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Full text of "Land registration in Illinois"




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THE LIBRARY 

OF 

THE UNIVERSITY 
OF CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 



IN 



ILLINOIS 




OF THE CHICAGO BAR 
EXAMINER OF TITLES FOR COOK COUNTY 




COPYRIGHT 1901 

BY 
CALLAGHAN & COMPANY 



T 

ft 4351 L 



Co 

rn. s. s., 

its instigator anb most kinblg critic, 
tfyis volume is bebicateo. 



7488.14 



PREFACE. 



This volume is an attempt to lay before my fellow 
members of the bar in Illinois and elsewhere a neces- 
sarily brief discussion of the principles of registration 
of title, a method of dealing with land titles, although 
now somewhat novel in the United States, yet certain, 
in course of time, to come into common use. It has been 
many times stated that the legal profession is too slow 
in the reform of our land laws in the direction of regis- 
tration of titles. My own experience has been to the 
contrary. What has been accomplished in Illinois, Mas- 
sachusetts, Ohio and California has been done in most 
part by members of our profession. To that profes- 
sion may well be left the task of working out, through 
new registration of title acts and amendments found 
needed by actual experience, the welfare of the land 
owner, and a safer, simpler, more expeditious and inex- 
pensive method of dealing with land. 

Upon investigation of the subject, it will be found 
impossible to resist the conviction that the public good 
requires compulsory registration of title. This was 
the result in England, in 1897, after some thirty years 
of parliamentary discussion. How this benefit can be 
obtained by our own land owners is an economic prob- 
lem soon to come before the bar of the United States. 

Chicago, March, 1901. 



TABLE OF CONTENTS. 



CHAPTER I. 

PAGE 

LAND REGISTRATION IN ILLINOIS - 1 

CHAPTER II. 
PROCEDURE AND PRACTICE .... 4 

CHAPTER III. 
THE ILLINOIS TORRENS LAW - - - - 14 

CHAPTER IV. 
THE NEW AND OLD SYSTEMS COMPARED ... g9 

CHAPTER V. 

THE TOBRENS SYSTEM ADAPTABLE TO AMERICAN CONSTI- 
TUTIONS - 77 

CHAPTER VI. 
SUPREME COURT OPINIONS - 84 

CHAPTER VII. 
REGISTRATION IN OTHER COUNTRIES AND STATES - 112 

CHAPTER VIII. 

CIRCULAR LETTERS REGARDING OPERATION OF TORRENS 

LAW IN COOK COUNTY - - - - 125 

CHAPTER IX. 

REGISTRATION OF TITLE LITERATURE - - - - 129 

APPENDIX ........ 135 



vii 



TABLE OF CASES. 



PAGE 
ABNDT v. GBIGGS, 134 U. S., 316, - 77, 81, 95, 104 

BONNEMOBT V. GlLL, 167 MASS., 338, 340, - 103 

BBOCK v. OLD COLONY R. R., 146 MASS., 194, 195, - 105 

BROWN v. LEVEE COMMISSION, 50 Miss., 468, 481, - 103 

COOK v. ALLEN, 2 MASS., 462, 469, 470, - 105 

DASCOM v. DAVIS, 5 MET., 335, 340, - - - 105 

DODGE v. COLE, 97 ILL., 388, - 88 

DONAHUE v. WILL COUNTY, 100 ILL., 94, - 88 

FIELD v. PEOPLE, 2 SCAM., 79, 89 

FOURTEENTH WARD B. & L. ASSN. v. GLOS, DUNNE J., 

CIRCUIT COURT COOK COUNTY, - 31 

GAGE v. CARAHER, 125 ILL., 447, - 30, 31, 81 

GAGE v. CONSUMERS ELECTRIC LIGHT Co., 33 CHIC. 

LEGAL NEWS, 154, - - 27, 31, 33, 96 

HAMILTON v. BROWN, 161 U. S., 256, - 103, 104, 107 

HULING v. KAW VALLEY RY. IMP. Co., 130 U. S., 559, 564, - 104 
HUBTADO v. CALIFORNIA, 110 U. S., 516, 528, 531, - 103 

LORING v. HILDBETH, 170 MASS., 328, - 109 

MANKIN v. CHANDLEB, 2 BBOCK., 125, 127, - 103, 105, 106 

MUBBAY v. HOBOKEN LAND Co., 18 How., 272, 277, - 103 

MURRAY'S LESSEE v. HOBOKEN LAND AND IMP. Co., 18 How., 272, 89 

NEWLAND v. MARSH, 19 ILL., 376, . 97 

ix 



X TABLE OF CASES. 

PAGE 
PARKER v. OVERMAN, 18 How., 137, 140 ET SEQ., - - 104 

PENNOYER v. NEFF, 95 U. S., 714, 727, 103 

PEOPLE v. CHASE, 165 ILL., 526, - 2, 78, 84 

PEOPLE v. HOFFMAN, 116 ILL., 587, - 98 

PEOPLE v. SIMON, 176 ILL., 165, 2, 27, 35, 79, 80, 81, 83, 84, 109, 111 
ROGERS v. TYLEY, 144 ILL., 652, - 27 

SCOTT v. SHERMAN, 2 W. BL., 977, 979, - 106 

SEAVERNS v. PRESBYTERIAN HOSPITAL, 173 ILL., 414, - 93 

SHEPHERD v. WARE, 46 MINN., 174, ... 109 

SHORT v. CALDWELL, 155 MASS., 57, 59, - - 109 

SMITH v. HUTCHINSON, 108 ILL., 662, - 30 

STATE v. GUILBERT, 56 OHIO ST., 575, - - -78, 101, 116 

THE MARY, 9 CRANCH., 126, 144, ... 103 

TURNER v. NEW YORK, 168 U. S., 90, - - 102 

TYLER v. JUDGES, 175 MASS., 71, - - 78, 81, 99, 124 

VANCE v. VANCE, 108 U. S., 514, - - 34 

WHEELER v. JACKSON, 137 U. S., 245, 258, ... 102 



LAND REGISTRATION IN ILLINOIS. 



CHAPTER I. 

LAND REGISTRATION IN ILLINOIS. 

Illinois was the first of the United States to adopt 
a land title registration act. 

In 1891, the Illinois State Bar Association and the 
Chicago Real Estate Board approved resolutions favor- 
ing the passage of a joint resolution by the Thirty-sev- 
enth General Assembly, then in session, authorizing 
the appointment of a commission to consider whether 
the Australian or Torrens system of registration of 
titles could be adapted to the constitution and laws of 
this state. Such joint resolution was adopted, and 
Governor Fifer appointed thereunder as such commis- 
sion James K. Edsall, ex- Attorney General, as chair- 
man, and Theodore Sheldon, Willis G. Jackson, George 
W. Prince and Frank H. Jones. Upon the death of Mr. 
Edsall, the vacancy was filled by the appointment of 
Harvey B. Hurd. The report of the commission was 
made to the Governor December 10, 1892, and by him 
presented to the Thirty-eighth General Assembly. Ac- 
companying the report of the commission was the draft 
of a bill favored by the commission, and embodying 
the substantial features of the Australian and other 
colonial land acts so modified, it was thought, as to 
conform to the requirements of the federal and state 
constitutions. The bill failed to pass at that session, 
but received the approval of the next legislature, under 
the title of "An Act Concerning Land Titles," approved 

June 13, 1895. In accordance with the provisions of its 

i 



2 LAND REGISTRATION IN ILLINOIS. 

referendum clause the act was adopted in Cook County, 
at a general election, held November 5, 1895. The law 
received the practically unanimous approval of the 
voters in that county, 82,507 being cast in its favor, and 
only 5,308 against it. On February 10, 1896, the first 
certificate of title was issued by the registrar of titles, 
and a number of titles were brought under the act. 
The constitutionality of the new law was tested in a 
quo warranto proceeding, and by its decision in the 
case of People vs. Chase, 1 the Supreme Court of Illi- 
nois, by a bare majority of its members, held the act 
invalid, upon the ground that its provisions for initial 
registration conferred judicial powers upon the regis- 
trar. To a majority of the Court it seemed that by the 
provisions of the law of 1895, the registrar was clothed 
with power to determine the ownership of land when 
application was made for initial registration thereof, 
and to issue his certificate accordingly. That act did 
not contemplate any judicial proceedings as a basis for 
the initial registration. Largely at the instance of the 
Chicago Real Estate Board, a. new act providing that 
the ownership should be determined by a decree in 
equity, entered in a court of competent jurisdiction, 
upon which decree the registrar should issue the first 
certificate of title, was adopted by the Fortieth General 
Assembly, with but 4 dissenting votes. That law, 
entitled "An Act Concerning Land Titles," approved 
May 1, 1897, is commonly called the Torrens Law. 
Upon submission to the voters of Cook County on June 
5, 1897, it again received their practically unanimous 
approval. The new law, and many questions involving 
its constitutionality, were considered by the Supreme 
Court of Illinois in People vs. Simon. 2 The act was 
there held valid and constitutional. The registrar's 
office, in Cook County, was opened for business March 

1 165 111. 526. 2 176 111. 165. 



LAND REGISTRATION IN ILLINOIS. 3 

1, 1899, and a large number of land titles have since 
been brought under the law. 

The new law is found to work easily and well. The 
cost of an initial registration is f 24, to which is to be 
added one-tenth of one per centum of the value of the 
property, the latter being payable to the County Treas- 
urer toward creating an indemnity fund to make good 
any losses arising from the operation of the system. On 
all subsequent dealings with a registered title, the 
expense is nominal. The entire expense of a transfer 
or mortgage is $3. Dealings with registered titles are 
completed with rapidity. Sales are frequently com- 
pleted, the purchase price paid over, and the new cer- 
tificate of title issued to the buyer the same day upon 
which the verbal contract is made. This rapidity of 
trarfsfer obviates in most cases the need of a prelimi- 
nary written contract. Mortgage transactions require 
but the added time needed for the preparation of the 
notes and mortgage, and a number of loans have been 
completed and the money in the borrower's hands the 
same day of his application to the lender. In fact, any 
ordinary dealing with a registered title can be fully 
completed within an hour after the parties present to 
the registrar the outstanding certificate of title and 
the deed, mortgage or other instrument authorizing 
the transaction. 



CHAPTER H. 

PROCEDURE AND PRACTICE. 

The recorder of deeds is made registrar of titles, and, 
in addition to his duties as recorder, conducts the regis- 
tration of titles, and all dealings with registered land. 1 
He is assisted by deputies and examiners of title, the 
latter attorneys at law. 2 

INITIAL REGISTRATION. 

It is optional with the owner to register his land. He 
files in a court of competent jurisdiction 3 his applica- 
tion in writing for the registration of his title. This in 
ordinary cases may be in the following form: 

State of Illinois, 
County of Cook. 

To the Judges of the Circuit Court 
Of Cook County, 
In Chancery Sitting: 

I hereby make application to have registered the title 
to the land hereinafter described, and do solemnly 
swear that the answers to the questions herewith, and 
the statements herein contained, are true to the best 
of my knowledge and belief. 

1st. Name of Applicant John Doe. 

Age of Applicant 54 years. 

Residence 10 State Avenue, Chicago, Illinois. 

Married to Mary Doe. 

Residence 10 State Avenue, Chicago, Illinois. 

i Sec. 1. a sec. 15. 

a Sec. 3, 5. 



PROCEDURE AND PRACTICE. 5 

2d. Application made by John Doe, acting as 
owner. 

Residence as above. 

3d. Description of Real Estate is as follows: Lot 
one (1), block one (1), Original Town of Chicago, in Cook 
County, Illinois. 

Estate or interest therein is in fee simple, and is not 
subject to homestead. 

4th. The land is occupied by James Smith, whose 
address is No. 8 North Water Street, Chicago, Illinois. 

The estate interest or claim of James Smith, occu- 
pant, is tenant of applicant under lease expiring 
April 30, 1901. 

5th. Liens and incumbrances on the lands are one 
trust deed in favor of Peter Johnson, trustee, whose 
address is 2 John street, Chicago, Illinois. 

Name of owner or holder thereof William Jones. 

Postomce Address Aurora, Illinois. 

Amount of Claim 110,000 with interest. 

Recorded Book 6082, Page 578. 

6th. Other person, firm or corporation having or 
claiming any estate, interest or claim in law or equity 
in possession, remainder (reversion) or expectancy in 
said land are, none. 

7th. Other facts connected with said land are, none. 

8th. Therefore the applicant prays the Court to find 
and declare the title or interest of the applicant in said 
land and decree the same, and order the Registrar of 
Titles to register the same, and to grant such other and 
further relief as shall be according to equity. 

John Doe. 

Subscribed and sworn to before me by the above 
named John Doe, as owner, this twentieth day of Feb- 
ruary, A. D. 1901. 

Richard Roe, 

Notary Public. 



6 LAND REGISTRATION IN ILLINOIS. 

I hereby assent to the registration of the above de- 
scribed real estate as prayed for by John Doe, who is 
my husband. Mary Doe. 

State of Illinois, 



ss 
County of Cook. ' 

I, Kichard Roe, a Notary Public in and for said Coun- 
ty in the State aforesaid: 

Do hereby certify that Mary Doe, personally known 
to me to be the same person whose name is subscribed 
to the foregoing assent, appeared before me this day in 
person and acknowledged the said assent as her free 
and voluntary act for the uses and purposes there- 
in set forth. 

