tices to such persons, and also for the publication of a notice in a newspaper for a prescribed period. If the examiner approves the title, and no adverse claims are presented, or if those presented do not appear meritorious, the court confirms the applicant's title, and directs the person having charge of the registration office, known usually as the registrar, to issue to the applicant a certificate of title. This certificate states that the applicant has a fee-simple title (or otherwise, as. the case may be), and also there are noted on the certificate any outstanding interests, trusts, or incumbrances in other persons which are recognized by the decree of the court. This certificate is made out in duplicate; one copy being issued to the applicant and one copy being retained in the registration office, where it is inserted in a book called the "register" or "registration book."

No person other than the owner in fee simple can, under the acts adopted in this country, obtain the registration of the title, but the existence of lesser estates in other persons does not affect such owner's right to registration, the rights of the owners of lesser estates being protected by statements upon the certificate issued to the owner in fee simple.

The proceeding by which the title is registered is, by the terms of the statute, absolutely conclusive upon all persons, either immediately upon the rendition of the decree, or within a short period thereafter. The proceeding is thus in effect one to quiet title. The constitutionality of such legislation, in so far as it makes the decree binding upon persons interested in the land, who receive notice of the proceeding merely by publication, has been vigorously questioned, on the ground that it deprives such persons of property without due process of law; but it has been upheld in at least three states."

Tyler v. Judges of Court of Registration, 175 Mass. 71; People v. Simon, 176 Ill. 165, 68 Am. St. Rep. 175; State v. Westfall (Minn.) 89 N. W. 175. See note to latter case in 54 Cent. Law J. 293.

The United States supreme court has refused to assume jurisdiction to determine the question until a case is presented by one who has actually been deprived of property by means of such legislation.*

The certificate issued upon the registration of the title is conclusive that no outstanding interests and incumbrances exist in other persons, with certain exceptions, specified in the statute, these exceptions ordinarily including liens for taxes, leases for terms of but a few years, highways, and easements, or particular classes of easements, and, as to all such excepted interests, any purchaser of the land must satisfy himself otherwise than by reference to the certificate of title.

Rights of ownership in the land less than fee simple, as well as rights in the land existing in others, such as easements and profits a prendre, are not usually the subject of a separate certificate, but they are protected by memoranda upon the certificate of the fee-simple owner.

490. Transfers after registration.

After the title to particular land has been registered, all subsequent transactions affecting such title must be by means of the machinery furnished by the act. If the owner of the fee-simple title, as registered, desires to make a transfer thereof, he makes the usual conveyance, and hands it, together with his certificate of title, to the intending purchaser, who delivers them to the registrar, who then cancels the former certificate, and makes out a new one in favor of the purchaser. The latter is protected, as against any adverse claims unknown to him, by his ability to inspect the original certificate before paying over the price, and on this he can absolutely rely, except with reference to the classes of rights excepted in the statute. The delivery of the conveyance to

4 Tyler v. Judges of Court of Registration, 179 U. S. 405.

the grantee therein is not regarded as effecting a transfer of title, but the transfer takes place only upon the issuance of the new certificate. In case the fee-simple owner desires to transfer only a part of the land, his former certificate is canceled, and a new certificate is issued to him for the part retained, and another is issued to the purchaser for his part.

491. Equitable interests.

The registration is of the legal title only, and, in case an equitable interest has been created in another by a declaration of trust or otherwise, a memorandum to that effect is made upon the certificate, without stating the terms of the instrument creating the same, but referring to the place of record of such instrument. The statute usually provides that no instrument undertaking to deal with land held in trust shall be registered until it has been approved by a court, or, in one state at least, by official examiners of title, as being in accordance with the terms of the trust, it being provided that such approval shall be conclusive as to the validity of the transfer."

492. Liens.

Though the subject of liens, including mortgages, is treated in a subsequent part of this work, it seems desirable to here consider the effect of the registration of the title to land upon such liens as may be created thereon.

The Illinois act (Laws 1897, p. 156, § 69), making the approval of such transfer by two examiners conclusive as to its validity, has been criticised as conferring judicial powers upon ministerial officers. It has, however, been sustained by the supreme court. People v. Simon, 176 Ill. 165, 68 Am. St. Rep. 175. In Massachusetts this difficulty is avoided by the establishment of a court of land registration, which renders a decree construing the trust in such a case, and performs any other acts of a judicial nature which may be called for in the administration of the law.

(1105)

All existing liens, equitable or statutory, except those excepted in the statute, are noted upon the certificate of title when issued upon the registration of the land, and those subsequently created on the land are also required to be noted on the certificate, generally upon the filing with the registrar of a copy of the proceedings or instrument upon which the lien is based.

In the case of a mortgage on the land, made subsequent to the registration of the title, the statute sometimes provides for the issue of a duplicate certificate of title to the mortgagee, a memorandum of such issue being noted on the original certificate in the registration book, while sometimes the mort gage merely is given to the mortgagee, a duplicate being held by the registrar, and the transaction being, as in the other case, noted in the registration book. Upon an assignment or discharge of the mortgage, these facts are noted upon the certificate in the registration book.

The acts providing for the registration of title differ in their provisions for the transfer upon the register of lands belonging to a decedent. By some statutes it is provided that the title to all registered land shall, on the death of the owner, pass to the executor or administrator, or to a trustee to be selected, and that he, under an order of court, shall transfer the title upon the register to the heirs or devisees as named in the order, or to the purchaser, in case the land is sold for purposes of administration. Other statutes provide that the heirs or devisees shall make application for the entry of a new certificate in their favor, and, after notice to all persons in interest by publication and otherwise, and after due hearing, such a certificate is issued, subject, however, to all claims against deceased until final settlement of the estate, and a transfer of the land to another.

CHAPTER XXXIII.

RESTRICTIONS UPON THE FREEDOM OF TRANSFER.

494. General considerations.

495.

Conveyances in fraud of creditors.

496. Conveyances in fraud of subsequent purchasers, 497. Conveyances in violation of the bankrupt act. 498.

Transfers by disseisees.

499. The homestead exemption.

The right of one having an estate or interest in land to transfer it to another is subject to restrictions as follows:

The transfer must not be in fraud of creditors, as being intended to deprive them of the means of realizing their claims from the debtor's property.

The transfer must not be in fraud of a subsequent purchaser, as being intended as a device for rendering the sale to such purchaser nugatory.

Under the United States bankruptcy act, a transfer by one within a certain time before he is adjudged a bankrupt, with the purpose of giving a preference to a particular creditor, is voidable, as is a general assignment of all his property for the benefit of creditors.

In some states, one cannot transfer land which is in the adverse possession of another.

In many states, the interest of a debtor in the "homestead" occupied by his family is, to a certain extent, measured either by the quantity or value of the land, exempt from liability to involuntary transfer under execution, or otherwise, in satisfaction of his debts, other than those of particular excepted classes. In some states the statute extends the benefit of the exemption to persons having no family.