus kept down to 
 date in the registry, so that a purchaser may rely on it. From 
 this fact writers on the system in this country assume that a 
 vendor and a purchaser, or a mortgagor and mortgagee may 
 go to the registry and have a new registration made or an en- 
 try noted whenever they are ready to close their transaction. 
 It is undoubtedly true that at the present time this may be 
 done in any registry office in this country, but this is because 
 there is so little registered land, not primarily because the reg- 
 
 42 Page 26 of hia Beport. ** Page 26 of his Report. 
 
 43 Page 16 of his Report. 
 
 357 
 
THE TOEEENS SYSTEM 
 
 ister shows the condition of estates and interests in land. The 
 registrar is also the recorder of deeds and he gives little or 
 no attention to the current work in the Torrens office, the exam- 
 iners of titles spend an hour or two a day in the work of that 
 office, and the deputy registrar and his assistants, not being 
 burdened with work, are eager to put aside what work they 
 may have in order to demonstrate to members of the public 
 the simplicity and rapidity of the system. But the test of ra- 
 pidity can be made only when the system is carrying a large 
 part of the conveyancing which is done in a county. The 
 registrar's office is the only place where transfers may be 
 made and where liens may be created. "When registered lands 
 are numerous it becomes a busy place, and must be run ac- 
 cording to rules and regulations for the transaction and dis- 
 patch of public business. Registrations and entries must be 
 made with reference to the order in which instruments are 
 filed for registration, in order that those may be treated fair- 
 ly who leave or send instruments for that purpose. If per- 
 sonal visits to the office will secure preference in early regis- 
 trations, many persons will be there to demand their turns 
 in regular order. About seven hundred instruments a day 
 are filed for record in the recorder's office in Chicago. Under 
 the Torrens system many instruments must be filed in the 
 registrar's office, which are not filed in the recorder's office. 
 If the Torrens system were the only method of conveyanc- 
 ing there, it would be impracticable to give each instru- 
 ment immediate attention, and a routine for conducting the 
 business necessarily would be established. Appointments 
 would be made, where members of the public insisted on being 
 present, escrows would be made of the money to be paid to 
 vendors and mortgagors, and inspections of the register after 
 registrations and entries actually had been made would be 
 insisted on by interested persons. Anyone who understands 
 the way in which business is done in the registry offices in 
 foreign countries must insist that the Torrens system has the 
 quality of rapidity, but he will insist also that this quality 
 has been too highly commended and represented by advocates 
 of the system in this country. In England, under rule 111, 
 instruments must be entered in the register in the order in 
 
 358 
 
THE TOEEENS SYSTEM 
 
 which they are delivered. All instruments delivered by post 
 during the hours in which the office is open for registration^^ 
 are treated as delivered at the closing of the office on that 
 day, and if delivered between the hours of closing and open- 
 iug of the office they are treated as delivered at the opening 
 of the office. Under rule 118, when an instrument purport- 
 ing to be executed by a registered proprietor is delivered for 
 registration, notice of the fact is sent to him at his registered 
 address; and unless the execution is admitted by him prior 
 to that time, the registration is not completed until after the 
 expiration of three clear days from the posting of the notice. 
 AU large registry offices have rules for the orderly conduct 
 of business and for the safeguarding of the register, and three 
 or four days are required from the filing of an instrument 
 until the money is paid over and the transaction is closed, 
 except in special cases. 
 
 Every lawyer who has practiced in a small community 
 knows that there under the recording system transactions 
 may be begun and closed readily within the business hours of 
 one day. This possibility arises because a few pages of the 
 grantor and grantee indices, of the lis pendens record, and of 
 the judgment docket, cover the records of several years. In 
 cities almost every owner of land has an abstract of title to 
 his property. Ninety-five per cent of the abstract business 
 consists in continuing these abstracts from a period within 
 the past seven years. This shows in a rough way that real 
 property is transferred or mortgaged on an average about 
 once in seven years. With the help of a tract index an ordin- 
 ary continuation may be made in a few hours. This is not 
 possible in all counties when an instrument is filed for record 
 at the time the order for the abstract is given, because some 
 recorders of deeds run their offices more with reference to 
 their own desires and plans than with reference to the con- 
 venience and interests of members of the public, who may 
 have some dealing with land. Some recorders work and check 
 their work with abstract companies in taking off original 
 entries of instruments filed for record, but not yet recorded, 
 
 45 Namely, from 11 to 3. For office is open from 10 to 4. It 
 searching and other business the closes at 2 on Saturdays. 
 
 359 
 
THE TOEEENS SYSTEM 
 
 while others do not permit original instruments filed on one 
 day to be seen by any member of the public until the next day, 
 after they have been indexed. Of course custodians of public 
 records must have a broad discretion in such matters, and 
 perhaps the only permissible comment is that, as instruments 
 are constructive notice from the time they are filed for record, 
 the earliest possible opportunity to inspect them should be 
 given to the public, and that recorders who give the greatest 
 consideration to the public convenience, and lay out their work 
 so as to give rapid service and ample protection to the records, 
 make just as good custodians of records as do those recorders 
 who make protection of records their only primary considera- 
 tion. While it is easily possible in a city to begin and close 
 up an ordinary transaction within three days, by giving it 
 special attention, still it usually requires four or five days to_ 
 complete transactions in current order. If all lands in large 
 communities were registered, the Torrens system might or 
 might not prove to be more rapid than this, but no one now 
 may speak definitely on this subject. In every registry office 
 in this country it is possible now to enter each day's trans- 
 actions in registered land on that day, but we all know that 
 the greater the number of transactions under any system, the 
 more hindrances and delays arise in administering it. 
 
 § 230. Registry Charges in England. In England the vend- 
 or of land which is not registered under the Torrens system 
 pays his solicitor for preparing and exhibiting his title to 
 the purchaser and for attending to the business otherwise; 
 the purchaser pays his solicitor for perusing and advising him 
 on the vendor's title, for preparing the conveyance and for 
 seeing to its proper execution. The charge for each solicitor 
 is regulated by law and is the same. Where the property is 
 worth £10,000 — about $50,000 — the fee for each solicitor is 
 £70 — about $350 — and the total cost to the vendor and the 
 purchaser is £140 — about $700. Under fee order, 1908, in Eng- 
 land, the fees for entry of a first proprietor of land are as 
 follows : 
 
 Value of Land or Amount of Incumbrance. 
 
 Not exceeding £100 12 s. 
 
 Exceeding £100 but not exceeding £325— £1. 
 
 360 
 
EXPOSITION 
 
 Fee. 
 Exceeding £325 but not exceeding £l,000_ls. 6d. for every £25 
 
 or part of £25. 
 Exceeding £1,000 and not exceeding 
 
 £3,000 £3 for the first £1,- 
 
 000 and Is. for every 
 £25 over £1,000. 
 Exceeding £3,000 and not exceeding 
 
 £10,000 £7 for the first £3,- 
 
 000 and Is. for every 
 £50 over £3,000. 
 
 Exceeding £10,000 £14 for the first £10,- 
 
 000 and Is. for every 
 £100 over £10,000, up 
 to a maximum of £25 
 for £32,000. 
 For registration of charges, incumbrances, transfers of land, 
 and removals from the register Is. 6d. is charged for each, £25 
 up to £50,000 and Is. lOd. is charged for each £1,000 over 
 £50,000. Removal of land from the register is only permitted 
 in England in those districts in which registration is not 
 compulsory. In speaking of the fee for removal, it has been 
 said: ""With regard to the amount of the fee it may be re- 
 marked that, unless it were at least equal to the fee for regis- 
 tering a transfer or charge, there would be a considerable 
 immediate inducement to remove the land from the register 
 on all sales and mortgages."*® There are some twenty-seven 
 fees provided for in the administration of the act, ranging 
 from Is. to £1. The English act provides that "the fee orders 
 relating and incidental to registration of title shall be ar- 
 ranged from time to time so as to produce an annual amount 
 sufScient to discharge the salaries and other expenses, includ- 
 ing the annual contribution to the insurance fund, incidental 
 to the workings of the principal act, and this act, and no 
 more."*^ 
 
 46 Land Transfer Acts, Brickdale gard to fees and expenses : ' ' Salaries 
 and Sheldon, p. 434. and expenses are difficult to appro- 
 
 47 In a letter dated October 26, priate to any one department, as 
 1910, Sir Charles F. Brickdale, much mutual assistance is given by 
 Registrar in England, says with re- one department to another. The 
 
 361 
 
THE TOEBENS SYSTEM 
 
 § 231. Fees In Prussia, Saxony, Austria and Hungary. In Prussia 
 fees are charged under a schedule which went into operation on Octo- 
 ber 1, 1895, and in Saxony they are charged under the law of November 
 6, 1890. English values are used in the following schedules of fees in 
 those countries. 
 
 LAND EEGISTEY FEES. 
 
 — '■ — On Sale On Mortgage 
 
 Value. In Prussia. In Saxony. In Prussia. In Saxony. 
 
 £ £ s. d. £ s. d. £ s. d. £ s. d. 
 
 50 049 050 035 020 
 
 100 073 10 047 040 
 
 500 18 250 12 17 6 
 
 1,000. 110 3 15 110 112 6 
 
 2,000 2 12 650 118 2 12 6 
 
 5,000 450 12 10 3 15 476 
 
 10,000 7 10 17 10 6 15 6 17 6 
 
 20,000 13 10 27 10 12 15 11 17 6 
 
 50,000 31 10 57 10 30 15 26 17 6 
 
 100,000 61 10 107 10 60 15 51 17 6 
 
 On every sale and every mortgage fees are charged according to this 
 schedule. 
 
 In Prussia, one-half the conv^ance fees are charged for transmissions 
 and for family transactions of various kinds. There is no fee for in- 
 spection of the register, and there are few incidental expenses. In Aus- 
 tria and Hungary, the registry fees are perhaps a little lower than the 
 above schedules. They are levied on a somewhat complicated system, 
 and are not calculated with reference to the cost of the department of 
 registration. The information as to fees in Prussia and Saxony is taken 
 from Eeports on Systems of Eegistrations of Title in Germany and Aus- 
 tria-Hungary, by Charles Fortesque Brickdale. The following informa- 
 tion from the same source may be of interest: 
 
 Transactions Eegistered. ^Fees Eeceived. 
 
 Whole of Sax- Dresden only. 
 
 ony. Population Population. Whole of Dresden 
 
 3,502,000. 290,000. Saxony. only. 
 
 1894 £251,951 £34,302 £175,300 £47,700 
 
 1895 £269,307 £41,449 £197,250 £62,250 
 
 From this it appears that the averagS fee for each transaction in 
 Dresden in 1894 was £1, 8s. (about $7.00), and in 1895, £1, 10s. (about 
 $7.50). The trouble is that it is impossible to say what is regarded in 
 this table as a transaction. If the entry or cancellation of a memorial, 
 and such services are regarded as a transaction, the average fees for 
 
 share of income and cost for Lon- eulated to pay off in forty years the 
 
 don Torrens work may be appor- capital expenditure of about £200,- 
 
 tioned somewhat as follows: 000 incurred in purchase of this 
 
 Year Eeceipts Expenditure site and erection of permanent 
 
 £ £ buildings on it. The improvement 
 
 1907-8 34,073 40,858 of income during the year 1909- 
 
 1908-9 30,764 36,354 10 was due to a new fee order, in- 
 
 1909-10 37,120 36,106 tended, to make the office pay its ; 
 
 These figures require some ex- expenses, in which it has succeed- 
 
 planation. The expenditure in- ed; and this in spite of the fact 
 
 eludes all expenses of every kind, that at present it is, I consider, un- 
 
 not only salaries, but repair of duly weighted with (1) the £9000 
 
 buildings, furniture, light, heat, annuity, and (2) first registration, 
 
 water, stationery etc., etc., and an both of which might fairly be 
 
 annuity of about f9000 a year, cal- treated as capital expenditure." 
 
 362 
 
EXPOSITION 
 
 transfers and mortgages are, of course, much too low. 
 
 In the Ehine provinces of Prussia there were in 1895 about two hun- 
 dred and fifty registrars engaged in the work of registration, together 
 with two hundred clerks, and all these received assistance from the copy- 
 ists of the local courts of registration. Brickdale's Reports, page 57. In 
 1896 there were thirteen registration offices in the city of Berlin, and in 
 the office in the center of the city the work done in 1895 was as fol- 
 lows: 
 
 (1) Separate applications settled by the Richter, 1,705; (2) New own- 
 ers registered, 202; (3) Subdivisions of estates, 13; (4) Incumbrances, 
 1,239; (5) Discharges of incumbrances, 605; (6) Communications with 
 the cadaster office, 374. 
 
 In a suburban district of the city comprising about 30,000 inhabitants, 
 the work of the office for the years 1894 and 1895 was as follows: 
 
 1894. 1895. 
 
 (1) Separate applications settled by the Richter 2,526 2,443 
 
 (2) New owners registered 559 364 
 
 (3) Subdivisions of estates 398 157 
 
 (4) Incumbrances affecting one title 1,649 1,400 
 
 Incumbrances affecting two or more titles 277 318 
 
 (5) Discharges of incumbrances 747 904 
 
 (6) Communications with the cadaster office 358 676 
 
 The number of persons employed in these offices is not definitely stated, 
 
 but it seems from the context that there are about twenty persons in 
 each. See Brickdale's Reports, pages 83, 84 and 85. 
 
 FEES IN AUSTRALASIA. 
 
 § 232. Victoria. On making application to bring land under the act, 
 the fees, exclusive of advertisements, are as follows: 
 
 £ s. d. 
 When the applicant is the original grantee of crown lands, and 
 
 there are no other transactions 5 
 
 When the value of the property does not exceed £150 10 
 
 When the value of the property does not exceed £300 10 
 
 When the value of the property does not exceed £450 1 10 
 
 When the value of the property does not exceed £600 2 
 
 When the value of the property does not exceed £750 2 10 
 
 When the value of the property does not exceed £1,000 3 
 
 For each additional £1,000 or fraction up to £10,000 5 
 
 Por each additional £1,000 or fraction after £10,000 10 
 
 Some of the other fees are as follows: 
 
 Amending proprietor's certificate of title 10 
 
 Rectifying certificates, — each certificate 10 
 
 For each certificate of title issued 10 
 
 For registering a transmission of a freehold estate 10 
 
 For registering a transfer, lease or mortgage, or discharge of 
 
 mortgage 10 
 
 Forty-six other fees are set forth in the schedule, ranging from 8d. to 
 £1, for services to be rendered under the act. 
 
 The fees in Tasmania are about the same as those in Victoria, but they 
 are both somewhat larger than those in the other states in Australasia. 
 
 FEES IN CANADA. 
 §233. Nova Scotia. 
 For every application, two dollars. 
 For every plan filed, twenty-five cents. 
 For examination of title- — reasonable. 
 
 Compensation for work and time, not less than two dollars and one- 
 half and not more than fifteen dollars. 
 
 363 
 
THE TOBRENS SYSTEM 
 
 For entering original and duplicate certificate, two dollars. 
 
 Each subsequent certificate, fifty cents. 
 
 For entering judgment, attachment, etc., fifty cents. 
 
 For each mortgage registered, fifty cents. 
 
 For other services, the same fees as are allowed registers of deeds. 
 
 i 234. Ontario. 
 
 
 S 
 
 is abso- 
 and the 
 ruments 
 samined 
 ten. 
 
 abso- 
 id the 
 ments 
 mined 
 under 
 imita- 
 
 
 o 
 ft 
 
 .2=«|?3.2^ 
 
 
 OQ 
 
 TS-S b-a 
 
 ■^"S O ^<H 
 
 Applications for First Entry 
 
 1 
 
 title 
 lalifie 
 of ini 
 to be 
 
 excee 
 
 title 
 aalifie 
 of in 
 to be 
 ten, 01 
 ute 
 
 of Ownership. 
 
 CO 
 
 5 
 
 
 
 
 
 <D ^ P 0) O 
 
 |l|fi-^i 
 
 
 A o 
 
 ^5 PI St3 
 
 .d ,^ a ^. o 7 -t' 
 
 
 ^ 
 
 ^ 
 
 ^ 
 
 Item. 
 
 $ c. 
 
 $ c. 
 
 $ c. 
 
 1. Where the value of the property 
 
 
 
 
 being registered does not exceed 
 
 
 
 
 $1,000 
 
 2 50 
 
 4 00 
 
 6 00 
 
 Where such value exceeds $1,000, 
 
 
 
 
 and does not exceed $2,000 
 
 3 00 
 
 5 00 
 
 9 00 
 
 Where such value exceeds $2,000, 
 
 
 
 
 and does not exceed $4,000 
 
 4 00 
 
 8 00 
 
 12 00 
 
 Where such value exceeds $4,000, 
 
 
 
 
 and does not exceed $10,000 
 
 5 00 
 
 10 00 
 
 20 00 
 
 Where such value exceeds $10,000, 
 
 
 
 
 and does not exceed $20,000 
 
 6 00 
 
 12 00 
 
 25 00 
 
 Where such value exceeds $20,000, 
 
 
 
 
 and does not exceed $40,000 
 
 7 00 
 
 15 00 
 
 30 00 
 
 Where such value exceeds $40,000, 
 
 
 
 
 and does not exceed $50,000 
 
 8 00 
 
 20 00 
 
 40 00 
 
 Where such value exceeds $50,000 
 
 8 00 
 
 20 00 
 
 50 00 
 
 2. In case two or more distinct properties are embraced in the same 
 
 application, or where the titles of different pieces are substantially 
 different, the above fees shall be payable as if the registration of 
 such proprieties had been applied for separately. Where in con- 
 sequence of the subdivision of a piece of land the amount charge- 
 able would be in the Master's opinion unduly burdensome, he 
 may abate the same to such sum as he deems fair. 
 
 3. The above items cover all services in respect of first registration 
 
 except where oral depositions have to be taken, or notices served 
 upon persons appearing to have adverse claims, or where there is 
 a contest. In these cases the fees provided in respect of such 
 proceedings shall also be charged. The disbursements of the 
 Master for postage, searches, registration of certificates in the 
 registry office, etc., shall likewise be payable by the applicant. 
 The fees in Canada are all very small, whether for original registration 
 or for dealings with registered land. Evidently, the object is to make 
 the registry self-sustaining and nothing more. Except in the cities of 
 Toronto and Winnipeg, transfers are usually of comparatively cheap 
 properties. 
 
 364 
 
EXPOSITION 
 
 § 235. California. Fees in respect of applications and proceedings un- 
 der them, prior to registration, are the same as in actions in the superior 
 court. 
 
 For issuing a certificate of title and a duplicate, one dollar and fifty 
 cents; and for each additional duplicate, fifty cents. 
 
 For registering each transfer, with new certificate, one dollar and fifty 
 cents. 
 
 For entry of each memorial, one dollar. 
 
 For cancellation of each certificate, memorial or charge, twenty-five 
 cents. 
 
 For each certificate showing condition of register, one dollar and fifty 
 cents. 
 
 The same fees are allowed for other services as are allowed by law to 
 recorders for like services. 
 
 § 236. Colorado. In counties having more than forty thousand popula- 
 tion, three dollars, and in all other counties five dollars must be paid 
 by the applicant in full of all clerks' fees and charges in proceedings 
 for registration. The fee to be paid by the defendant or defendants is 
 three dollars. The party requiring publication or service of notice must 
 pay for it. The examiners of titles in each county are to be paid in each 
 case by the applicant such compensation as the judge of the district 
 court shall determine. The fees to be paid to the registrar are as fol- 
 lows: 
 
 On all land having an assessed value, exclusive of improvements, of 
 $1,000 or less, one dollar, and on each $1,000 additional value, twenty- 
 five cents. 
 
 For granting and registering certificates of title, two dollars. 
 
 For registering each transfer, with new certificate, three dollars. 
 
 When land transferred is held on any trust, condition or limitation, 
 an additional fee of three dollars. 
 
 For entry of each memorial, one dollar and fifty cents. 
 
 For each additional owner's, mortgagee's or lessee's duplicate certifi- 
 cate, one dollar. 
 
 For filing copy of will with letters testamentary, or for filing copy of 
 letters of administration and entering memorial thereof, two dollars 
 and fifty cents. 
 
 For cancelling each memorial or charge, fifty cents. 
 
 For each certificate showing condition of register, one dollar. 
 
 For certified copy of any instrument on file in his ofBlce, the same fees 
 allowed to county clerks and recorders for like service. 
 
 Such further fees as the court shall determine and establish. 
 
 § 237. Minnesota. On the filing of an application for registration, the 
 applicant must pay to the clerk three dollars in full of his fees on behalf 
 of the applicant. An appearance fee of three dollars must be paid by 
 the defendant or defendants. The publication of notices must be paid 
 for by the person requiring it. 
 
 On all land having an assessed value of $1,000 or less, three dollars; 
 one dollar a thousand for additional value. 
 
 For each original and duplicate certificate, two dollars. 
 
 For each new certificate, three dollars. 
 
 For entry of each memorial on the register and duplicate, one dollar. 
 
 For each additional owner's, mortgagee's or lessee's duplicate certifi- 
 cate, two dollars. 
 
 For filing copy of will with letters testamentary, or filing copy of 
 letters of administration and entering memorial, two dollars. 
 
 For cancelling each memorial or charge, one dollar. 
 
 For each certificate showing condition of the register, one dollar. 
 
 Such further fees as the court may determine. 
 
 365 
 
THE TOREENS SYSTEM 
 
 § 238. Oregon. The applicant must advance and pay to the registrar 
 ten dollars, two dollars and a half in full for the registrar up to the 
 granting of the certificate, and seven dollars and a half in full for the 
 examiner, provided that in contested or complicated cases the court may 
 make further allowance to the examiner. 
 
 For granting original and duplicate certificate, one dollar. 
 
 For each new certificate, fifty cents. 
 
 For entry of each memorial on register and duplicate, fifty cents. 
 
 For filing copy of will with letters, or copy of letters of administra- 
 tion, twenty-five cents. 
 
 For cancellation of each memorial, twenty-five cents. 
 
 For any certified copy, the same fees as are allowed to recorders of 
 deeds. 
 
 The docket fee for filing an application, and the appearance fee of the 
 defendant are five dollars each. 
 
 § 239. New York. 
 
 Filing application, one dollar and a half. 
 
 Entering and filing each order of service or summons, seventy-five 
 cents. 
 
 Entering and filing order appointing guardian ad litem, seventy-five 
 cents. 
 
 Entering, filing and indexing judgment, five dollars. 
 
 Entering, filing and indexing any lien or incumbrance, one dollar. 
 
 For each new certificate, two dollars. 
 
 Satisfaction of any lien, fifty cents. 
 
 Entering a caution, one dollar. 
 
 For filing an application, the same fees as in any civil proceeding. 
 
 §240. Massachusetts. Some of the fees are as follows: 
 
 For every application to bring land under the act, three dollars. 
 
 For every plan filed, seventy-five cents. 
 
 For examining title, five dollars, and one-tenth of one per cent of the 
 value of the land. 
 
 For each notice by mail, twenty-five cents, and the actual cost of 
 printing. 
 
 For entry of order dismissing an application, one dollar. 
 
 For copy of decree of registration, one dollar. 
 
 For entry of original certificate of title and issuing one duplicate, 
 three dollars. 
 
 For all services by a sheriff under the act, the same fees as are now 
 provided by law for like services. 
 
 For registration of every instrument and attesting the registration, 
 one dollar and fifty cents. 
 
 For filing and registering an adverse claim, three dollars. 
 
 Fourteen other fees are provided for in the schedule, and this clause 
 is added: "In all cases not expressly provided for by law, the fees of 
 all public ofScers for any oflcial duty or service, under this act shall be 
 at the same rate as those prescribed herein for like service.'' 
 
 § 241. Hawaii and Philippine Islands. The fees are substantially the 
 same as in Massachusetts. In Hawaii, for examining title the fee is ten 
 dollars and one-twentieth of one per cent, of the value of the land. 
 
 § 242. Washington. On filing an application in counties having more 
 than forty thousand population, three dollars must be paid to the clerk 
 for his fees, and in all other counties, five dollars. The defendant 's fee 
 is three dollars. Each party must pay for his own notices. On all land 
 having an assessed value, exclusive of improvements, of $1,000 or less, 
 $1.00 must be paid to the registrar. Twenty-five cents must be paid for 
 each $1,000 additional value. 
 
 366 
 
EXPOSITION 
 
 For each original certificate and duplicate, two dollars. 
 
 For each certificate on transfer, three dollars. 
 
 Where land is held in trust, on condition, or with limitation, three 
 dollars. 
 
 For each memorial on the register, one dollar and a half. 
 
 For additional owner's, mortgagee's or lessee's duplicate certificate, 
 one dollar. 
 
 For filing copy of will with letters, or letters of administration and 
 entering memorial, two dollars and a half. 
 
 For certified copies, the same fees allowed by law to county clerks. 
 
 Such other fees as the court may prescribe. 
 
 §243. niinois. The docket fee to be paid to the clerk on filing the 
 application, is five dollars, and the appearance fee of the defendant is 
 five dollars. The applicant is required to pay fifteen dollars to the regis- 
 trar in full of his services and those of the examiner up to the granting 
 of the certificate of title. In proper cases the court may direct the pay- 
 ment of further fees by the applicant or by any defendant. When the 
 application includes titles derived from more than one source, an addi- 
 tional sum of five dollars for each source must be advanced. The other 
 fees are as follows: 
 
 For granting and registering certificate of title, two dollars. 
 
 For each transfer, with new certificate, three dollars. 
 
 For entry of each memorial on the register, three dollars. 
 
 For filing copy of a will with letters testamentary, or filing copy of 
 letters of administration and entering memorial thereof, five dollars. 
 
 For cancelling each memorial or charge, one dollar. 
 
 For each certificate showing condition of the register, one dollar. 
 
 The same fees are allowed for other services as are allowed by law to 
 recorders for like services. 
 
 § 244. Fees in Original Registration in this Country. From 
 the foregoing schedules it is evident that in some state in this 
 country the fees are as much for original registration of a 
 small homestead or a cheap lot as for registration of the most 
 valuable piece of property in the state, but in some states 
 the charge for original registration is graduated according 
 to the value of the property. The use of a charge or premium, 
 graduated in proportion to the value of the property, is the 
 logical and natural basis of insurance, and since there is an 
 indemnity feature in the Torrens system, it is appropriate to 
 use a graduated scale of fees in original registration. The 
 docket fee in full of clerk's costs is small in every state, and 
 in Chicago it is just one-half the fee in all other cases. "Wit- 
 ness fees and the cost of documentary evidence are generally 
 the same in Torrens applications as in other proceedings in 
 court. In Illinois in Torrens cases, but not in other cases, any 
 abstract of title or certified copy thereof, made in the ordinary 
 course of business by makers of abstracts, may be received in 
 evidence, and is prima facie evidence of title as set forth 
 
 367 
 
THE T0EEEN8 SYSTEM 
 
 therein.** An applicant for registration of a title is unable 
 to determine in advance what the proceeding will cost him. 
 If it is not contested in Illinois, the fees are about $25.00 or 
 $26.00, as a general rule, with the contribution to the indemn- 
 ity fund added, $1.00 for each $1,000.00 in value. In litigated 
 cases costs sometimes run quite high. In one case it was held 
 that an allowance of $100 to each of two examiners is not an 
 abuse of the discretion conferred on the court by a Torrens 
 act, where the report of the first examiner was set aside and 
 where the record in the case consisted of seven hundred and 
 ten pages. Stenographers' fees, witness fees, fees for certified 
 copies, etc., etc., were paid also.** 
 
 § 245. Fees in Dealing with Registered Land in this Coun- 
 try. The price charged for a service is one thing, and the cost 
 of the service is quite another thing. A consideration of the 
 schedules of fees for dealing with registered land in this coun- 
 try will show clearly that they are not formed with a view to 
 the relation between the cost of the service and the price 
 charged. The fee for each service is fixed quite arbitrarily, 
 and under one schedule it is one sum and under another it is 
 another sum. Doubtless the lack of basis in these charges will 
 be overcome ultimately. Space, light, heat, ofSce furniture 
 and office equipment are furnished usually at public expense 
 from general taxes and do not appear as expenses of the sys- 
 tem. An item of expense which does not appear directly on 
 the face of the schedules is the cost of certified copies of all 
 court appointments, orders, decrees and judgments, which 
 must be procured and filed with registrars. Many suits af- 
 fecting lands must be abstracted to show the cause of action, 
 the service of process, the proper parties to the action, the 
 answers of defendants, as well as the terms of the decree or 
 judgment of the court. "When the system is in its early stages 
 the original files in cases may be used by examiners of title, 
 but after the system has become firmly established and many 
 lots of land have been registered, general rules as to abstracts 
 of suits will be made. This may become necessary in order to 
 protect the indemnity fund from errors made by the registrar 
 
 48 Amendment to Illinois act, 40 "Wella v. Messenger, 249 HI 
 
 1907. 72; 94 N. E. Eep. 87 (1911). 
 
 368 
 
EXPOSITION 
 in registering titles under court proceedings. When the whole 
 plan of dealing with the register is fully considered, the ex- 
 pense of dealing with registered land is not as light as it may 
 seem at first impression, but while the cost of such dealing is 
 apt to be under-estimated in a general view of the subject, it 
 cannot be said that the system is expensive. In establishing 
 any new public project, fees are made small, but afterward 
 they are raised in order to meet the requirements of the ofSce. 
 In some states a new contribution must be made to the indem- 
 nity fund, when registered land descends to heirs. 
 
 § 246. Necessity for Services of a Lawyer. One of the orig- 
 inal objects of the Torrens system was to establish a register, 
 within the four corners of which should be contained every- 
 thing relating to the title in question, and to have noted on the 
 register such entries and memoranda as any intelligent man 
 could understand, sO that the system could be carried into 
 practical effect without the intervention of persons skilled in 
 the law.^" "When the Torrens acts first were passed in Aus- 
 tralia and England, many lawyers in those countries were hos- 
 tile to them and opposed the system as unworkable. Their crit- 
 icisms were the basis for many amendments to the statutes. 
 When the system finally was made consistent and workable, it 
 was acknowledged that their objections to the original acts 
 were well founded. No one now blames the solicitors in Eng- 
 land who opposed registration under Lord Westbury's act of 
 1862, or Lord Cairn's act of 1875, because it is admitted that 
 the workings under those acts were very defective and unsat- 
 isfactory, and that they did not possess such qualities as en- 
 titled them to the support of practical lawyers.^^ The accus- 
 ations of self interest, which were made against solicitors a 
 few years ago, are now considered ' ' a calumny invented by the 
 authors and abettors of a bad piece of legislation, with a view 
 to find a plausible excuse for its failure. "^^ jn Australia it 
 was supposed at first that the Torrens acts did away with all 
 trusts, conditions and limitations in lands, and that they swept 
 
 50 Fels V. Knowles, 26 N. Z. L. E. tration of Title to Land, Brickdale, 
 604 (1906). pp. 55, 56. 
 
 51 Transfer of Land by Regis- 52 Registration of Title to Land, 
 tration of Title, Dill, p. 32. Regis- Briekdale, p. 54. 
 
 369 
 
THE TOEEBNS SYSTEM 
 
 away all the laws which had governed lands for generations, 
 leaving nothing to be dealt with except absolute and uncon- 
 ditional titles under an arbitrary, radical and unlmoAvn set of 
 formulary laws. Lawyers expressed themselves pointedly 
 against the wisdom and practicability of such an experiment 
 and prophesied dismal failure for it. But the courts held 
 that the system applied to methods of conveyancing, and that 
 it did not alter greatly the laws with respect to titles. Law- 
 yers saw that as a system ol conveyancing it was a great 
 improvement on the old English methods which had come 
 down to them as a heritage, and vigorous opposition gradually 
 ceased. The opposition of lawyers to the adoption of the Tor- 
 rens system in England and Australasia has not been under- 
 stood, properly or generally, and whenever it is proposed to 
 adopt that system in any state, it is assumed that lawyers are 
 hostile to it, and that the reason for their hostility is that 
 their services are not required under it. Men in any profes- 
 sion or business are opposed to radical changes which they do 
 not understand, but it is a mistake to suppose that the services 
 of lawyers are not required in dealing with registered land. 
 They are the conveyancers of land in this country, and the 
 same forms of instruments are used under the Torrens and the 
 recording systems. The register shows entries of mortgages, 
 leases, judgments, attachments, conditions, limitations and 
 restrictions, but an examination must be made into the details 
 of all these matters. It is a well established custom every- 
 where that vendors and purchasers, mortgagees and chargees 
 employ lawyers to look after their interests in land, whether 
 it is registered or unregistered. Abstract makers know very 
 well that they do not furnish abstracts of title for every trans- 
 action made in real estate. Friends, relatives and neighbors 
 deal with each other without an inspection of the records. 
 Occasional dealings may be made under the Torrens system 
 without the services of a lawyer, especially when the sys- 
 tem is new in a community, and when the officers and clerks 
 in the registry office are anxious to render all the service 
 possible to patrons of the system. Tax and special assess- 
 ment searches on the property in question may be furnish- 
 ed by such officers and clerks without charge, and advice 
 
 370 
 
EXPOSITION 
 
 and assistance may be given freely by them to the parties. 
 This custom arises naturally in the pioneer days of the sys- 
 tem, but ceases just as naturally when the system is carry- 
 ing a large part of the lands in a community. Whatever the 
 fact may be in other places, in Australia and in this country, 
 lawyers obtain the same fees for superintending the transfer 
 or mortgaging of land, whether registered or unregistered. 
 They charge for procuring and filing certified copies of 
 proceedings of courts, just as they do for attending the 
 hearings of motions in court. So long as owners of real prop- 
 erty have freedom to contract concerning their titles, it will be 
 necessary to employ men of special learning in the law to su- 
 perintend the conveyance of land, and any system which at- 
 tempts to make every man his own lawyer will bring loss to 
 many of those who use it. Ever since civilization brought 
 about the enactment of laws, men have dreamed about the 
 abolition of the lawyer from the affairs of men and states, 
 but economically and practically he has been found to be 
 necessary. If we are to make dealings with titles so simple 
 that any person of fair intelligence and education may deal 
 with them without legal advice and direction, we must not 
 found them on such records and registers of title as we now 
 use. We must not expect laymen to understand acts of legis- 
 latures, containing one hundred or more sections, and dealing 
 with technical principles of conveying land. Knowledge and 
 experience are necessary still in dealing with land, whether 
 registered or unregistered. 
 