Given under my hand and seal, this 20th day of Feb- 
ruary, A. D. 1901. 

Richard Roe, 

Notary Public. 

We hereby assent to the registration of the above de- 
scribed real estate as prayed for by John Doe. 

James Smith, 
Peter Johnson, trustee. 
William Jones. 

All persons interested in the land and all persons in 
possession or occupancy must be made parties defend- 
ant. 1 Summons is issued to all defendants. 2 Such as 
reside or are to be found within the State will be served 
by the proper sheriff. Non-residents will be served by 
publication. 3 Due opportunity to contest the matter 
must be afforded to all interested. 

The Court refers the application to an examiner of 
titles who proceeds with an independent investigation 
of the title. 4 To him is submitted the abstracts of title 
and any oral testimony tending to determine the rights 

1 Sec. 11. s Sec. 21. 

2 Sec. 19. 4 Sec. 18. 



PROCEDURE AND PRACTICE. 7 

of all parties. He approves no title unless satisfied 
that all persons interested are before the Court. If in 
his opinion the applicant is entitled to registration he 
so reports to the Court. To the report of the examiner 
any party may file objections, which are heard and 
disposed of by the Court. Upon the confirmation of the 
report a decree is entered confirming the applicant's 
title and directing the registrar to issue to him the first 
certificate of title. 5 This is done by entry in a book 
called the "Register of Titles." 6 This book is composed 
of a large number of certificates of title (one on a page) 
bound together, numbered in the order of their issue 
and each with ample space at its foot for the entry of 
subsequent notations, affecting the title. Every certifi- 
cate of title is in duplicate, signed by the registrar, and 
recites the condition of the title. One of these is kept by 
the registrar bound in the "Register of Titles," the 
other is delivered to the owner. This completes the ini- 
tial registration. 

The certificate of title immediately upon its issue is 
conclusive proof of ownership in all courts as against 
all parties before the court in the proceeding for initial 
registration, 7 and all persons dealing with the land 
after registration. After the expiration of two years 
from the first registration, no suit attacking the title 
of the registered owner can be brought. 8 No exception 
is made in favor of infants or persons under disability, 9 
but such persons are given recourse upon the indemnity 
fund. 10 It is thus seen that all persons are bound by 
the first certificate of title, except those overlooked, 
and not made parties to the suit for registration. If the 
court proceeding is properly conducted, there should 
be no persons not bound by the first certificate of title. 

5 Sec. 25. s Sec. 27. 

e Sees. 30, 35. Sec. 26. 

i Sec. 26. 10 Sec. 101. 



8 LAND REGISTRATION IN ILLINOIS. 

In all dealings with the land after registration, the 
bona fide purchaser or incumbrancer has a like secur- 
ity to that given to the purchaser of negotiable paper. 11 
The title of such purchaser or incumbrancer cannot be 
upset. 12 

TRANSFERS. 

Transfers of registered land are made in the follow- 
ing manner: 13 The owner executes the usual deed, and 
submits it, together with his certificate of title, to the 
buyer. In every transaction, the owner must produce 
his duplicate certificate of title. He can do absolutely 
nothing without it. If lost or destroyed, upon proper 
showing 14 the owner receives a certified copy marked 
"owner's certified copy, issued in place of duplicate 
lost." This, after entry of the transaction upon the or- 
iginal certificate of title, answers the same purpose as 
the lost certificate. No new forms of conveyance are re- 
quired. 15 The buyer, after inspection of the original 
certificate of title in the register, and finding thereon 
no incumbrance or lien, safely pays over the purchase 
money, and receives the deed and duplicate certificate 
of title. He then delivers them both to the registrar, 
who when satisfied as to the identity of the parties and 
that the transfer should be made, notes the transfer 
upon the register. 16 This operates to transfer the title. 
No title passes by the delivery of the deed. 17 The deed 
after delivery and before the registration of the trans- 
fer, is a mere contract between the parties. 18 Its sole 
object is to authorize the registrar to register the trans- 
fer. The transfer is registered, when the registrar can- 
cels the old certificate of title, and issues a new one in 
duplicate as before, one, called the original, being re- 

11 Sec. 39. is Sec. 52. 

12 Sees. 93, 94 and 95. i Sec. 47. 
is Sec. 47. 1* Sec. 49. 
i* Sec. 58. is Sec. 54. 



PROCEDURE AND PRACTICE. 9 

tained in the register and the other called the dupli- 
cate, after proper receipt therefor filed with the reg- 
istrar, delivered to the buyer, now the new owner. The 
deed is kept by the registrar. 19 

MORTGAGES. 

A mortgage of registered land is effected in some- 
what the same manner. 20 The owner executes the mort- 
gage in duplicate, 21 and delivers it, with the note or 
bond and his certificate of title, to the lender. The lat- 
ter, after inspection of the proper folium in the regis- 
ter, and finding thereon no incumbrance or lien, safely 
pays over the money to the borrower, and receives the 
mortgage securities with the certificate of title. The 
note or bond and duplicate mortgages are presented to 
the registrar, who identifies the note or bond and notes 
the transaction upon the register as well as upon the 
owner's certificate of title. 22 The latter with the note 
or bond is thereupon returned to the borrower, who 
may use the same in effecting a second or third or more 
mortgages. One of the duplicate mortgages is retained 
by the registrar. 23 The other with the date of its regis- 
tration endorsed thereon by the registrar, and the note 
or bond is delivered to the lender. When the mortgage 
is paid, a release of the same is filed with the registrar, 
who, when satisfied that the note or bond is duly paid, 
thereupon notes the release upon the register book as 
well as upon the duplicate certificate of title. 24 The 
latter is then returned to the owner, or he may sur- 
render it to the registrar for cancellation, and receive 
a new duplicate certificate of title containing no men- 
tion of the mortgage. 

i Sec. 51. 22 Sec. 60. 

20 Sec. 59. 23 Sec. 62. 

21 Sec. 62. 24 Sec. 65. 



10 LAND REGISTRATION IN ILLINOIS. 

TRUSTS. 

Registered owners, by deed or other instrument filed 
with the registrar, may create such trusts as may be 
desired. 25 The terms of the trust are not set forth in 
the certificate of title, but after the name of the trustee 
is inserted, the words "in trust," "upon condition," "or 
with limitation," as the case may be, and no subsequent 
transfer or dealing can be had thereafter, except upon 
the order of a court of proper jurisdiction or upon the 
written opinion of at least two of the examiners of title 
that the proposed transfer or dealing is in accordance 
with the terms of the trust, condition or limitation. 26 

JUDGMENT AND OTHER LIENS. 

No judgment, decree, 27 attachment, 28 lis pendens, 29 
mechanic's lien, or other statutory legal or equitable 
lien, 30 except taxes and special assessments, for which 
a sale has not been had, is a lien upon registered land, 
until a certified copy of the judicial proceedings, or a 
copy of the instrument upon which the lien is based, is 
filed with the registrar, and a brief note thereof is en- 
tered by him upon the certificate of title in the register. 
This abolishes all general liens, and one dealing with 
a registered title can safely ignore any lien not entered 
upon the certificate of title in the register. The area of 
search is enormously reduced. 

ADVERSE CLAIMS. 

Provision is made for all who wish to give notice of a 
lien upon or claim against registered land. 31 All such 
notices are entered by the registrar upon the proper 
certificate of title in the register book, and are thus 

23 Sec. 68. 29 Sec. 84. 

26 Sec. 69. so Sec. 90. 

27 Sec. 85. 31 Sec. 92. 

28 Sec. 86. 



PROCEDURE AND PRACTICE. 11 

brought directly to the attention of any one proposing 
to deal with the registered land. Until such claims are 
removed, as they may be by proper proceedings provid- 
ed in the act, the registrar will enter them upon all 
succeeding certificates of title. Notice is thus given of 
mechanic's lien, foreclosure, attachment, or other suits 
affecting the land, unregistered mortgages or other 
legal or equitable liens, trusts of any kind, sale for 
taxes and special assessments and any other nature of 
claim now permitted to be asserted in any manner. 

DOWER AND HOMESTEAD. 

Dower is preserved in registered land, and in its first 
registration, as well as in all subsequent dealings, the 
right of dower in husband or wife of the registered 
owner is recognized and protected. The same is true of 
the statutory right of homestead. 32 

TRANSMISSION. 

Upon the death of a registered owner, for the pur- 
pose of distribution of his estate, his registered lands 
are treated as personal property, and as such pass 
not to the heirs or devisees, but to the executor or ad- 
ministrator. 33 Before transferring or otherwise dealing 
with the land, the executor or administrator must file 
with the registrar, as authority for such transfer or 
dealing, 34 a certified copy of an order of the court ad- 
ministering upon the estate of the deceased owner. In 
the case of ordinary distribution among devisees or 
heirs, the executor or administrator, upon proper 
authority from the court appointing him, will apply to 
the registrar to have the land transferred to the devisee 
or heir. The sale of land for the payment of debts will 
be conducted as heretofore. On filing in the registrar's 

32 Sec. 55. 3* Sec. 71. 

ss Sec. 70. 



12 LAND REGISTRATION IN ILLINOIS. 

office the deed and order of confirmation of the sale, 
directing him so to do, the registrar will transfer the 
land to the purchaser at such sale. 85 

The great advantages in this change in administer- 
ing upon land of a deceased owner are manifest. All 
questions concerning heirship, dower and rights of 
creditors are thus conclusively settled at the time, and 
do not continue, as under the old system, to remain for 
years afterwards as possible defects in a title. 

TAX SALES. 

The holder Of a tax certificate of sale must within 
three months after the date of sale file the certificate of 
sale or a sworn copy thereof with the registrar for entry 
upon the proper certificate of title, and during the 
same period must mail to all persons noted upon the 
certificate of title as interested in the land, a notice of 
the registration of the tax certificate of sale. In default 
of such filing and notice, the land is released from the 
sale. 36 Should the certificate of sale ripen into a tax 
deed, the holder thereof may on presentation of the 
tax deed and outstanding certificate of title, have the 
land transferred to him. If he cannot present the out- 
standing certificate of title he must present an order of 
the court ordering the sale for the tax and this order 
can be granted only after notice to all persons inter- 
ested in the land. 37 

PROCEEDINGS IN CHANCERY. 

The act provides a ready recourse to a court of equity 
in all casesi of wrong, doubt or mistake, and the courts 
have at all times full control over the registrar. 38 But 
the title of a bona fide purchaser or incumbrancer will 
always be upheld. 39 

as Sec. 72. ss Sec. 93-6. 

se Sec. 82. 39 Sec. 94. 

"Sec. 83. 



PROCEDURE AND PRACTICE. 13 

INDEMNITY FUND. 

In nearly all the countries where the Torrens system 
is in use, an indemnity fund is provided to make good 
any losses incurred by rightful owners in being 
deprived of their land through fraud or accident. This 
fund is raised by charging a small fee, usually 
one-fifth of one per cent, upon the value of the land 
when first registered, and each time it afterwards 
passes by descent or devise. Small as such fee is, it has 
invariably proved to be much larger than necessary. 
Drafts upon these assurance funds have been few and 
unimportant. In some of the British colonies no sucess- 
ful claim whatsoever has been made upon them. 

The Illinois act provides an indemnity fund by the 
payment of the small charge of one-tenth of one per 
cent upon the value of the land when first registered, 
and a like sum upon each transfer by descent or devise. 
This indemnity fund is kept and managed by the Coun- 
ty Treasurer under the supervision of the County 
Court. 40 Ready proceedings are authorized for the 
recovery of compensation for loss or damage arising 
from the operation of the act. 41 

FEES. 

Initial registration fees are as follows: 

Clerk of court on filing application . . $ 5 

Publication notice 2 

Registrar for examination of title 15 

Registrar on issue of certificate of title 2 



Total $24 

Sheriff's fees for service of summons, if any, are to 
be added, together with the contribution to the indem- 
nity fund, one-tenth of one per cent of the value of the 
property, or $1 on each $1,000. 

*o Sec. 101. 41 Sec. 102. 



CHAPTER III. 

THE ILLINOIS TORRENS LAW. 

ACT CONCEBNING LAND TITLES. 

REGISTRATION OF TITLES RECORDERS EX-OFFICIO REG- 
ISTRARS. 

SECTION. 

1. Recorders ex-officio registrars. 

2. Bond of registrars. 

3. Deputies duties of death of registrar. 

4. Not to practice as an attorney. 

5. Examiners, etc., to take oath, give bond, etc. 

6. Liability of registrar for acts of deputy as examiner. 

BRINGING LAND UNDER ACT. 

7. Bringing land under act. 

8. Fee to be first registered. 

9. Subject to lesser estates, etc. 

10. Title derived through tax sale, etc. 

11. Application to come under act what to contain. 

12. Any number of contiguous pieces may be included. 

FORM OF APPLICATION FOR INITIAL REGISTRATION OF 
TITLE TO LAND. 

13. Form of application. 

14. Application may be amended. 

15. To what Court application may be made jurisdiction and 

power of Court 

16. Application to be entered in "Land Registration Docket" par- 

ties defendant. 

