to have any interest in the property are duly made parties to this proceeding; and, by a general clause, summoning "all whom it may concern," or "all other persons, if any, having any right or interest in, or lien upon, the property affected by this action, or any part thereof," all other possibly interested persons, who might make claim against the plaintiff or complainant in the proceeding, are likewise made parties; and all these are duly served with the summons or court's process as the statute prescribes, and so are given their "day in court." 1 Thus commenced, the proceeding is carried through in a manner similar to other lawsuits; and, when successful, it results in a judgment of registration of the title.2 The statutes make the judgment and orders in these proceedings conclusive, within a short specified time; and require the Registrar to register the title pursuant thereto, and to issue a certificate to the registered owner accordingly. This certificate sets forth the state of the title, as thus registered, and is made conclusive evidence of the owner's rights in the land.

§ 1185. Subsequent Transfers

Liens and Encumbrances.

The statutes require that, with a few exceptions (such as taxes, United States judgments, easements that can not become matter of record, and short leases, as in New York for one year or less) all liens, claims, encumbrances, and rights thereafter accruing against the property shall be invalid unless they are duly noted on the certificate.5 All transfers of the property, thereafter made, are to be noted on the certificate; and in most of the states, such as New York, Massachusetts, and Illinois, a purchaser acquires a new certificate upon the vendor's surrendering his old one; and so the holder of the land for the time being has constantly a certificate, which he may have brought done to date at any time, and which he may use as authentic evidence of his rights in the property.

1 N. Y. L. 1909, ch. 52, §§ 379-385; Mass. Rev. L. ch. 128, § 30; Ill. L. 1897, ch. 141, § 20; Beers, Torrens System, pp. 38-40.

2 N. Y. L. 1909, ch. 52, §§ 385-390; Mass. Rev. L. ch. 128, §§ 31-36; Sheldon, Land Registration, pp. 25-35.

8 N. Y. L. 1909, ch. 52, §§ 391-398; Mass. Rev. L. ch. 128, §§ 37-44; Sheldon, Land Registration, pp. 36-42; Beers, Torrens System, pp. 44-50.

4 Ibid.; N. Y. L. 1909, ch. 52, § 399. 5 N. Y. L. 1909, ch. 52, §§ 400-405; Mass. Rev. L. ch. 128, §§ 70-86; Ill. L. 1897, ch. 141, §§ 82-90; Beers, Torrens System, pp. 59-62; Sheldon, Land Registration, pp. 56–60.

6 N. Y. L. 1909; ch. 52, §§ 406-414; Mass. Rev. L. ch. 128, § 56; Ill. L. 1897, ch. 141, §§ 47-50. See N. Y. L. 1910, ch. 627, amending N. Y. L. 1909, ch. 52.

§ 1186. Adverse Possession does not affect Registered Titles. Adverse possession, by virtue of which, as heretofore explained, ordinary titles may be acquired in most states in twenty years, and in some in a lesser period,1 would frustrate the operation of this system if it were allowed to affect registered titles; and therefore, the statutes of this character, the "Torrens law," quite uniformly forbid a title, that is registered as belonging to one person, to be thereafter acquired by another by means of adverse possession or any length of adverse holding.2

§ 1187. Assurance Fund, for Registered Titles. - In the Australian system, and in that of several of the states of this country, such as Massachusetts and Illinois, he who registers a title is required to pay a small amount (a small percentage of the value of the property) into a fund, which is designated the insurance or indemnity fund. The object of this, as declared by the statutes, is to reimburse any persons, who may suffer loss through the registration of a title, or through its subsequent transfer or manipulation.3 In New York, it is optional with one who registers a title to make this payment; and any one who makes it (by paying one tenth of one per cent of the value of the property, on the basis of its last assessment for local taxation), and who, "without negligence on his part, sustains loss or damage or is deprived of real property, or of any estate, right or interest therein, after the original registration thereof, because of the registration of another person as owner of such property, or of any estate, right, or interest therein, through fraud, or in consequence of any error, omission, mistake or misdescription in any certificate of title or in any entry or memorial in the registration book, may bring an action to recover compensation out of the assurance fund for such loss or damage; but if the person who is deprived of such property, or any estate, right, or interest therein in the manner above stated 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 the action herein provided." 4 This feature of such laws has not proved to be very important. The fund is usually small, in comparison with the values of

1 Ch. lxxxii, supra.

2 N. Y. L. 1909, ch. 52, § 401; Mass. Rev. L. ch. 128, § 45; Beers, Torrens System, § 25.

8 Mass. Rev. L. ch. 128, §§ 93-102; III. L. 1897, ch. 141, §§ 99-103; Beers, Torrens System, pp. 75-81.

4 N. Y. L. 1909, ch. 52, §§ 426-429.

the titles registered; and proper registration gives such permanent security that demands on an insurance fund are very rare. Moreover, the true theory of a duly registered title precludes the demand for payments of this kind, because of any defects in the title existing at the time of initial registration; for the court's adjudication, rendered conclusive after the designated short period, has settled the title at that time beyond any question that could reach out to any indemnity. This is the principle on which are based the New York and Massachusetts provisions for assurance funds.1

§ 1188. Other Features of Registered Titles Importance of the System. The local statutes must be studied in detail, for the special features and ramifications of this important innovation in dealing with titles to real property. Thus, some of the acts will be found to pass registered realty, on the death of its owner, to his executors or administrators, to be settled substantially as a part of his personal property and then registered again; while others pass it to his heirs or devisees as realty, and provide for its re-registration by them.3 So, the safeguards that these statutes throw around the work of the examiners of title, and of the other officers who take part in the process of procuring and maintaining the registration, are various but usually effective.