 § 247. In Berlin, a notary is usually employed in every 
 transaction. In the towns and villages of Prussia, many per- 
 sons with the assistance of the clerks in the offices, attend to 
 their own transactions, which are usually very small, though 
 a notary is usually called in.^^ Where the notary has entire 
 charge of the conduct of the proceedings, his fee, which is 
 regulated by law, is the same as the land registry fees ; and in 
 order to find the total cost, including notary's fees, the sched- 
 ule of fees in Prussia, given on a preceding page, only needs 
 to be doubled. In Germany, the vendor pays his lawyer for 
 
 53 Brickdale's Eeports on the in Germany and Austria-Hungary, 
 Systems of Registration of Title p. 25. 
 
 371 
 
THE TOEEENS SYSTEM 
 
 attending to the business for him, and the purchaser pays his 
 lawyer and the registry fee. The following is the schedule of 
 such charges in Prussia. The seller pays the fees in the 
 third column, and the purchaser pays the fees in the fourth 
 column. These fees are to be paid in every transfer of land. 
 The English values are used.^* 
 
 Professional Help When Purchaser's 
 Value. Registry Fees. Required by Seller. Costs. 
 
 £ £ s. d. £ s. d. £ s. d. 
 
 500 18 18 1 16 
 
 1,000 110 110 300 
 
 10,000 7 10 7 10 15 
 
 50,000 31 10 31 10 63 
 
 100,000 61 10 61 10 123 
 
 Brickdale says: "In Austria and Hungary there is no fixed 
 tariff of professional charges, but I was told by lawyers in good 
 practice in both countries that their charges are not at all 
 serious. In Vienna about £1 is a very usual fee for the pur- 
 chaser's lawyer for investigating the register, drawing the 
 deed and attending to completion and registration. Ten 
 pounds is a high fee, even in large matters, and with wealthy 
 clients. * * * One of the judges with whom I conversed 
 rather complained of a case of his own where the value had 
 been 50,000 fl., about £4,176, in which the professional charges 
 had amounted to 80 fl.— £6 12s. 6d., a side."5B 
 
 In a recent report it is said:^^ ""We are satisfied that 
 the claim sometimes made for registration of title, that the 
 layman can in the general case dispense altogether with ex- 
 ternal aid, has been much exaggerated. * * * Mr. Pol- 
 lock of the London Registry cited some striking reports from 
 various Colonial governors in support of his statement that 
 'in the Colonies a great deal of business is done without 
 the intervention of solicitors.' But Mr. Hogg, the only witness 
 with personal experience of Australia, tells us that it is not 
 so there — that even business men in the capitals where the reg- 
 istry is, bankers, loan and investment companies, etc., do not do 
 their own work without professional assistance ; and Dr. Mur- 
 
 B4 Brickdale 's Eeports, p. 22. of Parliament by command of His 
 
 55 Brickdale 's Eeports, pp. 3, 25. Majesty, 1910, in which a system 
 
 56 Eeports by the Eoyal Commis- of registration of title was reeom- 
 sion on Eegistration of Title in mended for Scotland, p. 12. 
 Scotland, presented to both houses 
 
 372 
 
EXPOSITION 
 
 ray says, 'In the hundreds of cases in New Zealand and Aus- 
 tralia which have passed through my hands, a solicitor there 
 has always been employed,' — and he speaks of agents having 
 to examine the filed deeds at the registry as a matter within 
 his personal knowledge. It is not possible to say to what 
 extent agents would still be employed in such matters if reg- 
 istration of title were established in this country (Scotland). 
 "We think it probable that upon grounds of public conven- 
 ience the business of land transfer would still be a specialized 
 matter in the hands of a class who made it their business. But 
 we cannot doubt that if a register of title were once estab- 
 lished which showed conclusively and distinctly all that now 
 forms the subject of solicitors' and searchers' investigation, 
 the searcher's labour would be abolished, and that of the so- 
 licitor would be greatly diminished, and the expense corres- 
 pondingly reduced. In short, we think that the cost of work- 
 ing the new system, once it were established, would be less 
 than the cost of the present one as it now stands, in the case of 
 simple transmissions where the subject changes hands without 
 added condition or restriction." Brickdale says: "In Eng- 
 land professional help on both sides is practically a necessity 
 always. "^^ This necessity will arise everywhere until laymen 
 know as much as the lawyers know about the one hundred or 
 more sections of the Torrens acts and the judicial decisions 
 rendered under them, and about leases, mortgages, conditions, 
 restrictions, limitations and forfeitures which must be examin- 
 ed off the register. 
 
 In general ad valorem scales of solicitor's costs are not in 
 operation in Australasia.^* In South Australia and Fiji special 
 ad valorem scales for transactions with land on the Torrens 
 register have been prescribed. The following table shows 
 the expense of carrying out some ordinary transactions with 
 land on the Torrens register in Australasia -.^^ 
 
 57 Foot note on page 22 of his report. 
 
 58 See Hogg, Australian Torrens System, pp. 414, 703. 
 
 59 See page 213 of Minutes of Evidence before Eoyal Commission on 
 Eegistration of Title in Scotland, evidence of James Edward Hogg, the 
 author, as to cost of registration in Australasia. 
 
 373 
 
THE TOBBENS SYSTEM 
 
 Original Regis- 
 tration 
 New South 
 "Wales 
 
 Registry Pees 
 
 Incidental Ex- 
 penses 
 
 Solicitor's 
 Costs 
 
 ^Value of land 
 £1000. Title 
 simple, no com- 
 plication, title 
 deeds present- 
 ed. 
 
 Assurance 
 fund £ s d 
 2 18 
 Certificate 
 of title 
 
 10 
 Advertise- 
 ments 110 
 
 £4118 
 In some states 
 as in Tasman- 
 ia and Victor- 
 ia additional 
 advalorem fee 
 of from 5s to 
 £5 is payable. 
 
 Stamp duty 
 £ s d 
 10 
 
 Map and plan 
 
 prepared by 
 
 surveyor 
 
 2 2 
 
 £3 2 
 
 £ s d 
 Say 4 4 
 
 £4 4 
 Incidental 
 expenses 
 
 3 2 
 Registry 
 fees 4 11 8 
 
 Total ex- 
 penses 
 
 £11 17 8 
 
 Nature of Trans- 
 action 
 
 Registry Pees Solicitors' Costs 
 
 ^Transfer of land 
 on sale for £500; 
 vendor registered 
 as proprietor, land 
 in one certificate. 
 No plan required. 
 
 ^Mortgage for £500. 
 
 Searches and 
 registering 
 transfer 
 
 As above 
 
 £ s d 
 014 
 
 £ s d 
 
 014 
 
 £ s d 
 
 Say 2 2 
 
 £ 2 2 2 
 
 Registry fees 14 
 
 Total £ 216 
 
 £ s d 
 
 Say 3 3 
 
 Registry fees 14 
 
 £317 
 
 ^Transfer on sale 
 for £20,000 ; pur- 
 chaser paying his 
 own solicitor; land 
 purchased consist- 
 ing of portions of 
 land comprised in 
 twelve certificates 
 of title; one new 
 certificate to com- 
 prise land purchas- 
 ed. 
 
 £ s d 
 Searches 10 
 
 Registering 
 
 transfer 10 
 Cancellation 
 of twelve 
 certificates 
 
 2 8 
 New certifi- 
 cate 10 
 Extra dia- 
 grams 5 
 £413 
 
 374 
 
 £ s d 
 Say 15 15 
 
 Registry fees 4 13 
 Map by sur- 
 veyor 10 10 
 
 Total 
 
 3018 
 
EXPOSITION 
 
 Vendor pays his 
 own solicitor, say 
 £ s d 
 5 5 
 
 Mortgage by pur- 
 chaser for £12,000 
 as above, mortgag- 
 ee's expenses paid 
 by purchaser to 
 mortgagee 's solici- 
 tor. 
 
 Vendor pays for 
 one certificate 
 for unsold 
 land 
 
 £ s 
 1 5 
 
 Registering 
 
 mortgage 10 
 Twelve extra 
 
 certificates 
 
 14 
 
 £114 
 
 £ s d 
 Say 15 15 
 
 Registry fees 1 14 
 
 £16 19 
 
 Cost of Original Registration in England; 
 
 Value of 
 Property 
 
 Registry 
 Fees 
 
 Solicitor's Fees. 
 
 £100 
 
 12s 
 
 A solicitor is usually em- 
 
 £300 
 
 £1 
 
 ployed. The fees vary accord- 
 
 £1,000 
 
 £3 
 
 ing to the work done. As a 
 
 £3,000 
 
 £7 
 
 rule they would be from £2 2s 
 
 £10,000 
 
 £14 
 
 to £5, 5s. In very small cases 
 
 £20,000 
 
 £19 
 
 they might be less. 
 
 Cost of Transfer of Registered Land in England. 
 
 Vendor's so- 
 licitor where 
 Value of Registry no title out- Purchaser's 
 
 Property Fees side the regis- Solicitor 
 
 ter is investi- 
 gated 
 
 
 
 s d 
 
 (50 i • 
 
 Same scale 
 
 £100 or less 
 
 Is 6d for 
 
 10 6 
 
 fH o g 
 
 and r e g u 1 a- 
 
 
 each £25 in 
 value 
 
 £1. 116 
 £5. 5 
 
 
 tions as ven- 
 dor's solicitor. 
 
 £300 
 
 18s 
 
 £6. 6 
 
 ■^^-^ 
 
 ' 
 
 £1,000 
 
 £3 
 
 £10. 10 
 
 
 
 £3,000 
 £10,000 
 £20,000 
 
 £9 
 £30 
 £60 
 
 £15. 15 
 
 "Where title oui 
 ister is investi 
 itor's charges a 
 
 
 60 These tables were made by Hugh Pollock, Esq., Deputy Registrar in 
 London. In Ms testimony before the Royal Commission on the Land 
 
 375 
 
THE TOEEENS SYSTEM 
 
 Transfer Acts, Answers 2159 — 2162 and the discussion which follows, 
 he said that vendors and purchasers usually employ solicitors, but that 
 it is not necessary for them to do so on all occasions. He now writes "I 
 have now to modify what I then said as the new land taxation, im- 
 posed by the Finance (1909-1910) Act 1910, makes it more dificult for 
 parties to act without solicitors." Letter dated Nov. 29, 1911. 
 
 Cost of Registering a Mortgage on Registered Land in England. 
 
 . . , ; i : 
 
 A Solicitor is us- A Solicitor is us- 
 
 Amount of Registry ually employed ually employed 
 
 Loan Fees by the lender, by the borrower. 
 
 His fees are: His fees are: 
 
 £100 or less 
 
 Is. 6d. for 
 
 
 
 
 each £25 of 
 
 For £100 to £300 
 
 For £100 to £300 
 
 
 loan 
 
 fees £3.3 to £5.5 
 
 fee £2. 2s 
 
 £300 
 
 18s. 
 
 
 
 £1,000 
 
 £3 
 
 £5. 5s 
 
 £5. 5s 
 
 £3,000 
 
 £9 
 
 £6. 6s 
 
 £6. 6s 
 
 £10,000 
 
 £30 
 
 £10. 10s 
 
 £10. 10s 
 
 This table was also made by Mr. Pollock. In regard to the solicitors' 
 fees he says in his letter of Nov. 29, 1911: " In course of time, when 
 the system is more widely extended and better understood, solicitors 
 will not be employed so generally. Private lenders probably will almost 
 invariably have to employ them, and I anticipate that the result will be 
 that most of the lending on mortgage will be by companies which will 
 have a staff competent to carry through the whole transaction, without 
 outside legal assistance. The new land taxation will not interfere with 
 this as it will with sales." 
 
 § 248. Pees For Title Insurance. In order to compare the 
 cost of conveyancing under the Torrens system in England 
 with the cost of title insurance by private companies in this 
 country, the fees charged in Chicago are given below. It 
 must be understood that in Chicago the schedule of fees for 
 title insurance covers the attorney's fee for examining the 
 title and also the charge for ordinary services in examining 
 and abstracting the title shown by the records. "Where an 
 extraordinary amount of abstract work is necessary in order 
 to present the record title, as, for instance, where some court 
 proceeding must be abstracted, or where the abstract of title 
 has not been brought down for some years and many inter- 
 vening dealings with the land are to be abstracted, an extra 
 charge is made to cover such expense; but in all ordinary 
 cases the schedule of premiums for the first policies issued on 
 titles is as follows : 
 
 376 
 
EXPOSITION 
 
 Over 
 
 Value of Property. 
 
 500 or less 
 
 500 to include 
 
 600 " 
 
 700 " 
 
 800 " 
 
 900 " 
 
 1,000 " 
 
 2,000 " 
 
 3,000 " 
 
 4,000" 
 
 5,000 " 
 
 6,000 " 
 
 7,000 " 
 
 8,000 " 
 
 9,000 " 
 
 15,000 
 
 20,000 
 
 25,000 
 
 50,000 
 
 100,000 
 
 ^ 600- 
 
 700- 
 
 800- 
 
 900_ 
 
 1,000- 
 
 2,000- 
 
 3,000- 
 
 4,000- 
 
 5,000- 
 
 6,000- 
 
 7,000- 
 
 8,000- 
 
 9,000- 
 
 10,000- 
 
 Mortgage 
 Policies. 
 
 — $ 15 
 
 16 
 17 
 18 
 19 
 20 
 24 
 28 
 32 
 35 
 38 
 41 
 44 
 47 
 50 
 60 
 70 
 90 
 
 — 130 
 
 — 230 
 
 Owners ' 
 
 Policies. 
 
 $ 20 
 
 22 
 
 24 
 
 26 
 
 28 
 
 30 
 
 35 
 
 40 
 
 45 
 
 50 
 
 55 
 
 60 
 
 65 
 
 70 
 
 75 
 
 90 
 
 105 
 
 120 
 
 195 
 
 345 
 
 The charge for each additional thousand dollars, or fraction 
 thereof, over and above $10,000, is $2.50 for mortgage policies 
 and $3 for owners ' policies. A discount of 10 per cent is given 
 for prompt payment on all bills for title insurance. On a sale 
 of land, the title to which has not been insured, it is customary 
 for the purchaser to stipulate as a part of the contract that 
 the vendor shall procure a fee or owners' policy insuring the 
 title. The premiums for such insurance are set forth in the 
 third column of the above table. It occasionally happens that 
 an owner, who is thinking of selling a lot or piece of land, 
 procures a policy in order to be assured that he can deal with 
 the land quickly when he has contracted to sell. An owner, 
 having a fee. or owners' policy, may give a mortgage on the 
 land, and for $6.50 procure a mortgage policy for the same, or 
 any less amount. This charge of $6.50 is a minimum fee, 
 and applies when the mortgage is the only instrument which 
 appears on the record of the title after the date of the fee 
 policy. A charge of $1.50 is made for abstracting and passing 
 on each additional intervening instrument shown in the ab- 
 stract after that date. A mortgage policy guarantees to the 
 
 377 
 
TJfE TOEEENH SYSTEM 
 
 owner of the indebtedness that the mortgage has bc(!)i (ixcuutod 
 by the proper person in the proper manner, and that thcr(j 
 are no defects in or incumbrances on the titlo prior to his 
 mortgage, except such as are set forth in the policy. This 
 policy is in full force until the debt is paid. When a inoiLKaxc; 
 policy is thus procured under an owners' policy, the owiKtrs' 
 policy is endorsed with a provision that it shall be rv.JiuMHl in 
 the amount at any time due on the mortgage, and that wh(!n 
 the mortgage is fully paid it shall bo in I'orcr; for tdc; full 
 original amount named in it. Where the owimr of land trans- 
 fers it and surrenders his title policy, and nothing aj)p(!ars on 
 the records except his deed of conveyance, the purchaser for a 
 fee of $6.50 may obtain a policy in his own nami; for thn hiihh; 
 amount as the one surrendered. A charge of $1.50 iH inadit 
 for each additional instrument which iH discloH(nl by the rec- 
 ords. If the purchaser is satisfied to take the policy sliowiriK 
 the title of his vendor at its date, it may bo assigned to him fiy 
 his vendor without any expense whatever. Most jjerHons who 
 make loans on real estate, or who buy loans from real estate 
 agents, require with each loan a mortgage policy of title insur- 
 ance, in order that they may be secured against any defective 
 title, and against any expense in case of litigation affecting 
 the title. An owner who is mortgaging his land, and who has 
 no title policy covering it, may take an owners' poliey in his 
 own name for the value of the land, but subject to th(! mort- 
 gage. For this he pays tiie appropriate fee indicated in the 
 third column of the last table. For an additional fee of $2..')0 
 he may at the same time procure a mortgagee; 's policy for the 
 amount of the mortgage, and his owners' policy will be en- 
 dorsed as just indicated. He may, however, procure for the 
 owner of the indebtedness a mortgage policy only, and in that 
 case he pays the appropriate fee set out in the seeond eolumn 
 of the last table. While this mortgage poliey has no fore(! after 
 the debt described in it is paid, the owner of the land, who 
 procured it, is given credit, in any further insurance which iie 
 may take out on the title, for one-half of the first premium 
 paid by him, and any purchaser of the land is given credit for 
 one-fourth of that j)remium. This credit is j^iven for the 
 reason that the insuring company has examined the title down 
 
 378 
 
EXPOSITION 
 to the date of the mortgage policy, and has no occasion to 
 make any examination pf it prior to that date. 
 
 § 249. From the tables set out in the two preceding sections 
 it is possible to compare the cost of original registration with 
 original title insurance, and to compare the cost of transferring 
 registered land with the cost of transferring land under a title 
 insurance policy. Since the object of title registration is to 
 deal with registered land, let us figure on the cost of ten trans- 
 fers. 
 
 In Australia. 
 
 Value 
 
 Original 
 Registra- 
 tion 
 
 Ten Trans- 
 fers 
 
 Total 
 
 $5,000 
 
 $52.50 
 excluding 
 stamp duty 
 
 $140.00 
 including 
 solicitor's 
 fees 
 
 In England. 
 
 Value 
 
 Original 
 Registra- 
 tion 
 
 Ten Trans- 
 fers 
 
 Total 
 
 $5,000 
 
 $25.00 
 including 
 minimum 
 solicitors ' 
 fees. 
 
 $150.00 
 excluding 
 all solici- 
 tor's fees. 
 
 In Chicago. 
 
 Value 
 
 Original 
 Title Insur- 
 ance fees 
 
 Ten Trans- 
 fers 
 
 Recording 
 and Convey- 
 ancing 
 
 Total 
 
 $5,000 
 
 $10.00 for 
 cording ten 
 deeds and 
 $20.00 for 
 preparing 
 ten deeds 
 
 $150.00 
 Less 10 per 
 cent for 
 cash. 
 
 If solicitors' fees are to be computed, according to the 
 statements of all the foreign authorities on the subject, title 
 insurance, as carried on in this country, is much the cheapest 
 method of dealing with land. 
 
 379 
 
THE TOEEENS SYSTEM 
 
 § 250. Concerning Simplicity, Security, Rapidity and Cost. 
 
 The cost of conveyancing was onerous in England and Aus- 
 tralasia under the old system of conveyancing, and the repu- 
 tation for cheapness, which the Torrens system has acquired, 
 was earned principally in those countries. Nevertheless, it is 
 undoubtedly true that this system is cheaper in the long run 
 than the system of procuring an abstract of title to land and 
 having it examined by a lawyer on each dealing with the land. 
 In small communities the latter system is still inexpensive, but 
 in large communities it has become expensive and unscientific 
 enough to attract attention. It may be said vsdth confidence 
 that neither the Torrens system nor the recording system is so 
 complex, insecure, slow or costly as to depreciate the natural 
 value of land. Each system possesses, perhaps with some vary- 
 ing degrees, all the necessary elements of a practical and suc- 
 cessful method of conveying and dealing with land. In the 
 present state of our constitutional law, the Torrens system in 
 this country can never produce what it purports to effect, 
 namely, a conclusive certificate of an indefeasible title in the 
 registered owner, and can never be made so simple and secure 
 as the foreign systems. The natural and logical effect of our 
 laws is the development of title insurance, a guaranteed certifi- 
 cate of title, and not the development of a certificate of 
 ownership of an indefeasible title to land, issued by the state. 
 Such is the opinion of many thoughtful persons who are equip- 
 ped to judge of such matters. But the progress of the Torrens 
 system in this country is not to be impeded by mere adverse 
 opinion as to its adaptability to our laws. A large part of the 
 people iu several states desire to have it tried, and the trial is 
 now on. It is useless for its advocates to gain little advantages 
 for it from state legislatures, and it is equally useless for its 
 opponents to throw obstacles in its way. This trial is to be a 
 fair one, it is to be conducted patiently and slowly, and it will 
 not be concluded until the success or failure of the system is 
 demonstrated. 
 
 380 
 
APPENDIX. 
 
 Original Torrens Act. 
 
 Anno Vicesimo Primo. 
 
 VICTORIES RBGIN^. 
 
 South Australia Act No. 15. 
 
 An Act to simplify the Laws relating to the transfer and 
 encumbrance of freehold and other interests in Land. 
 
 Assented to, 27th January, 1858. 
 
 WHEREAS the inhabitants of the Province of South Aus- 
 tralia are subjected to losses, heavy costs, and much per- 
 plexity, by reason that the laws relating to the transfer and 
 encumbrance of freehold and other interests in land are com- 
 plex, cumbrous, and unsuited to the requirements of the said 
 inhabitants, it is therefore expedient to amend the said laws — 
 Be it Enacted, by the Governor-in-Chief, of the said Province, 
 with the advice and consent of the Legislative Council and 
 House of Assembly of the said Province, in this present Parlia- 
 ment assembled, as follows: 
 
 1. All Laws, Statutes, Acts, Ordinances, rules, regulations, 
 and practice whatsoever, relating to freehold and other inter- 
 ests in land, so far as inconsistent with the provisions of this 
 Act' are hereby repealed so far as regards their application to 
 land under the provisions of this Act, or the bringing of land 
 under the operation of this Act. 
 
 2. This Act may be cited for all purposes as the "Real Prop- 
 erty Act." 
 
 3. In the construction, and for the purposes of this Act, and 
 in all instruments purporting to be made or executed there- 
 under (if not inconsistent with the context and subject mat- 
 ter), the following terms shall have the respective meanings 
 hereinafter assigned to them, that is to say — 
 
 The word "Land" shall extend to and include messuages, 
 tenements, and hereditaments, corporeal and incorporeal, of 
 every kind and description, (whether of a greater or less de- 
 
 381 
 
APPENDIX 
 
 scription than life estates, and whether at law or in equity), 
 together with all paths, passages, ways, waters, water-courses, 
 liberties, privileges, easements, plantations, gardens, mines, 
 minerals, and quarries, and all trees and timber thereon or 
 thereunder, lying or being, unless the same are specially ex- 
 cepted : 
 
 "Grant" shall mean the land grant of any land of the Crown 
 by any Resident Commissioner or Governor of the said Prov- 
 ince, to any person or persons : 
 
 "Proprietor" shall mean any person seised or possessed of 
 any estate at law or in equity, in possession, in futurity, or ex- 
 pectancy, whether a life estate, or of a greater or less descrip- 
 tion than a life estate, in any land. 
 
 "Transfer" shall mean the execution of every instrument, 
 and the performance of every formality, including registration, 
 required by this Act, to give validity to the passing, either of 
 the whole of the proprietor's interest in land, or of any less 
 estate therein: 
 
 "Memorandum of Sale" shall mean the instrument execut- 
 ed by the person having estate or interest in land under the 
 operation of this Act, for the purpose of transferring such 
 estate and interest in form of the schedule hereto annexed, 
 marked B : 
 
 "Transmission" shall mean the acquirement of title to or 
 fnterest in lands, consequent on the will, intestacy, bankruptcy, 
 insolvency, or marriage of a proprietor: 
 
 ' ' Certificate of Title ' ' shall mean the instrument executed by 
 the Registrar-General, in form A of the Schedule hereto annex- 
 ed, duplicate of which constitutes a separate page in the regis- 
 ter book, vesting the fee simple, or any less estate (as the ease 
 may be), in land brought under the operation of this Act: 
 
 "Mortgage" shall be applicable to every charge on, or inter- 
 est in land, created merely for securing a loan : 
 
 "Mortgagor" shall mean the borrower of money on the 
 security of any estate or interest in land under the operation 
 of this Act : 
 
 ' ' Mortgagee ' ' shall mean the lender of money upon the secur- 
 ity of any estate or interest in land under the operation of this 
 Act: 
 
 "Bill of Mortgage" shall mean the instrument in form of 
 the Schedule hereto annexed, marked D, required under this 
 Act to be executed by the intending mortgagor, with a view to 
 creating such mortgage as last aforesaid : 
 
 "Encumbrance" and "Assignment" shall mean the execu- 
 tion by a person of every necessary or suitable instrument and 
 the performance of every formality, including registration, re- 
 quired by this Act, for assigning, surrendering, or otherwise 
 
 382 
 
ORIGINAL TOERENS ACT 
 
 transferring land of which such person is possessed, either for 
 the whole estate of the person so possessed, or for any less 
 estate, in order to render such land available for securing 
 the payment of any annuity or dower, or for the payment of 
 any sum of money either absolutely or subject to conditions, 
 restrictions, or contingencies; including also the execution, by 
 the Registrar-General, of every instrument, and the perform- 
 ance by him of every formality required by this Act to give 
 validity to such encumbrance or assignment : 
 
 "Encumbrancer" shall mean the person, not being a mort- 
 gagor, who shall have assigned any estate or interest in land 
 under the operation of this Act for the purpose of securing any 
 annuity, dower, or sum of money : 
 
 "Bncumbrancee" shall mean the person, not being a mort- 
 gagee, to whom or for whose benefit any estate or interest in 
 land under the provisions of this Act shall have been encum- 
 bered or assigned : 
 
 "Bill of Encumbrance" or "Bill of Trust" shall mean the 
 instrument creating such encumbrance or assignment executed 
 by the person having estate or interest in land under the oper- 
 ation of this Act in form of one or other of the Schedules here- 
 to annexed, marked respectively B or F : 
 
 "Estate in Fee Simple" shall mean the absolute property in 
 land, such as is originally vested by a " Grant ' ' in the meaning 
 of this Act : 
 
 "Registration Abstract" shall mean the instrument under 
 the hand and seal of the Registrar-General, executed in form 
 of the Schedule hereto marked H, or in words to the like effect, 
 available in lieu of the Register Book, for the purpose of enabl- 
 ing a person to mortgage or to sell, in places without the liinits 
 of the said Province, land under the operation of this Act 
 whereof he may be seised as proprietor : 
 
 "Lunatic" shall mean any person who shall have been found 
 to be a lunatic upon inquiry by the Supreme Court, or by any 
 Judge thereof, or upon a Commission of Inquiry issuing out of 
 the Supreme Court in the nature of a writ de lunatico in- 
 quirendo : 
 
 The expression "Person of Unsound Mind" shall mean any 
 person not an infant, who, not having been found to be a luna- 
 tic, shall be incapable, from infirmity of mind, to manage his 
 own affairs : 
 
 "Consular Officer" shall include Consul-General, Consul, 
 and Vice-Consul, and any person for the time being discharg- 
 ing the duties of Consul-General, Consul, or Viee-Consul : 
 
 "Registrar-General" shall mean the Registrar-General or 
 other officer duly authorized or appointed to carry out the pro- 
 
 383 
 
APPENDIX 
 
 visions of this Act, or any person duly authorized as Deputy of 
 such Registrar-General, or to act on his behalf in respect of 
 this Act: 
 
 "Instrument" shall mean and include any land grant, cer- 
 tificate of title, or other document in writing, relating to the 
 transfer, encumbrance, or other dealing with land : 
 
 "Register Book" shall mean the book hereinafter directed 
 to be kept for the purpose of recording therein, in order, grants 
 and certificates of titles issued, and the execution of instru- 
 ments affecting land under the operation of this Act : 
 
 "Person" used and referred to in the masculine gender, 
 shall include a female as well as a male, and shall include a 
 body corporate: 
 
 The naming of any person as proprietor, vendor, mortgagor, 
 mortgagee, encumbrancer, encumbrancee, lessor or lessee, or 
 as trustee, or as seised of or having any estate or interest in 
 any land, shall be deemed to include the heirs, executors, ad- 
 ministrators, and assigns of such person : 
 
 And, generally, unless the contrary shall appear from the 
 contex, every word importing the singular number only shall 
 extend to several persons or things, and every word importing 
 the plural number shall apply to one person or thing, and every 
 word importing the masculine gender only shall extend to a 
 female. 
 
 4. The department of the Registrar-General shall be the de- 
 partment to undertake the general superintendence of matters 
 relating to the transfer, transmission, sale, mortgage, and en- 
 cumbrancing of all land under the operation of this Act, and 
 the releasing of such land from any mortgage or encumbrance 
 and shall be authorized to carry into execution the provisions 
 of this Act, and of any Acts to amend or extend the provisions 
 of this Act in force for the time being. 
 
 5. AH documents whether purporting to be issued or writ- 
 ten by or under the directions of the Registrar-General, and 
 purporting either to be sealed with his seal or signed by him, or 
 by one of his deputies shall be received in evidence, and 
 shall be deemed to be issued or written by or under the direc- 
 tion of the Registrar-General without further proof unless the 
 contrary be shown. 
 
 6. The Registrar-General may, with the consent of the Gov- 
 ernor, for the purposes of carrying into effect the provisions 
 contained in this Act, give such instructions as to the manner of 
 making entries in the register book, as to the execution and 
 attestation of instruments as to any evidence to be required 
 for indentifying any person, and generally as to any act or 
 thing to be done in pursuance of this Act, as he may think fit. 
 
 384 
 
ORIGINAL TOERENS ACT 
 
 7. The Eegistrar-General may, with the consent of the Gov- 
 ernor of the said Province from time to time prepare and sanc- 
 tion forms of the various books, instruments, and papers re- 
 quired by this Act, and may with like sanction from time to 
 time make such alterations therein as he deems requisite ; and 
 shall, before finally issuing or altering any such form, give 
 such public notice thereof as he deems necessary in order to 
 prevent inconvenience ; and shall cause every such form to be 
 sealed with such seal as aforesaid, or marked with some other 
 distinguishing mark, and to be supplied at the General Regis- 
 try Office free of charge, or at such moderate prices as he may 
 from time to time fix, or may license any person to print and 
 sell the same; and every such instrument and paper as afore- 
 said shall be made in the form issued by the Registrar-General, 
 and sanctioned by him as the proper form for the time being ; 
 and every such instrument or paper, if made in a form pur- 
 porting to be a proper form, and to be sealed or marked as 
 aforesaid, shall be taken to be made in the form hereby requir- 
 ed, unless the contrary is proved. 
 
 8. Every person who counterfeits, assists in counterfeiting, 
 or procures to be counterfeited, such seal or other distinguish- 
 ing mark as aforesaid, or who fraudulently alters, assists in 
 fraudulently altering, or procures to be fraudulently altered 
 any form issued by the Registrar-General with the view of 
 evading any of the provisions of this Act or any condition con- 
 tained in such form, shall for each offense be deemed guilty of 
 a misdemeanor, and shall incur a penalty not exceeding One 
 Hundred Pounds ; or may, at the discretion of the Court before 
 whom such case may be tried, be imprisoned for any period 
 not exceeding twelve calendar months ; and every person who, 
 in any case in which a form sanctioned by the Registrar-Gen- 
 eral is by this Act required to be used, uses without reason- 
 able excuse any form not purporting to be so sanctioned, or 
 who prints, sells, or uses any document purporting to be a 
 form so sanctioned knowing the same not to be so sanctioned 
 for the time being, or not to have been prepared and issued by 
 the Registrar-General, shall for each such offense incur a pen- 
 alty not exceeding Ten Pounds. 
 
 9. The Registrar-General may exercise the following powers, 
 that is to say : — 
 
 (1) He may require the proprietor or other person making 
 application to have any land brought under the operation of 
 this Act, or the proprietor, or mortgagee, or other person 
 interested in any land under the operation of this Act, in re- 
 spect of which any transfer, lease, mortgage, or other encum- 
 brance, or any release from any mortgage or encumbrance, 
 
 385 
 
APPENDIX 
 
 is about to be transacted, or in respect of which any trans- 
 mission is about to be registered, or a registration abstract 
 granted under this Act, to produce any land grant, certificate 
 of title, conveyance, bill of sale, mortgage deed, lease, will or 
 any other instrument in his possession or within his control 
 affecting such land or the title thereto : 
 
 (2) He may summon any such proprietor, mortgagee, or 
 other person as aforesaid to appear, and give any explanation 
 respecting suchland, or the instruments affecting the title there- 
 to, and if, upon requisition duly made by the Registrar-Gen- 
 eral, such proprietor, mortgagee, or other person refuses or neg- 
 lects to produce any such instrument, or to allow the same to be 
 inspected, or refuses or neglects to give any explanation which 
 he is hereinbefore required to give, or knowingly misleads or 
 deceives any person hereinbefore authorized to demand any 
 such explanation, he shall for each such offence incur a penalty 
 not exceeding Twenty Pounds; and the Registrar-General, if 
 the instrument or information so withheld appears to him 
 material, shall not be bound to proceed with the bringing of 
 such land under the operation of this Act, or with the regis- 
 tration of such mortgage or sale, or with the issuing of such 
 powers of mortgage or sale as the case may be. 
 