17. Application for initial registration how docketed. 

18. Application to be referred to examiner proceedings of. 

19. Summons return and service of. 

REGISTRATION OF LAND TITLE, 

20. Notice to be published. 

21. Clerk to send copy of publication by mail. 

22. Who may oppose application answer to be verified. 

23. When default may be entered. 

24. Court not to be bound by report of examiner. 

25. What the Court may decree. 

14 



THE ILLINOIS TORRENS LAW. 15 

SECTION. 

26. Upon whom decreel binding appeal writ of error when 

Court may review case. 

27. Within what time action may be commenced. 

28. Within what time any person not barred or concluded by such 

order or decree may assert his claim. 

REGISTERING THE TITLE. 

29. Registering the title. 

30. Form of certificate of title. 

31. Subsequent certificates. 

32. The words "Heirs and assigns." 

33. Certificate what it should contain. 

34. Certificate where two or more are interested in the land. 

35. "Registrar of titles" what to contain. 

36. Duplicate certificate of title to be known as owner's duplicate. 

37. Owner's receipt for the certificate of title. 

38. In case of final registration the certificate of title shall relate 

back, etc. 

39. Such certificate to be prima facie evidence. 

THE RIGHTS OF REGISTERED OWNERS. 

40. The rights of registered owners. 

41. Title after land registered. 

42. Fraud transfer from registered owner effect of. 

43. Specific performance certificate of title conclusive evidence. 

44. In actions of ejectment. 

45. Memorial. 

46. The effect of bringing land under this act. 

TRANSFER. 

47. Transfer. 

48. When only a part of land transferred. 

49. When transfer of registered land shall be deemed to be regis- 

tered. 

50. Filing deeds, etc. marked. 

51. Instruments to be kept in office. 

52. Forms of deeds, etc. 

53. Address of owner notice. 

54. Deeds, etc., only authority of registrar to make transfer. 

55. Taxes assessments dower homestead. 

56. Transferee married or not. 

57. Registered owner delivering up certificate respecting parcels 

of land that may be included in one certificate. 

58. When duplicate certificate of title lost evidence certified 

copy of original may be issued. 



16 LAND REGISTRATION IN ILLINOIS. 

MORTGAGES, LEASES AND OTHER CHARGES. 

SECTION. 
69. Mortgages, leases and other charges. 

60. On filing the instrument intended to create charge proceed- 

ings. 

61. Trust deed to be deemed a mortgage. 

62. When registered land is in duplicate, triplicate or more parts. 

63. Certified copies. 

64. Assignment how effected copy. 

65. Release, discharge or surrender of a charge. 

66. Charges how enforced pendente lite. 

ATTORNEYS IN FACT. 

67. Attorneys in fact. 

TRUSTS, CONDITIONS AND LIMITATIONS. 

68. Trusts, conditions and limitations. 

69. Order of court or opinion of two examiners when registra- 

tion conclusive evidence. 

TRANSMISSION. 

70. Transmission. 

71. Duty of personal representative of deceased owner certificate. 

72. When administrator or executor may sell. 

73. Executor's or administrator's power, mortgages, leases and 

other personal interests. 

74. Personal interests when land is devised to executor, to his 

own use or upon trust, etc. 

75. When will empowers executor to sell, convey, etc. 

76. Proof of heirship conclusive evidence. 

77. Court of probate may order registered land to be sold by 

executors, etc. 

78. Executors or administrators may be ordered to make over 

registered land before final distribution, etc. 

79. Final distribution. 

DEALINGS OF ASSIGNEES, RECEIVERS, MASTERS, ETC. 

80. Dealings of assignees, receivers, masters, etc. 

81. When memorial entered. 

TAX SALES. 

82. Tax sales. 

83. Tax deed effect of when certificate to issue notice insane 

person, etc. 

LIS PENDENS JUDGMENTS DECREES NOTICE. 

84. Lis pendens notice. 

85. Judgments, etc. 



THE ILLINOIS TORRENS LAW. 17 

ATTACHMENT EXECUTION, ETC. LIENS. 

SECTION. 

86. Attachment execution, etc. liens. 

87. When registered land sold under execution, etc. sheriff, etc. 

to file certificate with registrar memorial certificate of 
redemption. 

88. Sale of registered land by sheriff, etc. surrender of outstand- 

ing certificate of title. 

89. Liens of mechanics or others notice, etc., to be filed in the 

registrar's office. 

90. When lien to effect the title of registered land. 

91. Certificate of Clerk that suit, etc., has been dismissed to be 

filed in registrar's office. 

MEMORIAL OF ADVERSE CLAIM, ETC. 

92. Memorial of adverse claim, etc. 

PROCEEDINGS IN CHANCERY. 

93. Proceedings in chancery. 

94. Person feeling aggrieved by action of registrar may file a 

bill, etc. 

95. Nothing in two sections to remove bar limitations bona fide 

purchasers. 

96. Court in addition to costs may award damages, including 

attorneys' fees. 

INDICES. 

97. Indices. 

98. Individual indices what to contain. 

INDEMNITY FUND. 

99. Indemnity fund. 

100. How said fund should be invested and how paid out. 

PROCEEDINGS TO RECOVER COMPENSATION FOR LOSS OR 

DAMAGE. 

101. Proceedings to recover compensation for loss or damage. 

102. Action to recover for loss or damage who to be made defend- 

ants duty of State's attorney. 

103. Time of proceedings limited. 

PENALTIES. 

104. Penalties. 

105. Whoever forges or procures to be forged, etc., the seal of the 

registrar, etc. 

106. Conviction not to effect the remedy. 
2 



18 LAND REGISTRATION IN ILLINOIS. 

FEES. 
SECTION. 

107. Docket Fees. 

108. Registrar's fees. 

109. Act how construed. 

ADOPTION BY COUNTIES. 

110. Submission to vote in counties. 

111. Emergency. 

AN ACT concerning land titles. Approved and in force May 1, 1897. 

RECORDERS EX-OFFICIO REGISTRARS. 

'Recorders ex-ofScio registrars.] 1. Be it enacted by the 
Teople of the State of Illinois, represented in the General 
'Assembly, Recorders and ex-officio recorders of deeds in 
'the several counties in this State shall be registrars of 
'titles in their respective counties. Their deputies shall be 
'deputy registrars. All laws relative to recorders and their 
'deputies, including their compensation, clerk hire and 
'expenses, shall extend to registrars and their deputies, so 
'far as the same may be applicable.' 

The duties of registrar are added to those of the 
recorder. The records of the recorder's office thus 
become available for the use of the registrar. All the 
machinery needed to transfer land by registration of 
title is already to be found in the office of the recorder. 

The recorder of deeds is the official maker of 
abstracts of title. 1 

All records kept in the office of the recorder and reg- 
istrar and all instruments filed for record therein are 
open for public inspection and examination. 2 

'Bond of registrars.] 2. Every recorder and ex-officio 
'recorder shall, before entering upon his duties as registrar, 
'give a bond with sufficient security, to be approved by the 
'Judge of the County Court, payable to the People of the 
'State of Illinois, in the penal sum of $50,000 (except that in 
'counties having a population of more than 100,000 inhabi- 

i Kurd's Rev. St., Ch. 115, 25. 2 Kurd's Rev. St., Ch. 115, 21. 



THE ILLINOIS TORRENS LAW. 19 

'tants, the penalty of the bond shall be $200|000), condi- 
tioned for the faithful discharge of his duties, and to deliver 
'up all papers, books, records and other property belonging 
'to the county or appertaining to his office as registrar of 
'titles, whole, safe and undefaced, when lawfully required 
'so to do; which bond shall be filed in the office of the Sec- 
'retary of State, and a copy thereof entered upon the rec- 
'ords of the County Court.' 

'Deputies duties of death of registrar.] 3. Deputies 
'may perform any and all duties of the registrar in the 
'name of the registrar, and the acts of such deputies shall 
'be held to be the acts of the registrar, and in case of the 
'death of the registrar or his removal from office, the chief 
'deputy shall thereupon become the acting registrar until 
'such vacancy shall be filled according to law, and he shall 
'file a like bond and be vested with the same powers and 
'subject to the same responsibilities and entitled to the 
'same compensation as in the case of the registrar.' 

'Not to practice as an attorney.] 4. No registrar or 
'deputy registrar shall practice as attorney or counselor- 
'at-law, nor be in partnership while in office with any 
'attorney or counselor-at-law so practicing.' 

'Examiners, etc., to take oath, give bond, etc.] 5. The 
'registrar may appoint in his county two or more compe- 
'tent attorneys to be examiners of titles and legal. advisers 
'of the registrar. Their compensation shall be fixed in the 
'same manner as that of deputy registrars.' 

'Every examiner of title[s] shall, before entering upon 
'the duties of his office, take and subscribe the oath pre- 
'scribed by the constitution, and shall also give a bond in 
'such an amount, with such security as shall be approved 
'by the judge of the county court, payable in like manner 
'and with like conditions as required of the registrar. A 
'copy of the bond shall be entered upon the records of 
'said court and the original shall be deposited with the 
'registrar.' 

'Liability of registrar for acts of deputy as examiner.] 6. 
'The registrar shall be liable for any neglect or omission 



20 LAND REGISTRATION IN ILLINOIS. 

'of the duties of his office, when occasioned by a deputy 
'or examiner of titles, in the same manner as for his own 
'personal neglect or omission.' 

BRINGING LAND UNDER ACT. 

'Bringing land under act.] 7. The owner of any estate 
'or interest in land, whether legal or equitable, may apply 
'as hereinafter mentioned to have his title registered. He 
'may apply in person or by an attorney in fact authorized 
'so to do. A corporation may apply by its authorized 
'agent, an infant by his natural or legal guardian, any 
'other person under disability by his legal guardian. The 
'person in whose behalf the application is made shall be 
'named as applicant.' 

Application may be made for the registration of any 
land in the county. Any owner may register his title. 
No one is required so to do. 

The application may not be made upon the implied 
authority of an attorney or solicitor. By 46 the 
land becomes subject to the terms of the act, and 
application in person or by express authority in writing 
becomes necessary. 

'Fee to be first registered.] 8. No mortgage, lien, charge 
'or lesser estate than a fee simple shall be registered unless 
'the fee simple to the same land is first registered.' 

The initial registration must include the fee and all 
lesser estates. The land cannot be in part under this 
law and in part under the old system. This is due to the 
essentially different rules which govern dealings under 
the two systems. The Torrens law does not in any way 
affect land continuing under the old system. 

'Subject to lesser estates etc.] 9. It shall not be an 
'objection to bringing land under this act, that the estate 
'or interest of the applicant is subject to any outstanding 
'lesser estate, mortgage, lien or charge, but every such 
'lesser estate, mortgage, lien or charge shall be noted upon 



THE ILLINOIS TORRENS LAW. 21 

'the certificate of title and the duplicate thereof, and the 
'title or interest certified shall be subject only to such 
'estates, mortgages, liens and charges as are so noted, 
'except as herein provided.' 

All adverse claims must be adjusted before or during 
the proceeding for initial registration. Only such lesser 
estates, mortgages liens or charges as are valid, or 
admitted by the owner of the fee, will be noted upon the 
certificate of title. Holders of adverse claims must of 
course be made parties, as the applicant seeks their 
extinguishment by decree. Holders of admitted lesser 
estates, such as mortgagees or judgment creditors must 
also be made parties. Their interests will be noted upon 
the certificate of title and thereafter will be enforced, 
released or otherwise dealt with in accordance with the 
terms of the act. 

'Title derived through tax sale, etc.] 10. No title derived 
'through sale for any tax or assessment shall be entitled 
to be first registered, unless it shall be made to appear 
'that the applicant or those through whom he claims title 
'have been in the actual and undisputed possession of the 
'land under such title at least ten years, and shall have 
'paid all taxes and assessments legally levied thereon for 
'seven successive years of that time.' 

Applicants for registration under this section are 
required to make parties defendant the holder of the 
patent title and all claiming under him. No tax title 
can thus be registered until adjudicated superior to the 
patent title. 

'Application to come under act what to contain.] 11. 
'The application shall be in writing, signed and sworn to 
'by the applicant or the person acting in his behalf. It 
'shall set forth substantially: 

'a. The name and place of residence of the applicant, 
'and if the application is by one acting in behalf of 



22 LAND REGISTRATION IN ILLINOIS. 

'another, the name and place of residence and capacity of 
'the person so acting. 

'b. Whether the applicant (except in the case of a 
'corporation) is married or not, and, if married, the name 
'and residence of the husband or wife. 

'c. The description of the land. 

'd. The applicant's estate or interest in the same, and 
'whether the same is subject to an estate of homestead. 

'e. Whether the land is occupied or unoccupied, and, if 
'occupied by any other person than the applicant, the name 
'and postoffice address of each occupant, and what estate 
'or interest he has or claims in the land. 

'f. Whether the land is subject to any lien or incum- 
'brance, and, if any, give the nature and amount of the 
'same, and, if recorded, the book and page of record; also 
'give the name and postoffice address of each holder 
'thereof. 

'g. Whether any other person has any estate or claims 
'any interest in the land, in law or equity, in possession, 
'remainder, reversion or expectancy, and if any, set forth 
'the name and postoffice address of every such person and 
'the nature of his estate or claim. 

'h. In case it is desired to settle or establish boundary 
'lines the names and postoffice addresses of all the owners 
'of the adjoining lands that may be affected thereby, so far 
'as he is able, upon diligent inquiry, to ascertain the same. 

