§ 376. Disposition and use of fees received by registrar. All fees received by a registrar, for the performance of the duties devolving upon him pursuant to this article, shall be disposed of in such manner as the other fees paid to county clerks and registers, with the following proviso: In those counties where registrars under this article are or shall become salaried officials, all fees paid for the registration of titles shall be kept separate by the registrars and serve, so far as they are necessary or adequate, to pay the expenses of registering titles and the other duties for which charges are made. It shall be the duty of the local authorities who provide for county expenses to provide such accommodations, help, safes, books, papers and for such other expenses as may properly be required by the registrar in the conduct of his office. Formerly section 8, chapter 444, Laws 1908.48 Comment. The remarks made on the preceding section of this article apply with full force to this section. The local authorities are, it is to be feared, given a too elastic power, which should have been placed, if possible, in some central State authority, ultimately to be charged with the administration of the entire system of land transfers. If, on the other hand, the local authorities are too parsimonious in their first outlay and provision for the initial registration of titles, or if they fail to provide the proper books and other material really necessary to enable a visitor to inspect at a glance the condition of a registered title, this act, however perfect it may be in theory, will no doubt prove a failure in practice. It is estimated that up to this time, very little use has been made in this State of title registration under this article. So far as the evidence discloses, the article does not respond to any general public need. 48 Repealed. See § 460, infra. § 377. Official examiners of title. Before application is made for the registration of a title, it must be thoroughly examined and certified by an "official examiner of title." A person duly admitted to practice as an attorney and counselorat-law in the courts of record of this state, or a corporation duly incorporated under and by virtue of the laws of this state, and by said laws duly authorized to guarantee or insure titles to real property in this state, and no other person, corporation, or institution, may be admitted to the office or position of, and licensed to practice as, an official examiner of title. The court of appeals shall prescribe rules providing for the methods of ascertaining the fitness of individual applicants for license to practice as such examiners, and in doing so, shall take into account the length of time during which applicants have practiced law and the amount of work that they have done in the examination of titles to real property. In the case of experienced examiners of such titles, provision may be made for licensing them, without examination, to practice as "official examiners of title." After complying with the rules and requirements prescribed by the court of appeals pursuant to this section, an individual applicant may be licensed and admitted to practice as an official examiner of title in this state, by an order of the appellate division of the supreme court of the department in which he resides, or in which he has an office for the regular practice of law. He may be required to give such a bond as the court may prescribe. A corporation may be licensed and admitted to practice as an official examiner of title by an order of the appellate division of the supreme court of the department in which it has its principal place of business, which order shall be made on the certificate of the proper state official that such corporation is duly incorporated under and by virtue of the laws of this state, and by said laws authorized to guarantee or insure titles to real property within this state. Any official examiner of title in counties not exceeding three hundred thousand inhabitants may base the certificate and affidavis required by this article, upon searches and abstracts of title made by a corporation duly organized under and by virtue of the laws of this state, and by said laws duly authorized to make and to certify to searches and abstracts of title, provided, however, that said abstract company shall have been incorporated for a period of at least two years before the passage of this article. Formerly section 9, chapter 444, Laws of 1908.49 Comment. Pursuant to this section the Court of Appeals have established rules relating to applications to practice as official examiners of title.50 An official examiner of title under the "Torrens Acts of Illinois," it is said, generally occupies to the court in which an application for registration is pending a position similar to that of a master in chancery.51 Under the New York act his duties and the form of his certificate of title are prescribed.52 In New York State a corporation may, it seems, oe made an 46 examiner of title." How far this authority is constitutional or regular has thus far not been decided. If a particular corporation has not the power to fill the office of an exarniner by its original charter, or if it be incorporated under a general act, it may be doubtful whether this section in itself is sufficient to qualify it. If official examiners are charged with judicial duties or functions, the act is unconstitutional.53 The official examiners must have the confidence of the community in order to insure the general acceptance of a voluntary registration law. Otherwise purchasers and lenders will not rely on the preliminary examinations of title by the official examiner, and will continue to prefer their own attorneys, as before the act. The results of a mistake on the part of the official examiner for a long time to come will be an unknown quantity. A purchaser will naturally be in great uncertainty on this point. 49 Repealed. See 8 460, infra. 50 See Gerard on Titles (5th ed.), 1015. 51 See Glos v. Holberg, 220 Ill. 167; Gage v. Consumers' Electric Light Co., 194 id. 30. 52 See 88 377, 380, 434, infra. 53 State v. Guilbert, 56 Ohio St. 575; People v. Chase, 165 Ill. 127. § 378. What owners may apply; what titles may be registered. Application for registration of title may be made by the following persons: First. The person or persons who claim singly or collectively, to own in fee simple the legal estate in land, or in some right in or over land, and who hold and possess such land or such right. Second. The person or persons who claim, singly or collectively, to own a contract for the purchase in fee simple of the legal estate in land, or in some right in or over land, from the owner thereof. Third. The person or persons who claim, singly or collectively, to have the power of appointing or disposing in fee simple of the legal estate in land, or in some right in or over land. No title to a mortgage, lien, trust, charge or estate less than a fee simple shall be registered, unless the title to the legal estate in fee simple in the same property is first registered. When the application is made by the holder of a contract to purchase, it shall refer to the ownership of the proposed vendor, and to the contract of purchase and sale. Registration in the name of the holder of the contract shall not be made, except on the production of a proper transfer of title under and pursuant to the contract, or the consent in writing, duly acknowledged, of the proposed vendor named in the contract and his wife, if he be married. Such transfer or consent may be made after the commencement of the registration proceedings or action. It shall not be an objection to bringing real property under this article that the estate or interest of the applicant is subject to any outstanding lesser estate, mortgage, trust, charge, or other lien or right. But any such lesser estate, mortgage, trust, charge, or other lien or right shall be duly noted on the certificate of registration when issued. Formerly section 10, chapter 444, Laws of 1908. Comment. Under all the acts for initial registration of title it is essential, that the applicant or applicants should show a good title in 55 order to warrant initial registration.54 Under some registration acts only owners of a fee simple, resident or nonresident, may apply.5 Under others of such acts persons owning land or an estate or interest therein may apply to have such title registered.56 Adverse claims may be registered in Massachusetts. Other States require the applicant to be in possession of the land. The foregoing section of this act is not so broad as that of some other States; it excepts titles of mortgagees and lienors from registration, unless a fee simple title is first registered, and it seems to require the owners to be in possession.57 This section provides, in substance, that those having a power to appoint estates in fee simple, or some lesser interest, may register. But suppose that such a power is a power in trust, can the trustees of such a power register without the consent of the ultimate beneficiaries? It would hardly be safe for such trustees to make the essay without the direction of the court, or they might find themselves in difficulty. So, where the power is a beneficial power, if there are estates limited in remainder on default of the execution of the power. 54 Glos v. Kingman, 207 Ill. 26; Glos v. Mickow, 211 id. 217; Glos v.' Holberg, 220 id. 167. 55 § 8, Illinois Act. 56 Minnesota, Manitoba. |