NOTE.-At the annual meeting of the Ohio State Bar Association, held at Put-in-Bay, July 13-15, 1892, the Committee on Judicial Administration and Legal Reform, to whom was referred the matter of the Australian system, so-called, of transfer of land titles, made the following report: "The drafting of a proper act to be put in force in this State would require great labor and care; and your Committee, being fully convinced that such an act, if properly drawn and put in force, would be of great benefit, recommend that such action be taken as shall bring the matter to the attention of the Legislature, to the end that a commission should be appointed, or such other action taken as would lead to preparing and putting in operation such an act." On motion of Judge J. H. Doyle, of Toledo, the report of the Committee was unanimously adopted, and the matter of presenting the subject to the Legislature was committed to the Committee that made the report.

[III.]

THE TORRENS SYSTEM OF LAND TRANSFERS.

BY E. H. FITCH.

The recording and transfer of titles is not only a convenience, but it is a necessity, not only to the State, but to the individual owner. It is required that the State, for taxation and assessment, shall know the owner of each parcel of land, and the location of the amount owned. For the owner that his title may be kept from dispute and that a purchaser may ascertain its exact condition, both as to ownership and incumbrances.

Maine, in his work on ancient law, says: “Obstacles to the free circulation of the objects of use and enjoyment begin to make themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which advancing communities endeavor to overcome them form the staple of the history of property." That the obstacles to the free use, enjoyment and transfer of land will be more keenly felt and expedients more surely devised to overcome them, when society has acquired the degree of activity which now marks all of the business transactions of the present day, requires no argument and cannot be doubted.

The question of transfers of land has in the past few years attracted much attention and discussion, and new systems have been devised; some of which have been enacted into law, and are undergoing the test of practical experiment, while others are still under discussion. That it is a practical question demanding a solution no one will controvert, who has occasion to examine the title to a piece of land in the recorder's office of any county, or who is required to furnish an abstract of title to his land before he can deliver his deed or receive the purchase money for land sold. That some change is required, some improved method of transfer demanded, none will dispute.

In Ohio, transfers of land have been by deed and the deeds recorded in the county where the land is situate. This system differs only from the one in use in England, from time immemorial, except in a few counties there, by providing that the record of the deeds shall be substituted for the production of the former deeds.

The first law providing for a recorder's office, the appointment of a recorder, and the recording of deeds, within the boundaries of Ohio, was adopted and published by the Governor and Judges, under the Ordinance of 1787, and was adopted from the statutes of Pennsylvania and published (149)

11

June 18, 1795, to take effect August 1, 1795. Chase's Statutes of Ohio, vol. 1, page 167.

At the first session of the Second General Assembly of the Northwest Territory, the foregoing law was repealed in part by the Act approved January 20, 1802. Chase's Statutes, vol. 1, page 342.

At the first session of the Third General Assembly of Ohio, the foregoing laws were repealed by the Act passed February 14, 1805, and took effect June, 1, 1805.

The fourth section of this last Act, with the exception of the limit of six months for recording, which was repealed July 1, 1885, is in substance the same as section 4134 of the Revised Statutes.

This system was sufficient for the needs of the people of the State up to a recent period, and served well the purpose for which it was designed. Now, with the large increase in plats and subdivisions, and the division into small farms, with the more frequent exchange and sale of lands, some improved method is demanded. Heretofore the system of transfers by deed and by registration has been the usual one adopted. In some parts of Europe they have had conveyancing by registration of title. This system of registration of title, as improved and adopted, and now in operation in South Australia, New Zealand, British Columbia and Manitoba, is known and distinguished as the Torrens system, so called after Sir Robert Richard Torrens, who spent much time and labor in perfecting the same, and in efforts to cause its adoption in England and her colonies.

The benefits which have attended this system are thus summed up by him. First. It has substituted security for insecurity.

Second. It has reduced the cost of conveyancing from pounds to shillings, and the time occupied from months to days.

Third. It has substituted clearness and brevity for obscurity and verbiage.

Fourth. It has so simplified ordinary dealings that any person who has mastered the three "R's" can transact his own conveyances.

Fifth. It affords protection against the largest class of frauds.

Sixth. It has restored to their natural value many estates held under good holding titles, but depreciated in consequence of some blot or technical defect, and has barred the recurrence of any such defect.