It may be said, in closing, that these new and far-reaching registration laws rest on a principle, the effects of which owners of realty require and sooner or later will adequately obtain the making of the titles to the property, which is at the base of our economic structure, settled and practically unassailable; and the retaining of them in that condition, and therefore capable of quick and easy use and manipulation. The defects in the statutes, by which these objects have thus far been sought to be attained, may be many and glaring; but these will be corrected as they are revealed from time to time (a); for the

(a) The New York "Torrens Law," which was originally L. 1908, ch. 444, was re-enacted in 1909 as §§ 370–435 (Art. 12) of the Real Property Law; and, as the result of experience in its application, eighteen of those sections were amended by L. 1910, ch. 627. A few of those amendments simply give more symmetry and formal accuracy to the statute. These are found chiefly in the verbal improvements made in §§ 379, 380, 391, 410. One of the most important amendments, designed to facilitate the work8 N. Y. L. 1909, ch. 52, §§ 423-425; Mass. Rev. L. ch. 128, § 91.

1 Last two preceding notes.

2 See Ill. L. 1897, ch. 141, §§ 71-79; Sheldon, Land Registration, pp. 52–57.

innovation as a system, like many other reforms in our land law which at first met much opposition, has undoubtedly come to stay.1

ing of the law, is that to § 385, whereby the allegations and statements in the official examiner's certificate of title, and in the abstract, searches and survey, are made prima facie evidence, in the action, of the facts so alleged and stated, except where a party has specifically controverted in his pleading such an allegation or statement. Two other very material changes are those in §§ 380, 390, by one of which duplication of abstracts and searches is avoided, by allowing the examiner to refer in one title to those formerly used in registering another title in whole or in part the same; and by virtue of the other a title may be registered subject to existing covenants or agreements without making their owners parties, and it may also be registered subject to any question as to whether restrictive covenants or agreements have been violated. And still another far-reaching change is that made in § 404, whereby an owner of realty, after the title thereto is registered and before any further memorial or notation has been made on his certificate (or after any such memorial or notation has been cancelled), is enabled to remove the land from registration and restore it to all the provisions of law relating to property the title to which has never been registered. Changes in §§ 379, 385, which lessen the labor of the Attorney General in these proceedings; avoidance of the multiplication of papers in the case by alterations in §§ 370, 382, 386, 393, 398; decreasing of the time, labor and expense incident to the appointment of guardians ad litem for incapacitated parties as prescribed by the new § 388; more particular prescribing of the proof required as to taxes, assessments, water rents and dower, by changes in §§ 390, 406, and improvements in §§ 432, 434, as to official fees and the official examiner's certificate of title are the other amendments made for the purpose of simplifying and facilitating the operation of the statute.

Substantial amendments, meant to avoid real or possible difficulties, are also made to §§ 383, 385, 387, 416. That to § 383 prevents a "caution "— filed by a land owner to require written notice of an attempted registration of title to his property by any other person - from being notice except in an action under this law. By an addition to § 385, the jurisdiction of the Supreme Court in these action is made the same as in cases in which no order for the commencement the action is required. Section 387 no longer provides that the affi vit of him who posts a copy of the summons and notice of object action on the land shall be "conclusive." And § 416 now requires a tax for the registration of a mortgage, the same as that which would be if it were recorded.

It is believed that all of these changes and additions will materially improve this important law.

1 The somewhat abundant literature on the subject of registration of titles, or the "Torrens System," embraces the following especially valuable books. "Australia Torrens System," by James E. Hogg; "The Torrens System," by

William O. Niblack; "Land Registration in Illinois," by Theodore Sheldon; "Reforms in Land Transfer," by Dwight L. H. Olmsted; "Registering Title to Land," by Jacques Dumas; "Torrens Title Cases," by J. Howard

INDEX.

[References are to pages. Vol. I. has pp. 1-788; Vol. II. pp. 789-1588.]

206

268

7

428

657

24-25

686-701

801

1317

704

1319

of will, of signatures to will

ACQUIESCENCE, in user, to create presertive easement

ACTION, to determine right to easement or servitude
ACTIONS, real and personal, as basis of division of property
ACTIVE, trusts

AD OSTIUM ECCLESIAE, dower

ADAPTABILITY OF FIXTURES TO PREMISES, as determining

their nature

ADMEASUREMENT, of dower (see DOWER, assignment of)

ADMINISTRATORS, leases by

ADOPTED CHILDREN, inheritance by

ADULTERY, and elopement of wife, as bar of dower

ADVANCEMENTS, inheritance affected by