§ 388. Guardian ad litem. After service of the summons on all of the defendants is complete, if it appears from any of the papers in the case that any one or more of them are infants or otherwise incapacitated, the court shall make an order appointing a disinterested attorney, other than the examiner by whom the title was examined and certified, to act as guardian ad litem for all minor parties to the action and for all parties under disability. It shall be his duty actively to ascertain and protect as far as is reasonably possible, the interests of all parties to the action known to be or possibly incapacitated. The compensation of such guardian shall be determined by the court and paid by the plaintiff. Formerly section 20, chapter 444, Laws of 1908.78 § 389. Any person interested may appear and defend. Any person interested in the property, or whose interests may be affected by the judgment in the action, whether specifically named as defendant or not, may enter his appearance and answer the complaint, within the time allowed by this article, or such further time as shall be allowed by the court, and may oppose the application for registration of the property as belonging to the plaintiff, or set up a cross-demand to have the title registered in his own behalf. In either case, he shall state particularly what his interest is and answer the material allegations of the complaint. Formerly section 21, chapter 444, Laws of 1908.78% 78 Repealed, see § 460, infra. 78% Repealed, see § 460, infra. §390. Title in lands vested; clouds thereon removed. In any action under this article, the court may find and decree in whom the title to or any right or interest in the property or any part thereof is vested, whether in the plaintiff or in any other person, and may remove clouds from the title, and may determine whether or not the same is subject to any lien or incumbrance, estate, right, trust or interest, and may declare and fix the same, and may direct the registrar to register such title, right, or interest, and in case the same is subject to any lien, incumbrance, estate, trust or interest, may give directions as to the manner and order in which the same shall appear upon the certificate of title to be issued by the registrar, and generally in such an action, the court may make any and all such orders and directions as shall be according to equity in the premises and in conformity to the principles of this article. But no judgment of registration of a title shall be made or entered until proof is duly made in the action that all taxes, water rents and assessments on the property, right or interest the title to which is so registered, have been fully paid and discharged, unless the court directs the title to be registered subject to any such tax, water rent or assessment, which said tax, water rent or assessment must then be noted on the certificate of registration. Formerly section 22, chapter 444, Laws of 1908.79 Comment. Under the Illinois act the Court for Registration cannot grant the incidental relief of removing a cloud on title.80 But this section of the act especially provides that the court in New York may not only grant a decree for registration but the other relief stated, including the removal of a cloud on title. How far such auxiliary relief is intended to be incidental to a judgment of registration, or how far it can stand independently of such a judgment, may be questions for further consideration.81 These questions will certainly be raised, in due course of time, if the act is much availed of by the people at large. 79 Repealed. See § 460, infra. 80 Glos v. Kingman, 207 Ill. 26; Glos v. Cessna, id. 69. 40. 81 Woodbine v. Dean, 194 Min. § 391. Judgments and orders conclusive. No judgment of registration shall be made, unless the court is satisfied that the title to be registered accordingly is free from reasonable doubt. The judgment and any order made and entered in an action under this act shall, except as herein otherwise provided, be forever binding and conclusive upon the state of New York and all persons in the world, whether mentioned and served with the summons and said notice specifically by name, or included in the description, "all other persons, if any, having any right or interest in or lien upon said property or any part thereof." It shall not be an exception to such conclusiveness that any such person is an infant, lunatic or is under any other disability or is not yet in being. Formerly section 23, chapter 444, Laws of 1908,82 Comment. It is apparent that under this act, as under that of California and Massachusetts, the proceeding contemplated is one in rem and that the judgment is intended to be conclusive as against all the world.83 But a legislative declaration, that a decree shall be binding on all the world, may not make this a judgment in a proceeding in rem. That result must depend on the nature of the proceeding itself, and on the effectiveness of the sentence on the citizens of other States than our own. A decree in rem is one that is recognized by international jurists and comity as binding everywhere. It is a decree in a proceeding instituted against the land, as contra-distinguished from a decree in a proceeding against its owners. The legal effect of a final decree in a proceeding in rem is very different from a decree in a proceeding in personam. 82 Repealed. See $ 460, infra. 83 See $ 400, infra; Woburn First Nat. Bank v. Woburn, 192 Mass. 280; Tyler v. The Judges, 175 id. 71; appeal dismissed, 179 U. S. 405; cf. § 392. Fraud; action to set aside the judgment or to recover the property. Any title registration procured by or as the result of fraud may be set aside, in the same manner and by the same proceedings as in case of a deed obtained by fraud, provided that such proceeding for setting. aside the registration shall not injuriously affect the rights of an innocent purchaser or incumbrancer of the property after such registration, for value and without actual notice of the fraud, and provided further that the action or other proceeding to set aside such registration be commenced within ten years from the time when the final judgment of registration was entered. No action or proceeding shall lie or be commenced, except on the ground of fraud as above stated, to set aside any judgment of registration or to modify or affect the same or for the recovery of registered property or any estate, right or interest in or lien upon the same ⚫r any part thereof, or make any entry thereon, adversely to the title or interest registered therein, as directed by a final judgment of the court, unless such action or proceeding is commenced within six months after such judgment of registration is entered. Formerly section 24, chapter 444, Laws of 1908.85 Comment. Where the registration of land is secured by fraud the decree and certificate are usually vacated.86 The difficulty arises when the rights of innocent third persons have intervened, and the title is no longer registered in the name of the person guilty of the fraud. The ten years' bar prescribed by this section seems much too short from the point of view of some old conveyancers, and much too long from the point of view of some reformers. The proper time remains to be ascertained from experience. The time in this State is, however, much longer than the period allowed in some other States which have enacted Torrens laws.87 The six months' bar to every action other than one for fraud to set aside a judgment of registration is very short, and it may have dire consequences upon the rights of adjacent owners whose property is erroneously included in a judgment for registration. 85 Repealed. See § 460, infra. 197. 87 California five years; Ohio five years; Minnesota sixty days; Massachusetts thirty days. § 393. Registration of title. After the final judgment directing registration of title is duly entered and filed in the registrar's office, the registrar shall proceed to register the title to the real property, estate, right, or interest, pursuant thereto, and issue a certificate or certificates thereof and enter the same as herein prescribed. Formerly section 25, chapter 444, Laws of 1908.88 Comment. The proceedings prescribed by this article all lead up to this section, which announces the object of everything thus far done under preceding sections. But after all the steps required have been taken, and the certificate of title granted, the question remains, how far is the judgment final, and, next, how far is the certificate of title conclusive and binding on all the world, whether an actual party to the action or not? If the certificate is not conclusive, of course, one object of title registration fails, and the certificate is no better than an ordinary grantor's deed. 89 There are other subsidiary questions to be considered in the light of the constitutional law of America. Are the rights of the real owners sufficiently protected by the proceedings in the action? Is the action contemplated "due process of law?" Is the judgment really final, or is it subject to review and appeal as are all other judgments of courts of record in this State? Is the judgment then open to a bill of review on the equitable principles generally adopted and applied to bills of review? All these and many other questions on this act, we fear, will have to be answered by the courts of last resort before its provisions will be very generally availed of by lawyers so long accustomed to the older methods of conveyancing. 88 Repealed. See 460, infra. 89 See above, pp. 1093, 1094. |