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of the Australian ballot. The universal favor with which this latter system has been received by our people should at least remove any prejudice against following the legislation of the same country in another respect.
“The need of some new system of land transfer is shown by the growing public dissatisfaction caused by the delays and expense attending our present system of registration of deeds. That system has existed in this commonwealth for a little more than two hundred and forty years. In former days when our population was smaller it apparently satisfied the popular demand; but with increase of population it has become less serviceable. Our people are now largely concentrated in cities and populous towns.
"The first point which should be noted in connection with the Torrens system is that its use is optional and not compulsory; existing methods of transfer can be continued precisely as at present. It remains entirely within the option of every land owner whether he will avail himself of the privileges offered by the new system or not, and therefore no one loses any right which he now possesses. The new method must secure support from the public, not through compulsory legislation, but through the greater advantages which it offers.
“The contrasts between our present system of registration of deeds and the Torrens system of registration of titles are very marked. Under our system title to land depends not only upon instruments recorded in the registry of deeds, but also upon facts and proceedings which lie outside of these records. There is a constant increase in the mass of records of deeds and of proceedings affecting titles to land which makes the work of examination a constantly growing burden. If any man's title to a piece of land is questioned or attacked by any particular person, the Commonwealth has provided courts with appropriate jurisdiction in which the owner can have his rights ascertained and established as against that person. But it has failed to provide any method by which one can have his title ascertained and established as against all the world. Under our practice a new examination of the title is usually made upon each sale or mortgage of a piece of land, in spite of the fact that sufficient examinations may have been made in former transactions. These repeated re-examinations, generally needless, not only cause useless expense, but delays, which often involve a serious loss.
“Under the Torrens system an official examination of title is substituted for an unofficial one, and the result, when once sufficiently ascertained, is given conclusive effect in favor of the owner, and his title is made perfect against all the world. In effect under the Torrens system the State provides a proper court in which any one can have his rights in relation to a piece of land declared and established, not only as against particular persons who may have an adverse interest upon special notice to them, but also as against everybody. The principle of basing decrees upon general notice to all persons interested already prevails in our probate law. Laws providing for the removal of clouds upon title to land after general notice to all unknown defendants exist in many States of the Union, and the validity of decrees made under such laws has been established by decisions of the Supreme Court of the United States.
“The contrasts in practical effect between the two systems are, therefore, very great. Under the system of registration of deeds we have needless expense from repeated re-examinations, loss from delays, and possible insecurity arising from the fact that title depends, not only upon the records, but also upon facts outside of the records and not disclosed by them. Under the Torrens system the title is examined once for all, and there is no needless reexamination; as all subsequent acts and proceedings must be brought one by one to the Registrar to be noted, the state of the title can be ascertained at any time by a simple inspection of the certificate on record. Therefore, with the added advantage of great simplification of the forms of legal instruments, transfers can be made quickly, easily and at small expense; and, further, there is absolute security in the possession of the premises bought, resulting from the indefeasibility given to the certificate of title issued
by the State. The result is that under the Torrens system real estate can be transferred or pledged for loans with almost as much ease as stock in corporations.
“A further feature of the system is worthy of notice. When land is first registered and a certificate of title is issued, or when it passes by will or descent on the death of an owner, the applicant, devisee or heir is required to pay a small percentage of the value of the land, generally about one-fifth of one per cent., into the public treasury. The sums so paid form an 'assurance fund,' which is held for the payment of indemnity to any person who may have had some claim upon, or interest in, land admitted to registration, and who failed to receive notice of the application, or for other sufficient cause did not assert his claim. Under our system, on the other hand, a purchaser may have paid full value for his land, yet if any outstanding claim or interest is overlooked he is obliged to make further payment and may be remitted for his remedy to a suit upon covenants which have no practical value.
“Again, technical claims are sometimes passed over by one attorney as of no consequence, but by subsequent requirement of some other attorney, who thinks them of importance, the owner may be subjected to delay and expense in obtaining a release.