Seventh. It has largely diminished the number of Chancery suits, by removing the conditions which afford ground for them.

By this system, when land has been once registered, the owner obtains an indefeasible title. It is equivalent to a deed from the Government. Lands are bought under the system, by the voluntary application of the proprietor and cannot be withdrawn from its operation. It can also be provided by law that all lands subject to registration that pass by deeds from sheriffs, executors and administrators, decrees of court, or by will, shall be brought under this system. When the owner of land desires it placed on the register of titles, he makes application therefor, together with his deed .and other evidences, and abstracts of title, and plat of the land, certified by the county surveyor as correct. These are submitted to

a board, styled "Examiners of Titles." The board examines the title as one would to furnish an abstract under the present system. The Examiners report to the "Registrar" or "Recorder: "

First. Whether the description of the land is definite and certain. Second. If the applicant is in undisputed possession of the property. Third. Does he appear in equity and justice rightfully entitled thereto? Fourth. Does he produce such evidence of title as leads to the conclusion that no other person is in a position to succeed against him in an action of ejectment?

If the applicant fails to satisfy the examiners upon these points, the application is rejected. Then the applicant must remove all the clouds upon his title, or he will be obliged to convey his land under the old system. Provision is made for clearing the title by notice, or by other provisions of law, and as is now provided to remove a cloud upon the title.

If the examiners report in favor of the applicant, upon the four points above named, the registrar or recorder issues a certificate of title vesting the estate indefeasibly in the applicant. These certificates are in duplicate. They define the land, in respect to which they are issued, by description and reference to lot, survey or plat, or other officially recognized maps, and where necessary by diagram on the certificate. The certificate sets forth also the nature of the estate of the applicant, whether a fee simple, or limited owner, and notify by memorials indorsed thereon, all lesser estates, leases, charges, easements, rights, or other interests affecting the land at the time.

Ample space is left for the indorsement of subsequent memorials recording the transfer or extinction of these and the creation, transfer or extinction of future estates or interests. The register is compiled by binding together the duplicates of all certificates of title, representing the freehold, that are issued. Each of these certificates represents a distinct root of title, and constitutes a separate page of the register. In case of a sale, transfer of the fee, or part only of the land comprised in any certificate of title, the memorial of such transfer may be entered on the existing certificate, or the transferor may take out a fresh certificate for the balance unsold. But in such case it is obligatory on the transferee to take out a fresh certificate, which will then form a fresh root of title occupying a separate page of the register.

To more fully illustrate and make plain the procedure, and to give an object lesson, I here read a letter which I received from W. E. Macara, Esq., Barrister at Law, District Registrar of the Winnipeg District and Inspector of Land Titles Offices, and in connection with the letter will exhibit the set of forms which he kindly sent me therewith, and which fully illustrate this system in that Province, and much more clearly than mere words can.

"WINNIPEG, December 17, 1891."

"Dear Sir: As promised in my recent letter to you, I now inclose you a set of forms which will show you in a manner the system in operation in this Province under 'The Real Property Act.' You will find the number of each document to which I refer on the outside in blue pencil.

"No. 1 is the application by Charles James to bring under the act lots 1, 2, 3 and 4 in block 15, subdivision of 38 St. John, according to plan No. 28 registered in this office, said lots 1 and 2 being at the time of the application subject to the mortgage which is referred to at the foot of the first page. On the second page you will notice that he directs the certificate of title to issue in the name of John Smith, this direction having, under the provisions of the act, the same effect, as soon as the application is filed, as an ordinary conveyance by a deed would have.

"The system as at present operated in this Province is different in many respects from that in operation in other countries, and one material difference which I must here mention is that we carry on a dual system of registration in the one office-that is to say, in this office ten old registration divisions are combined in this one district, and the District Registrar is the registrar not only for registration of conveyances under the old system but also for all dealings with land which is under the new, or Torrens system, and all documents of every kind affecting the land in each of those registration divisions is now in this office.

