§365. Hearing and final order upon appearance of adverse claimants. If any person shall appear on the return day of said notice and claim in writing an interest in the real property adverse to that of the petitioners, stating the nature of his claim and his place of residence, the court may proceed in like manner to inquire into the truth of the facts stated in the petition and may make a final order in like manner and with like effect as above provided, except that such final order shall not affect in any way any person who shall have appeared on the return day and asserted a claim adverse to the petitioners, as herein provided for. Formerly section 6, chapter 503, Laws of 1890.15 Comment. This section also denotes the very limited application of this article of this statute. It expressly provides that the article shall have no application where petitioner's title is put in issue by an adverse claim. The Legislature could not have done otherwise, as this article makes no provision for trial by jury, which is the right of every holder or claimant of a legal title to land.16 This article of the statute is not most accurate in its title, as the proceeding under it is one to re-establish a judicial decree which has been lost or destroyed. 15 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 16 Van Alst v. Hunter, 1 Johns. Ch. 148, 155; Weed v. Weed, 94 N. Y. 223; Anderson v. Anderson, 112 id. 104; Chipman v. Montgomery, 63 id. 221; cf. Tonnele v. Wetmore, 195 N. Y. 436. § 366. Notice of pendency to be filed and recorded. No such final order shall be made until the petitioners named in said proceedings, or their attorney, shall file in the clerk's office of the county in which such real property is situated a notice of the pendency of the said special proceeding, containing the names of all the persons claiming to be then owners of the property in fee, pursuant to said sheriff's or referee's deed, the object of the proceeding, together with a brief description of said property. Each county clerk with whom such notice is filed must immediately record it in the book kept in his office for recording of notices of pendency of an action, and index it to the name of each person claiming to be owner as aforesaid, and said clerk shall be entitled to receive for his services the same fees therefor as are now allowed by law for filing, recording and indexing a notice of pendency of action. Formerly section 7, chapter 503, Laws of 1890.17 Comment. The effect of the notice required by this section is not prescribed, as it should have been. This being a proceeding not recognized by the courts of common law or equity the mere filing of a notice in the public office can have no common-law effect whatever, and the act seems defective in not prescribing the effect of the filing of such notice.18 Omitted Sections. after section 366. At present there are no sections of this article 17 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 18 See 1670, Code Civ. Proc. ARTICLE 12.19 Registering Title to Real Property. SECTION 370. Application to register title to real property. 371. Applications and proceeding to be in the supreme court; title part of special term. 372. County clerks and registers to be registrars of title. 373. Registrar's bond. 374. Deputy registrars' powers and duties. 375. Compensation of registrars and deputy registrars and registration clerks. 376. Disposition and use of fees received by registrar. 377. Official examiners of title. 378. What owners may apply; what titles may be registered. 379. Contents of application for registration; other papers to be filed. 380. Examiner's certificate of title; other evidences of title. 381. Survey, map, or plan to be filed. 382. Notice of application and of pendency of action. 384. Agent of nonresident applicant. 385. Commencement of the action. 386. Notice of object of action; copy of complaint. 387. Summons and notice to be posted on the land. 388. Guardian ad litem. 389. Any person interested may appear and defend. 390. Title in lands vested; clouds thereon removed. 391. Judgments and orders conclusive. 392. Fraud; action to set aside the judgment or to recover the property. 393. Registration of titles. 394. Certificate of registration. 395. Registration book. 396. Duplicate certificate of title. 397. Owner's receipt for certificate of title. 398. Certificate to include dealings pending registration. 399. Certificate of title as evidence. 400. Rights of registered owners; exceptions; incumbrances and transfers to be filed. 19 The plan adopted in this Commentary in regard to the preceding articles and sections of the Consolidated Real Property Law will not be pursued under this article, and the sections will occasionally hereafter be presented without comment. This article is a literal transcript of chapter 444, Laws of 1908, which was reenacted by this article of the Real Property Law and then repealed by section 460 of that law. See below, § 460. SECTION 401. Registered property not affected by prescription or adverse possession. 402. Fraud; notice only by registration. 403. Memorial to be carried forward. 404. Registered property to remain registered. 405. Registered property subject to same rights and burdens as unregistered property. 406. Transfers of registered property. 407. Certificate remaining part of property transferred. 408. Book of covenants, restrictions and forms. 409. Filing, entering and indexing papers pursuant to this act; tickler certificate. 410. Notice of filed papers. 411. Addresses of interested parties; notice. 412. When a transfer is deemed to be registered. 413. New certificates. 414. Loss of owner's duplicate. 415. Mortgages, leases and other liens and charges; may be registered. 416. Proceedings to register mortgage, lease or other lien or charge. 417. Judgments, decrees, attachments and other liens to be noted on certificate. 418. Assignment of mortgage, lease, or other lien or charge. 422. Reference of doubtful matters to the court. 423. Death of registered owner; transfer of property. 424. Registration certificate during settlement of estate. 425. Title derived through execution of a power in a will. 427. Compensation from assurance fund. 428. Action against assurance fund. 429. Restrictions on claims against assurance fund. 430. Penalties for fraudulent acts or false certificates. 431. Forgery and fraudulent stamping; penalty. 432. Fees to be charged. 433. Construction of article. 434. Form for examiner's certificate of title. 435. Form for certificate of registration. § 370. Application to register title to real property. Real property, or any estate, interest, or right therein, the title to which is hereby authorized to be registered, may be brought under the operation of this article by the filing of a complaint, verified as prescribed by the code of civil procedure and praying for registration, with the officer herein after described as the "registrar," of the county in which the land, or some portion thereof, is situated. The application may be so made in person by the owner or owners of such property, estate, interest, or right, or by any attorney at law duly authorized so to do. A corporation may also apply by its duly authorized officer or agent. An infant or other person under disability may apply by his legally appointed guardian, or trustee, or committee. The natural person or corporation, in whose behalf the complaint is filed may be known, and is treated in this article, as the applicant, or plaintiff. The complaint so filed may be known, and is treated in this article, as the application. Formerly section 2, chapter 444, Laws og 1908.20 Historical Review. This article of the Real Property Law is but a re-enactment of chapter 444, Laws of 1908, without change. The New York act of 1908 is the first one in this State to give expression to that system of registering titles to land, long familiar in the British colonies. The system of land title registration is generally known as the "Torrens System," from its leading designer, Mr. (afterward, Sir) Robert R. Torrens. This gentleman, originally a collector of customs at Adelaide, South Australia, about the year 1850 or 1851 first conceived the idea of putting in practice a system of land transfers which should make subsequent transfers of title to lands cheaper and simpler than the modes employed generally by English-speaking peoples the world over. The system under his administration was found practicable in South Australia, and was ultimately extended to the British provinces of Ontario and Manitoba, Canada, in 1885.21 In England, various proposals to reform the legal customs and the laws regulating land transfers have have been heard of for centuries. About the first was that of Nicholas Philpot, published in 1671. The great Lord Chief-Justice Hale in 1694 was in favor of some system which should enroll and register conveyances. Finally Lord Cairns in 1859, Lord Westbury in 1862, and Lord Selborne in 1873 were the authors of acts of parliament designed to facilitate the proofs of title to, and the conveyance of, real 20 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 21 See passim, Jones on the Torrens System, Toronto, 1886. |