by will, intestacy, or gift to take effect in possession or enjoyment after the death of the donor. Such taxes were recognized by the Roman law; they have been in existence in England since 1780, are in force generally in the countries of Europe, and have been adopted in most of the United States.2 And the laws that provide for them commonly prescribe, as does that of New York, for example, that, — “Every such tax shall be and remain a lien upon the property transferred until paid." It is made the duty of the executors or administrators to pay these taxes, and thus to remove the liens from the property of a deceased owner; and, until this is done, the property must remain and be transferred subject to the burden thus imposed. The liens of other taxes, and those of assessments and water rents, are explained in the discussion of "tax titles," in a former part of this treatise.5 Liens of creditors, on real property of their deceased debtors, have also been heretofore discussed.6 Local or unusual liens are to be studied specially, in dealing with title to real property in the places in which they are found. Illustrations of them are, the lien given by some statutes to an "occupying claimant," or tenant, for lasting improvements placed by him on the land; and the special lien of a "widow's award" on the realty of her deceased husband, as provided for in some states.8 Also, in many cities, by virtue of statutes or municipal ordinances, the public authorities are authorized to file and enforce liens on buildings that are unsafe because of faulty construction or want of repair; and boards of health are given power to do the same against property on which their rules or regulations are being violated.10 1 N. Y. L. 1905, ch. 368 (now in the "Tax Law," L. 1909, ch. 62), § 224; N. J. L. 1894, ch. 210; Mass. L. 1891, ch. 425; Magoun v. Illinois Trust and Sav. Bk., 170 U. S. 283. 2 Magoun v. Illinois Trust and Sav. Bk., 170 U. S. 283; Campbell v. California, 200 U. S. 87, 93; Cahen v. Brewster, 203 U. S. 543; Orr v. Gilman, 183 U. S. 278; Matter of Gordon, 186 N. Y. 471; Matter of Cooley, 186 N. Y. 220; Matter of Ramsdill, 190 N. Y. 492; Matter of Gould, 156 N. Y. 423. 3 N. Y. L. 1909, ch. 62, § 224. 6 § 1077, supra. 7 Rev. Stat. Ind. §§ 1074-1085; 18 U. S. Stat. L. (1874), ch. 50; 2 Dembitz, Land Tit. § 102. 8 Ill. Rev. Stat. ch 3, §§ 74-77; 2 Dembitz, Land Tit. § 110. 9 N. Y. City Building Code, §§ 150155; Mitchell v. Smith, 53 N. Y. 413; Greenhaus v. Alter, 30 N. Y. App. Div. 585 Gerard, Titles to R. E. (4th ed.) p. 908. See § 644, supra. 19 Charter of City of New York (N. Y. L 1897, ch. 378), §§ 1299, 1300; Gerard, Titles to R. E. (4th ed.) p. 909. The last two chapters of Mr. Gerard's work contain a good summary of such local and special liens in New York. Unrecorded Documents § 1185. Subsequent transfers Liens and encumbrances. § 1186. Adverse possession does not affect registered titles. § 1187. Assurance fund for registered titles. § 1188. Other features of registered titles Importance of the system. § 1182. Methods of Dealing with Transfers of Realty Record of Documents - Registration of Title. Legal history presents three prominent methods of dealing with real property: (1). Transfer by instruments unrecorded, and simply held by the owner- the method still much employed in England;1 (2). Record of instruments of transfer and encumbrance, and the giving of constructive notice by such record, as heretofore explained — the method commonly employed throughout the United States; 2 and (3). Registration of titles, as a means of assuring them and facilitating their transfer. The objects of the last-mentioned manner of dealing with real property titles are, to authenticate them, once for all, to have them" registered," or duly certified, and to avoid the time and expense incident to re-examinations of subsequent transfers or encumbering of the property. Since such systems. of title manipulation are now assuming importance in this country, it is proper that a few words regarding them should constitute the closing chapter of this treatise. § 1183. Development and Nature of Registration Systems. In the German-speaking countries of Europe, the scheme of having real property titles authenticated and certified once for all, thereafter to remain in that condition, so that no further 1 Jackson v. Burgott, 10 Johns. (N. Y.) 457; Niblack, Torrens System, p. 2; 8 Columbia Law Rev. pp. 439, 440; 739, supra. 