'i. If the applicant is a male, that he is of the full age 
'of twenty-one years; if a female, that she is of the full 
'age of eighteen years. If the application is on behalf of 
'a minor, the age of such minor shall be stated. If the 
'application is by a husband or wife, the other shall by 
'indorsement thereon acknowledged as in the case of deeds 
'or by a separate instrument acknowledged in the same 
'way signify his or her assent to the registration as prayed. 

'j. When the place of residence of any person whose 
'residence is required to be given is unknown, it may be 
'so stated if the applicant will also state that upon diligent 
'inquiry he has been unable to ascertain the same. All 
'persons named in the application shall be considered as 



THE ILLINOIS TORRENS LAW. 23 

'defendants thereto, and all other persons shall be included 
'and considered as defendants by the term "all whom it 
'may concern." ' 

Application blanks are always found at the regis- 
trar's office. 

Care should be taken that the application comply 
with the form provided by the act, since it may be 
amended only under oath. See 14. 

In clause e., tenants will be named as such. 

In clause f., where there are ^mortgages or trust 
deeds, the name and postoifice address of each mort- 
gagee or trustee will be given, as well as that of the 
holder of the note secured thereby. 

The expense of service of summons upon defendants 
not opposing the registration, such as tenants, mort- 
gagees, trustees and holders of notes secured by mort- 
gage or trust deed, may be avoided by the assent in 
writing of such persons endorsed upon the application. 
The form of such assent may be as follows: 

"I hereby assent to the registration of the "within 

"described real estate as prayed for by 

applicant" (naming him or her). 

No acknowledgment is needed. 

It is usual, where no contest is anticipated, to lodge 
the application with the registrar, who will see that it 
is filed in the proper court. 

'Any number of contiguous pieces may be included.] 12. 
'Any number of contiguous pieces of land in the same 
'county, and owned by the same person, and in the same 
'right, or any number of pieces of property in the same 
'county having the same chain of title and belonging to 
'the same person may be included in one application.' 

Initial registration fees are fixed in 108. One title 
only with its necessary investigation is contemplated in 
each application. The title may embrace any number 



24 LAND REGISTRATION IN ILLINOIS. 

of pieces of land if contiguous; 450 lots in the same sub- 
division but embraced in one title have been registered 
in one application. When the application includes 
titles derived from more than one source, a further fee 
for each additional source is to be paid. 108. 

'Form of application.] 13. The form of the application 
'may be, with appropriate changes, as follows: 

FORM OF APPLICATION FOR INITIAL REGISTRATION OF 
TITLE TO LAND. 



To the Judge of the Court of County, Illinois, in chan- 
cery sitting: 

State of Illinois, \ 
County of . . . / Sl 

I hereby make application to have registered the title to the land 
hereinafter described, and do solemnly swear that the answers to 
the questions herewith, and the statements herein contained, are 
true to the best of my knowledge and belief. 

(1st.) Name of applicant Age years. Residence 

(No. street or township). Married to (Name hus- 

band or wife). Residence (No. street or township). 

(2d.) Application made by acting as . . . (Owner, 

agent or attorney) Residence (No. street or town- 
ship) 

(3d.) Description of real estate is as follows: 

estate or interest therein is and subject to homestead. 

(4th.) The land is occupied by (Names of occupants) 

whose address is (No. street or township) and address 

The estate, interest or claim of occupant is 

(5th.) Liens and incumbrances on the land Name of 

holder or owner thereof Postoffice address Amount 

of claim | Recorded, Book Page 

(6th.) Other person.., firm or corporation having or claiming 
any estate, interest or claim in law or equity, in possession, remain- 
der, reversion or expectancy in said land are Address 

Character of estate, interest or claim is 

(7th.) Other facts connected with said land are 

(8th.) Therefore the applicant prays the Court to find and 
declare the title or interest of the applicant in said land and decree 
the same, and order the registrar of titles to register the same, and 
to graoit such other and further relief as shall be according to 
equity. 

(Applicant's signature) 

By (Agent, Att'y, Adm'r, or Guard 



THE ILLINOIS TORRENS LAW. 25 

Subscribed and sworn to before me by the above named 

as (Owner, Att'y, or Agent.) this day of , A. D. 18. . 



I hereby assent to the registration of the above described real 

estate as prayed for by who is my (Husband or wife.) 

(Husband or wife's signature) 

State of Illinois, 1 _ 
County of.... / ss ' 

I, a in and for said County in the State aforesaid, 

Do Hereby Certify that personally known to me to be the 

same person whose name is subscribed to the foregoing assent, 
appeared before me this day in person and acknowledged the said 

assent as free and voluntary act for the uses and purposes therein 

set forth. 

Given under my hand and seal, this day of A. D. 18.. 



'Application may be amended.] 14. The application 
'may be amended only by supplemental statement in 
'writing, signed and sworn to as in the case of the original.' 

'To what court application may be made jurisdiction and 
'power of court.] 15. The application for registration 
'may be made to any Court having chancery jurisdiction 
'in the County where the land is situated, and such Court 
'shall have power to inquire into the condition of the title 
'and to any interest in the land, and any lien or incum- 
'brance thereon, and to make all such orders, judgments 
'and decrees as may be necessary to determine, establish 
'and declare the title or interest, legal or equitable, as 
'against all persons, known or unknown, and all liens and 
'incumbrances existing thereon, whether by law, contract, 
'judgment, mortgage, trust deed or otherwise, and to 
'declare the order and preference as between the same, and 
'to remove clouds from the title, and for that purpose the 
'said Court shall be always open, and such orders, judg- 
'ments and decrees may be made and entered as well in 
'vacation as in term time.' 

As to the jurisdiction and power of the court, see 
also 25. 

'Application to be entered in "land registration docket" 
'parties defendant.] 16. Upon the filing of the applica- 



26 LAND REGISTRATION IN ILLINOIS. 

'tion in the office of the Clerk of the Court, the Clerk shall 
'docket the same in a book to be kept for that purpose, 
'which shall be known as the "Land Registration Docket." 
'The application may be entitled in all entries and proceed- 
ings as follows: "In the matter of the application of (name 
'of applicant) to register the title to (here insert short 
'description of the land)," and if any person is named as 
'being in possession of the premises or having any lien or 
'incumbrance upon, or as having or claiming any interest 
'in the land, such person shall be named as defendant. 
'All other persons shall be made and deemed to be defend- 
'ants by the name or designation of "all whom it may 
'concern." ' 

'Application for initial registration how docketed.] 17. 
'All applications for initial registration of title shall be 
'docketed in such book and numbered consecutively, 
'beginning with number one. All orders, judgments and 
'degrees of the Court in the case shall be minuted in such 
'docket under the number so given it with proper refer- 
'ences to the book and page where the order or decree is 
'recorded.' 

'Application to be referred to examiner proceedings of.] 
' 18. Immediately upon the filing of the application, an 
'order may be entered referring the same to one of the 
'examiners of titles appointed by the registrar, who shall 
'proceed to examine into the title and into the truth of the 
'matter set forth in the application and particularly 
'whether the land is occupied, the nature of the occupa- 
'tion, if occupied; and by what right, and make report in 
'writing to the Court, the substance of the proof and his 
'conclusions therefrom. He shall have power to admin- 
'ister oaths, and examine witnesses and may at any time 
'apply to the Court for directions in any matter concerning 
'his investigation. He shall not be required to report the 
'evidence submitted to him except upon the request of 
'some party to the proceedings or by the direction of the 
'Court. No report shall be made upon such application 
'until after the expiration of the time specified in the notice 



THE ILLINOIS TORRENS LAW. 27 

'hereinafter provided for the appearance of the defendants, 
'and in case of such appearance, until opportunity is given 
'to such defendant to contest the rights of the applicant 
'in such manner as may be allowed by the Court.' 

This is a proceeding in chancery. 1 Objections or 
exceptions not taken and filed with the examiner will 
not be heard by the court. 2 In this respect the report of 
the examiner is like that of a master in chancery. It 
would seem that the general rules governing a hearing 
before a master in chancery, apply, except as modified 
by this section, to an examiner of titles. 

An order of reference may be entered immediately 
upon the filing of the application and the examiner may 
thereupon proceed with his investigation of the title; 
but before he can report, persons appearing to defend 
are given ample opportunity to introduce their proofs. 

The examiner will consider the abstract of title sub- 
mitted by the applicant, and its continuation made by 
the recorder. He will also take such oral testimony as 
may be needed to determine the rights of all persons 
in possession. Testimony will frequently be required to 
be taken of such matters affecting the title as do not 
appear of record, such as proof of heirship and other 
matters in pais. 

There is required an abstract of title from the gov- 
ernment to any date after the fire of October 9, 1871. 
All the county records from the latter date are in the 
custody of the recorder. The abstract submitted is 
continued by the recorder to the date of the filing of the 
application. The cost of this continuation is included 
in the registration fees fixed in 108. 

Recorded ante fire abstracts are receivable, and the 

1 Rogers v. Tyley, 144 111. 652; People v. Simon, 176 111. 165; Gage 
v. Consumers' Electric Light Co. (Ill Sup. Ct), 33 Legal News, 154. 

2 Gage v. Consumers' Electric Light Co. (Supra). 



28 LAND REGISTRATION IN ILLINOIS. 

books of the recorder wherein they are copied will be 
used. 

In cases where the owner is without an ante fire 
abstract, one borrowed from an adjoining owner will 
frequently answer. 

It is desired that the abstract of title furnished by 
the owner remain with the registrar, although this is 
not compulsory. Such abstracts are always subject to 
the owner's order, and open to any inspection at any 
time. 

It will be noted that one of the chief duties of the 
examiner is to see that all persons having possible 
claim to the land are before the court. He investigates 
each title independently of the proofs offered by the 
parties, and acts for the protection of all who may sub- 
sequently deal with the certificate of title. Each certifi- 
cate of title rests accordingly upon a thorough and 
independent investigation, by the examiner of titles 
and the examining department of the registrar, of all 
matters affecting the title, whether of record or in pais, 
and the decree of the court in pursuance of the exam- 
iner's report. 

Should a title be found unfit for registration and the 
applicant so desires, no finding or report is made and 
the application is dismissed without prejudice. 

'Summons return and service of.] 19. The clerk shall 
'also immediately on the filing of such petition issue sum- 
'mons against all persons mentioned in the petition as 
'defendants. The summons shall state the date of the 
'filing of the application, and shall be made returnable at 
'such time as shall be directed by endorsement thereon, 
'not less than ten days after the filing of such petition. The 
'summons may be served as in other cases in chancery.' 

It is usual to make the summons returnable in 
twelve days after the da*te of its issue. The act in this 



THE ILLINOIS TORRENS LAW. 29 

respect differs from the chancery and common law pro- 
cedure, where a summons is required to be made 
returnable not earlier than the first day of the next 
term of court. The fixed terms of court have no appli- 
cation to this act. Compare in this connection 15. 

'Notice to be published.] 20. The clerk shall also 
'immediately upon the filing of such application cause 
'notice of the filing thereof to be published once in each 
'week for four consecutive weeks in some newspaper pub- 
'lished in the county, or if there is no newspaper published 
'in the county then in a newspaper published in one of the 
'counties nearest thereto. The notice may be substantially 
'as follows: 

REGISTRATION OF LAND TITLE. 

In the matter of the application of to register the title 

to (here insert description of land as in the application, and in case 
any person is named as defendant, the name of such persons defend- 
ant). To all whom it may concern: 

Take Notice, That on the day of A. D , an 

application was filed by said in the Court of 

County, for initial registration of the title to the land above 

described. Now, unless you appear on or before the day of 

, A. D (the time shall not be less than thirty days after 

the filing of such application) and show cause why such application 
shall not be granted, the same will be taken as confessed, and a 
decree will be entered according to the prayer of the application, and 
you will be forever barred from disputing the same. 

In uncontested cases the publication of the notice is 
usually attended to by the registrar. 

The expense of publication in Cook County is $2 
irrespective of the length of the notice. 

'Clerk to send copy of publication by mail.] 21. The 
'clerk shall also within ten days after the first publication, 
'send a copy thereof by mail addressed to such defendants 
'whose places of residence are stated in the application and 
'whose appearance is not entered and who are not served 
'with process. The certificate of the clerk that he has sent 
'such notice in pursuance of this section shall be evidence 



30 LAND REGISTRATION IN ILLINOIS. 

'thereof. Other or further notice of such application may 
'be given in such manner and to such persons as may be 
'directed by the court or any judge thereof/ 

The usual affidavit of non-residence required by the 
chancery practice where non-resident defendants are to 
be notified, is not required or needed, since the applica- 
tion must set forth the facts as to the residence of the 
defendants. 

'Who may oppose application answer to be verified.] 22. 
'Any person interested, whether named as defendant or 
'not, may upon entering his appearance and answering the 
'application within the time allowed by this act, or such 
'further time as shall be allowed by the court, oppose any 
'such application or file a cross application in like form, 
'as in case of an original application, to have the title 
'registered in his behalf. In either case he shall state par- 
'ticularly what his interest is and full answer make to each 
'and every of the material allegations of the application, 
'admitting, avoiding or traversing the same or showing 
'some cause in law why the same need not be so admitted, 
'avoided or traversed. Such answer shall be verified by 
'the affidavit of himself or his agent having knowledge of 
'the facts. The answer shall have no other or greater 
'weight as evidence than the application.' 

