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REAL ESTATE
AND
(Copyright, 1917, by The Record and Guide Co.)
NEW YORK, MARCH 31, 1917
HOW THE AMERICAN TORRENS SYSTEM OPERATES
Relative Merits of Existing Law Compared With Pro-
pose(d Changes Provicded in the Burlingame-Fertig Bill
By DORR VIELE, Member Real Estate Board Torrens Committee
LAW is the most conservative element
in our business life, and that branch
of it whose subject is real property is
the most conservative branch of the law.
In this country the early seaboard colo¬
nists originated a system of keeping rec¬
ords to show the ownership of land
which after 300 years is continued as it
was begun. The machinery of that system
has for some time been inadequate. The
occasions for using it have enormously
increased, land having developed from
being one's family section of the earth
into a frequent article of commerce. In
Suffolk County, Massachusetts (includ¬
ing Boston), more deed-books were filled
in the last twenty-five years of the nine¬
teenth century than in all the preceding
years from 1875 back to 1627, when the
first deed was recorded in that State.
The machinery of title-proof may be
looked at apart from the legal principles
back of it. A general oflice for preserv¬
ing deeds by copy was more secure for
a new country than the English way of
keeping them in the home, and had been
customary among the Dutch. America
added the rule that priority of record,
as between two deeds from the same
apparent owner, secures priority of right.
This and the doctrine of "constructive
notice"—that recording a deed of unoc¬
cupied land gave the ^me public notice
of the owner's claim as possession did—
made sure that deeds generally were
promptly recorded. This was an as¬
sumption by the body politic, the town
or the State, of the duty to afford its
land-holders evidence of their titles.
This should never have been abandoned,
as only the State can fulfill it.
The direct public evidence did not long
remain complete as the number of re¬
corded deeds increased. Index books
were added, but it took a lawyer's ser¬
vices to find the chain of references and
look at the records themselves to see
what each transaction had included.
The number of papers still increased,
and faster. Patents, deeds, mortgages,
foreclosures and partition-suits ceaseless¬
ly came in for record at the county seats.
Before the locality or "block-system" in¬
dex was introduced in New York County
by a law of 1887, it was as if, to show the
condition of any bank account, the paid
checks should be copied at a public office
in the order they were presented and not
each account by itself, but the checks of
all the accounts in chronological order
of payment only, and even several banks
togetlier before larger counties were sub¬
divided. Improving the index was just
creating pigeon-holes for lesser collec¬
tions of checks. The condition of any
account is still found by each time going
through the copied records from the
beginning.
To escape this repeated task is the
object of the American Torrens System.
Making no chan,ge whatever in the legal
principles underlyin.g titles to real prop¬
erty, it substitutes for the serial system
of recording instruments of transfer,
such as deeds, the recording of an evi¬
dence of ownership. The initial certifi-
*An address delivered at a meeting to discuss
the American Torrens System, called by Anning
S, Prall, ot the Staten Island Civic League,
and President of the Real Estate Board ot
Staten Island, recently held at the Borough
Hail, St, (Jeorge.
cate of title expresses the cumulative
result of the preceding instruments and
no later instruments are copied in the
records. Subsequent transactions are put
into effect by the Register endorsing the
certificate or issuing a new one.
There are great possibilities of ad¬
vantage to land in this simple change.
The burden of delay and expense hitherto
inseparable from each necessary proving
of title need no longer be attached to
land use. Sales will be freed from an¬
noying uncertainty; as security land will
take its place as ready collateral for
sliort or small loans. Incidentally, dif¬
ficulties of title will be prevented for the
future and those from the past can in
general be cleared up.
This is true in New York State by
reason of the thoroughgoing procedure
which frames our system of land title
registration, in my opinion the best in
the country, at least on its legal side.
The carrying out of its administrative
provisions depends upon the public en¬
lightenment and demands.
The proceeding for registering a title
was outlined by statute in effect February
1, 1909. It is a natural evolution for us
and has attracted surprisingly little gen¬
eral study. It operates through officers
and courts already in existence, a special
court being precluded by the State Con¬
stitution, which defines the present courts.