 (3) He may administer oaths, or, in lieu of administering 
 an oath, may require any person examined by him to make 
 and subscribe a declaration of the truth of the statements 
 made by him in his examination. 
 
 10. It shall be lawful for the Governor, with the advice 
 of the Executive Council, by warrant under his hand and the 
 public seal of the said Province, to appoint two persons not 
 being legal practitioners, who, together with the Registrar- 
 General, shall be Commissioners for investigating and dealing 
 with claims for the bringing of land under the provisions of 
 this Act, and from time to time with like advice and in like 
 manner to remove any of such Commissioners so appointed 
 from office, and to appoint another person in his place. 
 
 11. The style of such Commissioners shall be the "Lands 
 Titles Commissioners." The Registrar-General shall receive 
 a reasonable salary. The other Commissioners shall be remun- 
 erated by fees on applications referred to them for bringing 
 lands under the operation of this Act as set forth in the Sched- 
 ule hereto marked T. At meetings of the said Lands Titles 
 Commissioners, two shall form a quorum, and the Registrar- 
 General, if present, shall preside as Chairman. 
 
 12. It shall be lawful for the said Commissioners, subject to 
 the approval of the Governor, to appoint two legal practition- 
 ers, at reasonable salaries, to be their solicitors and permanent 
 
 386 
 
ORIGINAL TOEEENS ACT 
 
 counsel, and also, subject to the like approval, to dismiss and 
 discharge such solicitors and to appoint others in their stead. 
 
 13. All land alienated from the Crown within the said Prov- 
 ince, from and after the first day of July, one thousand eight 
 hundred and fifty-eight, shall be subject to the provisions of 
 this Act. 
 
 14. Land, in the said Province, the grants of which may 
 have been signed prior to the day appointed for this Act to 
 come into operation, (whether such land shall constitute the 
 entire or part only of the land included in any grant,) may, at 
 at the desire of the proprietor, be brought under the operation 
 of this Act in the following manner, that is to say — The Pro- 
 prietor shall deliver to the Registrar-General an application in 
 form_ of the Schedule, hereto annexed, marked I, or in words to 
 the like effect, and shall at the same time deposit with the Reg- 
 istrar-General all instruments in 'his possession or under his 
 control constituting or in any way affecting his title to such 
 land, together with an abstract of title in which he shall set 
 forth and describe every instrument constituting or in any way 
 affecting his title to such land, with the names and, so far 
 as shall be within his knowledge, the addresses of all persons, 
 if any, seised or possessed of any estate or interest in such land 
 at law or in equity, in possession or in futurity, or expectancy, 
 whether a life estate or of a greater or less description than a 
 life estate, and shall make and subscribe a declaration to the 
 truth of such abstract; or if such applicant proprietor be the 
 sole and only person having estate or interest in such land, 
 then he shall make and subscribe a declaration to that effect. 
 
 15. If, upon receipt of such application it shall appear to the 
 satisfaction of the Registrar-General that the applicant pro- 
 prietor is the original grantee of the land in respect to which 
 application is made, and that such land has been granted on or 
 subsequent to the nineteenth day of October, one thousand 
 eight hundred and forty-two, and that no sale, mortgage, or 
 other encumbrance transaction in any way affecting the title to 
 such land has at any time been registered in the said Province, 
 then, and in such case, the Registrar-General shall, once in 
 each of two successive weeks, give public notice by adver- 
 tisement in the South Australian Goverment Gazette, and in, 
 at the least, one newspaper published in the City of Adelaide, 
 in the said Province, that application has been made for the 
 bringing of such land under the operation of this Act, which 
 notice shall be in the form of the Schedule hereto annexed, 
 marked J, or in words to the like effect : and the Registrar-Gen- 
 eral shall likewise cause copy of such notice to be posted in a 
 conspicuous place in his office, and in such other public places 
 as he may deem necessary; and in any such case if the Regis- 
 
 387 
 
APPENDIX 
 
 trar-General shall not, within the space of two calendar months 
 from the date of the latest of such advertisements as herein- 
 before directed to be published, receive any caveat as herein- 
 after described, with respect to such land, it shall be lawful 
 for him by notice to that effect published in the South Aus- 
 tralian Goverment Gazette, to bring such land under the oper- 
 ation of this Act. 
 
 16. If it shall appear to the satisfaction of the Registrar- 
 General that the applicant proprietor is not the original gran- 
 tee of the land included in such application, or that the said 
 land was granted prior to the nineteenth day of October, One 
 thousand eight hundred and forty two, or that any transfer, 
 transmission, mortgage, encumbrance, or beneficial interest, 
 affecting the title to such land has been made, or has been reg- 
 istered in the said Province, or elsewhere, then and in such 
 ease the Registrar-General 'shall refer such application to the 
 Lands Titles Commissioners for their consideration, and if it 
 shall appear to the satisfaction of the said Commissioners that 
 the title to the land included in such application has not been 
 derived by transmission, and that every mortgage, encum- 
 brance, or beneficial interest, affecting the title to the land so 
 included has been released and satisfied, or if any such mort- 
 gage, encumbrance, or interest remains unsatisfied, that the 
 parties interested therein are also parties to such application, 
 then, and in either such case, the said Commissioners shall 
 make and subscribe a warrant addressed to the Registrar-Gen- 
 eral, in form of the Schedule hereto annexed marked K, or in 
 words to the like effect, which warrant shall contain a direction 
 to the Registrar-General to cause notice of such application 
 to be advertised three several times in the South Australian 
 Government Gazette, and in at least one newspaper published 
 in the City of Adelaide, and shall further limit and appoint a 
 time, not less than one month nor more than twelve months 
 from the date of the latest of such advertisements, upon or 
 after the expiration of which, it shall be lawful for the Regis- 
 trar-General, unless he shall in the interval have received a 
 caveat as hereinafter described, to bring such land under the 
 operation of this Act ; but if it shall appear to the satisfaction 
 of the said Commissioners that the title to the land included in 
 such application has been derived by transmission, or that any 
 parties interested in any unsatisfied mortgage or encumbrance 
 affecting the title to such land, or any other party, beneficially 
 interested therein, are not parties to such application, or that 
 the evidence of title set forth by such applicant proprietor is 
 imperfect, it shall be lawful for such Commissioners to direct 
 the Registrar-General to reject such application altogether or, 
 at their discretion, by warrant under their hand, in form of the 
 
 388 
 
ORIGINAL TOERENS ACT 
 
 Schedule hereto annexed marked K, or in words to the like 
 effect, to direct the Registrar-General to cause notice of such 
 application to be published in the South Australian Govern- 
 ment Gazette, and in the London Gazette and in the Official 
 Gazettes of each of the Colonies of New South Wales, Victoria, 
 Tasmania, and New Zealand, or in any one or more of such 
 Gazettes, and the said Commissioners shall in such warrant 
 specify the number of times, and at what intervals, such adver- 
 tisement shall be published in each or any of such Gazettes, 
 and shall also limit and appoint a time, not less than two 
 months nor more than three years from the date of the latest of 
 such advertisements, upon or after the expiration of which, it 
 shall be lawful for the Registrar-General, unless he shall in the 
 interval have received a caveat as hereinafter described, to 
 bring such land under the operation of this Act. 
 
 17. The Registrar-General, upon receipt of any such war- 
 rant as is hereinbefore for either case respectively directed to 
 be issued under the hand of such Commissioners, shall cause 
 notice to be published in such manner as in such warrant may 
 be directed, that application had been made for bringing the 
 land referred to in such warrant under the operation of this 
 Act, and shall also cause copy of such notice to be posted in a' 
 conspicuous place in his office, and in such other public places 
 as he may deem necessary; and the Registrar-General shall 
 likewise forward through the post office copy of such notice, 
 addressed to each former proprietor, mortgagee, or other per- 
 son who may then, or at any previous time, have had or held 
 any legal or equitable title, claim, or encumbrance, to or upon 
 such land, as far as his knowledge of the facts of the case, and 
 of the names and addresses of such persons may enable him, 
 and if the Registrar-General shall not, within the time for that 
 purpose limited and appointed in any such warrant, receive 
 any caveat as hereinafter described, it shall be lawful for him, 
 by notice published in the South Australian Government Ga- 
 zette, to bring the land referred to or described in such war- 
 rant under the operation of this Act. 
 
 18. It shall be lawful for any person having or claiming 
 an interest in any land so advertised as aforesaid, or for the 
 attorney of any person having or claiming interest therein, 
 within the time hereinbefore limited and appointed, or that 
 may by warrant as aforesaid, under the hands of the Lands 
 Titles Commissioners, be for that purpose limited and appoint- 
 ed, to lodge a caveat with the Registrar-General forbidding 
 the bringing of such land under the operation of this Act, 
 which caveat shall be in the form of the Schedule hereto an- 
 nexed, marked L, or as near thereto as circumstances permit, 
 and shall particularize the estate, interest, lien, or chargcj, 
 
 389 
 
APPENDIX 
 
 claimed by the person lodging the same; and if such claim is 
 made under any instruments other than those set forth in the 
 abstract deposited by the applicant proprietor, the person 
 lodging such caveat shall deliver a full and complete abstract 
 of his title, which shall contain the same matters, and be sub- 
 ject to the same regulations as are hereinbefore prescribed for 
 the case of an abstract deposited by the applicant proprietor. 
 
 19. The Registrar-General upon receipt of any such caveat 
 within the time for either case limited as aforesaid, shall notify 
 the same to such applicant proprietor, and shall suspend fur- 
 ther action in the matter, and the lands in respect of .which 
 such caveat may have been lodged shall not be brought under 
 the operation of this Act until such caveat shall have been 
 withdrawn or shall have lapsed from any of the causes herein- 
 after provided, or until a decision shall have been obtained 
 from the Court having jurisdiction in the matter. 
 
 20. After the expiration of three calendar months from the 
 date thereof, every caveat shall be deemed to have lapsed un- 
 less the person by whom or on whose behalf the same was lodg- 
 ed shall, within that time, have taken proceedings to estab- 
 lish his title to the estate, interest, lien, or charge therein 
 specified, and every person who shall fail to show probable 
 cause for lodging such caveat to the satisfaction of the Judge 
 before whom any prosecution may iu such case be instituted 
 shall forfeit and pay a penalty not exceeding One Hundred 
 Pounds. 
 
 21. If, upon the application of any proprietor to have land, 
 of which he is seised, brought under the operation of this Act, 
 the Registrar-General shall refuse so to do, or if such appli- 
 cant proprietor shall be dissatisfied with the direction upon 
 his application, given by the Lands Titles Commissioners as 
 hereinbefore provided it shall be lawful for such applicant pro- 
 prietor to require the Registrar-General to set forth in writ- 
 ing, under his hand, his objections to the title of such appli- 
 cant proprietor or the grounds upon which such direction 
 was given, and such applicant proprietor may, if he think fit, at 
 his own costs, summons such Registrar-General to appear be- 
 fore the Supreme Court to substantiate and uphold his objec- 
 tions to such title, such summons to be issued at the request 
 of such applicant proprietor, or his solicitor, under the hand of 
 a Judge of the said Court, and served upon such Registrar- 
 General six clear days, at least, before the day appointed for 
 the hearing of such objections, and such objections shall be 
 heard by the said Court upon motion; and upon such hear- 
 ing the said Court shall, if any such objections be a ques- 
 tion of fact, direct an issue to be tried to decide such fact; 
 and it shall thereupon be lawful for the said Court to forbid 
 
 390 
 
ORIGINAL TOEEENS ACT 
 
 the bringing of such land under the operation of this Act, or to 
 order that such land may be brought under the same, after 
 the expiration of such period of time, as the said Court shall 
 thing fit, not exceeding the period limited by any law, for the 
 time being in force in the said Province as the period within 
 which actions of ejectment may be brought, and the Registrar- 
 General shall obey such order. 
 
 22. Upon any such motion as aforesaid, it shall be lawful 
 for any person interested in any land touching or concerning 
 the title to which such motion shall be made, and for the said 
 Registrar-General by himself or his counsel, to argue the same 
 before the said Court in support of or objection to, the bring- 
 ing of such land under the operation of this Act, and the 
 Registrar-General, or his solicitor, shall have the right of 
 reply; and all expenses attendant upon any of the matters 
 or proceedings aforesaid, shall be borne and paid by the per- 
 son requiring such land to be brought under the operation 
 of this Act. 
 
 23. Every notice for bringing land under the operation of 
 this Act, hereinbefore directed to be published, shall be in 
 the form of the Schedule hereto annexed, marked M, or in 
 words to the like effect, and shall take effect and be valid to 
 all intents from the date of the publication thereof. 
 
 24. The person entitled to bring land under the operation 
 of this Act, and to receive a certificate of title in respect of 
 the same, shall be the person in whom the fee simple is vested, 
 or if there be no person in whom the fee simple is vested, then 
 the person so entitled shall be the person holding the greatest 
 estate and interest in such land, not being a mortgagee there- 
 of: Provided always, that no mortgagor shall be entitled to 
 bring land under the operation of this Act, or to receive 
 a certificate of title for the same, without the consent of his 
 mortgagee, which consent may be endorsed on the form of 
 application in manner hereinafter prescribed. 
 
 25. It shall be lawful for any proprietor, being an appli- 
 cant to have land brought under the operation of this Act, 
 to withdraw his application at any time prior to the issuing 
 of such notice; and the Registrar-General shall, in such case, 
 upon request in writing signed by such applicant proprietor, 
 return to him the abstract, and all instruments of title, depos- 
 ited by such proprietor for the purpose of supporting his appli- 
 cation. 
 
 26. The Registrar-General shall not notice any caveat for- 
 bidding the bringing of land under the operation of this Act, 
 if the party lodging the same claims only an estate or interest 
 to take effect after the determination, or in defeasance of an 
 estate tail, or forbids the bringing of such land under the 
 
 391 
 
APPENDIX 
 
 operation of this Act, on the plea only of the absence of legal 
 evidence that a former proprietor was in being and capable 
 at the time when any power of attorney executed by such 
 proprietor was exercised by his attorney in the selling or 
 purchasing, or releasing of such land. 
 
 27. Every grant, certificate of title, memorandum of sale, 
 bill of mortgage, power of attorney, registration abstract, rev- 
 ocation order, bill of encumbrance, bill of trust, lease, or 
 other instrument transferring or in any way affecting any 
 estate or interest in land under the operation of this Act shall 
 be in duplicate, and one original of every such instrument shall 
 be filed in the Registry Office, and the other delivered to the 
 proprietor or other person interested therein, or entitled there- 
 to, and every instrument in this Act, directed to be filed or 
 bound up in the register book, being so filed or bound up shall 
 be held to be "Registered by Deposit" in terms of an Act pass- 
 ed by the Governor and Legislative Council of the said proviace 
 on the ninth day of December, in the year of our Lord one 
 thousand eight hundred and fifty-three, and in the seventeenth 
 year of Her Majesty Queen Victoria intituled "An Act to pro- 
 vide for the Deposit of Deeds, Agreements, "Writings, and As- 
 surances, Maps and Plans, relating to hereditaments in the 
 Province of South Australia, and for other purposes therein 
 mentioned. ' ' 
 
 28. The Registrar-General shall keep a book to be called 
 the "Register Book of Real Property" and shall bind up 
 therein the duplicates of all grants and of all certificates of 
 title issued from and after the first day of July, one thousand 
 eight hundred and fifty-eight, and shall open therein a separate 
 page for each grant and certificate of title, and shall record 
 thereon the particulars of all instruments affecting the land 
 included under each such grant or certificate of title, dis- 
 tinct and apart. 
 
 29. So soon as any land has been brought under the opera- 
 tion of this Act, the Registrar-General shall make out and 
 deliver to the proprietor a certificate of title to the same in 
 form hereinafter described and every such certificate of title 
 shall contain a reference to the original grant or other instru- 
 ment evidencing title, which may have been deposited by such 
 proprietor when making application in manner hereinbefore 
 described and the Registrar-General shall endorse on every 
 such grant or instrument so surrendered a memorandum set- 
 ting forth that the said grant or instrument had been surrend- 
 ered by such proprietor in exchange for a certificate of title 
 tb such land pursuant to the provisions of this Act, with the 
 date of such deposit; and if any grant or other instrument 
 so deposited shall relate to or include any property, whether 
 
 392 
 
ORIGHNAL TORRENS ACT 
 
 personal or real, other than the land included in such certifi- 
 cate of title, then the Registrar-General shall endorse on such 
 grant or other instrument a memorandum setting forth that 
 the said grant or instrument is cancelled in so far only as re- 
 lates to the land included in such certificate of title, and shall 
 return such grant or other instrument to such proprietor, 
 otherwise he shall retain the same in his office. 
 
 30. Every certificate of title made out by the Registrar- 
 General shall be in duplicate, and in the form marked A in 
 the Schedule hereto, and the Registrar-General shall note 
 by endorsement thereon, and in such manner as to preserve 
 their priority, the particulars of all unsatisfied mortgages 
 or other encumbrances, and of every lease, rent, charge, or 
 term of years, or outstanding estate whatsoever, affecting 
 such land, which shall have been registered, or of which he 
 may have notice, and shall cause one of such certificates of 
 title to be bound up in the Register book, and deliver the 
 other to the proprietor entitled to the land described in such 
 certificate, and every such certificate, duly authenticated un- 
 der the hand and seal of the Registrar-General shall be re- 
 ceived in all Courts of Justice as evidence of the particulars 
 therein set forth and of their being entered in the register 
 book in the manner set forth in such certificate. 
 
 31. No instrument shall be effectual to pass any estate or 
 interest in any land under the operation of this Act, or to 
 render such land liable as security for the payment of money, 
 but so soon as the Registrar-General shall have entered the 
 particulars thereof in the book of registry, and made endorse- 
 ment on such instrument, as hereinafter directed to be made 
 in each such case respectively, the estate or interest shall pass 
 or, as the case may be, the land shall become liable to security 
 in manner and subject to the conditions and contingencies 
 set forth and specified in such instrument ; and should two or 
 more instruments executed by the same proprietor, and pur- 
 porting to transfer or encumber the same estate or interest 
 in any land, be at the same time presented to the Registrar- 
 General for registration and endorsement, he shall register 
 and endorse that instrument, under which the person claims 
 property, who shall present to him the grant or certificate 
 of title of such land for that purpose. 
 
 32. The Registrar-General shall not register any instru- 
 ment purporting to transfer, or otherwise to deal with or 
 affect any estate or interest in land under the operation of 
 this Act, unless such instrument be in accordance with the 
 provisions thereof. 
 
 33. Every certificate of title or entry in the register book 
 shall be conclusive, and vest the estate and interests in the 
 
 393 
 
APPENDIX 
 
 land therein mentioned in such manner and to such effect as 
 shall be expressed in such certificate or entry valid to all in- 
 tents, save and except as is hereinafter provided in the ease 
 of fraud or error. 
 
 34. Upon the first bringing of any land under the opera- 
 tion of this Act, and also upon the registering of the title to 
 any land transmitted by will or intestacy there shall be paid 
 to the Eegistrar-General the sum of one farthing in the pound 
 sterling on the value of the land so brought under the opera- 
 tion of this Act or so transmitted, and if such land be situated 
 within the limits of any Corporation or District Council, the 
 declaration of such applicant proprietor, or person entitled 
 under such transmission, accompanied by the certificate of the 
 Mayor or of the Chairman of such Corporation or District 
 Council setting forth the marketable value of such land at the 
 time then being, and the amounts at which such land had 
 been assessed at the assessment last before the bringing of 
 such land under the operation of this Act, or last before such 
 transmission, as the case may be, shall be received by the 
 Registrar-General as sufflcient evidence of the value of such 
 land; and if such land be not situated within the limits of 
 any Corporation or District Council or being within such 
 limits it shall not have been assessed, the oath or solemn 
 affirmation of the applicant proprietor or of the party entitled 
 under such transmission, made before the Registrar-General 
 or any Justice of the Peace, shall be received by such Regis- 
 trar-General as evidence of the value of such land. Provided 
 always that if the Registrar-General shall not be satisfied as 
 to the correctness of the value so declared or sworn to, it 
 shall be lawful for him to require such proprietor or other 
 person as aforesaid to produce a certificate of such value under 
 the hand of a sworn appraiser, which certificate shall be re- 
 ceived as conclusive evidence of such value for the purposes 
 herein specified. 
 
 35. All sums of money so received as aforesaid, shall be 
 paid to the Treasurer of the said Province to constitute an 
 Assurance Fund, out of which shall be made good the full 
 amount awarded by any verdict or decree of Court to the 
 rightful heir or proprietor of land under the operation of this 
 Act as hereinafter provided, failing the recovery of such 
 amount from the person who may by fraud, misrepresentation, 
 or error, have become registered as proprietor of the same; 
 and the said Treasurer may from time to time invest such 
 sums in the South Australian Government Securities: Pro- 
 vided always that in case of deficiency in such Assurance 
 Fund the full amount so awarded shall be made good to such 
 
 394 
 
ORIGINAL TOREBNS ACT 
 
 rightful heir or proprietor out of the General Revenues of 
 the said province. 
 
 36. When land under the operation of this Act is intended 
 to be disposed of by sale, the vendor shall execute a memo- 
 randum of sale, in form of the Schedule hereto annexed mark- 
 ed B, or as near thereto as circumstances permit, which memo- 
 randum shall contain such description of the land intended 
 to be transferred as is contained in the original grant, or in 
 the certificate of title of such land, or such description as 
 may be sufficient to identify that particular portion of land 
 V7hieh it is intended to dispose of, and shall contain an accurate 
 statement of the estate or interest of such vendor intended 
 to be transferred, and a memorandum of all mortgages and 
 other encumbrances affecting the same; and if such land be 
 leased, the name and description of the lessee with a memoran- 
 dum of the lease, and every such memorandum of sale shall 
 be attested by a witness. 
 
 37. Every memorandum of sale for the transfer of land 
 under the operation of this Act, when duly executed, shall be 
 produced to the Registrar-General, who shall thereupon enter 
 in the register book, under the original entry respecting such 
 land, the name, residence, and description of the vendor, or 
 of each vendor if more than one; the name, residence, and 
 description of the purchaser, or of each purchaser if more than 
 one; the amount of the consideration money paid; the date 
 of the memorandum of sale, and of its production, and such 
 other particulars as the Registrar-General may deem neces- 
 sary, and shall endorse on such memorandum of sale, and also 
 on the grant or certificate of title, the fact of such entry 
 having been made, with the date and hour thereof, and shall 
 sign each such endorsement and shall affix his seal to such 
 memorandum of sale, and the particulars of every such memo- 
 randum of sale shall be entered in the register book in the 
 order of the production thereof, and upon such entry being 
 made by the Registrar-General, the land, or the estate or 
 interest therein, as set forth and limited in such memorandum 
 of sale as to be transferred, shall pass to and vest in the pur- 
 chaser. 
 
 38. If the estate or interest in such land, so passed to and 
 vested in such purchaser in manner aforesaid, shall be of a 
 description less than a fee simple, the memorandum of sale 
 so endorsed and authenticated, under the hand and seal of 
 the Registrar-General shall be received in any Court of Jus- 
 tice as sufficient evidence of the title of such purchaser to 
 the estate or interest therein set forth and limited. 
 
 39. If the memorandum of sale purports to transfer a full 
 estate in fee simple in any land, the vendor shall at the same 
 
 395 
 
liiiK.' deli\'c)- up the Ki'Ji'if 'II' ci'i'1ifii/af I- of title of such land, 
 and till' I-;i'<_>;i.st rar-( icijri'al sljall ju such f-asi- endoi'.-i- on. such 
 graul 01' cci-f ihcalc of lillc, a iiii'iijiu'aiulaiii c'anccllintr such 
 grant or ciui ifi(.-atc i>f tith.-, si-ttujg foith the iJay and hour 
 on "\\'hich such grant or ci-i'1 ihi-ati- ni titJc had been dcln'cred 
 up it) him f(ir- that pui-])(isr. \\uth the uauje. ri'^uh-n'ju. and 
 desei'iption ol' the \'ciid()r by ^'^■llOlll the' sauie- was so given up. 
 and the j)artii'uhn-s of the li'ausli-r ol•ca^lO]JJlJ<J thi- su.n t.Uieh.-r 
 and cancrlling of sucli grant (jr certificate of title. 
 
 40. The l{cgistrai'-( h'lii-ral shall tlii-rcupon niak'.- out a c<rr- 
 titicati' of title <d' surh land to tin- jiui'L-ha'-ei'. i''-f'-mng llieii.-in 
 t(i the original gi'ant (if sui-li land, and to th'- uiHUicD'andurn 
 of sale thcrcdt'. to such ])Ui'chasii' aiel in ca^c tht.- A^-ndoi" 
 shall, hy sindi incnini'anduin of sali- as alort'-aid. ha^'r con- 
 tracted to ti'ansfer the fi-c siinijjc of part only ol tlie land 
 included iimhu' the grant or cutificate of title >o deliver^-d up 
 to be cancelled, then the Registi ai-i h-ueral --Kail make .v.U 
 a certificate of title to such propi'ietor of the unsLild balance 
 of such land so included as aforesaid. 
 
 41. If any estate or interest in lanel under the opei-ation 
 of this Act, or any charge on such land, become transmitted 
 in cons(.'qiieiice of the ileath or bankrupt r-y, eir rnscilA.-ncy 
 of any projirietoi-, oi- in eonsequeiie-e ot the inarraaLre settle- 
 nieiit of any female projirietor. or by any la^\"ful means otiier 
 tlian by a transfer accordine- to the provi^r.Uiv of tlii^ Act. 
 such transmission shall be notified to the Eetristrai'-General. 
 liy a declaration of the piu-.soii to whom su'.di estate cu' inter- 
 est has come by ti'ansrnission, made m the form marked X. 
 in the Sehetlule Inu'eto. and containing a statement d'^cril'ing 
 the manner in which and the party to whom such e^ta.te or 
 interest has come by transmission, and siudi declaration sl;all 
 lie made and subscribed if the declarant resides at or within 
 tell miles of the (.ieueral Registry ("Hhe.'. then m the pircseiice 
 of tlie Kegistrai'-tieiieral : if bi-youd that distance, then in 
 the presence (d' the Registrar (ieueral or au\" ■Instu-e of tlie 
 Peace, if the dcidaraut resides in the United Ivmgdce.u of 
 (ireat P>ritain and Ireland, or in any British ro^session. other 
 than the said l''ro\dnce. or in an}' t'oreign place, tluui in the 
 jiresence (d" any of th(> persons hereinafter appointed respec- 
 tively as ])ersons lud'ore \\h(Mn the excculiiui of instruments 
 executed beyond the limits ol' the said rro\ ima^ may be pro^"ed. 
 
 42. II' such ti-iusmissiiui has taken idai'c by virtue of the 
 bankriiplc}' or iusoh'cui'y of any iirojuaeior. the saui dc'cl;i ra- 
 tion shall be aecompanieil by such i'\ idcuce as mav for the 
 time being, be recei\able in courts of justi('e in tlie said Prov- 
 ince as ]U'oof (d' the title ol' jiarties (daimiug under anv baiik- 
 I'uptcy or insohcncy : and if siudi transudssiou has tal;en place 
 
ORIGINAL T0EEEN8 ACT 
 
 by virtue of the marriage settlement of a female proprietor 
 the said declaration shall be accompanied by such marriage 
 settlement, or by a copy thereof duly authenticated, and a 
 copy of the register of such marriage, or other legal evidence 
 of the celebration thereof, and shall declare the identity of the 
 said female proprietor; and if such transmission has taken 
 place by virtue of any will or testamentary instrument, then 
 if such vsrill or testamentary instrument shall have been made 
 in the said Province, the said declaration shall be accompanied 
 by such will ; and if made in England, Wales, or Ireland, the 
 said declaration shall be accompanied by such will, or by the 
 probate thereof; and if made in Scotland, or in any British 
 Possession, or in any foreign country, such declaration shall 
 be accompanied by such will, or by any copy thereof, that 
 may be evidence by the laws of Scotland, or of such possession 
 or foreign country; and if such transmission shall have taken 
 place in consequence of an intestacy, then, if such intestacy 
 shall have occurred in the said province, or in England, "Wales 
 or Ireland, the said declaration shall be accompanied by the 
 letters of administration or an official copy thereof; and if in 
 Scotland, or in any British Possession, or foreign country, 
 then by letters of administration, or any copy thereof, or by 
 such other documents as by the laws of Scotland, or of such 
 possession, or foreign country, may be receivable in the Courts 
 of Judicature thereof as proof of intestacy, together with 
 such documentary or other evidence as may be sufficient to 
 prove the title of such declarant to the estate or interest in 
 such land, according to the laws for the time being in force 
 in the said Province. 
 
 43. The Registrar-General, upon the receipt of such decla- 
 ration, so accompanied as aforesaid, shall, in the case of insolv- 
 ency, or marriage settlement, enter the name of the person, 
 entitled under such transmission, in the register book as owner 
 of the estate or interest so transmitted, and shall file such 
 declaration in his office, and shall also endorse on the grant 
 or certificate of title of the land in which the estate or inter- 
 est is transmitted, or as the case may be, on the bill or mort- 
 gage, bill of encumbrance, lease, or other instrument evidenc- 
 ing title to the estate or interest transmitted, a memorandum 
 stating the day and hour on which such transmission had been 
 recorded in the register book as aforesaid. 
 
 44. In the case of transmission by will, or in consequence 
 of an intestacy, the Registrar-General, upon receipt of such 
 declaration, so accompanied as aforesaid, shall give notice by 
 advertisement, published once in each of two successive weeks 
 of the Sbuth Australian Government Gazette, and in at least 
 one newspaper published in the City of Adelaide, that he has 
 
 397 
 
APPENDIX 
 
 received such declaration, which notice shall be in form of 
 the Schedule hereto annexed, marked J, or in words to the 
 like effect; and the Eegistrar-General shall cause a copy of 
 such notice to be posted in a conspicuous place in his office, 
 and in such other public place as he may deem necessary; and 
 in any such ease, if the Registrar-General shall not, within the 
 space of one calendar month from the date of the latest of 
 such advertisements, receive any caveat forbidding compli- 
 ance with such application, he shall enter the name of the 
 person entitled under such transmission, in the register book, 
 as owner of the estate or interest so transmitted; and shall, 
 in other respects, proceed as hereinbefore directed for the 
 case of a transmission by insolvency; and the Registrar-Gen- 
 eral, if he shall receive any such caveat within the time for 
 such case above limited, shall, if the party lodging the same 
 show reasonable grounds for so doing, suspend action in the 
 matter, until such caveat shall have been withdrawn or until 
 a decision shall have been obtained from the Court, having 
 jurisdiction in the matter ; and every person who shall fail 
 to show reasonable cause for lodging such caveat to the satis- 
 faction of the Judge, before whom any prosecution or suit 
 may in such case be instituted, shall forfeit and pay a penalty 
 not exceeding One hundred pounds. 
 
 45. No transmission of land under the operation of this 
 Act either by descent, will, appointment of assignees or trus- 
 tees, vesting order, letters of administration, order of the 
 Supreme Court, or otherwise howsoever, by any proceeding 
 filed of record, shall be valid and effectual against any subse- 
 quent purchaser, mortgagee, or lessee, unless legal evidence 
 of heirship, the probate or exemplification of probate of such 
 will, appointment of assignees, or trustees, vesting order, 
 letters of administration, order of the Supreme Court or other 
 instrument hereinbefore required to be in such case produced, 
 has been so produced to the Registrar-General, and the partic- 
 ulars of the transmission entered in the register book. 
 
 46. It shall be lawful for the Supreme Court without pre- 
 judice to the exercise of any other power such Court may pos- 
 sess, upon the summary application of any person interested 
 in transmitted land, made either by petition or otherwise, and 
 either exparte, or upon service of notice on any other person, 
 as the Court may direct, to. issue an order prohibiting for a 
 time to be named in such order any dealing with such land; 
 and it shall be in the discretion of such Court to make or 
 refuse any such order, and to annex thereto any terms or con- 
 ditions it may think fit, and to discharge such order when 
 granted with or without costs, and generally to act in the 
 premises in such manner as the justice of the case may re- 
 
 398 
 
ORIGINAL TOEEENS ACT 
 
 quire ; and the Registrar-General, without being made a party 
 to the proceedings, upon being served with such order or an 
 official copy thereof, shall obey the same. 
 