Under the standing rules of the circuit and superior 
courts of Cook County, a defendant in a chancery case, 
on entering his appearance, is entitled to twenty days 
within which to plead answer or demur. The rule 
would seem to extend to registration cases, although 
the question has not yet been passed upon. 

All persons having adverse claims are to be named in 
the application. They thereby become parties defend- 
ant. 1 Under the Torrens act, as under the Burnt Rec- 
ord act, 2 it is sufficient to name such persons, and the 

1 11, 13. 

2 Smith v. Hutchinson, 108 111. 662; Gage v. Caraher, 125 111. 447. 



THE ILLINOIS TORRENS LAW. 31 

irregularity OT invalidity of the adverse claim need not 
be alleged in the application. The above section 
requires the defendant to state particularly what his 
interest is, and to verify his answer. Upon each party 
rests the burden of proof to maintain his own title. 

So in cases where the land is subject to tax deed, or 
other cloud, the applicant names the holder as a defend- 
ant. It then devolves upon the latter to allege in 
his answer particularly what his interest is, as well as 
to also make answer to the allegations of the petition, 
and to support the allegations of the answer by requi- 
site proof. This throws upon the holder of the tax 
deed the burden of proof as to its validity. 1 

This section authorizes no demurrer, plea or plead- 
ing other than an answer, and if a demurrer or plea be 
filed, it will be stricken from the files upon motion. 2 

Applicants seeking the removal of tax titles as 
clouds, can be granted relief only upon equitable terms, 
which, in general, require that before the issue of the 
certificate of title, the applicant shall pay to the holder 
of the tax title, or into court for his use, a sum equal to 
the amount for which the tax sale was made, and all 
subsequent taxes, assessments and costs paid by such 
holder, together with legal interest thereon. 3 Where 
the tax title accrued against a former owner, and the 
applicant has paid taxes and had possession for seven 
consecutive years, reimbursement to the holder of the 
tax title is not required. 4 

'When default may be entered.] 23. If any person 
'shall fail to appear within the time required of him by 

1 So held by Clifford, Gibbons, Tuthill and Dunne, J. J. 

2 14th Ward Building & Loan Ass'n v. Glos, Circuit Court of Cook 
County. Dunne, J., in Land Registration No. 278. 

s Gage v. Caraher, 125 111. 447. 

< Gage v. Consumers' Eectric Light Co. (111. Sup. Ct.), 33 Legal 
News, 154. 



32 LAND REGISTRATION IN ILLINOIS. 

'summons duly served upon him or within the time required 
'by any notice given in pursuance of this act, Or appearing 
'shall fail to answer the application as herein provided, his 
'default may be entered and the application taken as con- 
'fessed, and upon report of examiner showing that the 
'facts stated in the application are true and the applicant 
Ms the owner of the land or interested therein, as set forth 
'in the application, the court may grant an order or decree, 
'in accordance with the prayer of the application.' 

Interlocutory orders of default may be entered, but, 
in general, all defendants not appearing are defaulted 
by the terms of the final decree. 

'Court not to be bound by report of examiner.] 24. The 
'court shall in no case be bound by the report of an 
'examiner of title, but may require other or further proof.' 

The spirit of the act contemplates the concurrence 
of registrar, examiner and the court before issue of a 
certificate of title. The court of course is the final arbi- 
ter, the registrar and examiner being at all times under 
its direction and control. 

'What the court may decree.] 25. The court may, in 
'any proceeding under this act, find and decree in whom 
'the title to or any interest in the land is vested, whether 
'in the applicant or in any other person, and remove clouds 
'upon the title, and also whether the same is subject to any 
'lien or incumbrance, estate, trust or interest, and declare 
'the same, and may order the registrar of titles to register 
'such title or interest, and in case the same is subject to 
'any lien, incumbrance, estate, trust or interest, give direc- 
'tions 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 may make any and all such orders 
'and decrees as shall be according to equity in the premises 
'and as shall be in conformity to the principles of this act.' 

This section in connection with 15 confers upon the 
court full power to adjudicate all unsettled questions 



THE ILLINOIS TORRENS LAW. 33 

affecting the title at the time of initial registration. 
The registration proceeding is made one for purifica- 
tion. Among the defects most frequently found are tax 
certificates^ tax deeds, mortgages paid or outlawed 
and unreleased of record, forfeited or abandoned con- 
tracts of sale, errors in names of parties to convey- 
ances, erroneous descriptions, irregularities in attesta- 
tion of conveyances and adverse claims of title without 
substantial merit. 

It will be seen that the act provides much the best 
and speediest method for final settlement of clouded or 
disputed titles. The summons is returnable in not less 
than ten days, 19. The examiner may proceed with 
his investigation immediately upon the filing of the 
application, 18. The court is always open, and orders 
and decrees in these cases may be entered in vaca- 
tion as in term time, 15. Final decrees are entered on 
motion to confirm the report of the examiner. 1 The cir- 
cuit court of Cook County has held uniformly and in 
accordance with the spirit of the act, that registration 
cases, both contesed and uncontested, should be 
promptly disposed of without the delay usually attend- 
ant upon chancery cases standing upon a calendar for 
final hearing or contested motions. 2 

'Upon whom decree binding appeal writ of error when 
'court may review case.] 26. The order or decree so made 
'and entered shall, except as herein otherwise provided, 
'be forever binding and conclusive upon all persons, 
'whether mentioned by name in the petition or included in 
' "All whom it may concern." It shall not be an exception 
'to such conclusiveness that the person is an infant, lunatic 
'or is under any disability, but such person may have 
'recourse upon the indemnity fund hereinafter provided 

1 Gage v. Consumers' Electric Light Co., Supreme Court of Illinois, 
33 Legal News, 154. 

2 Clifford, Gibbons, Dunne, Neeley and Tuthill, J.J. 

3 



34 LAND REGISTRATION IN ILLINOIS. 

'for, for any loss he may suffer by reason of being so con- 
'cluded. An appeal may be allowed to the Supreme Court 
'if prayed at the time of entering the order or decree and 
'upon like terms as in other cases in chancery. A writ of 
'error may be sued out of the Supreme Court within two 
'years after the entry of the order or" decree, and not 
'afterwards. Any person having an interest in or lien 
'upon the land who has not been actually served with proc- 
'ess or notified of the filing of such application or the 
'pendency thereof, may, at any time within two years after 
'the entry of such order or decree, and not afterwards, 
'appear and file his sworn answer to such application in 
'like manner as is hereinbefore prescribed for making 
'answer: Provided, The affidavit shall also state that such 
'person had no notice, information or belief of the filing 
'of such application or the pendency of the proceeding 
'until within three months of the time of the filing of such 
'answer. Upon the filing of such answer, and not less than 
'ten days' notice being given to the applicant, the court 
'shall proceed to review the case, and if the court is satis- 
'fied that the order or decree ought to be opened, an order 
'shall be entered to that effect and the court may proceed 
'to review the proceeding and make such order in the case 
'as shall be according to equity in the premises. An appeal 
'may be allowed or writ of error sued out, in such case, 
'within a like time and in like manner as in the case of an 
'original order or decree under this act, and not otherwise.' 

It is within the legislative competency of the state 
to make or not to make exceptions in favor of infants or 
other persons under disability. 1 

It is to be noted, in this connection, that losses sus- 
tained by infants, or other persons under disability, 
are made payable from the indemnity fund 2 and that 
the period for proceedings against that fund is extend- 
ed in favor of all persons under disability until two 
years after the disability is removed. 3 

1 Vance v. Vance, 108 U. S. 514. * 103. 

2 101. 



THE ILLINOIS TORRENS LAW. 35 

'Within what time action may be commenced.] 27. No 
'person shall commence any action at law or in equity for 
'the recovery of lands or assert any. interest or right in or 
'lien or demand upon the same, or make entry thereon 
'adversely to the title or interest as found, ordered or 
'decreed by the court, unless within two years after the 
'entry of the order or decree. This section shall be con- 
'strued as giving such right of action to such persons only 
'as shall not, because of some irregularity, insufficiency, 
'or for some other cause, be bound and concluded by such 
'order or decree.' 

'Within what time any person not barred or concluded by 
'such order or decree may assert his claim.] 28. Any 
'person having any interest, right, title, lien or demand, 
'whether vested, contingent or inchoate, in, to or upon 
'registered land, which existed at the time the land is first 
'registered, and upon or for which no cause of action shall 
'have accrued at the date of the registration of the land, 
'and who has not become barred or concluded by such 
'order or decree, may, prior to the expiration of said twa 
'years after such registration, file in the registrar's office 
'a notice, under oath, setting forth his interest, right, title, 
'lien or demand, and how and under whom derived, and the 
'character and nature thereof, and if such counter-claim 
is so filed an action may be brought to assert or recover 
'or enforce the same at any time within one year after the 
'right of action shall have accrued thereon, and not after- 
'wards. It shall be the duty of a life tenant or trustee to 
'file such counter-claim on behalf of any remainderman or 
'reversioner, whether the remainder or reversion be at the 
'time vested or contingent, and of a guardian to file such 
'counter-claim on behalf of his ward.' 

This and the preceding section, in connection with 
26 and 40, limit the time for actions to upset the first 
certificate of title. They constitute a valid statute of 
limitations. 1 

i People v. Simon, 176 111. 165. 



36 LAND REGISTRATION IN ILLINOIS. 

These sections can have no unfavorable effect upon 
the negotiability of a registered title during its first 
two years. All persons named as defendants and 
served with process are bound by the decree from its 
entry. This and the preceding section apply only to 
persons not so bound. The probability of the existence 
of such persons is readily determined by examination 
of the proceeding for initial registration. If that pro- 
ceeding has been properly conducted, all necessary par- 
ties will be before the court, and there will be no per- 
sons not bound by the first certificate of title. 

REGISTERING THE TITLE. 

'Registering the title.] 29. Upon the filing of a cer- 
tificate signed by the clerk giving the effect of the order 
'or decree of the court or a copy of such order or decree 
'in the registrar's office, the registrar shall proceed to 
'register the title or interest pursuant to the terms of the 
'order or decree, in the manner following: 



'Form of certificate of title.] 30. He shall make out 
'a certificate of title which may, subject to such change 
'as the case may require, be substantially as follows: 

FIRST CERTIFICATE OF TITLE PURSUANT TO ORDER OF 
COURT OF COUNTY. 

State of Illinois, 1 

County. / 

of (residence, and if a minor give his age; if 

under other disability, state the nature of the disability), married 
to (name of husband or wife, or if not married, say not married), 
is the owner of an estate in fee simple (or as the case may be) in the 
following land (here describe the premises) subject to the estates, 
easements, incumbrances and charges hereunder noted. (In case 
of trust, condition or limitation, say "in trust" or "upon condition" 
or "with limitation" as the case may be.) 

Witness my hand and official seal this (date). 



[SEAL.] Registrar. 

'Subsequent certificates.] 31. All subsequent certifi- 
'cates may be in like form, except that in place of the 
'words "First certificate," etc., shall be the words "Transfer 



THE ILLINOIS TORRENS LAW. 37 

'from No " (the number of the next previous cer- 
tificate), also the words "First registered " (date of 

first registration).' 

The chain of a registered title thus follows from one 
certificate of title to another, each showing the nota- 
tions regarding the former and succeeding owner. An 
abstract of title to registered land, if one be needed, 
may be made with the utmost accuracy and ease. 

'The words "heirs and assigns."] 32. The words "heirs 
'and assigns" shall not in any case be necessary to create 
'a fee simple estate of inheritance.' 

'Certificate what it should contain.] 33. Every certifi- 
'cate shall bear date of the day and year of its issue, and 
'be under the hand and official seal of the registrar, and 
'be numbered in the order of its issue. It shall state 
'whether the owner (except in the case of a corporation) 
'is married or not married, and if married, the name of 
'the husband or wife. If the owner is a minor it shall state 
'his age, if under any other disability, the nature of the 
'disability. The registrar shall note at the end of the 
'certificate, in such manner as to show and preserve their 
'priorities, the particulars of all estates, mortgages, incum- 
'brances and charges to which the owner's title is subject.' 

'Certificate where two or more are interested in the land.] 
' 34. In all cases where two or more persons are entitled 
'as tenants in common to an estate in registered land, such 
'persons may receive one certificate for the entirety, or each 
'may receive a separate certificate for his undivided share.' 

' "Register of titles" what to contain.] 35. The regis- 
'trar shall keep a book, to be known as the "Register of 
'Titles," wherein he shall enter all first and subsequent 
' "original" certificates of title by binding or recording 
'them therein, in the order of their numbers, with appro- 
'priate blanks for the entry of memorials and notations 
'allowed by this act. Each certificate, with such blanks, 
'shall constitute a separate folium of such book. All 
'memorials and notations that may be entered upon the 



38 LAND REGISTRATION IN ILLINOIS. 

'register under the terms of this act shall be entered upon 
'the folium constituted by the last certificate of title of the 
'land to which they relate. Whenever the term certificate 
'of title is used in this act, it shall be deemed as including 
'all memorials and notations thereunder noted.' 

The "register of titles" is like a ledger, where every- 
thing that can affect the title to a given piece of prop- 
erty is posted, up to date, at one page. 

'Duplicate certificate of title to be known as owner's dupli- 
'cate.J 36. The registrar shall, at the same time that he 
'makes out his original certificate of title, make out an 
'exact duplicate thereof, with the memorials and notations 
'thereunder noted, which shall be delivered to the owner 
'and shall be known as the owner's duplicate.' 

