mons, as provided by section three hundred and eighty-six of this chapter. The court shall approve of such form before it is used in said notice, and such approval shall be shown by the making of the order for the service of the summons and notice. Said examiner's certificate shall contain, or be accompanied by, any other or further information that the court may prescribe. The first part of said certificate shall be a summary of the results thereby shown, which summary shall briefly set forth the exact state of the title to said property. Said certificate shall be substantially in the form set out in section four hundred and thirtyfour of this chapter, with such additions or modifications as the court may order. Formerly section 12, chapter 444, Laws of 1908.62 Comment. In Illinois it is held, that under the Illinois act it is not within the province of the examiner to make ex parte examinations of title not introduced in evidence, and he cannot consider abstracts of title not returned in his report and not offered in evidence.63 But up to this point, under this article, the official examiner in New York deals with the title only as a conveyancer at common law deals with a title which he is employed to examine.64 62 Repealed. See § 460, infra. 63 Glos v. Holberg, 220 Ill. 167; Glos v. Grant Building Assoc., 229 id. 387. 64 McQueston v. Atty.-General, 83 N. E. 1037. § 381. Survey, map, or plan to be filed. There shall be filed with the complaint and annexed thereto as an exhibit and made a part thereof, the survey, map or plan of the land referred to in section three hundred and seventy-nine of this chapter, which shall be made by a competent surveyor approved by the court, and which shall clearly show the exact boundaries of the land and its connection with adjacent lands and any adjoining or neighboring streets and avenues, and all encroachments, if any, and all other facts which are usually shown by accurate surveys. If any adjacent land is already registered, the survey so filed with the complaint must properly connect and harmonize with the survey of such previously registered land. There shall be attached to said survey, map, or plan, and filed with it, an affidavit of the surveyor by whom it was made, that it was made by him personally or under his immediate supervision and direction; that it is a survey, map or plan of the property described in the certificate of title of the examiner, and that according to the best of his knowledge and belief said property is included in the boundaries shown on such survey, map or plan, without any encroachments or improper erections, except as follows (stating and describing any encroachments or improper location of buildings, fences or other structures). Formerly section 13, chapter 444, Laws of 1908.65 Comment. It is apparent that in this State an official survey is intended to be obligatory upon the applicant. Such a precaution, while it often imposes a very considerable expense to the applicant, is undoubtedly a very wise measure in some of the more populous portions of the State. It is also obvious, that if this article is to receive a general acceptance, the position of official surveyor will be very important and can be made very lucrative, unless the courts are very general in their approval of the surveyors chosen by applicants for registration. If the courts are too general, on the other hand, incompetent surveyors may be employed with bad results. The law will probably ultimately regulate the appointment of official surveyors in some more acceptable way. 65 Repealed. See § 460, infra. § 382. Notice of application and of pendency of action. At the time when the application for registration of any property is filed, the plaintiff shall also cause to be filed a notice thereof in the office of the county clerk of each county where the property is situated, which notice shall be made and filed in the manner prescribed by section sixteen hundred and seventy of the code of civil procedure, and shall be indexed against the names of the plaintiff and all known defendants except the owners of abutting properties, and shall constitute notice of the pendency of the application, and of the action when the same is commenced, and shall be in all other respects the same as a notice of the pendency of an action under section sixteen hundred and seventy to sixteen hundred and seventy-four inclusive of the code of civil procedure, except that, if the application be dismissed, or the action discontinued, or in any way terminated other than by registration of the title, no order for the cancellation of such notice shall be made by the court until it is duly and fully proved to the court that the provisions of section four hundred and ten of this chapter have been fully complied with and performed. Formerly section 14, chapter 444, Laws of 1908.68 Comment. The lis pendens called for by this section might be made very mischievous if it could be availed of by persons claiming under a title adverse to those in possession. But section 378 of this article requires the applicant to be in possession and seems to preclude adverse possessors from the benefits of this article. If every claim of title could be brought under this article, it would afford a new mode of trying title, and prove very mischievous in operation. But fortunately this article is so framed as to prevent a result so contrary to the settled habits of the people of the State. 66 Repealed. See § 460, infra. § 383. Filing of caution. Any person claiming to have any right or interest in or lien upon any real property or any part thereof, may file with the registrar a written notice, to be styled a "caution," that he requires written notice to be given to him of any application for the registration of the title of said real property. In such notice he shall show how he claims title, right, interest or lien, and shall give his own post-office address, and that of a person (who may be himself or not), upon whom the notice may be served. In case of any application to register said title, service of such notice shall be made within ten days after the application is filed, by mailing said notice securely inclosed in a postpaid wrapper and directed to the person indicated at the place named. A like cautionary notice may be required by the owner of any land, as to the registration of the title of any or all of the land abutting upon his land, with the like proceedings in all respects. There shall be kept by the registrar a locality index of the cautionary notices, in which the same shall be indexed under the name of the street or road upon which the property referred to in the notice abuts, of if it abuts upon none, under the name of the street or road which is nearest to it. In any place, however, where there is a land map giving sections and dividing the property into blocks, the index shall be made by section and block numbers, and as far as convenient, by the lot numbers. Formerly section 15, chapter 444, Laws of 1908.67 Comment. This is the first section which looks to the real nature of the proceeding for registration. Is it to be an action at law, a suit in personam, or one in rem? Is it to be hostile? Is it to be a regular law suit, under the protection of those constitutional provisions which enforce "due process of law" on all tribunals for the trial of cases? Some of these important questions will be answered hereafter under subsequent sections of this act. This section seems to assume that the proceedings under the act are mina 67 Repealed. See § 460, infra. |