 47. When any land under the operation of this Act is in- 
 tended to be leased or demised for a term of years, the propri- 
 etor shall execute a lease in form of the Schedule hereto an- 
 nexed marked C, or as near thereto as circumstances permit, 
 and every such lease shall contain the same description that 
 is given in the grant or certificate of title or such other de- 
 scription as may be sufficient to identify the land intended to 
 be leased, and shall be attested by a witness; and such lease 
 when so executed, together with the grant, certificate of title, 
 or other instrument evidencing the title of such proprietor 
 to an estate in such land, shall be presented to the Registrar- 
 General, who shall record in the register book the date and 
 hour of such production to him, the date of the lease, the 
 amount of rent or consideration money, the dates on which it 
 is appointed to be paid and the names and description of the 
 proprietor and of the lessee, and shall record the like particu- 
 lars by memorandum on the grant, certificate of title, or other 
 instrument as aforesaid, and shall endorse on the lease a memo- 
 randum of the day and hour on which the said particulars 
 had been entered in the register book, and shall authenticate 
 such memorandum by signing his name and affixing his seal 
 thereto ; and every lease bearing such memorandum, so authen- 
 ticated, shall be received as sufficient evidence of the title of 
 the lessee to the estate or interest therein demised, and of all 
 covenants, conditions, and restrictions therein expressly set 
 forth, or by this Act declared to be implied against the lessor 
 and lessee respectively. 
 
 48. A right to purchase land under the operation of this 
 Act may be granted in any such lease by the words "that the 
 said lessee shall have the option of purchasing the said land 
 subject to such conditions, limitations and restrictions as are 
 herein specified;" which form of words shall operate as an 
 expressed covenant in such lease, and shall apply as follows, 
 that is to say — if the said lessee shall elect to purchase the 
 said land, and shall in all respects comply with such conditions 
 as may be expressed in such lease, or are by this Act declared 
 to be implied therein, and shall pay the purchase money there- 
 in mentioned, together with all rent, arrears of rent, and other 
 moneys due and owing under or by virtue of such lease, then 
 and in such ease the lessor will execute a memorandum of 
 sale of such land to such lessee, and will perform all acts and 
 execute all instruments by this Act prescribed to be performed 
 or executed by a vendor, in order to transfer to such lessee 
 the estate or interest in such land specified. 
 
 399 
 
APPENDIX 
 
 49. The entry of every such lease in the register book, 
 shall be held to transfer to the lessee an estate in such land 
 as tenant, subject, nevertheless, to all such conditions and 
 covenants as may be expressly set forth in such lease, if any, 
 and to the conditions and covenants which are hereinafter 
 declared to be implied against a lessor and against a lessee, or 
 to all or any of such last-mentioned covenants as shall not 
 be negatived or modified by express declaration in such lease 
 or endorsed thereon: Provided always, that no lease of mort- 
 gaged land executed subsequent to the mortgage, shall be 
 valid and binding against the mortgagee, unless such mort- 
 gagee shall have consented to such lease, in form and manner 
 hereinafter provided. 
 
 50. Whenever any lease or demise for a term of years is 
 intended to be surrendered, there shall be endorsed upon such 
 lease the word ' ' surrendered ' ' with the date of such surrender, 
 and upon such lease bearing such endorsement, signed by the 
 lessee, and by the lessor accepting such surrender, and duly 
 attested in manner hereinafter prescribed, being Ijrought to 
 the Registrar-General, he shall enter in the register book a 
 memorandum recording the date of such surrender, and shall 
 likewise endorse upon the lease a memorandum recording the 
 fact of such entry having been made in the register book, and 
 upon such entry being so made in the register book, the estate 
 or interest of the lessee in such land shall revest in the lessor, 
 or in such other person, as, having regard to other intervening 
 circumstances, if any, the same would be vested in had no 
 such lease ever been executed, and the production of such 
 lease bearing such endorsement authenticated by the hand 
 and seal of the Registrar-General shall be sufficient evidence 
 that such lease had been so surrendered. 
 
 51. When any estate or interest in land, under the opera- 
 tion of this Act, is intended to be made security for a loan or 
 other valuable consideration, the borrower shall execute a bill 
 of mortgage, in form of the Schedule hereto annexed, marked 
 D, or as near thereto as circumstances permit, and every such 
 bill of mortgage shall contain an accurate statement of the 
 estate or interest intended to be mortgaged, and such descrip- 
 tion as is given in the grant or certificate of title of the land 
 in which such estate or interest is held, or such other descrip- 
 tion as may be necessary to identify such land, and shall be 
 attested by a witness ; and every bill of mortgage so executed, 
 together with the grant or certificate of title of such land, 
 or as the case may be, the lease or other instrument, proving 
 the title of the mortgagor to such estate or interest in such 
 land, shall be produced to the Registrar-General, who shall 
 enter in the register book the date and hour of such produc- 
 
 400 
 
ORIGINAL TOEEENS ACT 
 
 tion to him; the date of mortgage; the name, residence, and 
 description of the mortgagor and of the mortgagee ; the amount 
 of consideration money; the rate of interest, and the date, if 
 any, appointed for the redemption of such mortgage ; and the 
 dates on which interest is appointed to be paid; and shall 
 record the like particulars by a memorandum endorsed upon 
 such grant or certificate of title, lease, or other instrument 
 of title, and shall also endorse upon such grant or certificate 
 of title, lease, or other instrument, a memorandum stating 
 the day and hour of the day in which the particulars of such 
 mortgage had been recorded in the register book, and, upon 
 such entry being made, as aforesaid, in the register book, the 
 estate or interest in the land referred to, and described in 
 such bill of mortgage, shall be held by such mortgagor, sub- 
 ject to and liable for the payment of the principal sum and 
 interest therein set forth, at the times and under the condi- 
 tions and covenants therein prescribed, or hereafter declared 
 to be implied in bills of mortgage. 
 
 52. The repayment of any sum of money by weekly install- 
 ments, or other periodical payments, may be secured on any 
 land or on any estate or interest therein, by bill of mortgage, 
 in the form or to the effect of the said Schedule D to this Act 
 annexed, by varying such form so as to express fully the terms 
 and modes and plan of payment of such sum of money: Pro- 
 vided also, that the period of time hereinafter limited as the 
 period after expiration of which it shall be lawful for a mort- 
 gagee to sell an estate pledged as security, in the event of 
 default made in payment of interest or principal, or in the 
 non-fulfillment of any covenant, may, by condition expressed 
 in any such bill of mortgage, be extended or shortened, and, 
 notwithstanding such variations in such form, the like coven- 
 ants, rights, powers and obligations shall be implied there- 
 under and thereby, both against the mortgagor and the mort- 
 gagee as would be implied if no such variation had been made 
 in the form of such Schedule. 
 
 53. In ease default shall be made for the space of two 
 calendar months, in payment of the principal money or inter- 
 est, or any part thereof, secured by any such bill of mortgage, 
 so recorded as aforesaid, or if default shall be made in ob- 
 servance of any covenant that may be expressed in such bill 
 of mortgage, or that is therein as against the mortgagor here- 
 inafter declared to be implied, and the mortgagee shall have 
 caused a written demand of payment of such principal sum 
 or interest, or as the ease may be, for the fulfillment of any 
 such expressed or implied covenant, in respect to which such 
 default may have been made, to be served on the mortgagor, 
 or left at his last or usual place of abode, or if the mortgage 
 
 401 
 
APPENDIX 
 
 be made by a corporate body, with the clerk thereof; and if 
 default be made in either such respect for the further space of 
 two calendar months from the service of such demand, then in 
 such case, it shall be lawful for the mortgagee to sell the 
 estate or interest pledged to him as security by such bill of 
 mortgage, or any part thereof, and either altogether or in lots, 
 and either by public auction or private contract, or by both 
 of such means, and subject to such conditions as he may think 
 fit, and with power to buy in and resell the same, without 
 being liable for any loss occasioned thereby, and to make and 
 execute all such instruments, and to perform all such acts 
 as in accordance with the provisions of this Act may be neces- 
 sary for carrying into effect the powers hereby given, includ- 
 ing the act of entering upon, and taking and giving possession 
 to the purchaser of the land so pledged as security ; all which 
 sales, contracts, matters and things hereby authorized, shall 
 be as valid and effectual, as if the mortgagor had made, done 
 or executed the same ; and the receipt or receipts in writing 
 of the mortgagee shall be a sufficient discharge to any pur- 
 chaser of any part of such mortgaged property, for so much 
 of his purchase-money as may be thereby expressed to be re- 
 ceived ; no such purchaser shall be answerable for the loss, 
 misapplication or nonapplication, or be obliged to see to the 
 application of the purchase money by him paid, nor shall he 
 be concerned to inquire as to the fact of any such default or 
 demand, as aforesaid, having been made; the moneys to arise 
 from such sale, as aforesaid shall be applied: First — In pay- 
 ment of the expenses attending any such sale, or otherwise 
 incurred in the execution of the power of sale hereby given: 
 Secondly — In repayment of the principal money and interest 
 remaining due, together with any costs and expenses occa- 
 sioned by the non-payment thereof, or the non-observance of 
 any such expressed or implied covenant ; the surplus (if any) 
 shall be paid to the mortgagor. 
 
 54. The Eegistrar-General, in any such case as aforesaid, 
 upon receipt of a memorandum of sale of such estate or inter- 
 est, so pledged as aforesaid, signed by such mortgagee, to- 
 gether with proof to his satisfaction that all the requirements 
 for such case by this Act provided have been duly executed 
 and fulfilled, shall enter the particulars t)f such memorandum 
 of sale in the register book, and record the fact of such entry 
 by endorsement on such memorandum of sale, and shall in 
 all other respects proceed in manner herein prescribed for 
 the case of the transfer of a like estate or interest by the pro- 
 prietor thereof, and every such transfer, when so recorded 
 by the Registrar-General shall be as valid and effectual to 
 pass sudh estate or interest, as if the memorandum of sale had 
 
 402 
 
ORIGINAL TOEKBNS ACT 
 
 been executed by the mortgagor prior to the date of the ex- 
 ecution of the bill of mortgage; and if such memorandum of 
 sale shall purport to pass an estate in fee simple, and the 
 existing grant or certificate of title be for that purpose sur- 
 rendered to him, the Registrar-General shall make out and de- 
 liver to the purchaser a certificate of title to such land, hav- 
 ing first endorsed thereon memoranda setting forth the particu- 
 ulars of all unsatisfied mortgages or other encumbrances, and 
 of all leases, transfers, or other transactions affecting such 
 land if any, which shall appear to have been registered and 
 recorded upon such grant or certificate of title so surrendered, 
 and shall in all other respects proceed as hereinbefore is 
 directed in the case of the sale of an estate in fee simple in 
 land under the operation of this Act. 
 
 55. The Registrar-General, on the production of any bill 
 of mortgage, executed under the provisions of this Act, and 
 having thereon a receipt for the mortgage money duly signed 
 and attested, shall make an entry in the register book to the 
 effect that such mortgage has been discharged ; and upon such 
 entry being made, the estate, or interest, which by such bill of 
 mortgage had been pledged as security for such loan, shall 
 cease to be subject to or liable for the same, or any charges 
 incident thereon, and the Registrar-General shall likewise en- 
 dorse upon the grant or certificate of title, lease, or other in- 
 strument constituting or evidencing the title of the mortgagor 
 to the estate or interest in such land, a memorandum of the 
 discharge of such mortgage, and of the date of such discharge, 
 and shall cancel such bill of mortgage : Provided always, that 
 ,if at or after the date appointed for the redemption of any 
 such mortgage, the mortgagee shall be absent from this Col- 
 ony, or shall not be in attendance to receive the mortgage 
 money either personally, or by his attorney duly authorized 
 in that respect, it shall be lawful for the Registrar-General 
 to receive such mortgage money, with all arrears of interest 
 then due thereon, in trust for such mortgagee, and the Regis- 
 trar-General shall, thereupon make entry in the register book 
 discharging such mortgage, stating the day and hour in which 
 such entry is made, and such entry shall be a discharge for 
 such mortgage, valid to all intents, and shall have the same 
 force and effect as is hereinbefore given to a like entry when 
 made upon the production to the Registrar-General of the bill 
 of mortgage, with the receipt of the mortgagee, and the Reg- 
 istrar-General shall, if demanded, give to the mortgagor a 
 receipt for the money so paid to him in trust, and shall en- 
 dorse on the grant, certificate of title, or other instrument, as 
 aforesaid, and also on the bill of mortgage, whenever those 
 instruments shall be brought to him for that purpose, the 
 
 403 
 
APPENDIX 
 
 several particulars hereinbefore directed to be endorsed on 
 each of such instruments respectively. 
 
 56. Whenever it is intended to render an estate or interest 
 in land, under the operation of this Act, available for secur- 
 ing any dower, annuity, or sum of money, or to invest such 
 estate or interest in trust, the proprietor shall execute a bill 
 of encumbrance, in form of the Schedule hereto annexed mark- 
 ed E, or as near thereto as circumstances vrill permit; or, 
 as the case may require, a bill of trust, in form of the Schedule 
 hereto annexed marked F, or as near thereto as circumstances 
 will permit, which bill of encumbrance or bill of trust shall 
 be attested by a witness, and shall set forth the nature of 
 the estate or interest intended to be encumbered or invested 
 in trust; the amount of dower, or annuity, or sum of money 
 for securing which such estate or interest is intended to be 
 encumbered or invested in trust ; the date on which, the man- 
 ner in which, and the conditions or contingencies under which 
 such dower, annuity, or sum of money is to become payable; 
 and the uses, contingencies, restrictions, reversions, and re- 
 mainders to which it is intended such dower, annuity, or sum. of 
 money should be subject or liable, if any, together with such 
 description as may be sufficient to identify the land in which 
 the estate or interest intended to be encumbered or vested in 
 trust is held ; and such bill of encumbrance, or bill of trust, to- 
 gether with the grant, certificate of title, lease, or other in- 
 strument evidencing the title of the encumbrancee to the estate 
 or interest in such land intended to be encumbered or vested in 
 trust shall be produced to the Registrar-General who shall 
 enter the particulars of such bill of encumbrance or bill of trust 
 in the register book, and shall endorse upon the grant, certifi- 
 cate of title, lease, or other instrument, as aforesaid a memoran- 
 dum stating the date and hour of such production to him, for 
 the purpose of such record being made, the date of the bill of 
 encurabrance or bill of trust, the amount of the encumbrance, 
 the contingencies, restrictions, reversions and remainders, to 
 which it is intended to be subject if any, and the names and 
 descriptions of the parties for whose benefit the same is created, 
 or for whose uses such land is vested in trust, together with the 
 names and descriptions of the trustees if any, appointed, and 
 upon such entry being made in the register book the estate or 
 interest set forth in such bill of encumbrance or bill of trust 
 shall become subject to and liable for the payment of such sums 
 of money, dower, annuity, or other encumbrance in accordance 
 with the conditions and limitations and subject to the coven- 
 ants set forth in such bill of encumbrance or of trust, or which 
 are hereinafter declared to be implied in any such instrument 
 or as the case may be, such estate or interest shall become 
 
 404 
 
ORIGINAL TOERENS ACT 
 
 vested in the trustees named in such bill of trust, subject to 
 such conditions and trusts as aforesaid. 
 
 57. The Registrar-General, on the production of any bill of 
 encumbrance, or of any bill of trust executed under the pro- 
 visions of this Act, with a receipt for the amount of the en- 
 cumbrance money, or trust money, endorsed thereon, duly 
 signed and attested, or upon the receipt of proof to his satis- 
 faction that the occurrence of the circumstances under which 
 the amount of such encumbrance or trust could become charge- 
 able against such land, in accordance with the conditions, limi- 
 tations and restrictions prescribed in such bill of encumbrance 
 or bill of trust has ceased to be possible, shall make an entry in 
 the register book to the effect that such encumbrance or trust 
 has been discharged, or has lapsed, stating the day and hour 
 in which such entry is made, and upon such entry being made, 
 the interest, if any, which passed to the encumbrancee or to the 
 trustees under such bill of trust, shall vest in the same person 
 or persons in whom the same would, having regard to inter- 
 vening acts and circumstances if any, have vested, if no such 
 bill of encumbrance or bill of trust had ever been executed or 
 made, and the Registrar-G-eneral shall thereupon cancel such 
 bill of encumbrance or bill of trust, and shall also endorse on 
 the grant, certificate of title, lease, or other instrument, consti- 
 tuting or evidencing the title of the encumbrancer to the es- 
 tate or interest in the land referred to in such bill of encum- 
 brance, a memorandum stating that such encumbrance had 
 been discharged, and the date on which such entry of discharge 
 had been made in the register book. 
 
 58. Every bill of mortgage, or bill of encumbrance, or of 
 trust, shall be entered by the Registrar-General in the register 
 book in the order of time in which the same is produced to him 
 for that purpose ; and the Registrar-General shall record by 
 memorandum on such bill of mortgage, or bill of encumbrance, 
 or of trust that the same has been so entered by him, stating 
 the day and hour of such entry, and shall certify such memo- 
 randum by signing the same and affixing his seal thereto, and 
 every such bill of mortgage, bill of encumbrance, or of trust, so 
 certified, shall be received in all Courts of Justice as sufficient 
 evidence that the estate and interest therein described had been 
 so mortgaged, encumbered, or vested in trust as the case may 
 be, and of all other particulars therein contained. 
 
 59. If more than one mortgage, bill of encumbrance or of 
 trust, be registered in respect to or affecting the same estate 
 or interest in any land under the operation of this Act, the 
 mortgagees, encumbrancees, and trustees, shall notwithstand- 
 ing any express, implied, or constructive notice, be- entitled in 
 priority one over the other according to the date at which each 
 
 405 
 
APPENDIX 
 
 instrument is recorded in the register books, and not according 
 to the date of each instrument itself. 
 
 60. When any estate or interest in land under the operation 
 of this Act shall by bill of encumbrance, or bill of trust, be 
 transferred to any person or body corporate, to the use of or 
 ia trust for any other person, the whole legal ownership of such 
 estate or interest shall vest in the person or body corporate 
 to whom the same shall be so immediately and directly trans- 
 ferred; subject, however, to a trust for the benefit of such other 
 person. Every limitation which before the passing of this 
 Act might have been made by way of shifting, springing, or 
 executory use, shall hereafter be made by transfer, in manner 
 hereinbefore provided, without the intervention of uses, but 
 not otherwise. 
 
 61. No registered mortgage or encumbrance of any land 
 under this Act shall be affected by any act of bankruptcy or in- 
 solvency committed by the mortgagor or encumbrancer, after 
 the date of the entry in the register book of the bill of mort- 
 gage, bill of encumbrance, or bill of trust, creating such mort- 
 gage or encumbrance, notwithstanding such mortgagor, or 
 encumbrancer, at the time of his becoming bankrupt may 
 have in his possession and disposition and be the registered 
 owner of such land; and such mortgage or encumbrance shall 
 be preferred to any right, claim, or interest in such land, which 
 may belong to the assignees of such bankrupt or insolvent. 
 
 62. A registered mortgage, a registered lease, or the interest 
 of a registered encumbrancee of any land under this Act may 
 be transferred to any person, by endorsement on the bill of 
 mortgage, lease, bill of encumbrance, or bill of trust, which en- 
 dorsement shall be in the form of the Schedule hereto annexed 
 marked 0, or in words to the like effect ; and on the production 
 of such bill of mortgage, lease, or bill of encumbrance, so en- 
 dorsed, to the Registrar-General, he shall enter in the register 
 book the name of the transferee as mortgagee, lessee, or encum- 
 brancee, of the land therein mentioned, and shall, by memoran- 
 dum under his hand, record on such bill of mortgage, or bill of 
 encumbrance, or lease, and, if the same be presented to him for 
 that purpose, on the grant, certificate of title, or other instru- 
 ment evidencing title to the estate or interest mortgaged or en- 
 cumbered, that such transfer had been recorded by him, stat- 
 ing the date and hour of such record ; and, upon such entry be- 
 ing so made, the estate or interest of the transferror, as set forth 
 in such instrument, with all rights, powers, and privileges 
 thereto belonging or appertaining, shall pass to the transferee ; 
 and such transferee shall thereupon become subject to and lia- 
 ble for all and every the same requirements and liabilities to 
 which he would have been subject and liable if named in such 
 
 400 
 
OEIGINAL TOREENS ACT 
 
 instrument originally as mortgagee, encumbrancee, or lessee, of 
 such land, estate, or interest, and the Registrar-General shall 
 certify such endorsement by signing the same, and affixing his 
 seal thereto, and every transfer, so certified, shall be received 
 in evidence by any Court of Justice as sufficient evidence of its 
 having been so entered in the register book. 
 
 63. In every memorandum of sale, bill of mortgage, bill of 
 encimibrance, bill of trust, lease, or other instrument of trans- 
 fer, for valuable consideration, under provisions of this Act, 
 there shall be implied the foUovring covenants by each trans- 
 ferring party, severally for himself, to the extent of the in- 
 terest departed with by him, that is to say — 
 
 (1) That such transferring party hath good right and full 
 power to transfer and assure the estate and interest purported 
 to be transferred, and that free and clear from all encum- 
 brances, other than such as are therein mentioned : That it shall 
 be lawful for the party to whom such estate or interest is trans- 
 ferred quietly to enjoy the same, without any disturbance, by 
 any act whatsoever, of such conveying party, or any person 
 claiming under him, or by any rightful act of any other person : 
 
 (2) That such transferring party will, at the cost of the 
 party requiring the same, do all such acts and execute all such 
 instruments as in accordance with the provisions of this Act 
 may be necessary to give effect to all covenants, conditions, and 
 purposes expressly set forth in such memorandum of sale, bill 
 of mortgage, bill of encumbrance or trust, lease, or other instru- 
 ment of transfer as aforesaid, or by this Act declared to be im- 
 plied against the transferring party in any such instrument. 
 
 64. In every bill of mortgage, there shall be implied the fol- 
 lowing covenants against the mortgagor, that is to say — 
 
 (1) That he will pay the principal money, and interest 
 thereby secured, after the rate, and at the times therein men- 
 tioned, without any deduction whatsoever ; 
 
 (2) That the mortgagor will repair and keep in repair all 
 buildings or other improvements erected and made upon such 
 land ; and that the mortgagee may, at all convenient times, un- 
 til such mortgage be redeemed, be at liberty, with or without 
 surveyors or others, to enter into and upon such land, to view 
 and inspect the state of repair of such buildings or improve- 
 ments. 
 
 65. In every lease there shall be implied the following cove- 
 nants against the lessee, that is to say — 
 
 (1) That he will pay the rent thereby reserved at the times 
 therein mentioned, and all rates and taxes which may be pay- 
 able in respect of the demised property, during the continuance 
 of the lease ; 
 
 407 
 
APPENDIX 
 
 (2) That he will keep and yield up the demised property 
 in good and tenantable repair. 
 
 66. In every lease there shall also be implied the following 
 powers in the lessor, that is to say — 
 
 (1) That he may, by himself, or his agents, at all reason- 
 able times, enter upon the demised property, and view the state 
 of repair thereof, and may serve upon the lessee, or leave at his 
 last, or usual place of abode, a notice, in writing, of any de- 
 fect, requiring him, within a reasonable time to be therein pre- 
 scribed, to repair the same ; 
 
 (2) That whenever the rent reserved shall be in arrear for 
 twenty-one days, he may levy the same by distress ; 
 
 (3) That in case the rent, or any part thereof, shall be in 
 arrear for the space of six calendar months ; or in case insur- 
 ance as aforesaid shall not have been effected, or in case de- 
 fault in the fulfillment of any covenant expressly set forth in 
 such lease as against the lessee shall not have been repaired, or 
 in case the repairs required by such notice as aforesaid shall 
 not have been completed within three calendar months after 
 the service or leaving thereof, it shall be lawful for him to re- 
 enter upon the demised property, and, upon proof of such re- 
 entry, under any such circumstances, being made to the satis- 
 faction of the Registrar-General, he shall note the same by en- 
 try in the register book, and the estate in the lessee in such land 
 shall thereupon determine but without releasing him from his 
 liability in respect of the breach of any covenant in such lease 
 expressed or implied. 
 
 67. Such of the covenants hereinafter set forth as shall be 
 expressed in any lease or mortgage, as to be implied against 
 the lessee or mortgagor, shall, if expressed in the form of words 
 hereinafter appointed and prescribed for the case of each such 
 covenant respectively, be so implied against such lessee or mort- 
 gagor as fully and effectually as if such covenants were set 
 forth fully and in words at length in such lease or mortgage ; 
 that is to say, the words "that he will insure," shall imply as 
 follows: That he will insure and so long as the term ex- 
 pressed in the said mortgage or lease shall not have expired, 
 will keep insured, in some public insurance office, to be ap- 
 proved by such mortgagee or lessor, against loss or damage by 
 fire, to the full amount specified in such lease or bill of mort- 
 gage, or if no amount be specified, then to their full value all 
 buildings, tenements, or premises erected on such land, which 
 shall be of a nature or kind capable of being insured against 
 loss or damage by fire, and that he will, at the request of the 
 mortgagee or lessor, hand over to, and deposit with him, the 
 policy of every such insurance, and produce to him the receipt 
 or receipts for the annual or other premiums payable on ac- 
 
 408 
 
ORIGINAL T0EEEN8 ACT 
 
 count thereof; Provided always, that all moneys to be re- 
 ceived under or by virtue of any such insurance shall, in the 
 event of loss or damage by fire, be laid out and expended in 
 making good such loss or damage; Provided also, that if de- 
 fault shall be made in the observance or performance of the 
 covenant last above mentioned, it shall be lawful for the mort- 
 gagee or lessor, without prejudice nevertheless, to and concur- 
 rently with the powers granted him by his bill of mortgage or 
 lease, in manner in and by this Act provided, to insure such 
 building, and the costs and charges of such insurance shall, 
 until sjich mortgage be redeemed, or such lease shall have ex- 
 pired, be a charge upon the said land; the words "and paint 
 outside every alternate year" shall apply as follows, viz. — and 
 also will, in every alternate year, during the currency of such 
 lease, paint all the outside woodwork and ironwork belonging 
 to the hereditaments and premises mentioned in such lease, 
 with two coats of proper oil colors, iu a workmanlike manner ; 
 the words "and paint and paper inside every third y^ar" 
 shall imply as follows, viz. — and will, in every third year, dur- 
 ing the currency of such lease, paint the inside wood, iron, and 
 other works now or usually painted with two coats of proper 
 oil-color, in a workmanlike manner; and also repaper, with 
 paper of a quality as at present, and such parts of the said 
 premises as are now papered; and also wash, stop, whiten, or 
 color such parts of the said premises as are now whitened or 
 colored respectively; the words "and will fence" shall apply 
 as follows, viz. — and also will, during the continuance of the 
 said lease, erect and put up on the boundaries of the land 
 therein mentioned, or upon such boundaries upon which no 
 substantial fence now exists, a good and substantial fence cap- 
 able of resisting the trespass of horses, oxen, bulls, and cows; 
 the words "and cultivate" shall apply as follows, viz. — and 
 will at all times during the said lease cultivate, use, and man- 
 age all such parts of the land therein mentioned as are or shall 
 be broken up or converted into tillage in a proper and husband- 
 like manner, and will not impoverish or waste the same; the 
 words "that the said lessee will not use the said premises as 
 a shop" shall apply as follows, viz. — and also that the said 
 lessee will not convert, use, or occupy the said hereditaments 
 and premises mentioned in such lease, or any part thereof, into 
 or as a shop, warehouse, or other place for carrying on any 
 trade or business whatsoever, or permit or suffer the said 
 hereditaments and premises, or any part thereof, to be used 
 for any such purpose or otherwise than as a private dwelling 
 house, without the consent in writing of the said lessor; the 
 words "and will not carry on offensive trades" shall apply as 
 follows — and also that no noxious, noisome, or offensive art, 
 
 409 
 
APPBSTDIX 
 
 trade, business, occupation, or calling shall at any time during 
 the said term be used, exercised, carried on, permitted, or suf- 
 fered in or upon the said hereditaments and premises above 
 mentioned, and that no act, matter, or thing whatsoever shall 
 at any time during the said terrnx be done in or upon the said 
 hereditaments and premises, or any part thereof, which shall 
 or may be or grow to the annoyance, nuisance, grievance, dam- 
 age, or disturbance of the occupiers or owners of the adjoining 
 lands and hereditaments; the words "and wOl not, without 
 leave, assign, or sublet," shall apply as follows, viz.- — and also 
 that the said lessee shaU not nor wiU. during the term of such 
 lease, assign, transfer, demise, sublet, or set over, or otherwise 
 by any act or deed procure the lands or premises therein m^en- 
 tioned, or any of them, or any part thereof, to be assigned, 
 transferred, demised, sublet, or set over unto any person whom- 
 soever without the consent ia writing of the said lessor first had 
 and obtatued ; the words ' ' and will not cut timber ' ' shall apply 
 as follows: And also that the said lessee shall not nor will 
 cut down, feU, injure, or destroy any growing or living tim- 
 ber, or timberlike trees, standing and being upon the said 
 hereditaments and premises above mentioned, without the eon- 
 sent in writing of the said lessor; the words "and wUl carry 
 on the business of a publican, and conduct the same in an or- 
 derly manner," shall apply as follows, viz. — and also that the 
 said lessee will, at all times during the currency of such lease, 
 use, exercise, and carry on, in, and upon the premises therein 
 mentioned, the trade or business of a licensed victualler or 
 publican and retailer of spirits, wines, ale, beer, and porter, 
 and keep open and use the messuage, tenement, or inn, and 
 buildings standing and being upon the said land as and for 
 an inn or public house for the reception, accommodation and 
 entertainment of travellers, guests, and other persons resort- 
 ing thereto or frequenting the same, and manage and con- 
 duct such trade or business in a quiet and orderly manner, and 
 will not do, commit, or permit, or suffer to be done or com- 
 mitted, any act, matter, or thing whatsoever, whereby or by 
 means whereof any license shall or may be forfeited or become 
 void or liable to be taken away, suppressed, or suspended in 
 any manner howsoever; the words "and will apply for renewal 
 of license ' ' shall apply as follows, viz. — and also shall and wUl 
 from time to time during the continuance of the said term, at 
 the proper times for that purpose, apply for and endeavor to ob- 
 tain, at his own expense, all such licenses as are or may be 
 necessary for carrying on the said trade or business of a li- 
 censed victualler or publican, in and upon the said heredita- 
 ments and premises, and keeping the said messuage, tenement, 
 or inn open as and for an inn or public-house as aforesaid ; the 
 
 410 
 
OEIGINAL T0EEEN8 ACT 
 
 words "and will facilitate the transfer of license" shall apply 
 as follows, viz : And also shall and will, at the expiration or 
 other sooner determination of the said lease, sign and give such 
 notice or notices, and allow such notice or notices of a renewal 
 or transfer of any license as may be required by law to be affixed 
 to the said messuage, tenement, or inn, to be thereto affixed, and 
 remain so affixed during such time or times as shall be necessary 
 or expedient in that behalf, and generally to do and perform 
 all such further acts, matters, and things, as shall be necessary 
 to enable the said lessor, or any other person authorized by him, 
 to obtain the renewal of any license, or any new license, or the 
 transfer of any license then existing and in force. 
 
 68. In every transfer of land under a bill of encumbrance, 
 or of trust, by way of marriage settlement, there shall be im- 
 plied the following powers in every tenant for life, in posses- 
 sion of the property or of any undivided share thereof, or in his 
 guardian, or iu the committee of his estate, or in case there 
 shall be no tenant for life in possession, then in the trustees of 
 the settlement, that is to say — that he or they may demise or 
 lease, or concur in respect of such share in demising or leasing 
 the property, estate or interest in settlement, for any term not 
 exceeding twenty-one years, to take effect in possession at a 
 reasonable yearly rent, without taking any fine or premium for 
 the making such lease, and so that the lessee or lessees do exe- 
 cute a counterpart thereof. 
 
 69. There shall also be implied in the trustees of the settle- 
 ment, at the request in writing of any tenant for life in pos- 
 session, or his guardian, or committee; or if there be no such 
 tenant for life, then at their own discretion, the following 
 powers, that is to say — that they may dispose of the property 
 in settlement, or any part thereof, either by way of sale, or in 
 exchange for other property of the like nature and tenure, sit- 
 uated within the said province ; or where such property shall 
 consist of an undivided share, may concur in the partition of 
 the entirety of such property ; and may give or take any money 
 by way of equality of exchange or partition: Provided that 
 the moneys to arise from any such sale, or be received for equal- 
 ity of exchange or partition, shall, with all convenient speed, 
 be laid out in the purchase of other property, of like nature 
 and tenure, situate within the said Province; and, moreover, 
 any property so purchased or taken in exchange, shall be set- 
 tled in the same manner and subject to the same trusts, powers, 
 and provisoes, as the property so sold or given in exchange: 
 Provided also, that until the moneys received in consequence 
 of such sale, or exchange, or partition, shall be laid out as afore- 
 said, the same shall be invested on real security in the said 
 Province, or in Government securities, and the interest thereof 
 
 411 
 
APPENDIX 
 
 shall be paid to the persons entitled to the rents and profits of 
 the property in settlement. 
 
 70. In every memorandum of sale or other instrument exe- 
 cuted by a trustee, as trustee only, and not as the person bene- 
 ficially interested in the land thereby contracted to be trans- 
 ferred or otherwise dealt with, there shall be implied a cove- 
 nant only that such trustee hath not at any time before the exe- 
 cution of such memorandum of sale or other instrument done, 
 or knowingly suffered to be done, any act, matter, or thing, 
 whereby or by means whereof the land therein referred to can 
 or may be impeached, charged, encumbered, or in any manner 
 prejudicially affected in title, estate, or otherwise howsoever. 
 
 71. Where any memorandum of sale or other instrument in 
 accordance with the provisions of this Act, is executed by more 
 parties than one, such implied covenants shall be construed to 
 be several and not to bind the parties jointly, and in any decla- 
 ration in an action for a supposed breach of any such covenants, 
 the covenant alleged to be broken may be set forth, and it shall 
 be lawful to allege that the party against whom such action is 
 brought did so covenant precisely in the same manner as if such 
 covenant had been expressed in words in such memorandum of 
 sale or other instrument, any law or practice to the contrary 
 notwithstanding. 
 