Owner's duplicate certificates of title are engraved 
and engrossed upon heavy parchment paper, and bear 
upon their reverse a plat showing the size and location 
of the land if a lot in a subdivision. The latter is found 
a convenience. 

'Owner's receipt for certificate of title.] 37. For the 
'purpose of preserving evidence of the handwriting of the 
'owner in his office, it shall be the duty of the registrar to 
'take from the owner, in every case where it is practicable 
'so to do, his receipt for the certificate of title, or whatever 
'paper shall be issued to him, signed by the owner in person. 
'When such receipt is signed in the registrar's office it may 
'be witnessed by the registrar or some deputy. If signed 
'elsewhere it may be acknowledged before any officer 
'authorized to take acknowledgment of deeds. When so 
'signed and witnessed or acknowledged, such receipt 
'shall be prima facie evidence of the genuineness of such 
'signature.' 

This requirement is to aid the registrar in complying 
with 47. 

'In case of final registration the certificate of title shall 



THE ILLINOIS TORRENS LAW. 39 

'relate back, etc.] 38. In every case of final [initial] 
'registration the certificate of title shall relate back to and 
'take effect as of the date of the order or decree directing 
'the registration, and all dealings with the land, and all 
'statutory or other liens upon the same subsequent to the 
'filing of the application shall be subject to such order or 
'decree of the court.' 

The filing of the application in a court of record is 
made lis pendens of the proceedings, and an interest 
subsequently acquired in the land is made subject to 
the decree. 

Where no appeal is prayed from the decree, the first 
certificate of title is usually issued the day of its entry. 

'Such certificate to be prima facie evidence.] 39. Such 
'certificate, with the memorials and notations thereunder 
'noted, and any copy thereof duly certified under the hand 
'and seal of the registrar, and the owner's duplicate certifi- 
'cate shall until the expiration of the time herein limited 
'to bring some action or to contest the title of the regis- 
tered owner, be in all courts and places prima facie 
'evidence that the provisions of the law have been complied 
'with, and that such certificate of title has been issued in 
'compliance with a valid order or decree, and that the title 
'to the land is as therein stated, and after the expiration 
'of such time limited shall be conclusive evidence of the 
'same facts.' 

'The rights of registered owners.] 40. The registered 
'owner of any estate or interest in land brought under this 
'act, shall, except in cases of fraud to which he is a party, 
'or of the person through whom he claims without valuable 
'consideration paid in good faith, hold the same subject 
'only to such estates, mortgages, liens, charges and inter- 
'ests as may be noted in the last certificate of title in the 
'registrar's office and free from all others except: 

'1. Any subsisting lease or agreement for a lease for a 
'period not exceeding five years, where there is actual 



40 LAND REGISTRATION IN ILLINOIS. 

'occupation of the land under the lease. The term lease 
'shall include a verbal letting. 

'2. All public highways embraced in the description of 
'the lands included in the certificate shall be deemed to be 
'excluded from the certificate. 

'3. Any subsisting right of way or other easement, 
'however created, upon, over or in respect of the land. 

'4. Any tax or special assessment for which a sale of 
'the land has not been had at the date of the certificate 
'of title. 

'5. Such right of appeal, writ of error, right to appear 
'and contest the application, and of such action or to make 
'counterclaim as is allowed by this act.' 

The effect of this section is to give to the bona fide 
purchaser or incumbrancer a like security to that given 
to the purchaser of negotiable paper. The title of such 
purchaser or incumbrancer cannot be upset. This is a 
dominant feature of the system. 

For the method by and extent to which the certifi- 
cate of title may be affected by subsequent judicial 
proceedings see 93, 94 and 95. 

'Possession after land registered.] 41. After land has 
'been registered no title thereto adverse or in derogation 
'to the title of the registered owner shall be acquired by 
'any length of possession.' 

After registration all rights whatsoever appear only 
upon the certificate of title and mere possession 
becomes no notice thereof. Registered owners are thus 
guaranteed against encroachment or risk of loss by- 
adverse possession. No squatter's possession can ever 
ripen into title. 

'Fraud transfer from registered owner effect of.] 42. 
'Except in case of fraud, and except as herein otherwise 
'provided, no person taking a transfer of registered land, 
'or any estate or interest therein, or of any charge upon 
'the same, from the registered owner shall be held to 



THE ILLINOIS TORRENS LAW. 41 

'inquire into the circumstances under which, or the con- 
'sideration for which such owner or any previous registered 
'owner was registered, or be affected with notice, actual 
'or constructive, of any unregistered trust, lien, claim, 
'demand or interest; and the knowledge that any unregis- 
tered trust, lien, claim, demand or interest is in existence 
'shall not of itself be imputed as fraud.' 

This again affirms the dominant principle of the sys- 
tem by which absolute immunity is given the bona fide 
purchaser or incumbrancer for valuable consideration 
paid in good faith. See 40. 

The Australian authorities upon what constitutes 
such fraud as to invalidate the certificate, will be found 
gathered in the Torrens Australian Digest (1899) page 
102. 

'Specific performance certificate of title conclusive evi- 
'dence.] 43. In any suit for specific performance brought 
'by a registered owner of any land under the provisions 
'of this act, against a person who may have contracted to 
'purchase such land, not having notice of any fraud or 
'other circumstances which, according to the provisions of 
'this act, would affect the right of the vendor, the certifi- 
'cate of title of such registered owner shall be held in every 
'court to be conclusive evidence that such registered owner 
'has a good and valid title to the land, and for the estate 
'or interest therein mentioned or described.' 

'In cases of ejectment.] 44. In any action or proceed- 
'ing brought for ejectment, partition or possession of land, 
'the certificate of title of a registered owner shall, except 
'as to any person not bound by the order or decree of the 
'court, or by some limitation herein or in some other statute 
'contained, be held to be conclusive evidence that such 
'registered owner has a good and valid title to the land, 
'and for the estate or interest therein mentioned or 
'described, subject only to such estates, mortgages, liens, 
'charges and interests as may be noted thereunder, and 
'unless it shall otherwise appear by such notations that 



42 LAND REGISTRATION IN ILLINOIS. 

'such registered owner is entitled to the possession of said 
'land.' 

'Memorial.] 45. Whenever a memorial or notation 
'has been entered as permitted by this act, the registrar 
'shall carry the same forward upon all certificates of title 
'until the same is canceled in some manner authorized by 
'this act.' 

'The effect of bringing land under this act.] 46. The 
'bringing of land under this act shall imply an agreement 
'which shall run with the land that the same shall be 
'subject to the terms of the act and all amendments and 
'alterations thereof. And all dealings with land or any 
'estate or interest therein, after the same has been brought 
'under this act, and all liens, incumbrances and charges upon 
'the same subsequent to the first registration thereof, shall 
'be deemed to be subject to the terms of this act.' 

This section is declaratory, as probably the same 
effect would attach to the bringing of land under the 
act, were it omitted. 

TRANSFER. 

'Transfer.] 47. A registered owner of land desiring to 
'transfer his whole estate or interest therein, or some dis- 
'tinct part or parcel thereof, or some undivided interest 
'therein, or to grant out of his estate an estate for life or 
'for a term of not less than ten years, may execute to the 
'intended transferee a deed or instrument of conveyance 
'in any form authorized by law for that purpose. And 
'upon filing such deed or other instrument in the registrar's 
'office and surrendering to the registrar the duplicate certifi- 
'cate of title, and upon its being made to appear to the 
'registrar that the transferee has the title or interest pro- 
'posed to be transferred and is entitled to make the con- 
'veyance and that the transferee has the right to have such 
'estate or interest transferred to him, he shall make out 
'and register as hereinbefore provided a new certificate 
'and also an owner's duplicate certifying the title to the 
'estate or interest in the land desired to be conveyed to be 



THE ILLINOIS TORRENS LAW. 43 

'in the transferee, and shall note upon the original and 
'duplicate certificate the date of the transfer, the name of 
'the transferee and the volume and folium in which the new 
'certificate is registered, and shall stamp across the origi- 
'nal and surrendered duplicate certificate the word "can- 
'celed."' 

The registrar, in conducting a transfer, examines 
fully into every matter connected therewith. He satis- 
fies himself as to the identity of the parties by much 
the same rules observed by a bank in dealing with 
strangers. The increased inconvenience is slight and 
every known method of checks and verification should 
be used to prevent improper transfers. Forgery thus 
becomes almost impossible. Nothing can be done with- 
out the surrender of the outstanding duplicate certifi- 
cate of title. At every transfer every question of form 
and substance that can possibly affect the title 
intended to be transferred is then and there settled 
once for all. Upon this rests the efficiency of the 
system. 

'When only a part of land transferred.] 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 
'transfer [er], a new certificate shall be issued to him for 
'the part, estate or interest remaining in him.' 

'When transfer of registered land shall be deemed to be 
'registered.] 49. Every transfer of registered land shall 
'be deemed to be registered under this act, when the new 
'certificate to the transferee shall have been entered, as in 
'the case of first registration; and all other dealings shall 
'be considered as registered when the memorial or notation 
'shall have been entered in the register upon the folium 
'constituted by the existing certificate of title of the land. 
'But, for the protection of the transferee or person claiming 
'through any transfer or dealing, the registration shall 
'relate back to the time of filing in the registrar's office the 



44 LAND REGISTRATION IN ILLINOIS. 

'deed, instrument or notice, pursuant to which the trans- 
'fer memorial or notation is made.' 

'Filing deeds, etc. marked.] 50. The registrar shall 
'mark as filed every deed, mortgage, lease and other instru- 
'ment which may be filed in his office in the order of its 
'receipt, and shall note thereon at the date of filing the 
'minute, hour, day and year it is received. When the date 
'of filing any instrument is required to be entered upon the 
'register it shall be the same as that endorsed upon such 
'instrument.' 

'Instruments to be kept in office.] 51. All instruments, 
'notices and papers required or permitted by this act to be 
'filed in the office of the registrar shall be retained and 
'kept in such office. They shall be numbered consecutively 
'and a list of the same kept in a book for that purpose, 
'describing the same as "warranty deeds," "quit-claim 
'deed," "mortgage," etc.' 

'Forms of deeds, etc.] 52. Like forms of deeds, mort- 
'gages, leases or other instruments as are now or may here- 
'after be sufficient in law for the purpose intended, may be 
'used in dealing with registered land and any estate or 
'interest therein.' 

'Address of owners notice.] 53. On all instruments 
'presented to the registrar for registration shall be 
'endorsed the name and address of the person so presenting 
'the same, and all notices by the registrar or other person 
'relating to the land therein described may be served on 
'such person at such address. The address may be changed 
'from time to time by such person filing with the registrar 
'a written notice of such change.' 

'Deeds, etc., only authority to registrar to make transfer.] 
' 54. A deed, mortgage, lease or other instrument pur- 
'porting to convey, transfer, mortgage, lease, charge or 
'otherwise deal with registered land, or any estate or inter- 
'est therein, or charge upon the same, other than a will or 
'lease not exceeding five years where the land is in actual 
'possession of the lessee or his assigns, shall take effect 
'only by way of contract between the parties thereto, and 



THE ILLINOIS TORRBNS LAW. 45 

'as authority to the registrar to register the transfer, mort- 
'gage, lease, charge or other dealing upon compliance with 
'the terms of this act. On the completion of such registra- 
tion, the land, estate, interest or charge shall become 
'transferred, mortgaged, leased, charged or dealt with 
'according to the purport and terms of the deed, mortgage, 
'lease or other instrument.' 

This is to be construed in connection with 49. Deeds 
and mortgages of registered land, although delivered, 
merely operate as powers of attorney or authority to 
the registrar to effect the proposed dealing. Title 
passes, not upon their delivery, but when the act of 
the registrar prescribed in 49 is completed. 

'Taxes assessments dower homestead.] 55. No trans- 
'fer of title to the land, or any estate or interest thereon, or 
'mortgage, shall be registered until it shall be made to 
'appear to the registrar that the land has not been sold for 
'any tax or assessment upon which a deed has been given, 
'and the title is outstanding or upon which a deed may 
'thereafter be given, and that the dower, right of dower 
'and estate of homestead, if any, have been released or 
'extinguished, or that the transfer or mortgage is intended 
'to be subject thereto, in which case it shall be so stated in 
'the certificate of title.' 

'Transferee married or not.] 56. Every certificate of 
'title to land shall state whether the transferee (except 
'when the latter is a corporation) is married or not married, 
'and if married the name of the husband or wife. The trans- 
'feree shall furnish the registrar the necessary information 
'before he shall be entitled to have the land transferred to 
'him on the register.' 

'Registered owner delivering up certificate respecting 
'parcels of land that may be included in one certificate.] 57. 
'Upon the application of any registered owner of land held 
'under separate certificates of title, or under one certificate, 
'and delivering up of such certificate or certificates of title, 
'the registrar may issue to such owner a single certificate 



46 LAND REGISTRATION IN ILLINOIS. 

'of title for the whole of such land, or several certificates, 
'each containing a portion of such land in accordance with 
'such application, and as far as the same may be done con- 
'sistently with any regulations at the time being in force, 
'respecting the parcels of land that may be included in one 
'certificate of title, and upon issuing any such certificate of 
'title, said registrar shall endorse on the last previous cer- 
'tificate of title of such land so delivered up a memorial 
'setting forth the occasion of such cancellation, and refer- 
'ring to the volume and folium of the new certificate or 
'certificates of title so issued.' 