2 §§ 808, 1119–1123, supra. examination is necessary, has been in existence for upwards of a century, and in some of them for a much longer time. Sir Robert Richard Torrens introduced a similar system in South Australia in 1858.2 In deference to him, the system has been known by his name - The Torrens System - as it has developed in common-law jurisdictions. It has spread over all Australasia and been used there with marked success; has been introduced into England, as a system optional in the various counties, and made compulsory in the county of London; also in Ireland, Austro-Hungary, many of the Cantons of Switzerland and most of Canada, it is in operation. In this country, because of the rigid provisions of our constitutions preventing any one from being deprived of property without due process of law, wherever the Torrens System or a similar method has been introduced, it has been necessary to base the original registration on the judgment or decree of a competent court. Methods of registration, similar to that devised by Torrens, but with this necessary addition of the court's sanction, have accordingly been provided for by statutes in Massachusetts, New York, Illinois, Minnesota, Colorado, California, Oregon, and Washington.5 This important form of legislation has been held to be constitutional, by the highest courts of Massachusetts, Illinois, Minnesota, Colorado, and California; and, in a negative way but with 1 Morris, Land Registration, pp. 98– 106; Report of C. Fortescue Brickdale, Land Commissioner, to the British Parliament, in 1896. 2 South Australia, Acts 1857, No. 15, which took effect July 1, 1858. 8 Stat. 25 & 26 Vict. ch. 53; 38 & 39 Vict. ch. 87; 60 & 61 Vict. ch. 65; Morris, Land Registration, pp. 100–106; Niblack, Torrens System, pp. 10–13. People v. Chase, 165 Ill. 527; Tyler . Judges, 175 Mass. 71, 179 U. S. 405. The German Grundbuck, or Cadaster, is the official Register of Titles, which have the origin of their stability fixed as a rule by a court proceeding. The system inaugurated by Mr. Torrens, borrowed as it was from the method of registering ships, omits the court procedure and has the title registered and authenticated by the Registrar, who is merely a ministerial officer. Last two preceding notes; Report of C. Fortescue Brickdale, Land Commissioner, to the British Parliament, in 1896. 6 5 Massachusetts, Revised Laws, ch. 128, being L. 1898, ch. 562, am'd'd L. 1899, ch. 131, L. 1902, ch. 28, L. 1904, ch. 448, L. 1905, ch. 195, 288, L. 1906, ch. 344; N. Y. L. 1909, ch. 52, §§ 370-435; Illinois, L. 1897, p. 141, am'd'd L. 1903, p. 121; Minnesota, L. 1901, ch. 237, am'd'd L. 1902, ch. 11, L. 1903, ch. 234, L. 1905, ch. 65; Colorado, L. 1903, ch. 139; California, L. 1897, ch. 110; Oregon, L. 1901, p. 438, am'd'd L. 1905, p. 288, L. 1907, p. 282; Washington, L. 1907, ch. 250. A title registration law was enacted in Ohio, in 1896 (Ohio L. 1896, ch. 220); but it was held to be unconstitutional (State v. Guilbert, 56 Ohio St. 575), and repealed in 1898. Ohio L. 1898, p. 8. Tyler v. Judges, 175 Mass. 71; People v. Simon, 176 Ill. 165; Glos v. Hallowell, 190 Ill. 65; Gage v. Consumers' E. L. Co., 194 Ill. 30; State v. Westfall, 85 Minn. 437; Title, etc. Restoration Co. v. Kerrigan, 150 Cal. 289; Robinson v. Kerrigan, 90 Pac. Rep. 129 sufficient clearness to indicate its leaning, the Supreme Court of the United States has sustained, as constitutional and valid, the title registration law of Massachusetts.1 The only state of the Union, in which such a law has been ultimately declared to be unconstitutional, is Ohio, where the statute was very loosely and inaccurately drawn.2 The procedure under these statutes may be summarized as comprising, an examination of the title, and adjudication by a competent court of the status and validity of such title; a certificate duly made and issued by the Registrar, showing the exact condition of the title, and made conclusive as to the facts therein set forth; subsequent transfer or encumbrance of the property with reference to that certificate, and the notation on the certificate of all dealings affecting the title; the prohibition of any acquisition of the property by adverse possession, after it is once duly registered; and, in some jurisdictions, the supplying of an assurance fund, for the payment of any losses that may result from such dealings with the title.3 A few words as to each of these, in the order here mentioned. (a) He (a) In New York, the innovation of such a statute was made by the laws of 1908, ch. 444, which is now in Real Prop. L. (L. 1909, ch. 52), §§ 370-435. It is a statute which requires careful study in detail, but its operation may be briefly and generally summarized as follows. He who wishes to register his title