"Immediately upon the filing in this office of the application No. 1, an entry is made in the abstract books, under the old system, that such an application had been made to bring the land under the act, and such entry in the abstract books has the effect of closing the old registration office, as to this particular land, and no instrument of any kind thereafter registered in that old registration division has any effect upon the land included in that application, and everything thereafter registered intending to affect that land must be registered under the new system. As, however, it may not be the intention in your State to carry on this dual system, the same effect of closing the old registry office is obtained by the registrar who receives the application forwarding to the registrar under the old system a certificate that such an application has been made, and immediately upon the registration of that certificate in the old registry office it becomes closed as to that land, and the land is, as it were, transferred from that old office to the office under the new system.

"Upon the filing of this application (No. 1) an examiner of titles, who must be a barrister or attorney of the Province, examines the title not only from the instruments produced to him by the applicant, but also from the books and records of the old system department, and upon finding that the applicant is so entitled, he issues his report to the district registrar. The report in this case is No. 2. You will notice that that report shows the property subject to two mortgages, the first being the mortgage on lots 1 and 2, which is referred to in the application, and the second a mortgage which was filed under section 95 of the act during the time that the application was pending in the office, which mortgage affects lots 3 and 4.

"Upon receipt of this report I issue to John Smith (the person to whom the certificate of title was directed by the application to issue) certificate of title No. 1250 for the four lots named, subject to the two mortgages. This certificate is numbered 3, and is dated 10th December, 1891.

"On the 11th of December, at 1:30 P. M., the discharge of mortgage inclosed, No. 4, is presented for registration and takes the consecutive registration number 6704. Upon the registration of this discharge, which is evidenced by the memorials on the back, I enter on the certificate of title a memorial discharging the mortgage No. 1376. On the same day at one minute later the transfer No. 6 is presented for registration and takes the consecutive No. 6705. This is a transfer from John Smith to Robert Brown of lots 1 and 2, and upon this instrument being registered I issue to Robert Brown certificate of title No. 1251, which certificate at the time it issued was clear of all incumbrance, the mortgage affecting those two lots, No. 1376, having been already discharged. This certificate of title is numbered 6.

"On the same day and again one minute later, at 1:32 P. M., the mortgage No. 7 from Robert Brown to John Smith is presented, of lots 1 and 2, and takes the next consecutive number 6706. A memorial of this mortgage is then indorsed upon the certificate which has just issued to Robert Brown, No. 1251 (6), and upon the entering of this memorial on the back of the certificate the registration of the mortgage is completed.

"The next transaction that takes place affecting this land is instrument No. 8, which is a transfer of mortgage No. 6706, which was registered the day before on lots 1 and 2, the transfer being from John Smith to E. B. Hamilton. That also takes the consecutive number, in this case, 6715, and a memorial of this registration is indorsed not only upon the back of the certificate of title, but also upon both duplicates of the mortgage that is to say, the duplicate that the mortgagee holds and the duplicate which is on file in the office. Then on the 14th of December the discharge of mortgage No. 9 is presented for registration and takes the registration No. 6720, this being the discharge of the mortgage No. 6706, which had, on the 12th, been transferred to E. B. Hamilton. Upon the registration of this discharge a memorial of it is indorsed upon the transfer of the mortgage No. 5, the mortgage itself, No. 7, and the certificate of title for the land in question, No. 6, and now the certificate stands in the name of Robert Brown for lots 1 and 2 again clear of incumbrance, and on the 16th of December a transfer of these lots 1 and 2 is made by Robert Brown to H. S. Skead, and the lots, not being subject to any incumbrance, a certificate of title No. 11 issues to Mr. Skead for these lots clear of incumbrances, a memorial of the transfer being made upon the former certificate of title No. 6, which certificate is canceled in full.

"We now have the original lots 1, 2, 3 and 4 standing in this state: John Smith is the owner of lots 3 and 4 subject to the mortgage No. 324 at the foot of the certificate of title No. 3, that certificate still being in existence as to those lots 3 and 4, as it was only partially canceled by the memorial of the transfer which took out of that certificate lots 1 and 2 and vested them in Robert Brown by the certificate No. 6, and the other two lots 1 and 2 are, as I have stated, in Mr. Skead's name clear of all incumbrance in certificate No. 11. All these certificates of title are, as you will see by the Real Property Act, in duplicate; the loose sheet such as I inclose to you is delivered out to the owner, and the other duplicate is in our register book. These