'When duplicate certificate of title lost evidence certified 
'copy of original may be used.] 58. In the event of a dupli- 
cate certificate of title being lost, mislaid or destroyed, the 
owner, together with other persons, if any, having knowl- 
'edge of the circumstances, may make affidavit before the 
'registrar, or before any officer authorized to administer 
'oaths, stating the facts of the case, the names and descrip- 
tions of the registered owners, and the particulars of all 
'mortgages, encumbrances or other matters affecting such 
'land and the title thereto to the best of applicant's knowl- 
'edge and belief, and the registrar, if satisfied as to the 
'truth of such affidavit, and the bona fides of the transac- 
'tion, shall issue to the owner a certified copy of the original 
'certificate with the memorials and notations appearing 
'upon the register, and shall note upon the register the fact, 
'cause and date of such issue, and shall also mark upon 
'such certified copy: "Owner's certified copy, issued in place 
'of lost, (mislaid or destroyed, as the case may be), certifi- 
'cate," and such certified copy shall stand in the place of 
'and have like effect as the missing duplicate certificate.' 

The practice outlined can result in no loss or serious 
inconvenience, since one proposing to deal with the 
holder of the lost or mislaid duplicate certificate will 
make comparison of the same with the original certifi- 
cate of title in the "Register of Titles" before comple- 
tion of his dealing, when and where the cancellation 
of the first duplicate will be found noted. 



THE ILLINOIS TORRENS LAW. 47 

MORTGAGES, LEASES AND OTHER CHARGES. 

'Mortgages, leases and other charges.] 59. Every mort- 
'gage, lease for a term not exceeding ten years, contract to 
'sell, and other instrument intended to create a lien, incum- 
'brance or charge upon registered land or any interest 
'therein shall be deemed to be a charge thereon, and may 
'be registered as hereinafter provided.' 

The ordinary forms of trust deeds or mortgages, are 
used, no new recitals or alterations being necessary. 

'On filing the instrument intended to create charge pro- 
'ceedings.J 60. On the filing of the instrument intended 
'to create the charge in the registrar's office, and the pro- 
'duction of the duplicate certificate of title, and it appear- 
'ing to the registrar that the person intending to create the 
'charge has the title and right to create such charge, and 
'that the person in whose favor the same is sought to be 
'created is entitled by the terms of this act to have the same 
'registered, he shall enter upon the proper folium of the 
'register, and also upon the owner's certificate, a memorial 
'of the purport thereof, and the date of filing the instrument 
'with a reference thereto by its file number, which memo- 
'rial shall be signed by the registrar. The registrar shall 
'also note upon the instrument on file the volume and fol- 
'ium of the register where the memorial is entered.' 

The registrar will also identify, by marking the same 
with a stamp prepared for the purpose, all notes 
secured by the mortgage or trust deed. See 65 and 
note thereto. 

'Trust deed to be deemed a mortgage.] 61. A trust deed 
'in the nature of a mortgage shall be deemed to be a mort- 
'gage and be subject to the same rules as a mortgage.' 

'When mortgage, etc., is in duplicate, triplicate or more 
'parts.] 62. When any mortgage, lease, or other instru- 
'ment creating or dealing with a charge upon registered 
'land or any estate or interest therein is in duplicate, trip- 



48 LAND REGISTRATION IN ILLINOIS. 

'licate or more parts, only one of the parts need be filed and 
'kept in the registrar's office, but the registrar shall note 
'upon the register whether the same is in duplicate, tripli- 
'cate, or as the case may be, and shall also mark upon the 
'others "mortgagee's duplicate," "lessor's duplicate," "les- 
'see's duplicate," or as the case may be, and note upon the 
'same the date of filing and the volume and folium of the 
'register where the memorial is entered, and deliver them 
'to the parties entitled thereto' 

The better practice is to have the mortgage or trust 
deed executed in duplicate, thereby saving the expense 
of the certified copy described in 63. 

'Certified copies.] 63. When an instrument is not exe- 
'cuted in a sufficient number of parts for the convenience of 
'the parties, the registrar may make and deliver to each of 
'the parties entitled thereto certified copies of the instru- 
'ment filed in his office with the endorsements thereon, 
'marking the same "mortgagee's certified copy," "lessor's 
'certified copy," or as the case may be, and shall note upon 
'the register the fact of issuing such copies. Such certified 
'copies shall have the same force and effect, and be treated 
'as duplicates.' 

'Assignment how effected copy.] 64. The holder of 
'any charge upon registered land desiring to transfer the 
'same or any part thereof, may execute an assignment of 
'the whole or any part thereof, and upon such assignment 
'being filed in the office of the registrar, and the production 
'of the duplicate or certified copy of the instrument creating 
'the charge held by the assignor, the registrar shall enter 
'in the register opposite the charge a memorial of such 
'transfer, with a reference to the assignment by its file 
'number; he shall also note upon the instrument on file in 
'his office intended to be transferred and upon the duplicate 
'or certified copy thereof produced, the volume and folium 
'where the memorial is entered, with the date of the entry. 
'The transferee shall be entitled to have a certified copy of 
'the instrument of transfer, with the endorsement thereon, 



THE ILLINOIS TORRENS LAW. 49 

'and in case of the transfer of the entire charge, the dupli- 
'cate or certified copy of the instrument creating the 
'charge.' 

'Release, discharge or surrender of a charge.] 65. A 
'release, discharge or surrender of a charge or any part 
'thereof, or of any part of the land charged, may be effected 
'in the same way as above provided in the case of a trans- 
'fer. In case only a part of the charge or of the land is 
'intended to be released, discharged or surrendered, the 
'entry shall be made accordingly, but when the whole is 
'released, discharged or surrendered at the same or several 
'times, the registrar shall stamp across the instrument on 
'file, and the memorial thereof, and the duplicate or cer- 
'tified copy produced, the word "canceled."' 

Great care is used by the registrar to avoid improper 
satisfaction of mortgage liens. He requires presenta- 
tion of the cancelled notes and a properly executed and 
delivered release deed. In all cases where possible, 
direct communication will be first had with the mort- 
gagee or trustee, and the registrar will be satisfied that 
the mortgage indebtedness is in fact fully paid before 
noting its discharge upon the proper certificate of title. 

'Charges how enforced pendente lite.] 66. All 
'charges upon registered land or any estate or interest in 
the same and any rights thereunder may be enforced as 
'now allowed by law, and all laws with reference to the 
'foreclosure and release or satisfaction of mortgage shall 
'apply to mortgages upon registered lands, or any estate or 
'interest therein except as herein otherwise provided, and 
'except that until notice of the pendency of any suit to 
'enforce or foreclose such charge is filed in the registrar's 
'office, and a memorial thereof entered on the register, the 
'pendency of such suit shall not be notice to the registrar 
'or any person dealing with the land or any charge thereon.' 

ATTORNEYS IN FACT. 

'Attorneys in fact.] 67. Before any person can convey, 

4 



50 LAND REGISTRATION IN ILLINOIS. 

'charge or otherwise deal with any registered land or any 
'estate or interest therein, as attorney in fact for another, 
'the deed or instrument empowering him so to act, shall be 
'filed with the registrar, and a memorial thereof entered 
'upon nte register in like manner as in the case of a charge. 
'If the attorney shall so desire, the registrar shall deliver 
'to him a certified copy of the power of attorney, with the 
'endorsements thereon. Revocation of a power may be reg- 
'istered in like manner.' 

TRUSTS, CONDITIONS AND LIMITATIONS. 

'Trusts, conditions and limitations.] 68. Whenever a 
'deed or other instrument is filed in the registrar's office for 
'the purpose of effecting a transfer of or charge upon regis- 
'tered lands, or any estate or interest in the same, and it 
'shall appear that the transfer or charge is to be upon any 
'trust', condition or limitation expressed in such deed or 
'instrument, the registrar shall, unless such deed or instru- 
'ment expressly directs to the contrary, note in the certifi- 
'cate, and the duplicate thereof, or memorial, the words 
' "in trust," or "upon condition," or "with limitations," as 
'the case may be, and no transfer of or charge upon, or deal- 
'ing with the land, estate or interest shall thereafter be 
'registered, unless pursuant to the order of some court, or 
'upon the written opinion of two examiners that such trans- 
*fer, charge or dealing is in accordance with the true in- 
'tent and meaning of the trust, condition or limitation.' 

The terms and conditions of the trust thus remain 
operative without being set forth at length in the cer- 
tificate of title. 

Under this method the most complicated trust or set- 
tlement is dealt with no less safety and certainty than 
under our present system. 

The senior solicitor to the registrar of South Aus- 
tralia in his report to the House of Commons, 1 in this 
connection has said: 

"As to trusts: It appears to me that the question is, 

i Registration of Title (British Colonies), Blue Book, 10 May, 1881. 



THE ILLINOIS TORRENS LAW. 51 

Do we by virtue of the machinery of the Real Property 
Act place cestui qui trusts of lands in a worse position 
than they are usually placed in under the ordinary sys- 
tem? In my opinion, cestui qui trusts of land uqder the 
South Australian Real Property Act are, if anything, 
in a better position * * * No litigation has 
occurred on the subject of trusts, nor has any complaint 
of hardship or difficulty been made to this office." 1 

Similar reports are returned from all the other col- 
onies using registration of title. 

The English and German acts have resulted in the 
same safety and certainty in dealing with trusts and 
settlements. 2 

'Order of court or opinion of two examiners when regis- 
tration conclusive evidence.] 69. Upon the filing with the 
'registrar of an order of court or opinion of two examiners, 
'as provided in the last section, and in the latter event upon 
'the registrar also being satisfied that the proposed trans- 
fer, charge or other dealing is in accordance with the true 
'intent and meaning of the trust, condition or limitation, 
'he shall proceed to register the same, and such registra- 
tion shall be conclusive evidence in favor of the person 
'taking such transfer, charge or other right, and those 
'claiming under him, in good faith and for a valuable con- 
'sideration, that such transfer, charge or other dealing is in 
'accordance with the true intent and meaning of the trust, 
'condition or limitation.' 

TRANSMISSION. 

'Transmission.] 70. Lands and any estate or interest 
'therein registered pursuant to this act, shall, upon the 
'death of the owner, go to the personal representatives of 
'the deceased in like manner as personal estate, whether 
'the owner dies testate or intestate, and shall be subject to 
'the same rules of administration, as if the same were per- 

1 Registration of Title (British Colonies), Blue Book, 10 May, 
1881. 

2 Registration in Middlesex; C. F. Brickdale, Lond., 1892; Prus- 
sian Legislation on Registration of Title; Dr. Fischer, Berlin, 1892. 



52 LAND REGISTRATION IN ILLINOIS. 

'sonalty, except as otherwise provided in this act, and 
'except that the rule of division shall be the same as in the 
'descent of real property, or as shall be provided by will.' 

Among the serious defects in the former system is 
that there are so many facts affecting titles that never 
appear of record. Among these are the facts attending 
the transmission of land by descent The fact of death 
of the owner, who are the next of kin, whether there 
is a widow or surviving husband, etc., are all facts 
which the law makes no provision for getting upon the 
record so far as real property is concerned, and which 
have to be looked up again and again as often as the 
property is dealt with. The act furnishes a complete 
remedy for this defect. Kegistered land, instead of 
descending directly to the next of kin, goes to the 
executor or administrator substantially the same as 
personalty. Proof of heirship is made before the pro- 
bate court, and that court finds the respective shares of 
the heirs and orders the executor or administrator to 
make conveyance to them accordingly. This order 
being filed with the registrar, and the certificate of title 
of the decedent being delivered up, the transfers are 
made and the several heirs receive certificates of title 
to their respective shares. All questions concerning 
heirship, dower, homestead, rights of creditors, etc., are 
thus conclusively settled at the time and do not con- 
tinue for years afterwards as possible defects of title to 
be looked up again and again at every transfer. 

'Duty of personal representative of deceased owner certifi- 
'cate.j 71. Before the personal representative of a 
'deceased owner of registered land or any estate, or inter- 
'est therein, shall deal with the same, he shall file in the 
'registrar's office a certified copy of his letters of adminis- 
'tration, or if there is a will, a certified copy of the same and 
'of the letters testamentary, or of administration, with the 
'will annexed, as the case may be, and shall produce the 



THE ILLINOIS TORRENS LAW. 53 

'duplicate certificate of title, and thereupon the registrar 
'shall enter upon the register and the duplicate certificate, 
'a, memorial thereof with a reference to the letters or will 
'and letters by their file number, and the date of filing the 
'same.' 

'When administrator or executor may sell.] 72. Except 
'in the case of a will devising the lands to an executor to 
'his own use or upon some trust or giving to the executor 
'power to sell, no sale or transfer of registered land shall 
'be made by the executor or by an administrator in the 
'course of administration for the payment of debts or other- 
'wise, except in pursuance of an order of a competent court 
'obtained as provided by law.' 

'Executor's or administrator's power, mortgages, leases and 
other personal interests.] 73. But, a memorial of the will 
'and letters testamentary or of letters of administration 
'being first entered upon the register as herein provided, 
'the executor or administrator may deal with mortgages, 
'leases and other personal interests in or upon registered 
'land as if he were the registered owner thereof.' 