first has it examined by an official examiner. Such examiner may be a lawyer, or a duly incorporated title or abstract company. The provisions for choosing these examiners are carefully prescribed by the statute, and supplemented by rules of the Court of Appeals. The official examiner, having ascertained the history and condition of the title, prepares a certificate thereof as prescribed by the statute. also has a survey made and certified by a competent surveyor. The proceedings for registration are then commenced, by filing a summons and complaint, as directed by the law, and a survey and a notice of the pendency of the proceedings. These papers are examined by the Supreme Court; and, if it appear that the plaintiff has a good title, the issuing and service of the summons and the notice of object of action are ordered. The summons and notice are served personally on all of the defendants, who are known and within the state, and by publication on absentees, and on "all other persons, if any, having any right or interest in, or lien upon, the property affected by this action, or any part thereof." Service by publication is (Cal.); People v. Crissman, 92 Pac. Rep. 949 (Colo.). 1 Tyler v. Judges, 179 U. S. 405; Address by Judge Davis, of the Massachusetts Land Court, before N. Y. State Bar Association, Jan. 25, 1908. 2 State v. Guilbert, 56 Ohio St. 575. See People v. Chase, 165 Ill. 527; People v. Simon, 176 Ill. 165. 8 §§ 1184-1187, infra. Pro § 1184. Examination of the Title to be Registered ceedings in Court-Registration. The first essential step, preparatory to the registration of a title, is its thorough examination by a duly authorized officer, styled usually an "official examiner." This is done, in several states, after application is made to the court; in New York, before such application. The results of his work, showing the condition of the title, are submitted to the court before which the proceeding is brought for registration.2 All persons known 1 shortened, to four weeks, and safeguarded by making the court's findings and orders conclusive. Thus all possible claimants are made parties to the proceeding, and so are given their "day in court." And the statute provides that, "the action shall be governed by, and shall proceed according to, the laws of this state and the rules of court, relative to such an action, as far as the same are not expressly abrogated or modified by this article.” § 385. In the normal and ordinary case, the persons thus made defendants, and served as such, make no objection; and, after the end of twenty days after service upon them is complete, judgment of registration may be obtained. Pursuant to that judgment, the Registrar, who is a county official (the County Clerk or Register, as the case may be) enters upon a certificate, properly prepared and bound in a book, the name of the owner of the land, a statement of how and under what conditions he owns it, and a description of all mortgages and other liens, charges, rights and claims thereon. This certificate completely and accurately sets forth the title to the property. A duplicate certificate is delivered to the owner. All subsequent transactions with the property so registered (except United States judgments and decrees, taxes and assessments, some easements, and leases for a year or less) must be noted on the certificate, in order to become effectual. All transfers, mortgages, leases, judgments, mechanics' liens and all other liens, charges and encumbrances (except the few above specified) as they may arise against the property, are thus required to appear upon the certificate, which thereby is kept a constant and accurate record of the title. The judgment of the court has made this certificate conclusive evidence in favor of any one who, after it is duly made, is an innocent purchaser or encumbrancer of the property for value and in good faith. The certificate also becomes conclusive evidence of the owner's title, though retained by him, at the end of six months after the judgment is entered, unless such owner was guilty of fraud in obtaining the certificate. A certificate obtained by fraud is voidable against the fraudulent taker, and those who take the property with notice or without paying value, for ten years after the registration. See the statute in full; also the explanations of some of its important provisions, in the following sections of the text; also N. Y. note, p. 1587, infra. 1 N. Y. L. 1909, ch. 52, § 377; Mass. Rev. L. ch. 128, § 29; Ill. L. 1897, ch. 141, 18; Beers, Torrens System, pp. 21, 22. 2 Ibid.; N. Y. L. 1909, ch. 52, §§ 378 380. |