 72. That when the deceased owner shall by any instrument 
 or covenant bind or have bound his heirs, the term "heirs" 
 shall be construed to mean the person or several persons who 
 by law shall be chargeable with the debts of such deceased 
 owner. 
 
 73. In every case where any of the covenants or powers 
 aforesaid would be implied by or in any woman if unmarried, 
 the same shall be implied by or in her husband if she shall be 
 married. 
 
 74. Every covenant which shall be implied by virtue of this 
 Act shall have the same force and effect, and be enforced in 
 the same manner as if it had been set out at length in the in- 
 strument wherein the same shall be implied. 
 
 75. Every covenant and power to be implied in any instru- 
 ment by virtue of this Act may be negatived or modified by ex- 
 press declaration on the instrument, or endorsed therein. 
 
 76. No vendor of any land under the operation of this act 
 shall have any equitable lien thereon by reason of the non-pay- 
 ment of the purchase-money, or any part of the purchase- 
 money, for the same. 
 
 77. Except as hereinbefore provided in the ease of right of 
 purchase covenanted in a lease, no agreement for the sale, lease, 
 or other dealing with any estate or interest in land under the 
 operation of this Act to be performed in futuro, shall be entered 
 
 412 
 
ORIGINAL T0BBEN8 ACT 
 
 in the register book ; but any person claiming an interest in any- 
 such land under any such contract or agreement, or having any 
 claim or interest adverse to any will may, by caveat in the form 
 of the Schedule hereto marked P, or as near thereto as circum- 
 stances vs^ill permit, forbid the registration of any will or other 
 instrument affecting such land, estate, or interest. 
 
 78. The proprietor of land under the operation of this Act, 
 or any person registered as having estate or interest therein, 
 may authorize and appoint any person to act for him, or on his 
 behalf, in respect to the leasing of such land, or the sale or 
 mortgage of his estate or interest therein, or otherwise lawfully 
 to deal with such land, in accordance with the provisions of this 
 Act, by executing a power in form of the Schedule hereto 
 marked G, or as near thereto as circumstances will permit, 
 which power shall contain the same description of such land 
 as is contained in the grant, or existing certificate of title 
 thereof, or such other description as may be sufficient to iden- 
 tify the said land, and shall set forth accurately the estate or 
 interest of such proprietor in the said land, and shall specify 
 the nature of the power intended to be conferred, the name and 
 description of the person by whom, the places where, and the 
 time within which it is to be exercised; and upon such power 
 being brought to the Registrar-General, he shall enter the par- 
 ticulars of the same in the register book, and shall record upon 
 such power a memorandum of the day and hour on which the 
 said particulars were so entered, and shall authenticate such 
 record by signing the same and affixing thereto his seal; and 
 from and after the date of such entry in the register book, all 
 acts lawfully done or performed by the person so appointed un- 
 der authority of and within the limits prescribed in such power, 
 shall have the same force and effect, and be equally binding on 
 such proprietor, as if the said acts had been done or performed 
 by such proprietor ; and every such power bearing such endorse- 
 ment, authenticated as aforesaid, shall be received in evidence 
 as sufficient proof that the person to whom such power has 
 been granted is duly authorized to make all contracts, to sign 
 all instruments, and to perform all other lawful acts in accord- 
 ance with the powers therein limited and appointed for the 
 attainment of the objects therein specified, or any of them : Pro- 
 vided always, that nothing herein contained shall be inter- 
 preted to invalidate any power of attorney executed without 
 the limits of the said Province, or prior to the passing of this 
 Act, although such power may not be in accordance with the 
 provisions of this Act. 
 
 79. The Registrar-General, upon the application of any 
 registered proprietors of land under the operation of this Act, 
 shall grant to such proprietor a registration abstract enabling 
 
 413 
 
APPENDIX 
 
 him to sell, mortgage, or otherwise deal with his estate or in- 
 terest in such land at any place without the limits of the said 
 Province, which registration abstract shall be in the form in 
 the Schedule hereto marked H, or as near to such form as cir- 
 cumstances will permit, and the Registrar-General shall at the 
 same time enter in the register book a memorandum recording 
 the issue of such registration abstract, and shall endorse on the 
 grant, certificate of title, or other instrument evidencing or con- 
 stituting the title of such applicant proprietor to such estate or 
 interest a like memorandum recording the issue of such regis- 
 tration abstract, and from and after the issuing of any such 
 registration abstract, no sale, mortgage, lease or other transac- 
 tion transferring, encumbering, or in any way affecting the es- 
 tate or interest in respect of which such registration abstract is 
 issued shall be entered in the register book until such abstract 
 shall have been surrendered to the Registrar-General to be can- 
 celled, or the loss or destruction of such abstract proven to his 
 satisfaction, or until the same shall have been revoked in man- 
 ner hereinafter provided. 
 
 80. Whenever any sale, mortgage, or lease is intended to be 
 transacted under any of such registration abstract, a memo- 
 randum of sale, bill of mortgage, or lease as the case may re- 
 quire, shall be prepared in duplicate in the forms for such case 
 hereinbefore appointed and prescribed, or as near to such form 
 as circumstances will permit, and shall be produced to some one 
 of the persons hereinafter appointed as persons before whom 
 the execution of instruments without the limits of the said 
 Province may be proven, and record shall be made upon such 
 registration abstract of the several particulars hereinbefore re- 
 quired to be entered in the register book by the Registrar-Gen- 
 eral in the case of a transfer, mortgage, or lease, as the ease 
 may be, made within the limits of the said Province, and upon 
 such record being authenticated by the signature of such au- 
 thorized person as aforesaid, such transfer, mortgage, or lease 
 shall be as valid and binding to all intents as if the same had 
 been made within the limits of the said Province, and re- 
 corded in the register book by the Registrar-General, and sub- 
 ject to the rules hereinafter for each such ease prescribed, every 
 person whose name shall have been so recorded as purchaser 
 mortgagee, or lessee of such land upon such registration ab- 
 stract, shall be held and taken to be registered as such, and 
 shall have the same rights and powers, and be subject to the 
 same liabilities as he would have had and been subject to if his 
 name had been registered in the register book instead of on 
 such abstract as proprietor, mortgagee, or lessee of such land 
 or of such estate or interest therein. 
 
 414 
 
OEIGINAl, TOERENS ACT 
 
 81. The following rules shall be observed as to powers of at- 
 torney and registration abstracts : 
 
 (1) The power shall be exercised in conformity with the 
 directions contained therein ; 
 
 (2) No sale, mortgage, or lease bona fide made thereunder 
 shall be impeached by reason of the person by whom the power 
 was given dying before the making of such sale, mortgage or 
 lease ; 
 
 (3) Whenever the power contains a specification of the 
 place or places at which, and a limit of time within which, the 
 sale is to be exercised, no sale, mortgage, or lease bona fide 
 made to a purchaser, mortgagee, or lessee without notice shall 
 be impeached by reason of the bankruptcy or insolvency of the 
 person by whom the power was given ; 
 
 (4) If sale be affected, there shall be delivered up to the 
 Registrar-General the memorandum of sale by which the land 
 or any estate or interest therein is contracted to be transferred, 
 the registration abstract, and the grant, certificate of title, lease 
 or other instrument of title ; the Registrar-General shaU enter 
 in the register book a memorandum of the particulars of such 
 sale, and of the canceUing of such abstract, and shall endorse 
 on such memorandum, and also on the grant, certificate of title, 
 lease or other instrument of title a memorandum of the date 
 and hour on which such entry was made, and if a full estate in 
 fee simple, in such land, or in any part thereof, shall have been 
 passed by such memorandum of sale, he shall cancel the grant 
 or certificate of title delivered up, and shall issue a certifi- 
 cate of title of such land, or of the sold portion thereof 
 to the purchaser, and if part only be sold, he shall also issue a 
 certificate of title of the unsold portion to the proprietor ; and 
 shall, before issuing the same, endorse on each of such certifi- 
 cates of title, a memorandum of the particulars of all unsatis- 
 fied mortgages or encumbrances appearing in the registry book, 
 or on the registration abstract affecting the, land included un- 
 der each such certificate of title respectively ; 
 
 (5) Every mortgage which is so endorsed as aforesaid on 
 the registration abstract shall have priority over all biUs of 
 mortgages of the same estate executed subsequently to the date 
 of the entry of the issuing of such abstract in the register book ; 
 and if there be more mortgages than one so endorsed, the re- 
 spective mortgagees claiming thereunder shall, nothwithstand- 
 ing any express, implied, or constructive notice, be entitled one 
 before the other according to the date at which a record of each 
 instrument is endorsed on such abstract, and not according to 
 the date of the bill of mortgage ; 
 
 (6) The discharge and also the transfer of any mortgage, 
 so endorsed on such abstract may be endorsed on such abstract 
 
 415 
 
APPENDIX 
 
 by any person hereinbefore authorized to record a mortgage 
 thereon upon the production of such evidence and the execu- 
 tion of such instruments as are hereinbefore required to be exe- 
 cuted and produced to the Registrar on the entry of the dis- 
 charge or transfer of a mortgage in the register book ; and such 
 endorsement, so made on such abstract, shall have the same 
 effect and be as valid, to all intents, as if such transfer or dis- 
 charge had been entered in the register book by the Registrar- 
 General in manner hereinbefore provided. 
 
 (7) Upon proof, at any time, to the satisfaction of the Regis- 
 trar-General that any power or registration abstract is lost, or 
 so obliterated as to be useless, and that the powers thereby 
 given have never been exercised, or if they have been exercised 
 then upon proof of the several matters and things that have 
 been done thereunder, it shall be lawful for the Registrar-Gen- 
 eral, with the sanction of the Lands Titles Commissioners, as 
 circumstances may require, either to issue a new power or reg- 
 istration abstract, as the case may be, or to direct such entries 
 to be made in the register book, or such other matter or thing 
 to be done as might have been made or done if no such loss or 
 obliteration had taken place. 
 
 (8) Upon the delivery of any abstract to the Registrar-Gen- 
 eral, he shall, after recording in the register book in such man- 
 ner as to preserve its priority, the particulars of every unsatis- 
 fied mortgage registered thereon, cancel such abstract, and en- 
 ter the fact of such cancellation in the register book ; and shall 
 also, by endorsement on the grant, or certificate of title, lease, 
 or other instrument, evidencing the title of .such proprietor to 
 such land, note the particulars of every such unsatisfied mort- 
 gage, and of every such lease, and the cancellation of such cer- 
 tificate of mortgage, and every certificate so cancelled shall be 
 void to all intents, and shall file in his office the duplicates of 
 every memorandum of sale, bill of mortgage, lease or other in- 
 strument executed thereunder, which may for that purpose be 
 delivered to him. 
 
 82. The registered owner for the time being of any land in 
 respect of which a power of attorney has been issued may, by 
 an instrument, under his hand, in the form Q in the Schedule 
 hereto, or as near thereto as circumstances will permit, revoke 
 such power; and if the holder of such power shall neglect or 
 refuse to surrender the same to such owner, or his agent exhib- 
 iting such revocation order, duly certified by the Registrar- 
 General, he shall be guilty of a misdemeanor, and on convic- 
 tion thereof shall forfeit and pay a sum not exceeding One Hun- 
 dred Pounds, unless it shall be made to appear to the satisfac- 
 tion of the Court before whom the case may be tried, that the 
 
 416 
 
ORIGINAL TOERENS ACT 
 
 powers given therein had been exercised prior to the presenta- 
 tion of such revocation order. 
 
 83. After the presentation of such revocation order to the 
 holder of such power, the said power shall, so far as concerns 
 any mortgage or sale to be thereafter made, be deemed to be re- 
 voked and of no effect. 
 
 84. Whenever it is intended that partition should be made 
 by copartners, joint tenants, or tenants in common, of any land 
 under the operation of this Act, or of any estate or interest in 
 such land, such copartners, joint tenants, or tenants in common, 
 may execute a memorandum of sale, lease or other such instru- 
 ment of transfer as in accordance with the provisions of this 
 Act the nature of the estate or interest may require, purport- 
 ing to sell, lease, or otherwise transfer, to each or any of sach 
 copartners, joint tenants, or tenants in common respectively, 
 such part of the said land, or their estate or interest in such 
 part of the said land as shall be expressed and described in such 
 memorandum of sale, lease or instrument of transfer ; and upon 
 such memorandum of sale, lease, or other instrument being pre- 
 sented to the Registrar-General, he shall enter the particulars 
 of the same in the register book, and proceed in other respects as 
 is hereinbefore directed for the case of the transfer of a like 
 estate or interest in land under the operation of this Act, and 
 upon such entry being made in the register book, the estate or 
 interest of such copartners, joint tenants, or tenants in common, 
 in the particular piece of land described in such memorandum 
 of sale, lease or other instrument, shall pass from such copart- 
 ners, joint tenants, or tenants in common, and shall vest in the 
 individual named and described as purchaser, lessee, or trans- 
 feree, of the estate or interest of such copartners, joint tenants, 
 or tenants in common, as set forth, limited, and described in 
 such memorandum of sale, lease, or other instrument of transfer. 
 
 85. If the consent or direction of any person shall be 
 requisite or necessary upon a sale or other disposition of land 
 under the operation of this act, or any estate or interest therein, 
 such consent or direction may be endorsed upon the memoran- 
 dum of sale, or other instrument executed for the purpose of 
 transferring, or otherwise dealing with such land, or estate or 
 interest therein, in the words following, that is to say, "I con- 
 sent hereto, ' ' which consent or direction, when signed by such 
 consenting or directing party, and attested in manner herein- 
 after prescribed, shall have full validity and effect. 
 
 86. Every instrument signed by any married woman, as a 
 vendor, mortgagor, or lessor, or otherwise, for the purpose of 
 disposing of, releasing, surrendering, or extinguishing any es- 
 tate, right, title, or interest in any land under the operation of 
 thisAct, if produced and acknowledged by her in manner pro- 
 
 417 
 
APPENDIX 
 
 vided by the Ordinance of the Governor in Council of the said 
 Province, No. 15 of 1845, intituled "An Ordinance to render 
 effectual Conveyances by Married "Women, and to declare the 
 effect of certain Deeds relating to Dower, ' ' shall have the same 
 effect and validity as is by this given to instruments of the like 
 nature when signed by male persons of full age and sound 
 mind, attested in manner hereinbefore prescribed. 
 
 87. If any person interested in any land under the opera- 
 tion of this Act, is by reason of infancy, lunacy, or other inabil- 
 ity, incapable of making any declaration or doing anything re- 
 quired or permitted by this Act to be made or done by a pro- 
 prietor in respect of registry transfer, or transmission, mort- 
 gage, or encumbrance of such land, or the release of the same 
 from any mortgage or encumbrance, or the leasing, assigning, 
 or in any other manner dealing with such land, then the guar- 
 dian or committee, if any, of such incapable person, or, if there 
 be none, any person appointed by any Court or Judge possess- 
 ing jurisdiction in respect of the property of incapable persons, 
 upon the petition of any person on behalf of such incapable 
 person, or of any other person interested in the making such 
 declaration, or doing such thing, may make such declaration, or 
 a declaration as nearly corresponding thereto as circumstances 
 permit, and do such thing in the name and on behalf of such 
 incapable person ; and all acts done by such substitute shall be 
 as effectual as if done by the person for whom he is substituted. 
 
 88. The execution of any instrument made in accordance 
 with the provisions of this Act, or the discharge of any mort- 
 gage or encumbrance, or the transfer or surrender of any lease, 
 may be proved, if the parties executing the same be resident 
 within ten miles of the Registry Office, then before the Regis- 
 trar-General ; if the parties executing the same be resident at 
 a distance from the Registry Office greater than ten miles, then 
 before the Registrar-General or a Justice of the Peace ; if the 
 said parties be resident in Great Britain, then by the Mayor or 
 other Chief Officer of any Corporation, or before a Notary Pub- 
 lic; if the said parties be resident in any British Possession, 
 then before the Chief Justice, Judge of any Superior Court 
 having jurisdiction in such Possession, or before the Governor, 
 Government Resident, or Chief Secretary thereof; if the said 
 parties be resident at any foreign place, then before the British 
 Consular Office resident at such place ; and a certificate of such 
 proof, under the hand and seal of the Registrar-General, or of 
 any such Justice of the Peace, Notary Public, Mayor or other 
 Chief Officer, Chief Justice, Judge, Governor, Resident, Chief 
 Secretary, or Consular Officer, as the case may be, shall be suf- 
 ficient evidence that the execution of such instrument, had been 
 duly proved. 
 
 418 
 
ORIGINAL TOEEENS ACT 
 
 89. The execution of any such instrument, release, transfer, 
 or surrender, may be proved before any such person as afore- 
 said, by the oath or solemn affii mation of the parties executing 
 the same, or of a witness attesting the signing thereof; and if 
 such witness shall answer in the affirmative, each of the ques- 
 tions following, that is to say — 
 
 Are you the witness who attested the signing 
 of this instrument, and is the name or mark pur- 
 porting to be your name or mark as such attesting 
 witness your own handwriting? 
 
 Do you personally know , 
 
 the person signing this instrument, and whose sig- 
 nature you attested ? 
 
 Is the name purporting to be his signature his 
 own handwriting, is he of sound mind, and did he 
 freely and voluntarily sign the name ? 
 
 Then the Registrar-General, Justice, or other person before 
 whom such witness shall prove such signature as aforesaid, 
 shall endorse upon such instrument a certificate in form of the 
 Schedule hereto annexed marked R, or as near thereto as cir- 
 cumstances will permit ; Provided also, that if any person sign- 
 ing any such instrument, transfer, release, or surrender, as 
 aforesaid, as the maker thereof, shall be personally known to 
 the Registrar-General, Justice, or other person as aforesaid, it 
 shall be lawful for such person to attend and appear before such 
 Registrar-General, Justice, or other person to whom he is per- 
 sonally known, and then and there acknowledge that he did 
 freely and voluntarily sign such instrument, transfer, release, 
 or surrender ; and upon such acknowledgment, the Registrar- 
 General, Justice, or other person, as the case may be, shall en- 
 dorse on such instrument a certificate, in the form or to the ef- 
 fect of the Schedule hereto marked S, or as near thereto as cir- 
 cumstances will permit, and it shall not be necessary for such 
 instrument to be proved by the attesting witness in manner 
 aforesaid; Provided also that such questions as aforesaid may 
 be varied as circumstances shall or may require, in case any 
 person shall sign such instrument by his mark ; Provided also, 
 that, on the signing of any such instrument by any married 
 woman, and the acknowledgment thereof by her in manner 
 mentioned or referred to in this act, no further or other proof 
 or acknowledgment shall be requisite or necessary. 
 
 90. Every such Justice as aforesaid, sitting in open Court, 
 shall be, and he is hereby required to administer the oath, or 
 take the solemn affirmation, or the acknowledgment, of any 
 person attending before him for the purpose of proving or ac- 
 knowledging any such instrument as aforesaid. 
 
 419 
 
APPENDIX 
 
 91. It shall not be lawful for any person to institute or 
 prosecute any action of ejectment for the recovery of land 
 under the operation of this Act, against the registered pro- 
 prietor, save and except only in the case of a mortgagee 
 against his mortgagor, an encumbrancee against his encum- 
 brancer, or a lessor against his lessee, in default, under the 
 terms, conditions, or covenants of a bill of mortgage, bill of en- 
 cumbrance, bill of trust, or lease, as the case may be, executed 
 and registered in accordance with the provisions of this Act, 
 or in the ease of any person duly authorized by any Court hav- 
 ing jurisdiction in cases of bankruptcy or insolvency, against 
 a bankrupt or insolvent, or in case the registered proprietor has 
 obtained such land by fraud or misrepresentation. 
 
 92. Any person who shall, by the decree of any Court hav- 
 ing jurisdiction in such case, be declared to be the lawful heir to 
 any land under (,he operation of this Act ar any person who 
 shall by any such decree be declared to have been deprived of 
 an estate or interest in such land, through the entry in the 
 register book of any memorandum of sale or other instrument 
 affecting such land, made or procured to be made by fraud, er- 
 ror, misrepresentation, oversight, or deceit, may bring and 
 prosecute an action at law in the Supreme Court for the recov- 
 ery of damages against the person who may, by fraud or other 
 means as aforesaid, have become registered as proprietor of 
 such land ; and the Court or Jury before whom such action is 
 tried shall, if such person obtains a verdict in his favor, find 
 damages against the person so registered as proprietor through 
 fraud, or error, or other means aforesaid, for such sum of 
 money as the Court or Jury may think fit, not exceeding the 
 value of such land at the time when such person did so wrong- 
 fully, or in error become registered as proprietor of the same, 
 together with interest on the amount of such value, com- 
 puted at Six Pounds in the One Hundred Pounds per annum, 
 from the date when such person so became wrongfully, or in 
 error, registered as proprietor. 
 
 93. In case the person against whom damages shall in any 
 such case be awarded, shall have been so registered as pro- 
 prietor, through error or misconception, and not through fraud, 
 misrepresentation, or deception, it shall be lawful for such last- 
 named person, in lieu of paying such sums of money so awarded 
 as damages (if he shall so elect and is in a position so to do), to 
 transfer such land to the person who shall have obtained such 
 verdict, clear of any mortgage, encumbrance, or any lien or 
 liability of such nature or amount as to reduce the value of the 
 said land, estate, or interest below the amount so awarded as 
 damages; and the memorandum of sale, or other instrument 
 evidencing transfer of such land, estate, or interest to the per- 
 
 i2i> 
 
ORIGINAL TOEEENS ACT 
 
 son who shall have obtained such verdict, duly executed and 
 registered in accordance with the provisions of this Act, shall 
 be received in any Court of Law or Equity as a sufBcient dis- 
 charge for the liability on account of the sum of money so 
 awarded as damages. 
 
 94. If it shall be made to appear, to the satisfaction of the 
 Court before whom such action shall be tried, that any person, 
 at the time then being registered as proprietor in respect of 
 such estate or interest, has been so registered through fraud or 
 misrepresentation, or in any manner otherwise than as pur- 
 chaser, or mortgagee for bona fide valuable consideration, or by 
 transfer, or transmission from or through a purchaser or mort- 
 gagee for bona fide valuable consideration, it shall be lawful 
 for such Court to direct the Registrar-General to cancel the 
 entry in the register book recording the proprietorship of the 
 person who shall by such fraud or misrepresentation have been 
 so registered, together with all subsequent entries therein re- 
 lating to the same estate or interest, and the Registrar-General 
 shall obey such order, and the estate or interest referred to in 
 such order shall thereupon revert to and vest in the persons 
 in whom (having regard to intervening circumstances, if any) 
 the same would have vested had no such entries been so made 
 in the register book. 
 
 95. If, at the date of making such decree as aforesaid, the 
 person who shall, by fraud, misrepresentation, or error, have 
 been registered as proprietor of the estate or interest therein 
 referred to, shall still be registered as proprietor of the same 
 estate or of any portion thereof, notice of such decree, signed 
 by the Master of the Supreme Court, or by the Judge by whom 
 such decree was made, served upon the Registrar-General, shall 
 operate as a destringas, and the Registrar-General, upon the re- 
 ceipt of such notice, and until the damages awarded shall be 
 paid or satisfied, shall abstain from recording on the register 
 book any transfer, mortgage, or other transaction, affecting the 
 same estate or interest, except for the purpose of satisfying 
 such award in manner hereinbefore provided. 
 
 96. In case the person against whom such verdict shall have 
 been obtained shall fail to pay, within reasonable time, the 
 amount of damages so awarded, or to convey the estate or in- 
 terest to the person who shall have obtained such verdict, the 
 amount of such award may be levied by distress upon the goods 
 of such person, or he may be attached, and lodged in the com- 
 mon gaol in Adelaide until such amount be paid or satisfied in 
 manner aforesaid ; and, in case of a return of nulla bona, or if 
 the amount recovered by such distress shall not suffice to cover 
 the amount of damages so awarded, together with all costs 
 of suit, the Registrar-General shall address to the Treasurer of 
 
 421 
 
APPENDIX 
 
 the said Province, a requisition for the payment of the amount 
 so awarded, or of the balance thereof, and the said Treasurer 
 upon receipt of such requisition, and of a warrant under the 
 hand of the Governor, countersigned by the Chief Secretary of 
 the said Province, shall pay such amount, and shall charge the 
 same to the account of the assurance fund hereinbefore de- 
 scribed. 
 
 97. No action of ejectment, or for recovery of damages, 
 shall be in any case instituted against any registered proprietor 
 after the expiration of the time within which it shall be lawful, 
 oj any law for the time being in force in the said Province, to 
 bring or commence an action for ejectment for the recovery of 
 any land. 
 
 98. If any certificate of title, or other instrument affecting 
 land, under the operation of this Act, or any entry, memoran- 
 dum, or endorsement, in or upon any such instrument, shall be 
 obtained from or issued by the Registrar-General through or by 
 means of fraud, error, misrepresentation, oversight, or deceit, 
 it shall be lawful for the said Registrar-General, by summons 
 under the hand of a Judge of the Supreme Court, to be issued 
 to such Registrar-General upon verbal application made by him, 
 to summon the person to whom such certificate, or other instru- 
 ment, shall have been issued, to surrender and yield up such 
 certificate, or other instrument to such Registrar-General ; and 
 if such person shall neglect or refuse to surrender and yield up 
 such certificate, or other instrument, it shall be lawful for the 
 said Court, or any Judge thereof, upon proof that such sum- 
 mons had been duly served, and upon the like application of the 
 Registrar-General, to issue an attachment against such person, 
 and commit him to the common gaol at Adelaide, until such cer- 
 tificate, or other instrument, be surrendered and yielded up; 
 and the Registrar-General shall give public notice, by adver- 
 tisement, published once in each of three successive weeks in 
 the South Australian Government Gazette, and at least one 
 newspaper published in the City of Adelaide, that such certifi- 
 cate, or other instrument, or such entry, memorandum, or en- 
 dorsement, had been obtained or issued in manner as aforesaid, 
 and shall declare such certificate, or other instrument, or such 
 entry, memorandum, or endorsement, to be void, and of no ef- 
 fect whatever; whereupon the same shall become void and of 
 no effect ; Provided alwayfe, that nothing herein contained shall 
 be held to operate in any such manner as to subject to impeach- 
 ment or to defeat the title of any person who, before the issue 
 of such summons as aforesaid, shall, upon payment of bona fide 
 valuable consideration, have become registered as proprietor in 
 respect to the estate or interest referred to in such certificate, 
 entry, memorandum, or endorsement. 
 
 422 
 
OEIGINAL TOHRENS ACT 
 
 99. In the event of the grant or certificate of title of any 
 land registered under this Act being lost, mislaid, or destroyed, 
 the proprietor of such land, together with other persons, if any, 
 having knowledge of the circumstances, may make a declara- 
 tion before the Registrar-General, stating the facts of the case, 
 the names and descriptions of the registered owners, and the 
 particulars of all mortgages, encumbrances, or other matters 
 affecting such land and the title thereto, to the best of declar- 
 ant's knowledge and belief; and the Registrar-General, if sat- 
 isfied as to the truth of such declaration, and the bona fides of 
 the transaction, may, with the consent of the Lands Titles 
 Commissioners, issue to such applicant a provisional certificate 
 of title of such land, which provisional certificate shall contain 
 an exact copy of the original grant, or certificate of title, bound 
 up in the register book, and of every memorandum and en- 
 dorsement thereon at the time appearing, and shall also con- 
 tain a statement of the circumstances under which such pro- 
 visional certificate is issued; and the Registrar-General shall, 
 at the same time, enter in the register book notice of the issuing 
 of such provisional certificate, and the date thereof, and the cir- 
 cumstances under which it was issued; and such provisional 
 certificate shall be available for all purposes and uses for which 
 the grant, or certificate of title, so lost or mislaid would have 
 been available, and as valid to all intents as such lost grant or 
 certificate. 
 
 100. The Registrar-General, upon receipt of any caveat in 
 accordance with the provisions of this Act, shall cause the same 
 to be published ia the Government Gazette of the said Province, 
 and also in at least one newspaper published in the City of Ade- 
 laide, three several times in each of three successive weeks, at 
 the expense of the person serving such caveat, and in case such 
 person shall refuse to pay the expense thereof, the Registrar- 
 General shall not be bound or obliged to receive such caveat. 
 
 101. The Registrar-General shall give notice of the receipt 
 of such caveat to every person registered as proprietor in re- 
 spect to the estate or interest referred to in such caveat, and to 
 every person presenting for purpose of registration any instru- 
 ment relating to such estate or interest, and such registered 
 proprietor, or other person claiming estate or interest in the 
 same land, may, if he think fit, summon the person signing such 
 caveat to attend before the Judges of the Supreme Court of the 
 said Province, or one of them, to show cause why such caveat 
 should not be withdrawn; and it shall be lawful for the said 
 Court, or a Judge thereof, upon proof that such last-mentioned 
 person has been summoned, to make such order in the premises, 
 either ex parte or otherwise, as to the said Court or Judge shall 
 seem fit. 
 
 423 
 
APPENDIX 
 
 102. Within three calendar months from the entering of 
 such caveat, the person entering the same shall take proceed- 
 ings to establish his claim, and such proceedings shall be by 
 way of petition to the Supreme Court, which shall be filed on 
 oath, and shall contain, as concisely as may be, a statement of 
 the material facts on which the petitioner relies, such statement 
 to be divided into paragraphs, numbered consecutively, and 
 each paragraph shall contain, as nearly as may be, a separate 
 and distinct allegation, and shall state specifically what estate, 
 lien, or charge the petitioner claims, and the said Court, upon 
 receipt of such petition, shall issue an order appointiag a time 
 for hearing the same. 
 
 103. The petitioner shall cause a copy of such petition and of 
 the order for hearing to be served upon the registered proprie- 
 tor of the estate or interest in respect to which such caveat is 
 lodged, or upon the person applying to have land brought un- 
 der the operation of this Act as the case may be, fourteen days 
 at least before the day appointed for the hearing of the said 
 petition. 
 
 104. On the day of hearing, the claimant is personally, or by 
 counsel, to show cause in Court if he can, and if necessary by 
 affidavit, why the matters claimed by such petitioner should not 
 be ordered. 
 
 105. If the claimant shall not appear on the day appointed 
 for the hearing, the Court may, upon due proof of the service 
 of such petition and order, make such order, in the absence of 
 the claimant, either for the establishment of the rights of the 
 petitioner, or as the nature and circumstances of the case may 
 require, as to such Court may seem meet. 
 
 106. On the day appointed for the hearing of the petition, 
 and on hearing the same, and the affidavits, if any, filed in sup- 
 port thereof, and hearing what may be alleged on behalf of the 
 claimant, the Court may, if it shall think fit, make an order es- 
 tablishing the right of the petitioner, or directing any inquiries 
 to be made, or other proceedings taken, for the purpose of as- 
 certaining the rights of the parties, or may dismiss the petition. 
 
 107. The Supreme Court may, if it shall think fit, direct any 
 question of fact brought before it to be decided before a Judge 
 thereof; and for that purpose may direct an issue to be tried, 
 wherein the petitioner shall be plaintiff, and the claimant shall 
 be defendant^; and the said Court shall direct when and where 
 the trial of such issue shall take place, and shall also require 
 the claimant and petitioner severally to name an attorney to act 
 on his behalf ; and the Court may also direct the parties to pro- 
 duce all deeds, books, papers, and writings, in their custody or 
 power, on a day to be named by the Court, and each party shall 
 have liberty to inspect the same, and take copies thereof, at 
 
 424 
 
ORIGINAL TOREENS ACT 
 
 their own expense ; and such of them as either party shall give 
 notice to have produced at the trial, shall be produced accord- 
 ingly ; and, in ease the parties differ upon the question or ques- 
 tions to be tried, the Court may either settle the same, or other- 
 vrise refer it to the Lands Titles Commissioners. 
 
 108. If the Court shall find that the petitioner is entitled to 
 all or some of the matters claimed by him, the order of the 
 Court shall declare what is the estate, interest, lien, or claim to 
 which the petitioner is entitled, and shall direct such order to 
 be served upon the Registrar-General, who shall obey the same 
 or act in accordance therewith. 
 
 109. Every order of the Court shall have such and the like 
 effect as a decree or decretal order of the Court made in 
 a suit commenced by bill, and duly prosecuted to a hearing, ac- 
 cording to the present practice of the Equitable Jurisdiction of 
 the Court. 
 
 110. If, at the hearing of such petition, it shall appear to the 
 Court that, for the purposes of justice, it is necessary or expedi- 
 ent that a iaill should be filed, the Court may order or authorize 
 such bill to be filed subject to such terms as to costs or other- 
 wise as may be thought proper. ' 
 
 111. The Court shall have power in all cases to order the 
 payment of the costs occasioned by entering the caveat or in- 
 cidental thereto, to be paid by or to the petitioner, as the ease 
 may require and as the Court may think fit. 
 
 112. The procedure and practice in the matter of a petition 
 presented under this Act shall, unless otherwise provided, be 
 regulated by the procedure and practice of the Equitable Jiiris- 
 diction of the said Supreme Court in a claim filed under an Act 
 passed in the year of our Lord one thousand eight hundred and 
 fifty-three, and being numbered 14 of that year, intituled ''An 
 Act to amend the practice and proceeding in the Equitable 
 Jurisdiction of the Supreme Court of South Australia." 
 
