§ 406. Transfers of registered property. A registered owner of real property, in order to transfer his whole estate or interest therein or any part or parcel thereof, or any undivided interest therein shall execute to the intended transferee a deed or instrument of conveyance in any form authorized by law. Upon filing such deed or other instrument in the registrar's office and surrendering to the registrar the duplicate certificate of title, if the interested parties agree in a statement as to the nature and effect of the transfer the registrar shall enter such statement as a memorial upon the proper original certificate, provided that such statement is not more than one folio (one hundred words) in length. He shall then make out and register as herein provided a new certificate and also an owner's duplicate certifying the title to the estate or interest in the property conveyed to the transferee and shall enter upon the original and duplicate certificate the date of the transfer, the name of the transferee and the number of the new certificate, and shall stamp across the original and surrendered duplicate certificates the word "cancelled." If the parties in interest fail to agree upon the statement to be entered upon the certificates, the registrar shall refuse to make the transfer until directed by the court as herein provided. Title to such property shall not pass by such transfer until the transfer is registered as prescribed by this section.

Formerly section 38, chapter 444, Laws of 1908:20

Comment. This section is a compromise, but it is not unlike similar sections of other "Torrens Laws" in force in some other States of this country,21 That it is consistent in theory with a beneficient reform may be doubted. Why should the holder of a certificate of title be compelled to execute a deed in the old form? This involves the application of all the old law relating to deeds, consideration, delivery, etc., fully considered in this treatise. One object of Torrens was to get rid of all this traditional and customary law. It would have been bolder but more useful legislation, we

20 Repealed. See 460, infra.

21 See for example § 47, Illinois Law.

think, had the New York act of 1908 made title pass by delivery and indorsement of the certificate; such indorsement to be either. acknowledged before a notary or proved in the registrar's office.

A State-administered system will be sure to contain some such salutary provision as that now suggested. If we are to have registration of title it is highly desirable not to make compromises which compel the citizens of the State to have recourse to two systems of law so opposed as the old and the new.

It would seem that the duties of the registrar under this section are made very onerous for the ordinary county official. The right of the parties to agree upon a statement affecting titles may also prove very prejudicial to future owners and be calculated to restrict future alienation unduly, unless the ordinary rules of law regulating perpetuities and restrictive covenants extend to transfers of registered property.

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§ 407. Certificate remaining part of property transferred. When only a part of the property described in a certificate is transferred, or some estate or interest therein is to remain the transferrer's, a new certificate shall be issued for such part, estate or interest so remaining and belonging to him; or if the property is so described as to permit it, the property transferred may be cancelled on the certificate of the transferrer without the issue of a new certificate for the residue.

Formerly section 40, chapter 444, Laws of 1908,22

Comment. This section is not unlike the similar section of the Illinois act, but that act does not permit a cancellation of a part of a certificate. The Illinois act is as follows:

"§ 48. When only a part of the land described in a certificate is transferred, or some estate or interest in the land is to remain in the transferrer, a new certificate shall be issued to him for the part, estate or interest remaining in him.”

It would seem that a partly canceled certificate of title would be open to objection and could not be so readily transferred as is desirable under any good system for registration of title. Therefore, it is to be assumed that registered owners will generally take out new certificates on every transfer.

The duties required of the registrar by these sections are of the same nature. His decision in the matter is not conclusive. If he decides wrongfully and refuses to perform the appropriate duty in the premises, he may be compelled to act properly by means of a writ of mandamus, the same as any other ministerial officer who mistakes his duty under the law and refuses to perform it. The exercise of such powers by ministerial officers is a necessary function of the executive department, and although it may require similar deliberation to that involved in the exercise of judicial power, the bestowal of such powers upon the executive department does not violate the provisions of the constitution forbidding that department to exercise the functions of any other department.

22 Repealed. See 8 460, infra.

§ 408. Book of covenants, restrictions and forms. Each registrar shall provide a book to be known as the book of covenants, restrictions and forms. This book shall be bound in a substantial manner and the pages thereof shall be Crane's parchment paper or its equal. Any person may have recorded in this book any covenant, restriction or form he may present for that purpose on payment to the registrar at the rate of fifty cents per folio. The covenant, restriction and form so entered shall be numbered consecutively and shall be written in the book with India ink or equally permanent ink in a clear and legible manner under the number given to it. References in any documents issued by the registrar to any covenant, restriction or form recorded in this manner shall be as follows:

Subject to restriction, (or covenant or form) recorded under No. in the book of covenants, restrictions

and forms, in the registrar's office of this county.

Formerly section 40, chapter 444, Laws of 1908.

Comment. We have elsewhere adverted to the difficulties attending the office of registrar and the tendency of the Torrens system to accumulate original documents and papers in the public offices. This tendency is asserted by its opponents to be greater than that under the old system which requires the filing of only those instruments which are intended to operate as notice to bona fide purchasers of real property for value.

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This section seems to entitle any person paying the fee to have recorded in the book contemplated by this section any covenant, restriction, and form" which he sees fit to present to the registrar. This section must mean any person connected with a registered title. Otherwise it will prove too broad and be very mischievous in practice. It is not, we think, quite clear whether or not covenants contained in deeds contemplated by section 406 of this article are intended to be segregated from such deeds and recorded separately in the "Book of Covenants" contemplated by this section. If such cross-filing is necessary for any purpose it seems onerous, as the deeds themselves are to be filed pursuant to section 406.

§ 409. Filing, entering and indexing papers pursuant to this act; tickler certificate. Every paper filed with the registrar shall be given a serial number in the order of its filing, and then shall be entered by the registrar in an "entry book" under columns showing:

First. The serial number;

Second. Day of filing;

Third. Filing number of application (complaint) to which it relates if the registration proceedings are still pending; Fourth. Certificate number, if registration proceedings are completed and certificate has been issued;

Fifth. Kind of paper filed;

Sixth. Name and address of the person in whose interest the paper is filed;

Every paper filed with the registrar affecting property for which registration proceedings are pending shall be kept by the registrar with the application. The registrar shall provide a book to be known as "the tickler certificate book " wherein he shall note all filed papers affecting property for which registration proceedings are pending. Each page shall constitute a separate tickler certificate, and on said certificate he shall enter the character of the paper, the date of filing and the filing number. The tickler certificate, subject to such change as the case may require, shall be substantially as follows:

Application number

This certifies that the following papers have been filed in the office of the registrar of ..... county affecting, or in connection with an action to register the title to the following described real property, to wit:

(The description to appear here.)

Character of paper.

When filed.

Filing number.