“Such being, in brief, the features of the Torrens system as contrasted with that which we now employ, argument seems almost superfluous in support of the advisability of adopting it. While a system which gives absolute security of title and makes transfers easy, quick and inexpensive, tends to make all land more valuable, its benefits will be especially felt by the two great classes of our people, the small land owners and the borrowers upon mortgage. Widely distributed proprietorship of land and the ownership by the people to the greatest possible extent of the homes in which they live are so obviously desirable that I need not dwell upon them. It is evident that the masses of the people are more injuriously affected by the insecurity and expense connected with our present system than the rich. The smaller the piece of real estate, the greater is the proportionate expense of transferring it. Under the Torrens system the expenses of transfer are based upon a fixed
percentage of the value of the estate, so that a small estate is not subjected to a greater proportionate charge than a large one. Then, too, ease and cheapness of transfer are of more consequence to a man whose whole property is invested in a small piece of real estate than to the large land owner, as it is more important to the former to be able easily to dispose of his property to meet any sudden exigency.
"The convenience and relief afforded by this new system to all who borrow upon mortgage will be very great. The facility of raising money easily and cheaply upon landed security is of great consequence to the prosperity and development of a community. By abolishing the tax formerly imposed upon mortgages, our State has already relieved borrowers of one unjust and oppressive burden, to the great advantage of the public, and the additional step now proposed will confer further benefit in the same direction. The power of readily pledging real estate will also prove of great importance to the business community. At present the delays involved in an examination of title often prevent a business man from obtaining a needed advance to meet a sudden stringency in the money market. At times when loans are contracted and credit is shaken it would be of great benefit to business if all the real estate of the community, possessing, as it does, greater stability of value than anything else, could be made as immediately available as a means of raising money as stocks of goods or other personal property.”
As a result of this message from Governor Russell, a joint special committee of both branches of the legislature was appointed that year to report upon the advisability of adopting the Torrens System of Land Transfer. The committee made an exhaustive investigation and unanimously reported in favor of its adoption. A bill was presented to practically each legislature for the next seven years, when the measure was finally adopted and went into effect October 1, 1898, under the title of “An Act to Provide for Registering and Confirming Titles to Land.” The court for land registration was opened for business October 14, 1898. In January, 1899, an action was brought in the Supreme Judicial Court of the Commonwealth (Tyler vs. Judges of the Court of Registration), attacking the validity of the act upon the ground that it was contrary to the Constitution of the United States and of the Commonwealth of Massachusetts.
The case was elaborately presented to the court and an exhaustive decision rendered by Chief Justice Holmes on January 3, 1900 (175 Mass., 71).
The court sustained the law in every particular. That decision is a final determination of the matter in Massachusetts, the same as the case of People vs. Simon is in Illinois.
In response to the objection that the law permitted the taking of land without proper notice to absent, non-resident and unknown persons, and that innocent owners might lose their property rights without due process of law, the court say: "We cannot bring ourselves to doubt that the Constitution of the United States, and of Massachusetts at least, permit it (the taking of property without any actual notice to the owner), as fully as did the common law. Prescription or a statute of limitations may give a title good against the world and destroy all manner of outstanding claims without any notice or judicial proceeding at all. Time and the chance which it gives the owner to find out that he is in danger of losing his rights are due process of law in that case. The same result used to follow upon proceedings which may be regarded as standing half way between the statutes of limitations and true judgments in rem, and which took much less trouble about giving notice than the statute before us. A proceeding in rem in the proper sense of the word might give a clear title without other notice than a seizure of the res, and an exhibition of the warrant to those in charge.”
Further on the court holds that the prohibition in the Fourteenth Amendment to the Constitution of the United States against a State depriving a person of his property without due process of law, and that the Massachusetts bill of rights on the same subject must be taken largely with regard to substance rather than to form, or they are likely to do more harm than good. And that a proceeding in rem dealing with a tangible res may be instituted and car