 113. From and after the passing of this Act all public majis 
 delineating the Waste Lands of the Crown in the said Province 
 for the purpose of sale, shall be made in duplicate, and the Sur- 
 veyor-General shall sign each duplicate, and shall certify the 
 accuracy of the same, and such duplicates of such maps shall be 
 deposited in the Registry Office, and whenever, in any instru- 
 ment relating to land brought under the operation of this Act, 
 and executed subsequent to the passing thereof, reference is 
 made to the public maps of the said Province deposited in the 
 office of the Surveyor-General, such reference shall be inter- 
 preted and taken to apply equally and with the same force and 
 effect, and for the same purposes, to either of such duplicates. 
 
 114. It shall be lawful for any proprietor, subdividing any 
 land under the operation of this Act, for the purpose of selling 
 
 425 
 
APPENDIX 
 
 the same in allotments as a township, to deposit with the Regis- 
 trar-General a map of such township provided that such map 
 shall be on a scale of not less than one inch to the chain, and 
 shall exhibit, distinctly delineated, all roads, streets, passages, 
 thoroughfares, squares, or reserves, appropriated or set apart 
 for public use, and also all allotments into which the said land 
 may be divided, marked with distinct numbers or symbols, and 
 the person depositing such map shall sign the same, and shall 
 certify the accuracy thereof by declaration before the Regis- 
 trar-General, or a Justice of the Peace. 
 
 115. It shall be lawful for the Registrar-General, if he shall 
 think fit, to require the proprietor applying to have any land 
 brought under the operation of this Act, or desiring to transfer 
 or lease the same, or any portion thereof, to deposit, at the 
 Registry OfSce, a map or plan of such land, and if the said land, 
 or the portion thereof proposed to be transferred or leased, 
 shall be of less area than one statute acre, then such map or 
 plan shall be on a scale not less than one inch to the chain ; and 
 if such land, or the portion thereof, about to be sold or leased, 
 shall be of greater area than one statute acre, then such map 
 or plan shall be upon a scale not less than one inch to six chains, 
 and such proprietor shall sign such map and shall declare to the 
 accuracy of the same before the Registrar-General, or a' Justice 
 of the Peace ; and if such proprietor shall neglect or refuse to 
 comply with such requirement, it shall not be incumbent on the 
 Registrar-General to proceed with the bringing of such land 
 under the operation of this Act, or with the registration of such 
 transfer or lease; Provided always, that subsequent subdi- 
 visions of the same land may be delineated on the map or plan 
 of the same, so deposited, if such map be upon a sufficient scale, 
 in accordance with the provisions herein contained, and such 
 proprietor shall certify the correctness of the delineation of 
 each such subdivision, be declaration in manner prescribed for 
 the case of the deposit of an original map. 
 
 116. Any person may, upon payment of a fee specified in 
 Schedule T hereto, have access to the register book for the 
 purpose of inspection at any reasonable time during the hours 
 and upon the days appointed for search. 
 
 117. The Registrar-General, upon payment of such reason- 
 able sum as may be appointed by any regulation made by him 
 for such case, with sanction of the Governor, shall furnish to 
 any person applying at a reasonable time for the same, a cer- 
 tified copy of any instrument affecting or relating to land regis- 
 tered under the provisions of this Act, and every such certified 
 copy signed by him and sealed with his seal, shall be received 
 in evidence in any Court of Justice, or before any person having 
 by law, or by consent of parties, authority to receive evidence 
 
 426 
 
ORIGINAL TOEEEN8 ACT 
 
 as prima facie proof of all the matters contained or recited in 
 or endorsed on the original instrument, and the production of 
 any such certified copy, so signed and sealed, shall be as efEect- 
 ual in evidence to all intents as the production of the original. 
 
 118. The Registrar-General shall not be liable to damages 
 or otherwise for any loss accruing to any person by reason of 
 any act done or default made by him in his character of Regis- 
 trar-General, unless the same has happened through his neglect 
 or wilful act. 
 
 119. The Registar-General shall keep a correct account of 
 all such sums of money as shall be received by him in accord- 
 ance with the provisions of this Act, and shall pay the same into 
 the Public Treasury of the said Province at such times, and 
 shall render accounts of the same to such persons, and in such 
 manner as may be directed in any regulations that may for that 
 purpose be prescribed by the Governor-in-Chief of the said 
 Province, by and with the advice of the Executive Council 
 thereof; and the Registrar-General shall address to the said 
 Treasurer requisitions to pay moneys received by him, in trust 
 or otherwise, on account of absent mortgagees or other persons 
 entitled in accordance with the provisions of this Act; which 
 requisitions, when proved and audited in manner directed, by 
 any such regulations framed as aforesaid at the time being in 
 force in the said Province, and accompanied by warrant for 
 payment of the same under the hand of the Governor, counter- 
 signed by the Chief Secretary thereof, the said Treasurer shall 
 be bound to obey, and all fines and fees received under the pro- 
 visions of this Act, except fees payable to the Lands Titles Com- 
 missioners for the bringing of land under the operation of this 
 Act, shall be carried to account by the said Treasurer as Gen- 
 eral Revenue.. 
 
 120. Any person who shall wilfully or knowingly, by fraud 
 or misrepresentation, make, or cause, or obtain to be made in 
 the register book, any entry which might in any way affect the 
 right, title, estate, or interest of himself, or of any other person, 
 in any land under tlie operation of this Act, or who shall wil- 
 fully or knowingly, by fraud or misrepresentation, procure 
 from the Registrar-General any certificate of title, registration 
 abstract, or other instrument evidencing or relating to title to, 
 or estate or interest in land under the operation of this Act, or 
 shall cause or procure to be made any entry, certificate, mem- 
 orandum, or endorsement by this Act prescribed to be made in 
 or upon any such certificate, abstract, or other instrument by 
 the Registrar-General, or other authorized person, or who shall 
 use or utter any such certificate, abstract, or other instrument, 
 knowing the same to be counterfeited, forged, or altered, or to 
 have been obtained by fraud or misrepresentation, or to con- 
 
 427 
 
APPENDIX 
 
 tain or bear any entry, memorandum, certificate, or endorse- 
 ment as aforesaid, forged, counterfeited, or altered, or obtained 
 by fraud or misrepresentation, and who shall be thereof law- 
 fully convicted, shall be deemed guilty of felony, and be sen- 
 tenced to be imprisoned for any period not exceeding four 
 years, and to be kept to hard labor or solitary confinement for 
 any part of the period aforesaid; and if any person shall wil- 
 fully or knowingly make a false oath or affirmation touching or 
 concerning any matter or procedure made or done in pursuance 
 of this Act, and be thereof lawfully convicted, such person shall 
 be deemed guilty of perjury, and be imprisoned for the period, 
 and in the manner aforesaid, and, in addition to such punish- 
 ment, any person damnified or suffering loss by any such fraud, 
 misrepresentation, forgery, counterfeit, alteration, use, or ut- 
 terance, of any such certificate, abstract, or other instrument, as 
 aforesaid, or by the making of any such false oath or affirma- 
 tion, shall have a right of action against, and be entitled to re- 
 cover damages from, the person guilty of such fraud, misrepre- 
 sentation, forgery, counterfeit, alteration, use, or utterance, or 
 making such false oath or affirmation, the amount of all dam- 
 ages he may have sustained thereby, with full costs of suit, as 
 hereinbefore provided. 
 
 121. Unless in any case herein otherwise expressly provided, 
 all offences against the provisions of this Act may be prose- 
 cuted, and all penalties or sums of money imposed or declared 
 to be due or owing by or under the provisions of the same, may 
 be sued for and recovered in the name of the Attorney-General, 
 or of the Registrar-General, before any Court in the said Prov- 
 ince, having jurisdiction for punishment of offences of the like 
 nature, or for the recovery of penalties or sums of money of 
 the like amount. 
 
 122. It shall be lawful for the Registrar to charge and re- 
 ceive such fees as shall be appointed by the Governor of the 
 said Province, by and with the consent of the Executive Coun- 
 cil, not in any case exceeding the several fees specified in the 
 Schedule hereto marked T. 
 
 123. This Act shall commence and take effect from and 
 after the first day of July, one thousand eight hundred and 
 fifty-eight. 
 
 428 
 
Schedules Referred To. 
 
 SCHEDULE A. 
 
 SOUTH (ROYAL ARMS) AUSTRALIA. 
 Certificate of Title. 
 
 A. B., of (here insert description, and if certificate be issued 
 pursuant to any sale, reference to memorandum of sale, recit- 
 ing particulars) is now seised of an estate (here state whether 
 in fee simple) subject nevertheless to such encumbrances, liens, 
 and interests, as are notified by memorandum endorsed hereon, 
 in that piece of land situated in the (County, Hundred, or 
 
 Township) of bounded on the (here set forth 
 
 boundaries, in chains, links, or feet), containing (here state 
 area), be the same a little more or less (exclusive of roads in- 
 tersecting the same, if any), with right of way over (state 
 rights of way, and other privileges, or easements, if any) ; plan 
 of which piece of land is delineated in (margin, or in map 
 
 No. — ' , deposited in Registry Office), which said piece of 
 
 land is (or is part of) the (Country Section or Town allot- 
 ment), marked , delineated in the public map of 
 
 the said (County, Hundred, or Township), deposited in the 
 office of the Surveyor-General, which was originally granted 
 
 the day of , under the hand and seal 
 
 of , Governor (or Resident Commissioner) 
 
 of the said Province, to C. D., of (here insert description), as 
 appears by (land grant, former certificate, or other instrument 
 of title, describing them) , now delivered up and cancelled. 
 
 In witness whereof, I have hereunto signed my name, and 
 
 affixed my seal, this day of 
 
 Registrar-General. (L. S.) 
 
 Signed, sealed, and delivered, in presence of , 
 
 the day of 
 
 SCHEDULE B. 
 
 SOUTH AUSTRALIA. 
 Memorandum of Sale. 
 I, A. B., being seised of an estate (here state nature of the 
 estate or interest, whether in fee simple or life estate, or of a 
 greater or less description than a life estate), subject, however, 
 to such encumbrances, liens, and interests, as are notified by 
 memorandum endorsed hereon, in that piece of land situated 
 in the (County, Hundred or Township) of , 
 
 429 
 
APPENDIX 
 
 bounded on the (here set forth boundaries, in chains, links, or 
 feet), eontauiing (here state area), be the same a little more or 
 less (exclusive of roads intersecting the same, if any), with 
 right of way over (here state rights of way, privileges, or ease- 
 ments intended to be conveyed) ; plan of which piece of land is 
 
 delineated in (margin, or in map No , deposited in the 
 
 Registry Office), which said piece of land is (or is part of) the 
 
 (Country Section or Town allotment), marked , 
 
 delineated in the public map of the said (County, Hundred or 
 Township), deposited in the office of the Surveyor-General, 
 
 which was originally granted the day of 
 
 under the hand and seal of , Governor (or 
 
 Resident Commissioner) of the said Province, to C. D., of (in- 
 sert description), in consideration of the sum of £ , paid 
 
 to me by E. F., of (here insert description), the receipt of which 
 sum I hereby acknowledge, do hereby transfer to the said B. P., 
 (all my estate or interest, or a lesser estate or interest, describ- 
 ing such lesser estate) in the said piece of land. In witness 
 
 whereof I have hereunto subscribed my name this 
 
 day of 
 
 Signed on the day above-named, by the said A. B., in presence 
 oi G. H. 
 
 SCHEDULE 0. 
 
 SOUTH AUSTRALIA. 
 Lease. 
 
 I, A. B., being seised of an estate (here state nature of the 
 estate or interest, whether in fee simple or life estate, or of a 
 greater or less description than a life estate), subject, however, 
 to such incumbrances, liens, and interests as are notified by 
 memorandum endorsed hereon, in that piece of land situated 
 
 in the (County, Hundred or Township), of , bounded 
 
 on the (here set forth boundaries in chains, links, or feet), con- 
 taining (here state area), be the same a little more or less (ex- 
 clusive of roads intersecting the same, if any), with right of 
 way over (here state rights of way, privileges, or easements in- 
 tended to be conveyed), plan of which piece of land is delin- 
 eated in (margin hereof, or in map No , deposited in the 
 
 Registry Office), which said piece of land is (or is part of), the 
 
 (County, Section or Town allotment), marked , 
 
 delineated in the public map of the said (County, Hundred, or 
 Township), deposited in the office of the Surveyor-General, 
 
 which was originally granted the day of , 
 
 under the hand and seal of , Governor or 
 
 Resident Commissioner of the said Province, to C. D., of (in- 
 sert description), do hereby lease to E. P., of (here insert de- 
 
 430 
 
OEIGINAL T0EEEN8 ACT 
 
 scription), all the said lands, subject to the following covenants, 
 conditions and restrictions (here set forth all special covenants, 
 if any, and state what covenants declared by "Eeal Property 
 Act " to be implied against lessor and lessee respectively are in- 
 tended to be barred or modified and in what manner), to be held 
 
 by him, the said E. F., as tenant, for the space of years, 
 
 at the yearly rental of £ , payable (here insert terms of 
 
 payment of rent) . 
 
 I, B. F., of (here insert description), do hereby accept this 
 lease of the above described lands to be held by me, as tenant, 
 for the term, and subject to the conditions, restrictions, and 
 covenants above set forth. 
 
 Dated this day of 
 
 Signed by the above-named A. B., as lessor, and by the above- 
 named B. F. as lessee, this day of , in 
 
 presence of X. Y. 
 
 (Signed) A. B., Lessor. 
 
 B. F., Lessee. 
 
 SCHEDULE D. 
 
 SOUTH AUSTRALIA. 
 BUI of Mortgage. 
 
 I, A. B., being seised of an estate (here state nature of the 
 estate or interest, whether in fee simple or life estate, or of a 
 greater or less description than a life estate), subject, however, 
 to such incumbrances, liens, and interests as are notified by 
 memoranda endorsed hereon, in that piece of land situated in 
 
 the (County, Hundred or Township) of , bounded 
 
 on the (here set forth boundaries, in chains, links, or feet), con- 
 taining (here state area), be the same a little more or less (ex- 
 clusive of roads intersecting the same, if any), with right of 
 way over (here state rights of ways, privileges, or easements 
 appertaining) ; plan of which piece of land is delineated in 
 (margin hereof, or. in map No , deposited in the Regis- 
 try Office), which said piece of land is (or is part of) the 
 
 (County Section or Town allotment) marked , 
 
 delineated in the public map of the said (County, Hundred, or 
 Township), deposited in the oifiee of the Surveyor-General, 
 
 which was originally granted the day of , 
 
 under the hand and seal of , (Governor or 
 
 Resident Commissioner) of the said Province, to C. D., of (in- 
 sert description). 
 
 In consideration of the sum of £ this day lent to me 
 
 by E. F., of (here insert description), the receipt of which sum 
 I hereby acknowledge, do hereby covenant with the said E. F. 
 that I will pay to him, the said E. F., the above sum of £ 
 
 431 
 
APPENDIX 
 
 on the day of Secondly, that I will 
 
 pay interest on the said sum at the rate of £ by the £100, 
 
 in the year, by equal payments, on the day of 
 
 and on the day of in every 
 
 year. Thirdly (here set forth special covenants, if any are in- 
 tended, and state what covenants declared by "Real Property 
 Act" to be implied in mortgages are intended to be barred or 
 modified ; and if so, in what manner. ) 
 
 And for the better securing to the said B. F., the repayment 
 in manner aforesaid of the said principal sum and interest, I 
 hereby mortgage to the said E. P. all my estate and interest in 
 the said land above described. 
 
 In witness whereof, I have hereto signed my name this 
 
 day of 
 
 A. B., Mortgagor. Accepted, E. F., Mortgagee. 
 
 Signed by the above-named A. B. as mortgagor, and by the 
 
 above-named E. F. as mortgagee, this day of 
 
 , in presence of G. H. 
 
 SCHEDULE E. 
 
 SOUTH AUSTRALIA. 
 Bill of Encumbrance. 
 
 I, A. B., being seised of an estate (here state nature of the 
 estate or interest, whether in fee simple or life estate, or of a 
 greater or less description than a life estate), subject, however, 
 to such encumbrances, liens, and interests, as are notified by 
 memoranda endorsed hereon, in that piece of land situated in 
 
 the (County, Hundred or Township) of , bounded 
 
 on the (here set forth the boundaries in chains, links, or feet), 
 containing (here state the area), be the same a little more or 
 less-, (exclusive of roads intersecting the same, if any), with 
 rights of way over (here state rights of way, privileges, or ease- 
 ments appertaining), plan of which piece of land is delineated 
 in (margin hereof, or in map No , deposited in the Regis- 
 try Office) which said piece of land is (or is part of) the 
 
 (County Section or Town allotment) marked , 
 
 delineated in the public map of the said (County, Hundred, or 
 Township) deposited in the oflSce of the Surveyor-General, 
 
 which was originally granted the day of , 
 
 under the hand and seal of , Governor (or 
 
 Resident Commissioner) of the said Province, to C. D., of (in- 
 sert description), and desiring to render the said land available 
 for the purpose of securing to and for the use and benefit of 
 E. F., (here state the particulars of the annuity or sum of money 
 desired to be secured, the times when, and the restrictions, limi- 
 tations, conditions, and contingencies under which it is to be 
 
 432 
 
OEIGINAL TOEEENS ACT 
 
 payable, and the particulars of any reversions or remainders de- 
 sired to be secured or appointed) , do therefore set over and ap- 
 point all my estate in the said land to be encumbered to the 
 extent and liable for the payment of the above specified sums in 
 manner and subject to the conditions, restrictions, and con- 
 tingencies, reversions, and remainders above specified. 
 
 In witness whereof I have hereunto subscribed my name this 
 
 day of 
 
 (Signed) A. B. 
 
 Signed by the above-named A. B. in the presence of X. Y. 
 
 SCHEDULE F. 
 
 SOUTH AUSTRALIA. 
 Bill of Trust. 
 I, A. B., being seised of an estate (here state nature of the 
 estate or interest, whether in fee simple or life estate, or of a 
 greater or less description than a life estate), subject, however, 
 to such encumbrances, liens, and interests, as are notified by 
 memorandum endorsed hereon, in that piece of land situated in 
 
 the (County, Hundred or Township) of , bounded 
 
 on the (here set forth boundaries, in chains, links, or feet), con- 
 taining (here state area), be the same a little more or less (ex- 
 clusive of roads intersecting the same, if any), with right of 
 way over (here state rights of way, privileges, or easements ap- 
 pertaining) ; plan of which piece of land is delineated in (mar- 
 gin, or in map No , deposited in the Eegistry Office). 
 
 Which said piece of land is (or is part of) the (Country Sec- 
 tion or Town allotment) marked , delineated in 
 
 the public map of the said (County, Hundred, or Township), 
 deposited in the office of the Surveyor-General, which was orig- 
 inally granted the day of , under the 
 
 hand and seal of , Governor (or Eesident 
 
 Commissioner) of the said Province to C. P., of (insert descrip- 
 tion), desire to invest all my estate and interest in the above 
 described land (or a lesser estate in the said lands, specifying 
 the nature and limitations of such lesser estate and all condi- 
 tions, restrictions, limitations, and contingencies, reversions, 
 and remainders, to which it is desired to subject the same) in 
 
 trust for the uses and benefit of C. D. of and do 
 
 therefore transfer, set over, and appoint all my estate and in- 
 terest in the said lands (or so much of my estate and interest 
 in the same as is above limited and specified) to E. F. and 6. H. 
 as trustees, to have and to hold the said estate and interest, in 
 trust, for the uses and benefit of the said C. D., subject to the 
 conditions, limitations, restrictions, and contingencies, rever- 
 sions, and remainders above set forth and specified. 
 
 433 
 
APPENDIX 
 
 In witness whereof I have hereunto subscribed my name and 
 
 affixed my seal, this day of 
 
 A. B. 
 I accept the above trust. 
 
 E. F. 
 G.H. 
 Signed by the above-named A. B. as proprietor, and by the 
 
 above-named E. F. and G. H. as trustees, this day 
 
 of , in presence of X. Y. 
 
 SCHEDULE G. 
 
 SOUTH AUSTRALIA. 
 
 Power of Attorney. 
 
 I, A. B., being seised of an estate (here state nature of the es- 
 tate or interest, whether in fee simple or life estate, or of a 
 greater or less description than a life estate), subject, however, 
 to such incumbrances, liens, and interests as are notified by 
 memorandum endorsed hereon, in that piece of land situated 
 
 in the (County, Hundred or Township), of , bounded 
 
 on the (here set forth boundaries in chains, links, or feet), con- 
 taining (here state area), be the same a little more or less (ex- 
 clusive of roads intersecting the same, if any), with right of 
 way over (here state rights of way, privileges, or easements ap- 
 pertaining), plan of which piece of land is delineated in (mar- 
 gin hereof, or in map No , deposited in the Registry 
 
 Office, which said piece of land is (or is part of), the (Country 
 
 Section or Town allotment), marked , delineated 
 
 in the public map of the said (County, Hundred, or Township), 
 deposited in the office of the Surveyor-General, which was 
 
 originally granted the day of , under 
 
 the hand and seal of , Governor (or Resi- 
 dent Commissioner) of the said Province, to C. D. of (insert 
 description), do hereby appoint C. D. attorney, on my behalf to 
 (here state the nature and extent of the powers intended to be 
 conferred, as whether to sell, lease, mortgage, etc.), the above 
 described lands (or my estate and interest in the above de- 
 scribed lands), subject, nevertheless, to the restrictions and lim- 
 itations declared and set forth at foot hereof, and to execute all 
 such instruments, and do all such acts, matters, and things as 
 may be necessary for carrying out the powers hereby given, and 
 for the recovery of all rents and sums of money that may be- 
 come or are now due or owing to me in respect of the said lands, 
 and for the enforcement of all contracts, covenants, or condi- 
 tions binding upon any lessee or occupier of the said lands, or 
 upon any other person in respect of the same and for the taking 
 
 434 
 
ORIGINAL TOERENS ACT 
 
 and maintaining possession of the said lands, and for protecting 
 the same from waste, damage, or trespass. 
 
 I declare the above lands (or my estate or interest in the 
 
 above lands), shall not be sold for less than £ or unless 
 
 upon the following conditions (here insert conditions, if any, 
 to be imposed). I declare the amount of money to be raised 
 by mortgage on the security of the said lands under this power 
 
 shall not exceed £ , or be less than £ , and that the 
 
 rate of interest at which the same is raised shall not exceed 
 £ for every year £100 by the year. 
 
 I declare the above land shall not be leased for any term of 
 
 years exceeding , or at a less rent than £ , or 
 
 unless subject to the following covenants and restrictions (here 
 insert conditions, such as whether right of purchase may be 
 given, and at what price, &c. &c.). 
 
 I declare that this power shall not be exercised after the ex- 
 piration of from the date hereof. 
 
 In witness whereof I have hereunto subscribed my name this 
 day of 
 
 Signed by the above-named A. B. this day of 
 
 in presence of X. Y. 
 
 SCHEDULE H. 
 
 SOUTH AUSTRALIA. 
 Registration Abstract. 
 
 I, A. B., being seised of an estate (here state nature of the 
 estate or interest, whether in fee simple or life estate, or of a 
 greater or less description than a life estate), subject, however, 
 to such encumbrances, liens, and interests, as are notified by 
 memoranda endorsed hereon, in that piece of land situated in 
 
 the (County, Hundred or Township) of , bounded 
 
 on the (here set forth the boundaries in chains, links, or feet) , 
 containing (here state the area), be the same a little more or 
 less, (exclusive of roads intersecting the same, if any), with 
 rights of way over( here state rights of way, privileges, or ease- 
 ments intended or appertaining) , plan of which piece of land is 
 
 delineated in (margin, or in map No , deposited in the 
 
 Registry Office), which said piece of land is (or is part of) the 
 
 (Country Section or Town allotment) marked , 
 
 delineated in the public map of the said (County, Hundred, or 
 Township) deposited in the office of the Surveyor-General, 
 
 which was originally granted the day of 
 
 under the hand and seal of , Governor (or 
 
 Resident Commissioner) of the said Province, to C. D. of (in- 
 sert description), request that a registration abstract of my 
 title to the said lands may be granted, enabling me to sell, lease, 
 
 435 
 
APPENDIX 
 
 or otherwise deal with the same at places without the limits of 
 the said Province. 
 
 (Signed) A. B. 
 
 To the Registrar-General. 
 
 Signed by the above-named A. B. this day of 
 
 in presence of X. Y. 
 
 I, Registrar-General of the Province of South Australia, do 
 hereby certify that the above particulars relating to the above 
 described land and to the estate and interest therein of A. B., 
 whose signature is above subscribed are correct as appears by 
 entries recorded in the register book of the said Province, Fo. 
 , Vol. No Pursuant, therefore, to the above ap- 
 plication and by virtue of powers in me vested by Act of the 
 Legislature of the said Province, intituled "The Real Property 
 Act." This registration abstract is issued for the purpose of 
 enabling the said A. B. to deal with the said lands at places 
 without the limits of the said Province. 
 
 This abstract shall continue in force from the date thereof to 
 the day of unless sooner delivered up. 
 
 In witness whereof, I have hereunto signed my name and ap- 
 pend my seal this day of 
 
 Registrar-General. 
 
 Signed, sealed, and delivered, the day of 
 
 in the presence of X. T. 
 
 SCHEDULE I. 
 
 SOUTH AUSTRALIA. 
 
 Application for Lands to be Brought Under Operation of Act 
 
 No of 
 
 I, A. B., of do declare (that I am), or 
 
 (on behalf of of , that he is) 
 
 (L. S.) seised in possession of an estate (here state the de- 
 scription of estate, whether in fee simple or a lesser 
 estate, or as trustee, or held in trust for uses) in .all 
 that piece of land situated in (here state the situation) bounded 
 (here state the boundaries, and the length of each line of 
 boundary, in chains and links, or in feet), contaning (here state 
 area), be the same a little more or less, (exclusive of roads in- 
 tersecting the same, if any) with( here state rights of way and 
 other privileges or easements appertaining), plan of which 
 piece of land is (delineated in margin hereof, or in map 
 
 No , deposited in the Registry Office) which piece of land 
 
 is (the town allotment or country section, or is part 
 of the town allotment or country section) origitially 
 granted to of — : by land grant un- 
 der the hand and seal of , formerly Governor 
 
 436 
 
OEIGI^AL T0BEEN8 ACT 
 
 (or Eesident Commissioner) of the Province of South Australia. 
 
 Dated the day of , numbered in the 
 
 plan of the (district, or township, or county) of , 
 
 as delineated on the public maps of the Province deposited in 
 the Survey Office in Adelaide ; And I do further declare, that I 
 am not aware of any mortgage, encumbrance, or claim affecting 
 the said lands, or that any person hath any claim, estate, or in- 
 terest in the said lands, at law or in equity, in possession or in 
 expectancy, other than is set forth and stated as follows, that is 
 to say' (here state particulars of all unsatisfied mortgages, en- 
 cumbrances, claims, or interests, if any), and I make this solemn 
 declaration conscientiously, believing the same to be true. 
 
 Dated at , this day of , 
 
 18__-. 
 
 Made and subscribed by the above-named , 
 
 this day of , in the presence of me, 
 
 , Registrar-General or Justice of the Peace. 
 
 I, A. B., the above declarant, do hereby apply to have the 
 piece of land described in the above declaration brought under 
 the operation of Act No of 18 
 
 Dated at this day of , 
 
 18—. -A.. B. 
 
 "Witness to signature : C. D. 
 
 SCHEDULE J. 
 
 SOUTH AUSTRALIA. 
 Notice of Receipt of Application for Lands to Be Brought 
 Under Operation of Act No. of or for 
 
 the Registration of Transmission. " 
 
 "Whereas of hath made 
 
 and subscribed a declaration before (Registrar- 
 (L. S.) General or Justice of the Peace) setting forth 
 
 (that he is, or on behalf of that he 
 
 is) seised of an estate in (here recite the particulars 
 from declaration), and hath made appliea,tion to have the said 
 
 lands brought under the operation of Act of Council No ^ 
 
 of 18 , intituled the Real Property Act: Notice is hereby 
 
 given that, unless within the space of from the 
 
 date hereof, caveat be lodged with me by some person having 
 estate or interest in the said lands, or by some person duly au- 
 thorized on behalf of a person having estate or interest therein, 
 I will proceed, as by law directed, to bring the said piece of 
 land under the operation of the said Act. 
 
 Dated this day of at the Registry 
 
 Office, Adelaide, South Australia. 
 
 (Signed) Registrar-General. 
 
 437 
 
APPENDIX 
 
 SCHEDULE K. 
 Warrant of Lands Titles Commissioners. 
 
 Whereas A. B., of hath, by application No. 
 
 , dated the day of , requested 
 
 that the lands therein described be brought under the operation 
 of the Real Property Act, and the said application has been re- 
 ferred to us by the Registrar-General, we hereby direct that 
 publication of same be made in the following manner, that is 
 to say (or we find no sufficient grounds to entitle him to be 
 recognized as holding fee-simple estate in the said lands), and 
 in case no caveat be received by the Registrar-General in re- 
 spect to such lands on or before the day of 
 
 we direct the Registrar-General to take such steps as are by law 
 directed for bringing such land under the operation of the said 
 Act. 
 
 R. S., 
 L. M., 
 Lands Titles Commissioners. 
 
 Dated this day of , 185__. 
 
 SCHEDULE L. 
 
 Caveat. 
 
 Take notice that I, , claiming estate 
 
 or interest (here state the nature of the estate or interest 
 claimed and the grounds on which such claim is founded) in 
 lands described as (here state particulars of description from 
 
 declaration of Applicant) in notice dated the day 
 
 of advertising the same as land in respect to which 
 
 claim has been made, to have the same brought under the oper- 
 ation of Act of Council No , of 18 — , intituled the Real 
 
 Property Act, do hereby forbid the bringing of the said lands 
 under the operation of the said Act. 
 
 This day of 
 
 Signed in my presence this L day of 
 
 at 
 
 To the Registrar-General of the Province of South Australia. 
 
 SCHEDULE M. 
 Notice of Lands Brought Under Act. 
 
 Whereas A. B., of , claiming to be seised 
 
 of an estate, in the lands described at foot hereof, has applied 
 to have the said lands brought under the operation of the Real 
 Property Act, and such claim having been duly advertised in 
 manner prescribed by the said Act, and no caveat in respect to 
 the said lands having been received by me within the time for 
 
 438 
 
ORIGINAL TOEBENS ACT 
 
 that purpose by the said Act limited; Now I, , 
 
 of , Registrar-General by virtue of powers 
 
 by the said Act in me vested, do hereby declare the said lands 
 to be lauds brought under the operation of the said Act, from 
 and after the date hereof. 
 
 Given under my hand the day of , 
 
 185__. 
 
 Registrar-General. 
 
 SCHEDULE N. 
 
 Declaration of Owner Taking by Transmission. 
 
 I, -.^ , of , declare that , the 
 
 proprietor of (here describe the property and state the nature 
 
 of the estate or interest transmitted) (died at , in 
 
 the , having first duly made his will, dated the 
 
 day of , whereby he appointed me exe- 
 cutor, and I proved his said will on the day of 
 
 , in the Court of ), or (died at 
 
 , in the , on the day of 
 
 intestate, and that letters of administra- 
 tion of his estate and effects were on the 
 
 day of duly granted to me by the Court of 
 
 ;) or we declare that C. D. the proprietor of (here 
 
 describe the property and state the nature of the estate or in- 
 terest transmitted) was on the , day of 
 
 (duly adjudged a bankrupt), or (declared insolvent), and that 
 we were on the day of appointed as- 
 signees of the said C. D., and we are by law entitled to be reg- 
 istered as proprietors of the said land (or of his interest therein 
 
 as above described) or (I declare that on the day 
 
 of I intermarried with and am now the husband of 
 
 C. D., the proprietor of (here describe property and estate or 
 interest therein transmitted), and I declare that on such mar- 
 riage the interest of the said C. D. became by law vested in me, 
 and that I am entitled to be registered as proprietor of the said 
 land or of her interest in the said land. And I make this 
 solemn declaration conscientiously, believing the same to be 
 true. 
 
 (Signed) 
 
 Dated at , the day of , 18 
 
 Made and subscribed by the above-named A. B., in the pres- 
 ence of me. 
 
 (Signed) (Name of the Registrar or Justice 
 of the Peace acting in and 
 for ) 
 
 439 
 
APPENDIX 
 
 SCHEDULE 0. 
 
 Transfer of Mortgage, Lease, or Encumbrance to Be On or 
 
 Endorsed on Original Mortgage, BUI of 
 
 Encumbrance, or Lease. 
 
 I, the within-mentioned C. D., in consideration of £ , 
 
 this day paid to me by X. Y., of , the receipt of 
 
 which sum I do hereby acknowledge, hereby transfer to him the 
 estate or interest in respect to which I am registered as Pro- 
 prietor, as set forth and described in the within-written secur- 
 ity, together with all my rights, powers, estate, and interest 
 therein. 
 
 In witness whereof I have hereunto subscribed my name, this 
 
 day of 
 
 (L. S.) C. D. 
 
 Signed by the above-named C. D., in the presence of E. F., 
 the day of 
 
 SCHEDULE P. 
 
 Caveat Forbidding Registration of Contract for Dealing With 
 
 Estate or Interest in Future. 
 