Therefore, any statement of the system
to the public from any county office can
be given only by the officer taking time
from other duties, until local authorities
(in New York, the Board of Estimate
and Apportionment) shall provide for a
man for this work or perhaps make even
a temporary appropriation for its proper
presentation through the power of ap¬
pointment vested in the several Registers
and County Clerks by one of last year's
amendments. The ofiicial utterances so
far are confined to the court reports, be¬
sides the rules of the Court of Appeals,
the Appellate Divisions and the State
Board of Law Examiners, which have
been gathered into a leaflet by the Asso¬
ciated Official Examiners of Title, and
can be had from them upon request.
To understand and appreciate how at
this moment it is open to you to secure a
State-issued certicate of your land titles
you must bear in mind the limitations of
what has been available hitherto. Until
thirty years ago there was nothing save
the lawyer's opinion. As this w^s ob¬
tained by private contract only the client
was entitled to rely on it and a new opin¬
ion must be obtained for every transac¬
tion. The opinion would be based on
personal examination of the documents
on record, which would be found amon,g
the mass of records by means of an ab¬
stract of title or "search." The same
stages follow in the various parts of the
country.
When lawyers stop making their own
searches they are made by individual
searchers or by abstract companies. This
is generally the first gateway to corpora¬
tions into this field. It has the advantage
of financial responsibility not alwavs
common to the individual abstracter. The
money guarantee is susceptible of ex¬
pansion in various forms, from the sim¬
ple one covering that all indexed papers
are included in the search, to the com¬
prehensive title policy insuring that one
will not be ejected from certain premises
for other than certain specified reasons.
Today, when an owner first thinks of
wanting a title to be registered, precisely
the same work must be covered as in
obtaining a lawyer's opinion. The rec¬
ords affecting the land must be com¬
piled and examined, the plot surveyed,
and the facts of possession inquired into.
How can this be done so that it will
not have to be repeated later? A worker
can be chosen to compile the data, so
competent as to be accurate, but some
consideration must flow from everyone
who is to be bound by the result. The
proceeding is entrusted to a justice and
if anyone in the world would differ from
the owner's claims he is given his "day
in court" in which to be heard with his
evidence.
Perhaps as good a way as any to bring
out the merits of the New York Law now
in force will be to compare with it in
detail the proposed amendments that
have been introduced before the Legis¬
lature this year in the measure known as
the Burlingame-Fertig bill. The form of
notice to those interested in the action
is taken as the first point on which, a
change is proposed.
The method of present procedure to
get one's title registered is for the owner
to notify his attorney of his wish. Be¬
fore drawing the action papers the attor¬
ney will look up an official examiner of
title (qualified under rules of the Court
of Appeals) and the latter will prepare
a report of the full data on the land, in¬
cluding the chain of title as formerly
supplied to a lawyer for an opinion. With
this and a survey the attorney draws up
a summons and complaint as the owner's
application to the Court for bringing an
action which shall determine who is
vested with title.
This is the point to be settled as be¬
tween all persons who could claim an in¬
terest from any state of facts appearing
bv the records, or from other source.
Therefore, the statute makes strict and
careful provision for giving to all of them
due. notice. It requires the names of all
whose names can be learned. If there
is a class who can only be described by
a phrase such as "the widow, heirs-at-
law, devisees, grantees and persons in¬
terested under a will or grant of John
Doe," the best description possible is to
be used, as indicated by the code for
other actions. Of course any govern¬
mental division, like the town or county
that has a claim, is added, and the State,
and lastly for these registration actions
alone any still missing are brought in
under this: "All other persons, if any,
having any interest in or lien upon the
premises or any part thereof."
Jurisdiction over all these possible in¬
terests is obtained in the usual way of
actions, by personal service where pos¬
sible, and. where not, by the regular forms
of substituted service, except that for the
final class "all other persons, etc.," the
special publication is maintained of once
a week for four weeks, the service to
be complete at the end of twenty-eight
days from the first publication. This
assures the owner of even a title clouded
by defects of record that jurisdiction can
be had over all the interests constituting
the whole title. Whether registration
will b? dfer?e4 will depend upon the