The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-02-23

uIe 10 questioned by Illdny. DuI 81 ldl
Judge Slope is the only lawyer of any
note who has claimed it to be uncon-
stitutional.
The Torrens system of registering
land titles has been in use in Australia
for more than forty years, and in Hol-
land and other continental Europe
countries for more than two centuries.
Wherever it has been in operation it
has proven successful, though there
are some who believe a change from
the old system will prove extremely
difficult. A modification of the system
has been embodied in a bill which is
now before the New York legislature.
So far Cook county is the only county
in the United States where the Torrens
system of land registration is in opera
ton.
OBJECTIONS TO THE SYSTEM.
The objections to the Torrens sys-
tenn are numerous, passed largely on
the ground that in seeking to expedite
land transfers, placing realty on a
par with chattels, it is held that fraud
and forgery are equally expedited.
In the first place the fee must be
registered before any less interest or
lien can be, and the registrar is made
the sole arbiter in issuing the certif1-
| cate of ownership on application being
made. All interest or liens existing at
the time of first registration and not
noted on the certificate must be as
serted within five years from date of
the certificate, and after six years
they are barred, the certificate being
conclusive evidence of all rights in
the land existing at its issue. There is
no going behind this by any process
of law, the only exception being the
rights of persons continually in pos
i session until the land is first brought
( under the act" The hardship of this
is that it throws upon one the burden
OF discovering a paper title, of which
! he need not have received any notice,
and which may not have been brought
to his notice by any interference with
him in the occupancy of his property.
After the first registration each
succeeding transfer is made by the
cancellation of the old certificate and
| the issuing of a new one. and this
new certificate is subject only to such
rights of action against the first GER
| tificate as may then survive. This new
/ certificate can only be impeached for
fraud of the holder or from some one
| from whom he has taken it without
consideration, but actual knowledge of
adverse claims does not constitute
fraud, and one purchasing from a
! holder of a certificate is not bound for
any reason to go behind it. Here again
! the registrar is made sole arbiter in
issuing the second certificate IF the
/ registrar is satisfied" that it should be
done. being the language of the
| statute
All liens and membranes created
or judgments or DEGREES entered after
/ first registration are of no effect
against the land unless noted on the
! certificates. so that if the holder of
/ certificate take advantage of delay in
/ noting these and reconvey, there is no
recourse, as each succeeding certif-
/ cate becomes final and conclusive
The registrar is made a court of
/ final jurisdiction, but a court without
process and without appeal. He must
! adJudlcate summarily because if there
should be an elaborate trial of rights
at each transfer, with notice to each
adverse interest, the hearing of testi-
mony and argument would, instead of
simplifying land transfers, make them
unfortunately more complex, and make
each transfer law suit. He must.
too. be Immediately conclusive, because
if any extended time be given for the
maintenance of adverse rights it would
| give rise to interminable. delays and
complications, while on the other hand,
even a short period would not serve
to eliminate the element of uncertainty
from nasty title search.
1t is true that no man is supposed
to sleep on his rights. and holders of
liens and mortgages might be expect
ed to see them promptly recorded on
the existing certificate. But they are
not supposed to have knowledge of
each succeeding transfer. and it is
clear that where all membranes
must be restated at each transfer, the
omission to note mortgage, lien,
judgment or decree might easily occur
by accident, fraud or collision
The only remedy provided to pro-
tect adverse rights is by action against
a fund accumulated for that purpose
from the fees of the registrars office,
or, in some cases, against the registrar
himself. But this at best only pro-
vides for a forced sale on the part of
the innocent claimant, who may have
many reasons, commercial or senti-
rights at a price determined not by
himself
1t is clear that to satisfactorily dis
charge the duties of registrar, the in
cumbent must be justice and wisdom
personifed, a man incapable of an
error of judgment if the rights of all
are to be subserved. On the other
hand, the opportunities afforded an
INSCRIPTIONS official to conniye at
nothing of the opportunities of fraud.
concealment and forgery it affords adj
Venturers who may impose on the
registrar
The advocates of the law seek to
render the transfer of land as easy as
the transfer Of personal property. The
ease of transfer of chattels is based on
the fact that possession is presump-
tive proof of ownership, and that
reasonable vigilance in the possession
and control of portable property is
usually sufficient to protect them. No
law prevents the owner of a chatteI
from following it into the hands of
another; on the contrary, he who buys
it. does so at his peril. If he buys
stolen property, not knowing it to be
stolen, the rightful owner may re-
claim it by writ of replevin. In land it
is wholly different. Under the Torrens
system a man might remain in actual
possession and be without notice that
a fraudulent lien be noted on it, and
each succeeding certificate being con-
elusive he could be dispossessed, and
the only recourse would be against the
fund referred to, or the registrar.
when it might be against his every de-
sire and interest to sell.
The registrar is clothed with power
such as no court or judge in Christen-
dom possesses, an absolute power from
which no right Of appeal exists,
power to adjudicate without notice,
summons or hearing, power superior
to all known processes of law Tt
would be possible for a dishonest
registrar to issue a certificate to a con-
federate for the transfer of millions of