 To the Registrar-General of South Australia : 
 
 Take notice that I, , claiming estate or in- 
 terest (here state the nature of the estate or interest claimed, 
 and the grounds on which such claim is founded) in (here 
 describe land) forbid the registration of any memorandum of 
 sale, or other instrument, made, signed, or executed by (here in- 
 sert name and address of person supposed to have made, or sus- 
 pected of being about to make, such memorandum of sale or 
 other instrument) affecting the said land, until this caveat be 
 by me, or by the order of the Supreme Court, or some Judge 
 thereof, withdrawn. 
 
 Dated this (here insert date of caveat) day of , 18 
 
 SCHEDULE Q. 
 
 SOUTH AUSTRALIA. 
 Revocation Order. 
 
 I, A. B., of , being seised of an estate (here 
 
 state nature of the estate, whether in fee simple or of a less de- 
 scription) in all that piece of land (here describe land) hereby 
 revoke the power of mortgaging (or selling) the said land given 
 
 by me to by a power of attorney dated the 
 
 day of 
 
 In witness whereof, I have hereunto subscribed my name and 
 
 affixed my seal, this -day of 
 
 (L. S.) A. B. of 
 
 440 
 
ORIGINAL TOEEENS ACT 
 
 I, M. N., Registrar-General, hereby certify that the above- 
 named proprietor has executed this revocation order in manner 
 above appearing. 
 
 (Signed) Registrar-General. 
 
 SCHEDULE R. 
 Certificate of Registrar-General, Justice of the Peace, Etc., 
 Taking Declaration of Attesting Witness. 
 Appeared before me, at , the day 
 
 of___ , C. D., of , the attesting witness to 
 
 this instrument, and acknowledged his signature to the same ; 
 and did further declare, that A. B., the party executing the 
 same, was personally known to him, the said C. D., and that the 
 signature of this said instrument is the hand- writing of the said 
 A. B. 
 
 (Signed) Registrar-General, or J. P. 
 
 SCHEDULE S. 
 
 Certificate of Registrar-General, or Justice of the Peace, Before 
 
 Whom Instrument May Have Been Executed 
 
 By the Parties Thereto. 
 
 Appeared before me, at , the day 
 
 of , A. B., of , the party executing the 
 
 within instrument, and did freely and voluntarily sign the 
 same. 
 
 (Signed) Registrar-General, or J. P. 
 
 SCHEDULE T. 
 
 Fees Payable to the Registrar-General for the Performance of 
 
 the Several Acts, Matters, and Things Herein Specified. 
 
 £. s. d. 
 
 For the bringing land under the operation of this 
 Act, to be paid to the Lands Titles Commis- 
 sioners, as provided for by Sec. No. 11 over and 
 above the cost of all advertisements herein pre- 
 scribed, to be in such case published 1. 0. 0. 
 
 Receipt and noting of Caveat 0. 10. 0. 
 
 Registering Memorandum of Sale, Bill of Mortgage, 
 
 Bill of Trust, or Encumbrance, or Lease — '- 0. 10. 0. 
 
 For registering Transfer of Mortgage or of Encum- 
 brance, or Release of Mortgage or Encum- 
 brance, or the Transfer or Surrender of a Lease 0. 5. 0. 
 
 Registering Declaration of Ownership taken by 
 
 Transmission 0. 10. 0. 
 
 441 
 
APPENDIX 
 
 For every Certificate of Title 1. 0. 0. 
 
 For every Povsrer of Attorney 0. 15. 0. 
 
 For every Registration of Abstract 0. 15. 0. 
 
 For cancelling Power or Registration Abstract 0. 5. 0. 
 
 For every Revocation Order 0. 10. 0. 
 
 Provisional Certificate of Title 1. 0. 0. 
 
 For every search 0. 3. 0. 
 
 ' Including the printed forms for each case prescribed to be 
 used by this Act or by any regulation made in accordance with 
 this Act; 2s. 6d. extra to be charged for any such instrument 
 drawn on parchment. 
 
 COPY OP TITLE INSURANCE POLICY. 
 
 CAPITAL, $5,000,000. 
 CHICAGO TITLE AND TRUST COMANY, 
 Of Chicago, IHinois. 
 No. 131,415. Amount, $10,000.00. 
 
 This Guarantee Policy Witnesseth, that the Chicago Title 
 and Trust Company, in consideration of the sum of seventy-five 
 dollars, to it in hand paid, doth hereby guarantee Edward 
 Stone, his heirs or devisees, or any person or persons to whom 
 this policy shall be transferred, with the assent of the Company 
 endorsed hereon, against all loss or damage not exceeding ten 
 thousand dollars, which the said party guaranteed shall sus- 
 tain by reason of defects in the title of the party guaranteed, 
 as set forth in Schedule A, hereunto annexed, to the real es- 
 tate or interest therein, described in said Schedule A, or by 
 reason of liens or incumbrances affecting the same, at the date 
 hereof, excepting only such liens, incumbrances and other mat- 
 ters as are set forth in Schedule B, hereto annexed, subject 
 to the conditions and stipulations hereto annexed and made a 
 part of this policy. 
 
 This policy is issued upon application by or on behalf of the 
 party guaranteed, numbered 131,415, which application shall 
 be held against all parties claiming hereunder to be a warranty 
 of the facts therein stated. 
 
 In Witness "Whereof, the Chicago Title and Trust Com- 
 pany hath caused its corporate seal to be hereto affixed and 
 these presents to be signed by its President and at- 
 
 tested by its Secretary, this first day of May in the year 
 of our Lord one thousand nine hundred and three (1903). 
 
 President. 
 
 Attested : 
 
 Secretary. 
 
 442 
 
TITLE INSURANCE POLICIES 
 
 SCHEDULE A. 
 1. 
 The estate or in- Pee Simple, 
 
 terest of the party 
 guaranteed cover- 
 ed by this policy. 
 2. 
 Description of Lot one (1) in Block two (2) in Edward 
 the real estate in Stone's Addition to Chicago, being a sub- 
 tMf policy k i^ division of the West fractional half of Sec- 
 used, tion one (1), Township thirty-nine (39) 
 North, Range fourteen (14), East of the 
 third Principal Meridian, in Cook County, 
 Illinois. 
 
 SCHEDULE B. 
 
 Showing estates, or defects in title, and liens, charges and in- 
 cumbrances thereon, which do or may now exist, and against 
 which the Company does not guarantee. 
 
 1. Rights or claims of parties in possession not shown of 
 record and questions of survey. 
 
 2. Taxes for the year 1903. 
 
 3. Trust deed made by Edward Stone to Richard W. 
 Clark, dated April 1, 1902, and recorded April 3, 1902, as 
 document 4,040,302 in book 4,949, page 13, to secure his note 
 for nine thousand dollars due 10 years after date, with in- 
 terest at 5 per cent, per annum, payable semi-annually, etc. ; 
 conveys premises in question and other property. 
 
 4. Judgment rendered April 14, 1902, for $2,500 and 
 costs, in favor of Silas Cunningham and against Edward 
 Stone in ease 29,005 Circuit Court. 
 
 5. Mechanic's lien claim No. 2,345, filed June 29, 1902, by 
 Andrew Jackson against Patrick Daley and others; amount 
 $1,400. 
 
 6. Special assessment confirmed July 17, 1902, "Warrant 
 69, for paving, etc'.. River Street ; amount $450.13, payable in 
 5 annual installments, the last 4 of which remain unpaid. 
 
 CONDITIONS AND STIPULATIONS OP THIS POLICY. 
 1. The Chicago Title and Trust Company shall have the right to, and 
 ■will, at its own cost and charges, defend the party guaranteed in all ac- 
 tions of ejectment or other action or proceeding founded upon a claim of 
 title, incumbrance or defect which existed or is claimed to have existed 
 prior in date to this policy and not excepted herein; reserving, however, the 
 option of settling the claim or paying this policy in full; and the payment 
 or tender of payment to the full amount of this policy shall determine all 
 liability of this company thereunder. In case any such action or proceeding 
 shall be begun, it shall be the duty of the party guaranteed at once to 
 notify the company thereof in writing, and secure to it, when practicable, 
 the right to defend such action or proceeding, and to give all reasonable 
 assistance therein. If such notice shall not be given to the company within 
 
 443 
 
APPENDIX 
 
 ten days after summons or other process in such action or proceeding shall 
 be served upon the party guaranteed in person, then all liability of this 
 company in regard to the subject matter of such action or proceeding shall 
 cease and be determined. 
 
 2. Whenever the company shall have settled a claim under this policy, it 
 shaU be entitled to all rights and remedies which the party guaranteed 
 would have had against any other person or property in respect to such 
 claim, had this policy not been made, and the party guaranteed undertakes 
 to transfer to the company such rights, and to permit it to use the name of 
 the party guaranteed for the recovery thereof. Any sum collected on such 
 rights over and above the amount of loss paid by said company, shall belong 
 and on demand shall be paid to the party guaranteed. The party guaran- 
 teed warrants that such rights of subrogation shaU vest in the company un- 
 affected hy any act of the party guaranteed. 
 
 3. Nothing contained in this policy shall be construed as a guarantee 
 against loss or damage by reason of fraud on the part of the party guar- 
 anteed; or by reason of claims undisclosed of record arising under any act 
 done or trust relationship created, suffered or permitted by said party; or 
 by reason of the fact that said party was not a purchaser for value, or that 
 said party contravened the laws of the United States establishing a uniform 
 system of bankruptcy in his acquisition of the estate or interest hereby 
 guaranteed; nor against the rights of dower and homestead, if any, of the 
 spouse of the party guaranteed ; nor will this company be liable in any event 
 for any loss or damage arising from the refusal of any party to carry out 
 any contract to purchase, lease or loan money on the estate or interest 
 guaranteed. 
 
 4. Loss or damage by reason of special taxes, special assessments, water 
 rentals or water taxes, which have not been confirmed by a Court of Eecord, 
 conveyances or agreements not of record at the date of this policy, or me- 
 chanics ' liens when no notice thereof appears of record are not covered by it. 
 
 5. A statement in writing of any loss or damage for which it is claimed 
 this company is liable shall be furnished to the company within sixty days 
 after such loss or damage, and no right of action shall accrue under this pol- 
 icy until thirty days after such statement shall have been furnished, and 
 no recovery shall be had under this policy unless action shall be commenced 
 thereon within one year after the expiration of said last mentioned period 
 of thirty days; and a failure to furnish such statement of loss or damage, 
 and to commence such action within the times hereinbefore specified, shall 
 be a conclusive bar against the maintenance of any action under this policy. 
 
 6. All payments under this policy shall reduce the amount guaranteed 
 pro tanto, and no payment can be demanded without producing the policy 
 for endorsement of such payment. If the policy be,lost or destroyed, indem- 
 nity must be furnished to the satisfaction of the company. 
 
 This policy necessarily relates solely to the title prior to and 
 including its date. 
 
 Assignments of this policy must be with the assent of the 
 company endorsed hereon, and, to protect subsequent pur- 
 chasers against intermediate claims or losses, must be contin- 
 ued to date. 
 
 Trustees and Mortgagees, to receive the benefit of this policy, 
 should obtain a "mortgagee's policy" hereon. 
 
 In assenting to assignments no liability is assumed by the 
 company for defects or incumbrances created subsequent to 
 the date of this policy. 
 
 444 
 
TITLE IXSUEANCE POLICIES 
 ASSIGNMENT OF POLICY. 
 
 Chicago, 19 For Value Received hereby 
 
 assign all interest in this policy to 
 
 Assented to 19 
 
 subject to foregoing conditions. 
 
 CHICAGO TITLE AND TRUST 
 COiIPAN"r, 
 by- 
 
 There are some twenty variations of this form of policy. 
 One iusures a purchaser of real estate against defects iu the 
 title of his vendor; one insures in its own title a corporation 
 owning real estate ; one insures the trustee in a trust deed, for 
 the use and benefit of the owner of the indebtedness, against 
 defects in the title of the maker or makers of the trust deed; 
 one insures the owner of the indebtedness, described in a cer- 
 tain trust deed, against defects in the title of the maker or 
 makers of the trust deed, and since the name of the owner of 
 the indebtedness is not inserted in the policy, it is good in the 
 hands of any person who may in fact be the owner at any time 
 during the existence of the debt; one insures the mortgagee, 
 his executors, administrators and assigns, against all loss or 
 damage by reason of defects in the title of the mortgagor. 
 Other forms are issued to meet the requirements of non-resi- 
 dents or others who loan money and who may desire insurance 
 against the existence of mechanics' liens or other adverse in- 
 terests, of which no notice appears of record. Such policies 
 are issued under special agreements, when the funds to be ad- 
 vanced and paid over are deposited with and disbursed by the 
 company. Upon the foreclosure of an incumbrance and the 
 issue of a certificate of sale, the company insures the owner of 
 the certificate against defects in the title, and by its policy 
 guarantees that such owner, in case no redemption is made, 
 will be entitled to a master's deed conveying a fee simple title. 
 The company guarantees estates for life or for years, and 
 leasehold interests in lands. When an incumbrance has been 
 foreclosed and the owner of the del^t has obtained a deed for 
 the property, his mortgage policy becomes in effect an owner's 
 policy, bearing its date and amount, and it may be continued 
 to date, and increased in amount, if desired. 
 
 445 
 
TABLE OF CASES. 
 
 (The references are to sections.) 
 
 Allen, In re, 22 V. L. E. 24 121 
 
 Allison V. Petty, 9 Q. L. J. 125 165 
 American Land Co. v. Zeiss, 219 
 
 U. S. 47 35, 37, 38, 40, 58 
 
 Anderson v. Davy, 1 N. Z. S. C. 
 
 302 148, 193 
 
 Arndt v. Griggs, 134 U. S. 316 
 
 37, 58 
 
 Assets Co. V. Mere Eoihi, 1905, 
 
 A. C. 177 
 
 64, 130, 144, 148, 155, 181 
 
 Attorney-General v. Goldsbor- 
 
 ough, 15 V. L. E. 638 183 
 
 Association, In re, 25 V. L. E. 
 
 77 89 
 
 Atty. General v. Odell, S Chan. 
 
 Div. 47 
 
 65, 129, 132, 133, 183, 204 
 
 Austerberry v. Oldham, 29 Ch. 
 
 Div. 750 90 
 
 Baart v. Martin, 99 Minn. 197 
 
 4g 237 173 
 
 Baiiey V. Gribbj 2 Q. '£,. J. E.' 
 
 42 128 
 
 Ballard v. Hunter, 204 U. S. 241 40 
 Bannister v. Chiene, 22 N. Z. 
 
 L. E. 628 122 
 
 Barham v. Hoggins, 6 Tas. L. 
 
 E. 6 66 
 
 Barker v. Harvey, 181 U. S. 481 37 
 Bartlett, In re, 4 Tas. L. E. 26 173 
 Belize Estate Co. v. Quilter, 
 
 1897, A. C. 367 112, 122, 173 
 
 Bell V. Beckman, 10 N. S. W. 
 
 Eq. 251 145 
 
 Benthan, Ex parte, 6 N. Z. L. 
 
 E. 342 129, 133 
 
 Bercaw v. Cockerill, 20 Ohio St. 
 
 163 220 
 
 Bertrand v. Taylor, 87 111. 235 
 
 37, 56 
 
 Bettle, Ex parte, 14 N. Z. L. 
 
 E. 129 80 
 
 Biggs V. McEUister, 14 S. A. 
 
 L. E. 86 .138 
 
 Bond, Ex parte. In re, 6 V. L. 
 
 E. (L.) 458 27, 65, 88, 155 
 
 Bonnin v. Andrews, 12 S. A. 
 
 L. E. 153 64, 148, 205 
 
 Bosquet, In re, 17 S. A. L. E. 
 
 173 97, 165 
 
 Brooke v. Glos, 243 111. 392. . .44, 47 
 Brown v. Eailway Co., 17 N. Z. 
 
 L. E. 471 83, 88 
 
 Bushnall v. Eeid, 10 S. A. E. 
 
 188 89, 173 
 
 Butler V. Company, N. Z. L. E. 
 
 2 S. C. 296 118 
 
 Butters v. Blaeker, 21 S. A. L. 
 
 E. 37 75 
 
 Capital and Counties Bank v. 
 
 Ehodes, 1 Chan. 631 75, 172 
 
 Cargill, In re, 7 N. Z. L. E. 481 155 
 Carino v. Insular Government, 
 
 212 U. S. 449 31, 40, 50 
 
 Chicago Ey. Co. v. Minnesota, 
 
 134 U. S. 418 :. 64 
 
 Chicago & N. W. E. E. Co. v. 
 
 Garrett, 239 111. 297 55, 143 
 
 Christie, In re, 23 N. Z. L. E. 
 
 558 119 
 
 Cicero Lumber Co. v. Cicero, 
 
 176 111. 9 180 
 
 City of Plymouth v. Schultheis, 
 
 135 Ind. 339 180 
 
 Clark v. Hopkins, 17 N. Z. L. 
 
 E. 201 122 
 
 Clark V. Smith, 13 Pet. 195 37 
 
 Clark, Ex parte, 17 V. L. E. 
 
 82 76, 173 
 
 Cohasset v. Moors, 204 Mass. 
 
 173 168 
 
 Coleman v. Eiria Puwhanga, N. 
 
 Z. L. E. 4 S. C. 230 
 
 . . .64, 128, 130, 138, 140, 148, 193 
 Colonial Bank v. Pie, 6 V. L. E. 
 
 Bq. 186 142 
 
 Colonial Bank v. Eabbage, 5 V. 
 
 L. E. (L.) 462 124 
 
 Common v. Eees, 9 N. Z. j^i. E. 
 
 555 76 
 
 Cooke v. Union Bank, 14 N. S. 
 
 W. L. E. 280 144, 145 
 
 Corbin v. Hill, 21 Iowa 70 64 
 
 Cox V. Bourne, 8 Q. L. J. 66 
 
 128, 201, 206 
 
 Cregar v. Spitzer, 244 111. 208 
 
 45, 51 
 
 Crow V. Campbell, 10 V. L. E. 
 
 (E.) 186 144 
 
 Crowley v. BergtheU, 1899, A. 
 
 C. 374 162 
 
 CuUen V. Thompson, 5 V. L. E. 
 
 147 140 
 
 Culver v. "Waters, 248 111. 163 
 
 22, 44, 46 
 
 Cuthbertson v. Swan, 11 S. A. 
 
 L. E. 173 97 
 
 Daly V. Papworth, 23 "W. N. 
 
 (N. S. W.) 187 192 
 
 Daviea v. Herbert, 11 V. L. E. 
 
 386 117 
 
 446 
 
(The references are to sections.) 
 
 Davies, Ex parte, 11 V. L. E. 
 
 780 75 
 
 Davis V. Wekey, 3 V. L. E. 
 
 (B.) 1 t 173 
 
 Davy, Ex parte, 6 N. Z. L. E. 
 
 760 128, 129 
 
 D'Albedyhill v. D ' Albedyhill, 
 
 N. Z. L. E. 3 S. C. 391 117 
 
 Dewey v. Kimball, 89 Minn. 454 48 
 DiUon V. Heller, 39 Kan. 599. . 58 
 Doyle V. Wagner, 108 Minn. 
 
 443 48, 58 
 
 Edwards v. Wallace, N. Z. L. E. 
 
 1 S. C. 134 124 
 
 Empire City Bank, In re, 18 
 
 N. Y. 199 40 
 
 Entwisle v. Lenz, 14 Brit. Col. 
 
 Eep. 51 75, 116, 163, 173, 214 
 
 Ex parte Bentham, 6 N. Z. L. 
 
 E. 342 129, 133 
 
 Ex parte Bettle, 14 N. Z. L. 
 
 E. 129 80 
 
 Ex parte Bond, 6 V. L. E. (L.) 
 
 458 27, 65, 88, 155 
 
 Ex parte Clark, 17 V. L. E. 
 
 82 76, 173 
 
 Ex parte Davies, 11 V. L. E. 
 
 780 75 
 
 Ex parte Davy, 6 N. Z. L. B. 
 
 760 128, 129 
 
 Ex parte Findlay, N. Z. L. E. 
 
 5 S. C. 52 117 
 
 Ex parte Gallagher, 8 St., Eep. 
 
 (N. S. W.) 230 65, lv3 
 
 Ex parte Johnson, 5 W. W. & 
 
 a'B. 55 89 
 
 Ex parte Metropolitan Bldg. 
 
 Soc, 10 V. L. E. L. 361 183 
 
 Ex parte Patterson, 4 A. J. E. 
 
 26 72 
 
 Ex parte Eigby, 9 V. L. E. L. 
 
 417 121 
 
 Ex parte Soiling, 14 N. S. W. L. 
 
 E. (L.) 399 117 
 
 Farmers ' Union v. Thresher, 62 
 
 Cal. 407 64 
 
 Felix v. Wallace Co., 62 Kan. 
 
 832 64 
 
 Eels v. Knowles, 26 N. Z. L. E. 
 
 604 89, 124, 141, 143, 246 
 
 Eindlay, Ex parte, N. Z. L. E. 
 
 5 S. C. 52.... 117 
 
 Finucane v. Eegistrar, 1 St. 
 
 Eep. Q. 75 191 
 
 First National Bank v. City, 
 
 192 Mass. 220 62 
 
 Fitzgerald v. Archer, 1 W. W. 
 
 6 a'B. 40 72 
 
 Pormby v. Adelaide Corpora- 
 tion, 14 S. A. E. 146 96 
 
 Foss V. Atkins, 204 Mass. 337. . 48 
 Fotheringham v. Archer, 5 W. 
 
 W. & a'B. V. L. 95 199 
 
 Franklin v. Ind., 17 S. A. L. E. 
 
 133 62, 138 
 
 Gage V. Consumers' Co., 194 111. 
 
 30 45, 51, 52, 55 
 
 Gage V. Eeid, 118 111. 35 220 
 
 Gallagher, Ex parte, 8 St. Eep. 
 
 (N. S. W.) 230 65, 173 
 
 George v. Society, N. Z. L. E. 
 
 4 S. C. 165 142 
 
 Gibbs V. Messer, 1891, A. C. 
 
 248 64, 83, 75 
 
 Giddings v. Smith, 15 Vt. 344. . 220 
 Gilbert v. Bourne, 6 Q. L. J. 
 
 270 145 
 
 Glos V. Association, 229 ill. 
 
 387 45, 47 
 
 Glos V. Bragdon, 229 111. 223... 47 
 Glos V. Cessna, 207 111. 69. . . .46, 49 
 Glos V. Ehrhardt, 224 111. 532.. . 47 
 Glos. V. Hallowell, 190 111. 
 
 65 46, 51 
 
 Glos V. Hoban, 212 111. 223 
 
 45, 47, 49 
 
 Glos V. Holberg, 220 111. 167 
 
 45, 46, 47, 50 
 
 Glos V. Kingman, 207 111. 26. .46, 49 
 Glos V. Miekow, 211 111. 117. . . 49 
 
 Glos V. Murphy, 225 111. 58 47 
 
 Glos V. Talcott, 213 111. 81 46 
 
 Glos V. Wheeler, 229 111. 272. .49, 50 
 Gregory v. Alger, 19 V. L. E. 
 
 365 138, 140, 144 
 
 Hall V. Loder, 7 N. S. W, L. E. 
 
 Eq. 44 62, 128, 139 
 
 Hamilton v. Brown, 161 U. S. 
 
 256 37, 58 
 
 Hamilton v. iredale, 3 St. Eep. 
 
 (N. S. W.) 535 64, 148, 149 
 
 Harmon Lewis, In re, 23 N. Z. 
 
 L. E. 581 119 
 
 Hart V. Sansom, 110 U. S. 151 58 
 Harvey v. County of Cook, 221 
 
 111. 76 12, 180 
 
 Harvey v. Williams, 18 S. A. L. 
 
 E. 8 121, 138 
 
 Hassett v. Bank, 7 V. L. E. L. 
 
 380 79, 116, 156, 183, 195 
 
 Hawaii v. Mankiehi, 190 U. S. 
 
 197 31 
 
 Hawes v. U. S. Trust Co., 127 
 
 N. Y. Supp. 632 48 
 
 Hay V. Soiling, 16 N. S. ^. L. 
 E. 60 149 
 
 447 
 
(The references are to sections.) 
 
 Hendricks v. Hess, 112 Minn. 
 
 252 20 
 
 Hill V. Henry, 66 N. J. Eq. 150 58 
 Hoffman v. Superior Court, 151 
 
 Cal. 386 35, 36, 38, 173 
 
 Hubbard v. Hubbard, 77 Vt. 73, 180 
 Huling V. Kaw VaUey Co., 130 
 
 U. S. 559 40, 58, 59 
 
 Hurtado v. California, 110 U. 
 
 S. 516 40, 58 
 
 Independent Lumber Co. v. Gar- 
 diner, 3 Sask. 140 140 
 
 Inhabitants of Cohasset v. 
 
 Moors, 204 Mass. 17d 168 
 
 Innes, In re, 12 N. S. W. L. E. 
 
 108 117 
 
 In re Allen, 22 V. L. B. 24 121 
 
 In re Association, 25 V. L. E. 
 
 77 89 
 
 In re Bartlett, 4 Tas. L. E. 26 . . 173 
 In re Bond, 6 V. L. E. (L.) 
 
 458 27, 65, 88, 155 
 
 In re Bosquet, 17 S. A. L. E. 
 
 173 97, 165 
 
 In re Cargill, 7 N. Z. L. E. 481 155 
 In re Christie, 23 N. Z. L. E. 
 
 558 119 
 
 In re Empire City Bank, 18 N. 
 
 Y. 199 40 
 
 In re Harmon Lewis, 23 N. Z. 
 
 L. E. 581 119 
 
 In re Innes, 12 N. S. W. L. E. 
 
 108 117 
 
 In re Jackson, 10 N. Z. L. E. 
 
 148 191, 203 
 
 In re Land Transfer Act, 1885, 
 
 25 ]Si. Z. L. E. 385 168 
 
 In re Martin, 27 S. A. E., p. 79 223 
 In re McCarthy, 19 N. Z. L. E. 
 
 545 147 
 
 In re Okirae Block, 10 N. Z. L. 
 
 E. 677 155 
 
 In re Palmer, 5 S. A. L. E. 80 . . 117 
 In re Paten, 17 N. S. W. B. 90 170 
 
 In re Skinner, 6 Q. L. J. 68 76 
 
 In re Smith, 1 Sask. 126 70 
 
 In re Stanley, 24 W. N. (N. S. 
 
 W.) 74 24, 66 
 
 In re Tanner, 5 N. Z. S. C. 102 89 
 In re Thomson, N. Z. L. E., 5 
 
 S. C. 52 117 
 
 In re Wo Lee, 26 Fed. Eep. 471 180 
 Jackson v. Glos, 243 111. 280. .47, 52 
 Jackson, In re, 10 N. Z. L. E. 
 
 148. 191, 203 
 
 James v. Newman, 147 Iowa, 
 
 574 220 
 
 Johnson, Ex psxte, 5 W. W. & 
 
 a'B. 55 89 
 
 King V. Price, 24 N. Z. L. E. 
 
 291 89, 196 
 
 Kirkham v. Julian, 11 V. L. E. 
 
 171 170 
 
 KirkpatriiSi v. Hutchinson, 23 
 
 N. Z. L. E. 665 142, 144 
 
 Kissick V. Black, 10 N. Z. L. E. 
 
 519 138 
 
 Kissling v. Mitchelson, N. Z. L. 
 
 E., 3 C. A. 261 97, 118 
 
 Lake v. Jones, 15 V. L. E. 728 
 
 124, 144, 145 
 
 Land Transfer Act, In re, 25 N. 
 
 Z. L. E. 385 168 
 
 Lange v. Euwoldt, 7 S. A. L. 
 
 E. 1 97 
 
 Lantry V. Parker, 37 Neb. 353. . 58 
 Lean v. Maurice, 8 S. A. L. E., 
 
 119 117 
 
 Little V. Dardier, 12 N. S. W. 
 
 L. E. Eq. 319 76 
 
 Lloyd V. Mayfield, 7 A. L. T. 8 62 
 Locher v. Howlett, 13 N. Z. L. 
 
 E. 584 142 
 
 Lofstad V. Murasky, 152 Cal. 64 44 
 London & S. W. Ey. Co. v. 
 
 Gomm, 20 Ch. Div. 562 90, 162 
 
 Louden v. Morrison, 14 N. Z. L. 
 
 E. 245 145 
 
 Lynch v. Murphy, 161 U. o. ^47 58 
 Main v. Eobertson, 7 A. L. T. 
 
 127 62, 139, 193, 195 
 
 Major V. Donald, 13 V. L. E. 
 
 255 128, 130 
 
 Mann v. Jummel, 183 111. 523. . 220 
 Marsden v. McAllister, 8 N. S. 
 
 W. L. E. 300 62, 139, 149 
 
 Marshall v. Eobertson, 50 Solici- 
 tor 's Journal 75 14 
 
 Martin v. Cameron, 12 N. Z. E. 
 
 772 215 
 
 Martin, In re, 27 S. A. E., p. 79 228 
 Matai v. Assets Company, 6 N. 
 
 Z. L. E. 356. 138, 139 
 
 Mathieson v. Mercantile Finance 
 
 Co., 17 V. L. E. 271 75, 84 
 
 Matt V. Peel, 2 V. E. (M.) 27. . 88 
 Maxwell v. Dow, 176 U. S. 581 40 
 Mayor v. Eadecke, 49 Md. 217. . 180 
 Mere Eoihi v. Assets Co., 21 N. 
 
 Z. L. E. 691 148 
 
 Merrie v. McKay, 16 N. Z. L. 
 
 E. 124 145 
 
 Merry v. Society, 3 Q. S. C. E. 
 
 193 123 
 
 Messenger v. Messenger, 223 HI. 
 
 282 46 
 
 Messer v. Gibbs, 13 V. L. E. 
 
 854 128, 129, 130, 133 
 
 448 
 
(The references are to sections.) 
 
 Metropolitan Bldg. Soc, Ex 
 
 parte, 10 V. L. E. (L.) 361. . 183 
 Meyer v. Berlandi, 39 Minn. 438 64 
 Mihalik v. Glos, 247 Dl. 597 
 
 4^ ^7 52 
 
 Miller v. Davy, 7 N. Z. L. E. ' 
 
 E. 515 203 
 
 Mills V. Eenwick, 1 S. E. Eq. 
 
 177 203 
 
 Missouri Eyj Co. v. Simonson, 
 
 64 Kan. 802 64 
 
 Moore v. Public Trustee, 20 N. 
 
 Z. L. E. 288 79 
 
 Morton x. Edwin, 19 Vt. 81 220 
 
 Mundt V. Glos, 231 ni. 158 48 
 
 Mundt V. Glos, 246 111. 636 45 
 
 Munroe v. Adams, 17 V. L. E. 
 
 703 75, 84 
 
 McCarthy, In re, 19 N. Z. L. 
 
 E. 545 147 
 
 McEarcharn v. Colton, 1902, A. 
 
 C. 104 117, 173 
 
 McEUister v. Biggs, L. A. A. 
 
 C. 314 75, 144 
 
 McMahon v. Eowley, 238 111. 
 
 31 45, 47 
 
 McQuesten v. Commonwealth, 
 
 198 Mass. 172 48 
 
 National Co. v. Alderson, 99 
 
 Minn. 137 20 
 
 National Co. v. Hassett, 1907, 
 
 V. L. E. 404 65, 158 
 
 National Co. v. Hopkins, 96 
 
 Minn. 119 47 
 
 National Bank v. National 
 
 Mortgage Co., N. Z. L. E., 3 
 
 S. C. 257 97, 142 
 
 Neill V. Lindsay, 13 S. A. E. 196 170 
 Nichel V. Brown, 75 Md. 172. . . 220 
 Nioa V. Bell, 27 V. L. E. 82. . . . 112 
 Oakden v. Gibbs, 8 V. L. E. L. 
 
 380 203 
 
 O'Connor v. O'Connor, 9 A. L. 
 
 T. 117 12S 
 
 Oelkers v. Merry, 2 Q. S. C. E. 
 
 193 123 
 
 Oertel v. Hordern, 2 St. Eep. 
 
 (N. S. W.) Eq. 37 124, 145 
 
 Ogle V. Aedy, 13 V. L. E. 461 
 
 138, 148 
 
 Okirae Block, In re, 10 N. Z. L. 
 
 E. 677 155 
 
 O'Laughlin v. Covell, 222 111. 
 
 162 45, 48 
 
 Otago Harbour Board v. bped- 
 
 ding, 4 N. Z. S. C. 272 79 
 
 Overland v. Lenehan, 11 Q. L. 
 J. 59 153 
 
 Owners v. People, 113 111. 296. . 69 
 Owsley V. Johnson, 95 Minn. 168 45 
 Palmer, In re, 5 S. A. L. E. 80 117 
 Paoro Torotoro v. Sutter, 1 N. 
 
 Z. J. E. N. S. C. S. 57 97 
 
 Paten, In re, 17 N. S. W. B. 90 170 
 Patterson, Ex parte, 4 A. J. E. 
 
 26 72 
 
 Pennoyer v. Neff, 95 U. S. 
 
 714 38, 58 
 
 People V. Cannon, 139 N. Y. 32 64 
 People V. Chase, 165 III. 527 
 
 12, 27, 32, 68, 166, 168, 181 
 
 People V. Crissman, 41 Colo. 
 
 450 35, 44, 69, 168 
 
 People V. Eose, 207 111. 352 64 
 
 People V. Simon, 176 111. 165 
 
 32, 44, 45, 
 
 56, 57, 68, 69, 103, 166, 168, 182 
 Perkins v. Wakeham, 86 Cal. 
 
 580 58 
 
 Pleasance v. Allen, 15 V. L. E. 
 
 601 153 
 
 Popworth V. "Williams, 20 N. S. 
 
