The San Francisco call., 1896-02-17


principle of the American law that in an
| action OF partition on real property, all claim
al snts 20 the property, known or unknown, can
| DE joined as parties TO the suit, and the judg-
ment OF the Court is conclusive as 10 title in
| al respects, both as TO known claimants and
uimdhlloWn iiden claimants. and it is just as valid
!uoginent and just as good O start for title as
| anything proposed by any of the American
| IaWyers based upon the Torrens system. This
| Sc SEEMS 10 nave occupied the attention OF most
ol the advocates of the Torrens system, who
seem 10 regard the Australian idea of giving
| !uuiciai start as novel invention.
II law were passed by our Legislature con-
talnlng that language in terms that would
! maze III pldin 10 the people that the object OF
tile law was 10 determine how the title OF any
pent ,cular property stands at the present mo-
meht, and that from that time on the title be
considered as judicially final and cOnclu-
| slVely determined, all the benefits OF the Tor
rens system that think are applicable to our
system would be operated. 1t can be done now
| ~ N paTutlon proceedings, but as that is not
looked upon generally as a means of giving
SatdIty ly TO titles, it would tend to make the
system ineligible. Possibly law could be
passeo In terms making it plain to the people
that an action in the matter OF partition pro-
eeqaFe should be means OF establishing the
tltIe OF any piece or property so that it would
ioe De necessary from that time on to go be-
h1nd the judgment in searching records. Then
ceeding.
The title OF lot on the corner of Market and
montgomery streets could be determined to-
day, and the judgment would be conclusive
on all the world, and it would not be necessary
TO go behind that judgment in order to find
out what adverse claims there might be if one
snouiu ora want 10 buy Ihls property and further
more, instead OF calling it partition proceed
lngs, II we had Law that would provide for
establishing proceedings for title" or some
such thing as that, it would do away with four
tfths OF the labor and cost of searching titles
Ii that one principle of establishing judicially
now the titIe stands at any particular time
found embodiment in our laws we would have
more than half the virtues of the Torrens sy s.
tenn as practiced in Australia, and all the vir-
tue that think can be derived from it.
The fault with the Torrens system in America
is that we have written constitutions that pre-
vent its workings. The Federal character OF
our Government offers this obstacle to the full
operation OF the system. If the constitution of
the State were amended so as to permit it to be
put into operation here, nevertheless the title
could not be held conclusively valid against
any lien that might be imposed by the Federal
system of taxation. To illustrate: Under the
Iorrens system If piece OF property is regis
tered IN the name OF Mr.. Smith and a judgment
Is obtained against him, and the Sheriff should
sell out the property OF another Mr.. Smith,
making mistake to the identity of the
Judgment debtor, the title of the purchaser
under the Torrens system would be good, even
though the Sheriff levied upon the property OF
the wrong Mr.. Smith. That is the state OF the
law IN Australia, and in order TO compensate
all possible errors of that kind an insurance or
indemnity fund is provided by the act, and if
a man, unfortunately, should have his prop
erty sold over his head by the mistake of min
lSterlal officers in that way, his only recourse
would be out of this indemnity fund OF
course. such procedure as that is absolutely
Impossible in the United States. 1t is against
ali constitutions State and Federal, TO take d
mans property away without due process of
law. and how they are going to get around this
objection L dc not see.
II the law were com pulsory, it would at
least have the benefit of bringing about
a uniform system of land transfer; but even
It's most ardent advocates are agreed
that 1T is absolutely useless 10
try to make the law compulsory.
They have not done it yet in Australia, and as
| understand II, neither have they done it un-
der the Cook County law. Certainly, if auy
system was to be such TO make the records
all uniform, its advantages ous ht to be so per-
ceptible and so demonsratiye that we could
other words, it is my opinion tha t we do not
know enough about this system TO try it, and
it is purely wisdom of law to let some other
There is greater need of change of
the law of land transfer in the older
settled communities than have in
back about forty fifty years. OF course in
older communities, where they run back for
100 years, 1t is very necessary, but here, where
the title runs hack TO United States patents it
Is only from fifteen to twenty years, and so the
abstracts are very brief and very cheap. 1t is
true, in larger cities, where there has been
much registration OF large property, the book
OF abstracts Is correspondingly increased, be-
cause 1t Is necessary to set forth all the pro-
ceedings and litigation in insolvency and other
court proceedings, and 1t makes very bulky
book and very expensive enc, but under the
Torrens system it is my opinion that the alb
stract would be quite as ex xpenSiVe as it is un.
der the present system.
have examined several of the statutes based
upon the TOrrenS system and / do not think
that its adoption would tend 10 lessen the ex-
pense or the sim pl1hcation of abstracts because
L do not see how it is ever posi- bic under the
method TO save the necessity of setting up
probate proceedings, insolvency PROCEEDINGS
ana In snort all court proceedings affecting
the title lt is a very pie matter in the
opinion OF people who have had 10 experience
IN transferring property, because they
only hear OF 1t as mere matter of deeds
The expense and the difficulty of passing on
titles arise from the fact that there is so much
litigation decentralization in the transfer
OF titles. both because OF judicial sales and
because OF probate and insolvency proceed
lngs and such things; and no system that
human wit Gun devise. far as can Sec will
do away with the necessity OF lawyer Al some
stage OF the proceedings. There is a notion
prevalent III some quarters that the Torrens
system If established in this State would so
make abstracts that buyer and seller could
go to the record office and transfer the property
without lawyers
Well, If it should be adopted we would get into
trouble that would be found more expensive to
get out OF than the present cost of passing on
titles Perhaps no community affords better
illustration of the posi- bility of giving fair
start to titles than our own, because particu-
larly now, for outside land titles in San Fran
cisco, people are satisfied to rest upon the City
deed. Very few searches now are made back
OF the City deed, and if judicial procedure
could be relied on as q record, that would give
start TO title now, or any time in the future
In other words, there is plenty OF force and
virtue in our system as IL stands to-day, with a
little remodeling to do away with most of the
costly and tedious and laborious work OF
making abstracts
REVIEW OF THE RECORDS.
There were seventy-seven real estate
loans made last week aggregating S201, Ola.
The most important were:
By the Hibernia Savings and Loan Society,
for one year, at 615 per cent, $4,000 on properly
at the southwest corner of Waller and Scott
80 :6X116:3; by the Security Savings Pank for
one year, at per cent, Sic, 900 on lot on the
east line of Stockton, % A north of Post % 10
xS0; by Edward G. Butler for one year at per
cent, $16 600 on q lot at the southwest corner
OF Bush and Fillmore, l00x47; by the Mutual
Savings Bank for one year, at z per cent $15-
600 lot on the south line of O'Farren
street, 1926 east of Powell, 25x137 :6, and bv
the California Title Insurance and Trust Com
pany for one year, at 61a per cent, $lS, 900 on a
lot at the northeast corner OF Bay and Stock
ton, 275x275.
There were sixty-one releases granted
last week amounting to 1926, 725. Among
the largest recorded We're:
By the Equitable Building and Loan Asso-
citation $4,000 to Isadore Schwartz on q lot
on the west line of Polk, 80 feet south of
Hayes, 30x1O0; by Henry Wadsworth $40. 600