§ 398. Certificate to include dealings pending registration. In every case of initial registration, the certificate of title shall include all dealings with the real property, and all statutory or other liens filed against the same, subsequent to the filing of the application, except when they are modified or set aside by a judgment, decree or order of the court. On and after the filing with the registrar of an application for the registration of any real property, and until the same is registered or the application is denied, dismissed, or discontinued, all papers which are required or permitted by this article to be filed against registered property shall be filed with the registrar as if the property were registered. Formerly section 30, chapter 444, Laws of 1908.2 Comment. Some such provision as the above is essential to preserve the marketability of lands in process of registration. If all dealings with the land came to a standstill pending registration and the trial of the action provided for by this article,3 with the delays and appeals, and no doubt new trials and rehearings incidental to actions at law, no practical owner of real property would apply for registration of his title if he could help it. Consequently, this article does not prohibit mesne transfers, and this section provides for the manner in which such dealings shall be treated in the certificate of title mentioned in the preceding sections of this article. It is to be observed that all papers connected with such dealings are to be filed with the registrar. 2 Repealed. See § 460, infra. §§ 371, 385, 386, 387, 388, 389, 390, supra. § 399. Certificate of title as evidence. The registration certificate of the title, and any copy thereof duly certified under the hand and seal of the registrar and the owner's duplicate certificate, until the expiration of the time herein limited to bring an action or proceeding to set aside the judgment of registration shall be received as evidence in all the courts of the state, and in all courts and places shall be prima facie evidence that the provisions of law up to the time of issue of such certificate or duplicate, or of the time of entry of the last memorial thereon, have been complied with, and that such certificate of title has been issued in compliance with a valid judgment, and that the title to the property is as therein stated; and after the expiration of such time limited for bringing said proceedings to set aside said judgment, such certificate or copy, up to the time of its issue, shall be so received as evidence in all courts of the state, and shall be conclusive evidence of the same facts. Every memorial or notation or cancellation thereof made on any certificate or duplicate or copy thereof shall be signed by the registrar or his deputy or his duly authorized deputy or clerk. Formerly section 31, chapter 444, Laws of 1908.4 Comment. This is an important section and provides for the effect to be given to certificates of title by the courts of this State. Of course, it would not be competent to give them any extraterritorial effect. Nor can the State Legislature even provide for the effect to be given them by the Federal tribunals. It is no doubt the case, that while the Federal courts will ordinarily follow State law each provision of this article must meet the requirements of the Federal Constitution, or it will be condemned. If this article deprives any person of property "without due process of law" it must be nullified by the Federal courts." 4 Repealed. See § 460, infra. Tyler v. Judges of Court of Registration, 179 U. S. 405; cf. Arndt v. Griggs, 134 id. 316, 327: § 400. Rights of registered owners; exceptions; incumbrances and transfers to be filed. A person who receives a certificate of title pursuant to a judgment of registration, except in case of fraud to which he is a party, and a purchaser of registered real property, who takes a certificate of title for value and in good faith, shall hold the same free from all incumbrances, charges, trusts, liens and transfers, except those noted on the certificate in the registrar's office, and any of the following which may exist: First. Liens, claims, or rights arising or existing under the laws or constitution of the United States, which the statutes of this state do not require to appear of record; Second. Any tax, water rate, or assessment which becomes a lien on the property after initial registration and for which a sale has not been made; Third. Any lease or agreement for a lease, made after or pending registration, for a period not exceeding one year, where there is actual occupation of the land under the lease or agreement; Fourth. Easements or servitudes which accrue against the property after initial registration in such manner as not to require their registration. Except as specified in the foregoing statement of exceptions, no incumbrance, charge, trust, lien, or transfer shall take effect upon or over real property the title to which has been registered, unless the instrument creating and setting forth such incumbrance, charge, trust, lien, or transfer has been filed with the registrar and a memorial or notation thereof made upon the certificate of title covering the property. Formerly section 32, chapter 444, Laws of 1908.6 Comment. This section is a very important section of this article, as it denotes some of the qualifications attending titles registered under the law of 1908. It will be readily observed that every title registered becomes a statutory title. It then ceases to be a commonlaw title. If we wish to ascertain the rights of the owner of a certified or registered title we must, therefore, closely examine this article. This in itself requires some degree of professional expe Repealed. See 8 460, infra. rience. Yet it is claimed by some advocates of Torrens laws that they dispense with lawyers. It is probably a fact that most laymen, and indeed most lawyers, would derive more reai knowledge from the perusal of an old-fashioned warranty deed than from the reading of this article. Yet common prudence dictates that one, who takes title under either the old system or this article, if he employs no lawyer, shall himself read either the deed or the article, as the case may require. It can hardly be claimed, therefore, as yet, that this article of this statute, with all its qualifications, simplifies the law relative to conveyancing. It is too soon to advance such a claim for the act of 1908. Under section 306 of this article we have been at some trouble to explain the difference between theory and practice under most "Torrens Laws" thus far adopted in this country. Yet it can not be denied that a great and comprehensive State-administered system of title registration and simplified transfers is possible. This no intelligent person, who will examine the systems at work in other countries, can deny. But that any title registration act, thus far proposed in this country, is a beneficient reform we feel at liberty to doubt for reasons briefly intimated in the commentary under this article. § 401. Registered property not affected by prescription or adverse possession. No title to registered real property, in derogation of that of the registered owner, shall be acquired by prescription or adverse possession. Formerly section 33, chapter 444, Laws of 1908.7 Comment. This section makes a profound change in the old law of real property. A registered owner has the distinct advantage of being free from all adverse claims arising from prescription or adverse possession. The office of the registry is henceforth, in respect of registered titles, intended to be the sole source of rights not acquired by descent, or perhaps under a decree of probate. Indeed in some States where Torrens laws prevail the certificate of title is no longer even real estate, but passes not by descent but as personal property.8 That venia testandi, or the privilege of making wills of real estate, is destined at no long distant day to disappear is generally conceded by sociologists of some schools, and this conclusion is advanced as another argument for title registration laws in general. It will certainly tend to simplify the administration under those laws, if descent of real estate is abolished and the privilege of disposing of it by last will and testament is also abolished. Neither right as yet is, however, affected by this article. In thus stating the claims of the more advanced thinkers upon the problems indicated by Torrens laws in general, we do not mean to be understood as mentioning them with either favor or disfavor. Doubtless the world moves on, and laws in common with all other organic manifestations change from generation to generation. The institution of property, in common with all other human institutions, is probably destined to undergo great modifications. Let us only hope that such changes may be for the real good of mankind. 7 Repealed. See § 460, infra. 8 § 70, Illinois Act; 8 69, Oregon Act. |