 W. L. E. 280 192, 206 
 
 Prouty V. Marshall, 225 Pa. 
 
 570 156 
 
 Public Trustee v. Eegistrar 
 
 General, 17 N. Z. L. E. 577 
 
 193, 195 
 
 Queensland Trustees v. Eegist- 
 rar, 5 Q. L. J. 46 
 
 95, 118, 191, 195, 196 
 
 Eeed v. Siddall, 94 Minn. 216. . 47 
 Eegistrar v. Price, 24 N. Z. L. 
 
 E. 291 141 
 
 Eigby, Ex parte, 9 V. L. E. 
 
 (li.) 417 121 
 
 Eobertson v. Keith, 1 V. L. E. 
 
 Eq. 11 124 
 
 Eobinson v. Kerrigan, 151 Cal. 
 
 40 35, 44, 69, 168, 182 
 
 Eobinson v. Willoughby, 70 N. 
 
 C. 358 220 
 
 Eogers v. Hosegood, 2 Chan. 
 
 388 89, 162 
 
 EoUer v. HoUey, 176 U. S. 398 58 
 Eourke v. Sehweikert, 9 N. S. 
 
 W. L. E. Eq. ]52 149 
 
 Eowe V. Trustees, 21 V. L. E. 
 
 762 165 
 
 Eutu Peehi v. Davy, 9 N. Z. L. 
 
 E. 134 124, 195, 205 
 
 Eussell V. Eegistrar, 26 N. Z. 
 
 L. E. 1223 204, 206. 
 
 St. George v. Burnett, 10 8. A. 
 
 L. E. 47... 62 
 
 St. Germain v. Eenault, 2 Alta. 
 
 371 146 
 
 U9 
 
(The references are to sections.) 
 
 Sander m. Twigg, 13 V. L. B. 
 
 774 170 
 
 Sandhurst Bldg. Society v. Giss- 
 
 ing, 15 V. L. E. 329 124 
 
 Saunders v. Cabot, N. Z. L. E., 
 
 4 C. A. 19 138, 142 
 
 Shepard v. Ware, 46 Minn. 174 58 
 Sheridan v. Gilles, 21 S. A. L. 
 
 E. 7 121 
 
 Shirley v. Tapper, 23 i^. Z. L. 
 
 E. 849 112, 173 
 
 Skinner, In re, 6 Q. L. J. 68. . . 76 
 Sloane v. Martin, 145 N. T. 524 58 
 Smith V. Essery, 9 N. Z. L. E. 
 
 449 142 
 
 Smith V. Martin, 126 N. Y. 
 
 Supp. 877 48 
 
 Smith V. Eegistrar, 24 N. Z. L. 
 
 E. 862 24 
 
 Smith, In re, 1 Sask. 126 70 
 
 Solicitor General v. Mere Tini, 
 
 17 N. Z. L. E. 773 148 
 
 Soiling, Ex parte, 14 N. S. W. 
 
 L. E. (L.) 399 117 
 
 Spencer v. Registrar, 1908, A. 
 
 C. 235 206 
 
 Stanley, In re, 24 W. N. (N. 
 
 S. W.) 74 24, 66 
 
 Stansell v. Eoberts, 13 Oh. 148 220 
 Staples V. Corby, 19 N. Z. E. 
 
 517 89, 165 
 
 Staples V. McKay, 11 N. Z. L. 
 
 E. 258 88 
 
 State V. Beach, 147 Ind. 74 64 
 
 State V. Buck, 120 Mo. 479 64 
 
 State V. Guilbert, 56 Oh. St. 
 
 575 32, 33, 39, 67, 186 
 
 State V. 111. Cent., 246 HI. 
 
 188 74, 168 
 
 State V. Westfall, 85 Minn. 
 
 437 32, 38, 40, 44, 56, 69, 168 
 
 Staunton v. Bown, 1 V. L. E. 
 
 L. 150 121, 138 
 
 Strang v. Eussell, 24 N. Z. L. 
 
 E. 914 144 
 
 Tanner, In re, 5 N. Z. S. C. 102 89 
 Taylor v. Bank of Victoria, 
 
 12 V. L. E. 748 118 
 
 Thomson v. Finlay, 5 N. Z. S. 
 
 C. 203 144 
 
 Thomson, In re, N. Z. L. R., 5 
 
 S. C. 52 117 
 
 Tierney v. Halfpenny, 9 V. L. 
 
 E. 152 76 
 
 Tierney v. Loxton, 12 N. S. 
 
 W. L. E. 308 117 
 
 Title Co. V. Kerrigan, 150 Cal. 
 
 289 35, 36, 38, 40, 57 
 
 Tobias v. Kaspzyk, 247 HI. 80 50 
 ToUey v. Byrne, 28 V. L. E. 95 191 
 Trantor v. Lord, 8 S. A. L. E. 81, 75 
 
 Tulk V. Moxhay, 2 Ph. 774 DO 
 
 Twining v. New Jersey, 211 U. 
 
 S. 78 40 
 
 Tyler v. Judges, 175 Mass. 71 
 
 31, 33, 39, 42, 44, 57, 69, 168 
 
 United States v. Klein, 13 Wall. 
 
 128 64 
 
 Vale V. Blair, 9 A. T. (V.) 90. . 76 
 Vance v. Vance, 108 U. S. 514 55 
 Wachusetts National Bank, Pe- 
 titioner, Land Court Deci- 
 sions, Mass. 149 188 
 
 Wadham v. Buttle, 13 S. A. L. 
 
 E. 1 62, 121, 138, 139 
 
 Wantlan v. White, 19 Ind. 470 64 
 Waugh V. Glos, 246 HI. 604 
 
 44, 46, 48 
 
 Wellington Eailway Co. v. Reg- 
 istrar General, 18 N. Z. L. E. 
 
 250 88 
 
 Wells V. Messenger, 249 111. 72 244 
 Welsh V. Briggs, 204 Mass. 
 
 540 45, 48 
 
 Western Co. v. i'reecorn, 7 W. 
 
 A. L. E. 22 141 
 
 Westfall V. Stewart, 13 Brit. 
 
 Col. Ill 75, 163, 173, 214 
 
 White V. Flynn, 23 Ind. 46 64 
 
 Wiggins v. Hammill, 4 V. L. E. 
 
 L. 63 138 
 
 Wo Lee, In re, 26 Fed. Eep. 
 
 471 180 
 
 Tick Wo V. Hopkins, 118 U. S. 
 354 180 
 
 450 
 
INDEX. 
 
 (The references are to sections.) 
 
 Absolute and Inaefeasible Titles — 
 certificate of, evidences 
 
 ownership 13, 14, 17, 18, 43, 53, 62, 82, 139, 166, 168 
 
 IS an essential element of Torrens system 161, 166, 168 
 
 makes indemnity fund necessary 183 
 
 system of, most satisfactory 62, 222 
 
 registering 23 
 
 included in classified registration 25 
 
 number of registrations -with, in England 7 
 
 registration with, in British Columbia 25 
 
 Abstract of Title — 
 
 when, may be introduced in evidence 46 
 
 Action in Bem. — 
 
 discussion of, 38 et seq 
 
 Adverse Claim — 
 
 notice of, 117 
 
 effect of notice 118 
 
 must be presented 119 
 
 in this country 120 
 
 Adverse Occupation — 
 
 on first registration 121 
 
 of registered land 122, 215 
 
 rights of tenant 124, 215 
 
 one in, may show he was defrauded 138 
 
 Alphabetical Index — 
 
 necessity for 174 
 
 Appeal — 
 
 from decree of registration 55 
 
 from decision of registrar 65, 70, 72, 74, 155, 157, 214 
 
 Application for Eegistration — 
 
 in foreign countries 23 et seq 
 
 is a law suit 51 
 
 gives vigor to stale claims 51 
 
 applicant must do equity 52 
 
 when decree becomes conclusive 53 
 
 Alphabetical Index — 
 
 necessity for 174 
 
 Assurance Fund — (see Indemnity Fund) 
 
 Attachment on Land — 
 
 generally concerning 116, 156, 177, 214 
 
 Australasia — 
 
 adoption of Torrens system 6 
 
 bringing land under acts 24 
 
 Boundaries of Land — 
 
 mistake as to, effects first certificate only 64 
 
 abutting owners 48 
 
 fraudulently misdescribing 138, 149 
 
 Bringing Land Under Act — 
 
 generally 23 et seq 
 
 effect of 60 
 
 in United States 32 et seq 
 
 indemnity fund for 193, 194 
 
 origin of expression > 25 
 
 British Dependencies — 
 
 Tegistration acts in 11 
 
 451 
 
(The references are to sections.) 
 
 California — 
 
 registration acts in 12 
 
 original registration in 34 
 
 indemnity fund omitted in, act 161, 187 
 
 Canada — 
 
 registration acts in 10 
 
 original registration in 26 
 
 Caveat — 
 
 generally 117 
 
 to give notice of trust 119 
 
 effect of notice US 
 
 against first registration 118 
 
 must be prosecuted 119 
 
 in this country 120 
 
 against original registration ; 24 
 
 to protect trust estate does not lapse 99 
 
 is an essential element of Torrens system 161, 214 
 
 printed on certificates in Chicago 215 
 
 Certificate of Title — 
 
 central feature of registry of title 5,13 
 
 absolute, qualified, possessory 13-23 
 
 purpose of classifying certificates 16 
 
 what interests may be registered 20 
 
 original and subsequent, alike 43 
 
 conclusiveness of 43, 53, 82, 139, 166, 168, 217, 224 
 
 nature of 62, 63, 95 
 
 several kinds 62 
 
 generally must be produced 14, 62, 80-82 
 
 authority to deal with registered land 82, 131 
 
 what constitutes a 95 
 
 first and subsequent, alike indefeasible 64, 65 
 
 pledged for debt 109 
 
 mortgagee entitled to 110 
 
 registrar holds certificate to mortgaged land 110 
 
 new certificate on foreclosure of mortgage 114 
 
 new certificate on sale on execution 116 
 
 issued against one in adverse possession 121 
 
 prevents title by adverse occupation 122 
 
 lost 175 
 
 exchanging 175, 176 
 
 transfer of part only of land 175 
 
 conditions, limitations, forfeitures in 87 
 
 earlier certificate in existence 153 
 
 which includes unregistered land 154 
 
 error in a transfer of land 155 
 
 error in noting lien 156 
 
 correction of errors 157, 158 
 
 effect of forgery 127 
 
 effect of fraud 137 
 
 effect of error 147 
 
 misdescription of land 138, 149 
 
 is conclusive until fraud is shown 139 
 
 shows title at a glance 215 
 
 not guaranteed title 222 
 
 is an essential element of Torrens system 161 
 
 is similar to certificate of corporate stock 164 
 
 endorsed with a caution in Chicago 215 
 
 Certificate of Corporate Stock — 
 
 similar to certificate of title 164 
 
 452 
 
(The references are to sections.) 
 
 Chain of Title— 
 
 what is same 22 
 
 Chancery — 
 
 application for registration in 45 
 
 parties 33, 48 
 
 proof must show good title 49 
 
 Charge on Land — 
 
 what is a 115 
 
 error in noting 156 
 
 effect of notation of 214 
 
 Civil Action — 
 
 application for registration is 45 
 
 parties 33, 48 
 
 proof must show good title 49 
 
 Classified Register — 
 
 original registration under 13 et seq 
 
 Colorado^ — ■ 
 
 registration act in 12 
 
 original registration in 34 
 
 Common Law — 
 
 some common law rights may be abolished 40 
 
 action against fund is not, action 192 
 
 Compulsory Registration — 
 
 in England 8, 14 
 
 generally 179, 180 
 
 Conclusive Authority — 
 
 to make new registration 82, 103, 131, 217, 224 
 
 Constitutionality of Acts — 
 
 generally 32 et seq 
 
 how question of, was raised 41 
 
 distinctive features of system not passed on 43 
 
 as to some special features 44 
 
 Illinois act, 1895 27 
 
 in American cases 33 et seq, 44, 58 
 
 indemnity fund 186 
 
 Constructive Notice — 
 
 doctrine of 3 
 
 how far register is 95 
 
 Contiguous Lands — 
 
 what are 22 
 
 Contributory Negligence- 
 affecting action against indemnity fund 203 
 
 Courts — 
 
 special courts of registration 28 
 
 central and local courts 29, 30 
 
 of general jurisdiction 32 
 
 Covenants, Conditions, Forfeitures — 
 
 may, be registered 87 et seq, 90, 91 
 
 Dealing With Land — 
 
 essential qualities of a system of 212 
 
 Bimplieity in 213 et seq 
 
 security in 224 
 
 rapidity in 227, 228 
 
 Descent — 
 
 rights of heirs 125, 126 
 
 real representative 126 
 
 executor or administrator 126 
 
 omitted heir 208 
 
 453 
 
(The references are to sections.) 
 
 Description of Property — 
 
 must identify property 47 
 
 misdescription of property 64, 138, 149 
 
 abutting owners 48 
 
 Distinctive Features of Torrens System — 
 
 not considered in American eases 43 
 
 what are 161 
 
 District of Columbia — 
 
 bill for registration in 29 
 
 Due Process of Law — 
 
 in original registration -. . 32 et seq 
 
 barring rights of unknown owners 58 
 
 in action in rem 38 et seq 
 
 England — 
 
 land owners of 2 
 
 ownership of land in 2 
 
 adoption of registration of title 7 
 
 absolute, qualified and possessory title in 13 et seq 
 
 registering titles in 23 et seq 
 
 Entitlement of Acts — 
 
 establishing Torrens system 37 
 
 Error — 
 
 generally 147 
 
 in original registration in foreign countries 148 
 
 in this country 148, 152 
 
 earlier certificate in existence 153 
 
 including unregistered land 154 
 
 person registered in error liable for damages 151 
 
 error in transferring land 155 
 
 error in noting Uen 156 
 
 correction of errors 157, 158 
 
 indemnity for 195, 200 
 
 Essential Elements — 
 
 of Torrens system 161 
 
 of recording system 218 
 
 Evidence — 
 
 in applications for registration 45 
 
 of title against all the world 49 
 
 certificate conclusive evidence of title 43, 53, 82, 139, 166, 168, 217, 224 
 prima facie 168 
 
 Execution on Judgment — 
 
 generally 116 
 
 Fee Simple Title — 
 
 , only may be registered 20, 21 
 
 , must be proved 49 
 
 under statutes of limitation 49, 50 
 
 power of owner to deal with registered land 87, 90, 91 
 
 owner of, may transfer lesser estate 96 
 
 Fees and Costs — 
 
 of registration of title 230 et seq 
 
 Forfeitures, Conditions and Limitations — 
 
 may, be inserted in certificates and instruments? 87, 90, 91 
 
 Forgery — 
 
 generally 127 et seq 
 
 effect of, where statute is silent 128 
 
 declared void in England 132 
 
 by one 's own agent 133 
 
 comment on 134 
 
 effect of in this country 135 
 
 454 
 
(The rofmoticoH nni to sections,) 
 
 wlioni title iH liasdd on l-'S 
 
 inJomnity fuii.l 1915, 197, 204 
 
 l''riiiid — 
 
 Ronorally 136 et seq, Ijl!) 
 
 in oriK'nml roKiHtratioii 186, l.'!7 
 
 subHc<inont to orijfiiml i-oniHtratioii 140 
 
 duty of iiiirclii\H(M- to nmko iiiciiiiriiiH I'll 
 
 groHH ii(i^jli),riiii('(^ m not friiiul , I'll 
 
 miiBt 1)0 iicliiiil 144 
 
 indemnity for 195 
 
 lU'cOHH to iii(l«miiiiy fund 201, 202 
 
 Preohold and LoBsohold EstatoH — 
 
 roRistration of 18, 21 
 
 General Laws — 
 
 interpreted as piirt of Torrons acts 37, B8 note 
 
 should hiirmonizo with Hjiocial Uiwr ■''!> 
 
 effect of, on Torrens systom 169, 17.'t 
 
 concurrent iidiinuintrntion of two sots of lavvH 172 
 
 Good Title Against All the World- 
 proof must show 49 
 
 Guaranteed Title — (boo Title Insurance) 
 
 Hawaii — 
 
 roKistration act in 12 
 
 classifled registration in 19 
 
 court for registration in 30 
 
 registration in SI 
 
 History — • 
 
 of discussion of land roKir^tration 1 
 
 of rogistration in Australia 6 
 
 " " " lOnglnnd 7 
 
 " " " this country 12 
 
 " " " Ireland I' 
 
 " " " (liinada 10 
 
 ' ' recording system 212, 220 
 
 Illinois — 
 
 registration acts in 12 
 
 net, ISDfi, doclared unconstitutional "7, 167 
 
 proceeding for registration in 32 
 
 Improvements on Land — 
 
 invalid tii1o, right to value of 123 
 
 Incnniliram'o on Land — 
 
 incumbrance, charge, mortgage 11 '') 
 
 error in noting 166 
 
 olfeot of notation of 177, 214 
 
 Inddfoasiliility of Title — (see Absolute Title) 
 
 Indemnity Fund — 
 
 generally 183, 185 
 
 is not guaranty of title 184, 222 
 
 hold unconstitutioniil in thiH country 186 
 
 how, is cr.'iitcd 187, 188, 189 
 
 liable for losses generally 191 
 
 ni'tion against, not common law 192 
 
 recourse to, original rogistration 193, 194 
 
 loss after original registration 105 
 
 in this country 196 
 
 loss by forgery in England and Ireland 197 
 
 recovery only when right to land is barred 198 
 
 other remedies must be exhausted 199, 202 
 
 contributory negligence 203 
 
 4S6 
 
(The references are to sections.) 
 
 statute of limitations 205 
 
 measure of damages 206 
 
 value of improvements 206 
 
 notice of loss must be given 207 
 
 omitted heir 208 
 
 payment of claim 209 
 
 when damages may not be recovered from 210 
 
 registration without recourse to 211 
 
 actions against 88, 132, 134 
 
 rights in, are purely statutory 214 
 
 an essential element of Torrens system 161 
 
 is not for holder of last certificate 222 
 
 Instruments — 
 
 to be used in dealing with registered land 93 
 
 must give number of certificate 93 
 
 means any document 93 
 
 are a perpetual deposit 94 
 
 access to filed instruments 95 
 
 right to certified copy of 95 
 
 of conveyance are called transfers 96 
 
 forms of, should be simple 219 
 
 notice of contents of 83 
 
 Insurance Fund — (see Indemnity Fund) 
 
 Ireland — 
 
 registration in 9 
 
 central register in 29, note 
 
 Judicial System of Conveyancing — • 
 
 generally 3, 4 
 
 Judgment — 
 
 generally 116, 220 
 
 effect of notation of 214 
 
 error in noting 156 
 
 making, a lien on land 177 
 
 Lease — 
 
 notice of contents of 86 
 
 with option to jmrchase 86 
 
 right to inspect 95 
 
 rights of tenant 124 
 
 possession under must be inquired into 215 
 
 Leasehold Estates — 
 
 registration of 20 et seq 
 
 some leases need not be registered 77 
 
 Lien on Land — 
 
 generally concerning 116 et seq 
 
 effect of notation of 177, 214 
 
 error in noting 156 
 
 some liens not covered by certificate of title 215 
 
 Limitations, Conditions and Forfeitures — 
 
 may, be entered in certificate? 87, 90, 91 
 
 Massachusetts — 
 
 registration act in 12 
 
 court of registration in 29 
 
 registration in 33 
 
 Measure of Damages — 
 
 in action against indemnity fund ' 205 
 
 Memorials — 
 
 must be carried forward on new certificate 92 
 
 of mortgages, leases, and liens are entered 109 
 
 is a mere memorandum 95 
 
 456 
 
(The references are to sections.) 
 
 Minnesota — 
 
 registration act in. 12 
 
 original registration in 32 
 
 Misdescription of Land — 
 
 effect of fraud , 138 
 
 in original registration in foreign countries 148, 149 
 
 what is not , 150 
 
 correction of 157, 158 
 
 Mistake — (see Error) 
 
 generally 147 
 
 in original registration in foreign countries 148 
 
 in this country 148 
 
 Mortgage — 
 
 registration subject to 19, 20 
 
 must be inspected for particulars 86 
 
 notice of contents of 86 
 
 purchase money 93 
 
 inspection of 35 
 
 mortgagee with power to sell 107 
 
 consent of mortgagor to registration 107 
 
 land subject to mortgage may be registered 108 
 
 how mortgagee is bound by registration 107, 108 
 
 mortgage on registered land 109 
 
 transfers an interest but not an estate , 109 
 
 certificate of title pledged for debt 109 
 
 mortgagee entitled to certificate of title 110 
 
 mortgagee holding certificate 110 
 
 registrar holds certificate to mortgaged land 110 
 
 implied covenants in Ill 
 
 notice of transfer of mortgage 112 
 
 barred by statute ''. 112 
 
 , foreclosure of 113 
 
 deed on foreclosure of 114 
 
 impeaching foreclosure proceedings 114 
 
 charge, incumbrance 115 
 
 paid out in installments 118 
 
 error in entering meiborial 156 
 
 effect of notation of 214 
 
 McEnerny Act — 
 
 decision under 36, 40 
 
 No Survivorship — 
 
 words, show existence of trust 99 
 
 Nova Scotia — 
 
 registration act in 10 
 
 classified registration in 19 
 
 Ohio- 
 original registration in 33 
 
 act in, declared unconstitutional 67, 186 
 
 One Estate in Land — (see Eegistered Estate) 
 
 Ontario — 
 
 three kinds of certificates 14 
 
 Oregon — 
 
 registration act in ■ 12 
 
 Original Eegistration — 
 
 in different states 23 et seq 
 
 in special courts. 28 
 
 in courts of general jurisdiction 32 et seq 
 
 does not differ from subsequent registration , 43 
 
 457 
 
(The references are to sections.) 
 
 Parties to Application to Register — 
 
 under "all whom it may concern" 49, 53, 59 
 
 Perpetual Deposit — 
 
 instruments filed with registrar are ^ 9-t 
 
 Philippine Islands — 
 
 registration act in 12 
 
 court of registration in 30 
 
 registration in 31 
 
 Possession of Land — 
 
 must be proved 47 
 
 is evidence of title 121, 122, 124, 171, 215 
 
 must be inquired into 215 
 
 on first registration of title 121 
 
 title by prescription of registered land 122 
 
 right to value of improvements , 123 
 
 possession of tenant 124 
 
 Possessory Title — 
 
 registration with 13, 14, 17, 18 
 
 the hope of ultimate success 17 
 
 registering 23 et seq 
 
 not considered successful 62, 222 
 
 Practice — 
 
 rules of, in applications for registration 45 et seq 
 
 known claimants must be notified 48 
 
 taxing costs 48 
 
 Preambles of Torrens Acts — 
 
 generally 87 
 
 Production of Certificate — 
 
 certificate should be produced 14, 62, 80, 81 
 
 Publications on Torrens System — 
 
 early publications 1 
 
 Public Becord — 
 
 is register a, t 95 
 
 Purchaser for Value — 
 
 before decree becomes conclusive !>3 et seq 
 
 of land under possessory title , 14 
 
 correction of errors against 157, 158 
 
 must deal with last registered owner 64, 73, 129 
 
 vendor must see that, can be registered 76 
 
 need not investigate title 83 
 
 forgery 127 
 
 fraud 137 
 
 duty of to make inquiries '. 141 
 
 in case of mistake or error 147 
 
 Qualified Titles — 
 
 may be registered 13, 14, 18 
 
 registering 23 et seq 
 
 Quieting Titles — 
 
 nature of proceeding in registration 31 
 
 in California 36, 37 
 
 differs from registration 47 
 
 conclusiveness of decrees 57, 59 
 
 Eeal Representative — 
 
 to take title on transmission 126 
 
 Recording System — 
 
 establishment of 3, 212 
 
 essentials of 218, 220 
 
 simplicity of : 212, 219, 220 
 
 right to rely on record 220 
 
 458 
 
(The references are to sections.) 
 
 comparative simplicity of 221 
 
 title insurance as an aid to 221 
 
 security under , 225 
 
 Eegister — 
 
 shows all estates in land 5 
 
 was suggested in 1830 6 
 
 different kinds of 13 
 
 consists of three parts in England 14 
 
 purpose of classified register 16 
 
 what estates or interests may be placed on 20 
 
 who may be registered 20, 21 
 
 bringing land under act 23 
 
 is pivot of Torrens system 43, 212 
 
 conclusiveness of 43, 53, 64, 82, 139, 166, 168, 217, 224 
 
 is basis of Torrens system 62 
 
 different kinds 62 
 
 first and subsequent registrations alike 64, 65 
 
 dealings off 75 
 
 right to be placed on , 75, 76 
 
 must be cleared by vendor 76 
 
 priority of instruments 76 
 
 when transfer is deemed to be registered 78 
 
 registration of invalid instrument 79 
 
 may be relied on , 83, 84, 85 
 
 inspection of instruments noted on 83, 84, 86 
 
 instruments embodied in 84, 85 
 
 conditions, limitations, forfeitures 87 
 
 particulars of mortgages and leases must be inquired into 86 
 
 may covenants, limitations and forfeitures be placed on 87, 90 
 
 is it a public record? 95 
 
 inspection of, and papers 95 
 
 filing of caveat 117 
 
 prevents title by adverse occupation 121 
 
 misdescription of land in application 138, 148, 149 
 
 entry on in error 147 
 
 reliance on 143 
 
 error, mistake 147 
 
 is an essential element of Torrens system 161 
 
 showing title at a glance 215 
 
 is prima facie evidence in this country 168 
 
 removal of title from 178 
 
 compulsion 179 
 
 is not guaranteed title 184 
 
 Registered Estate in Land — 
 
 is an essential element of Torrens system 161, 162, 163, 165, 214 
 
 Registrar — 
 
 bringing land under act 23 et seq 
 
 is not a judge 24 
 
 has judicial power 24, 27, 43, 65, 67, 156, 214 
 
 appeal from 24, 25 
 
 in case of doubt 25 
 
 functions of, in registering first and subsequent certificates 64 
 
 nature of functions of 65, 67 
 
 error of, in matters of title 65, 147, 148 
 
 acts of, are ministerial in this country 68 
 
 duty of, in case of doubt 70 
 
 duty of, when parties do not agree 71 
 
 person aggrieved by act of : 72 
 
 act of registration is operative act 73 
 
 459 
 
(The references are to sections.) 
 
 acts judicially in noting lien 156 
 
 correction of errors by 157, 158 
 
 is not liable for errors — 200 
 
 in foreign jurisdictions 214 
 
 Registration of Title — 
 
 system of, in Australasia 5 
 
 has been criticised and praised 5 
 
 state vests and divests titles 5, 13 
 
 fragmentary history of Torrens system 6 
 
 when systems adopted 6 
 
 laws concerning, frequently changed 6 
 
 what acts for, now in force 6 
 
 system of, in England 7 
 
 in Ireland 9 
 
 in Canada 10 
 
 in British dependencies 11 
 
 in United States 12 
 
 register is central feature of 13, 43, 212 
 
 register evidences ownership 13 
 
 absolute, qualified and possessory titles 14, 17, 18, 19, 23 
 
 purpose in classifying 16 
 
 what interests may be registered 20 
 
 tax titles , 20 
 
 who is owner for purpose of registration 20 
 
 bringing land under act 23 et seq 
 
 original, in England 23 
 
 in Australia 24 
 
 bringing land under act 25 
 
 in Canada 26 
 
 Illinois act, 1895 27 
 
 in Hawaii and Philippines 30, 31 
 
 in United States 32 et seq 
 
 proof required for 49 
 
 application for, is a lawsuit 51 
 
 applicant must do equity 52 
 
 comment on conclusiveness of decrees 57, 59 
 
 effect of decree 60 
 
 act of registration is operative act 73 
 
 when title passes under will 77 
 
 when lease need not be registered 77 
 
 registration of invalid instrument 79 
 
 certificate of title must be produced 80, SI 
 
 instrument evidence of authority for 81 
 
 effect of forgery 127 
 
 effect of fraud 137 
 
 effect of error 147 
 
 in error, damages 151 
 
 correction of errors , 157, 158 
 
 erroneous registration in this country 152 
 
 earlier certificate in existence 153 
 
 including unregistered land 154 
 
 error in making transfer 155 
 
 error in noting lieu 156 
 
 compulsory 179 
 
 purpose of, is two-fold 183 
 
 is not a guaranteed title 184 
 
 access to indemnity fund, 183 et seq 
 
 without recourse to indemnity fund 211 
 
 460 
 
(The references are to, sections.) 
 
 Bemoving Cloud — 
 
 registration differs from 47 
 
 state claims ^ , . . . 51 
 
 applicant must do equity 52 
 
 conclusiveness of decrees 57, 59 
 
 Bemoval .of Title from Begister — 
 
 generally , 178 
 
 fees and costs 230 
 
 Boyal Commission — 
 
 on registration in Scotland , 17 
 
 Simplification of Titles — 
 
 what is necessary. 87 
 
 by exclusion of notice of trusts. 97 
 
 is not aimed at primarily by Torrens system 163, 223 
 
 simplicity in dealng with land 213 
 
 simplicity in titles 223 
 
 Stale and Vague Interests in Land — ■ • . 
 
 given life by application to register 51 
 
 should not be favored 59 
 
 Statute of Limitations — 
 
 filing of answer does not affect running of 47 
 
 title under, may be registered .49, 50 
 
 stale claims given life by application 51 
 
 period in which decree is not conclusive 56 
 
 effect of limitation on decree. 57 
 
 may bar mortgage < 112 
 
 for impeaching foreclosure proceedings 114 
 
 in first registration of title. , 121 
 
 title by prescription to registered land 122 
 
 in action against indemnity, fund. 205 
 
 Systems of Conveyancing-r- 
 
 f our distinct systems. i 2 
 
 Tax Titles — 
 
 registration of , 20 
 
 reimbursement i . . . . .47, 52 
 
 costs in suit 48 
 
 removal of ^ 49 
 
 applicant must do equity ^ 52 
 
 Tenant of Land — 
 
 rights of . . . . . . . 121, 124 
 
 with option to purchase 124 
 
 rights of must be inquired into 121, 122, 124, 171, 215 
 
 Title Insurance — 
 
 Torrens system is not ; .'. 184 
 
 defined 222 
 
 as an aid to recording system .;.... 221, 222 
 
 is of slow growth ; 226 
 
 fees and costs. ' 249 
 
 Title Papers — 
 
 deposit of for loan '. 2 
 
 transcribing of. , 3 
 
 Torrens System — ,■, 
 
 different systems. ,. 159 
 
 variance in Torrens acts 160 
 
 essential elements of , 161 
 
 effect of general laws on 169, 172 
 
 alphabetical, and tract indices , 174 
 
 461 
 
(The references are to sections.) 
 
 accumulates records 175 
 
 is not title insurance 184 
 
 estabUslunent of 212 
 
 register pivot of 43, 212 
 
 books on 212 
 
 simplicity in ^ 212 
 
 variance in non-essentials 160, 216 
 
 in American 217 
 
 comparatively simplicity of 221 
 
 does not aim at simplification of titles 163, 223 
 
 securtiy of 224 
 
 rapidity of 227, 228 
 
 fees and costs 230 et seq 
 
 necessity for services of a lawyer 246 
 
 will have a fair trial 250 
 
 Tract Indices — 
 
 necessity for 174 
 
 Transfer of Land — 
 
 different methods of 2 
 
 with possessory title 14 
 
 is made by act of registration 73, 161 
 
 Transmission of Land — 
 
 rights of heirs 125, 126 
 
 real representative 126 
 
 executor or administrator 126 
 
 Trust Deed- 
 on registered land 109 
 
 Trusts — 
 
 when trustee may apply to register 61 
 
 notice of, given on register in this country 91, 101 
 
 no notice of trust entered on register 97 et seq 
 
 were supposed to be abolished 97 
 
 inquiry as to proceeds of sale 97 
 
 particulars of any trust 99 
 
 no survivorship 99 
 
 notice of trust by caveat 99 
 
 transfer of trust estate in Oregon and lUinois 103 
 
 when terms of trust complied with 103 
 
 with power of sale 103, 104 
 
 no provisions concerning trusts in New York 105 
 
 general review of 106 
 
 notice of unregistered trust 141 
 
 notice of existence of trust 141 
 
 rule as to purchase from trustee 143 
 
 notice of particulars of trust 146 
 
 Unregistered Instrument — 
 
 notice of 140, 141, 144 
 
 Unregistered Land — 
 
 included in a certificate of title 154 
 
 misdescription of boundaries 148, 150 
 
 Unregistered Eights — 
 
 give rise to complications 163 
 
 notice of 140, 141, 144 
 
 taxes and special assessments not covered by certificate 215 
 
 Vacant Land — 
 
 must be shown to be vacant 47 
 
 462 
 
(The references are to sections.) 
 
 Value of Improvements — 
 
 in action against indemnity fund ^^^ 
 
 in fixing contribution to indemnity fund. 189 
 
 Voluntary Instrument — 
 
 disagreement as to 71 
 
 evidence of authority to register 81 
 
 notice of 83, 84, 85 
 
 Wales — 
 
 registration in.. 7 
 
 Washington — 
 
 registration act in 12 
 
 Writ of Error — 
 
 from decree of registration 55 
 
 notice of 55, 143 
 
 463 
 
KF 679 N57 
 
 Author Vol. 
 
 Niblack, %a Caldwell 
 
 Title Copy 
 
 An analysis of the Torrens 
 
 ij^bltau uf cunve^/liig land. 
 
 Date 
 
 Borrower's Name