'Personal interests when land is devised to executor to his 
'own use or upon trust, etc.] 74. Where it appears by the 
'will, a certified copy of which with the letters testament- 
'ary is filed as provided in this act, that registered land is 
'devised to the executor to his own use, or upon some trust, 
'the executor may have the land transferred to himself 
'upon the register in like manner and subject to like terms 
'and conditions and with like rights as in the case of a 
'transfer pursuant to deed filed in the registrar's office.' 

'When will empowers executor to sell, convey, etc.] 75 
'When the will of a deceased owner of registered land, or 
'any estate or interest therein, empowers the executor to 
'sell, convey, incumber, charge or otherwise deal with the 
'land it shall not be necessary for such executor to be 
'registered as the owner, but a certified copy of the will and 
'letters testamentary being filed as provided in this act, 
'such executor may sell, convey, incumber, charge or other- 
'wise deal with the land pursuant to the power in like man- 



54 LAND REGISTRATION IN ILLINOIS. 

'ner as if he were the registered owner, subject to the like 
'conditions as to the trust, limitations and conditions 
'expressed in the will, as in the case of trusts, limitations 
'and conditions expressed in a deed.' 

'Proof of heirship conclusive evidence.] 76. Before 
'making distribution of undevised registered land the exec- 
'utor or administrator shall file in the registrar's office a 
'certified copy of the proof of heirship made in the probate 
'or county court, as the case may be, which shall be conclu- 
'sive evidence in favor of all persons thereafter dealing 
'with the land that the persons therein named as the only 
'heirs at law of the deceased owner as [are] such heirs.' 

'Court of probate may order registered land to be sold by 
'executor.] 77. The court of probate may, for the pur- 
'pose of distribution of the estate, order registered land, or 
'any estate or interest therein, to be sold by the executor 
'or administrator, and upon the filing of a certified copy of 
'the order of sale and order of confirmation of the sale, and 
'the deeds in pursuance of the same, in the registrar's office, 
'a transfer of the land, estate or interest to the purchaser 
'may be made upon the register, as, in the case of other 
'sales, by deed.' 

'Executors or administrators may be ordered to make over 
'registered land before final distribution, etc.] 78. When- 
'ever, after the expiration of the time fixed for the adjust- 
'ment of claims against the estate of the deceased, and after 
'proof of heirship, it shall be made to appear to the court 
'of probate that the estate will justify it, the court may 
'direct the executor or administrator to make over and 
'transfer to the devisees or heirs, or some of them, in antici- 
'pation of the final distribution, a portion or the whole of 
'the registered lands to which they might be entitled on 
'final distribution. And upon the filing of a certified copy 
'of such order in the registrar's office, the executor or 
'administrator may cause such transfer to be made upon 
'the register in like manner as in case of a sale. The land 
'so transferred shall be held free from all liens or claims 
'against the estate. In the proceedings to procure such 



THE ILLINOIS TORRBNS LAW. 55 

'direction such notice shall be given as the court of probate 
'may direct' 

'Final distribution.] 79. For the purpose of final dis- 
tribution the court of probate may determine the right of 
'all persons in registered lands, or any estate or interest 
'therein of the deceased, declare and enforce the rights of 
'devisees, heirs, persons entitled to dower and homestead, 
'and others, assign dower and homestead, and make parti- 
'tion and distribution according to the rights of the parties. 
'The court may give direction to the executor or adminis- 
'trator as to the transfer of registered lands, and any estate 
'or interest therein to the devisees or heirs, and may direct 
'the transfer to be. to several devisees or heirs, or tenants 
'in common, or otherwise, as shall appear to the court to 
'be most convenient, consistently with the rights of the 
'parties, or as the parties interested may agree.' 
DEALINGS OF ASSIGNEES, RECEIVERS, MASTERS, ETC. 

'Dealings of assignees, receivers, masters, etc.] 80. Before 
'an assignee for the benefit of creditors, receiver, master in 
'chancery, special commissioner, or other person appointed 
'by court shall deal with or transfer registered land or any 
'estate or interest therein, he shall file in the registrar's 
'office a certified copy of an order of the court showing that 
'such assignee, receiver, master in chancery, special com- 
'missioner, or other person, is authorized to deal with or 
'transfer such land, estate or interest, and if it is in the 
'power of such person he shall present to the registrar the 
'duplicate certificate of title; and thereupon the registrar 
'shall enter upon the register, and the duplicate certificate, 
'if presented, a memorial thereof, with a reference to such 
'order by its file number. In the case of a deed of the land to 
'the assignee or receiver, the same shall be filed in the 
'registrar's office as in other cases.' 

'When memorial entered.] 81. Such memorial having 
'been entered, the assignee, receiver, master in chancery, 
'special commissioner, or other person, may, subject to the 
'direction of the court, deal with or transfer such land as 
'if he were the registered owner.' 



56 LAND REGISTRATION IN ILLINOIS. 

TAX SALES. 

'Tax sales.] 82. The holder of any certificate of sale 
'of registered land or any estate, or interest therein for 
'any tax, assessment or imposition shall, within three 
'months after the date of sale, present the same or a sworn 
'copy thereof to the registrar, who shall thereupon enter 
'on the register of the land a memorial thereof, stating the 
'day of sale and the date of presentation, and shall also 
'note upon the certificate of sale the date of presentation 
'and the book and page of the register, where the memorial 
'is entered. The holder of such certificate shall also within 
'the same time mail to each of the persons who appear by 
'the register to have any interest in the land a notice of 
'the registration of such certificate. Unless such certificate 
'is presented and registered, and notice given as herein 
'provided within the time above mentioned, the land shall 
'be forever released from the effect of such sale, and no 
'deed shall be issued in pursuance of such certificate. When: 
'it shall appear by the affidavit of the holder of the eertifi- 
'cate filed with the registrar that the place of residence of 
'any person interested in the land can not upon diligent 
'inquiry be ascertained, the requirement of this section as 
'to mailing notice shall not apply to such person.' 

'Tax deed effect of when certificate to issue notice 
'insane person, etc.] 83. A tax deed of registered land, 
'or an estate or interest therein issued in pursuance of any 
'sale for tax or assessment made after the taking effect of 
'this act, shall have only the effect of an agreement for the 
'transfer of the title upon the register, and may be filed 
'in the registrar's office, and a transfer effected as in case 
'of other deeds of conveyance. 

'But no certificate of title shall be issued thereon, except 
'upon the surrender and cancellation of the outstanding 
'certificate of title, or upon the order of court as provided 
'in section 88 of this act, and no such order shall be granted 
'except upon petition to the court ordering the sale for the 
'tax or assessment. No such order shall be granted except 
'after personal service of notice upon all persons in posses- 



THE ILLINOIS TORRENS LAW. 57 

'sion of the premises, and notice either by personal services 
f or by publication, as provided in proceedings in chancery, 
'to all persons appearing upon the register to have any 
'interest in the premises. And in case any minor heir, idiot, 
'or insane person is interested in the premises, no such 
'order shall be granted until the expiration of the time to 
'redeem the premises allowed by law to such minor heir, 
'idiot or insane person shall have expired.' 

LIS PENDENS JUDGMENTS DECREES NOTICE. 

'lis pendens notice.] 84. No suit, bill or proceeding 
'at law or in equity for any purpose whatever affecting 
'registered land or any estate or interest therein, or any 
'charge upon the same, shall be deemed to be lis pendens 
'or notice to any person dealing with the same, until a 
'certificate of the pendency of such suit, bill or proceeding, 
'under the hand and official seal of the clerk of the court 
'in which it is pending, shall be filed with the registrar 
'and a memorial thereof entered by him upon the register 
'of the last certificate of the title to be affected. This 
'section shall not apply to attachment proceedings when 
'the officer making the levy shall file his certificate of levy 
'as herein provided.' 

JUDGMENTS, ETC. 

'Judgments, etc.] 85. No judgment or decree or order 
'of any court shall be a lien upon or affect registered land 
'or any estate or interest therein, until a certificate, under 
'the hand and official seal of the clerk of the court in which 
'the same is of record, stating the date and purport of the 
'judgment, decree or order, or a certified copy of such judg- 
'ment, decree or order, is filed in the office of the registrar 
'and a memorial of the same is entered upon the register 
'of the last certificate of the title to be affected.' 

The general Hen of judgments, in so far as they affect 
registered land, is abolished, and until noted upon the 
proper certificate of title they are not liens. 

By this section is also avoided the confusion and 
annoyance arising from identity or similarity of name 



58 LAND REGISTRATION IN ILLINOIS. 

of the judgment debtor and the land owner. The 
requirement that his judgment be noted upon the 
proper certificate of title is laid upon the judgment 
creditor. Should he cause his judgment to be noted 
upon the wrong certificate of title, the holder of the 
latter is given ample and expeditious remedy by 93. 

ATTACHMENT, EXECUTION, ETC. LIENS. 

'Attachment, execution, etc. liens.] 86. Whenever 
'registered land is levied upon by virtue of any writ of 
'attachment, execution or other process, it shall be the duty 
'of the officer making such levy to file with the registrar 
'a certificate of the fact of such levy, a memorial of which 
'shall be entered upon the register, and no lien shall arise 
'by reason of such levy until the filing of such certificate 
'and the entry in the register of such memorial, any notice 
'thereof, actual or constructive, to the contrary notwith- 
standing.' 

'When registered land sold under execution, etc. sheriff, 
'etc. to file certificate with registrar memorial certificate 
'of redemption.] 87. When any registered land is sold 
'by virtue of any execution, judgment or decree, it shall be 
'the duty of the sheriff, master in chancery, or other officer 
'making such sale, instead of filing a duplicate of his 
'certificate of such sale to be recorded in the recorder's 
'office, to file the same with the registrar, and upon its being 
'so filed the registrar shall enter a memorial thereof upon 
'a register in the same manner as he is required to enter 
'other memorials. Certificates of redemption shall be filed 
'and noted upon the register in like manner.' 

'Sale of registered land by sheriff, etc. surrender of out- 
'standing certificate of title.] 88. In case of sale of regis- 
'tered land by a sheriff, master in chancery, receiver, 
'special commissioner or other officer OP person pursuant 
'to a judgment, decree or order of court, no transfer of the 
'title shall be made by the registrar, except upon the sur- 
'render and cancellation of the outstanding certificate of 
'title, or upon an order of the court filed with the registrar 



THE ILLINOIS TORRENS LAW. 59 

'directing such, transfer, and in case of the transfer of the 
'fee, directing the cancellation of the outstanding certifi- 
'cate, and granting to the transferee a writ of assistance 
'to put him in possession of the premises.' 

'Liens of mechanics or others notice, etc., to be filed in the 
'registrar's office.] 89. In all cases where, by any law in 
'relation to the liens of mechanics or others, any claim or 
'notice is authorized to be filed in any court or office, the 
'same, when it relates to registered land or any interest 
'therein, may be filed in the registrar's office, and being so 
'filed, a memorial thereof shall be entered by the registrar, 
'as in the case of other charges, and proceedings to enforce 
'the lien may be had, as provided in this act, creating the 
'same. Until it is so filed and registered, no such lien shall 
'be deemed to have been created.' 

'When lien to affect the title of registered land.] 90. No 
'statutory or other lien shall be deemed to affect the title 
'to registered land until after a memorial thereof is entered 
'upon the register, as herein provided.' 

This extends to all liens the requirement of notation 
upon the proper certificate of title before validity as 
a lien upon registered land. The area of search, for alt 
liens is thus reduced to a single page in the "Register 
of Titles." 

'Certificate of clerk that suit, etc., has been dismissed to be 
'filed in the registrar's office.] 91. The certificate of the 
'clerk of the court in which any suit, bill or proceeding 
'shall have been pending, or any judgment or decree is of 
'record, that such suit, bill or proceeding has been dis- 
'missed or otherwise disposed of, or the judgment, decree 
'or order has been satisfied, released, reversed or overruled, 
'or of any sheriff or other officer that the levy of an execu- 
'tion, attachment or other process certified by him, has been 
'released, discharged or otherwise disposed of, being filed in 
'the registrar's office and noted upon the register, shall be 
'sufficient to authorize the registrar to cancel or otherwise 



60 LAND REGISTRATION IN ILLINOIS. 

'treat the memorial of such suit, bill, proceeding, judgment, 
'decree or levy, according to the purport of such certificate. 

MEMORIAL OF ADVERSE CLAIM, ETC. 

'Memorial of adverse claim, etc.] 92. Any person 
'making any claim to or asserting any lien upon registered 
'land not existing at the initial registry of the same and 
'not shown upon the register, or adverse to the title of the 
'registered owner, and no other provision herein made for 
'asserting the same in the registrar's office, may make affi- 
'davit thereof setting forth his interest, right, title, lien or 
'demand, and how and under whom derived and the char- 
'acter and nature thereof. The affidavit shall state his 
'place of residence and also his place of business, if he has 
'one, and designate a place at which all notices relating 
'thereto may be served. Upon the filing of such affidavit in 
'the office of the registrar, the latter shall enter a memorial 
'thereof, as in the case of a charge.' 

PROCEEDINGS IN CHANCERY. 

'Proceedings in chancery.] 93. Whenever any person 
'interested in registered land or any estate or interest there- 
'in or charge upon the same, shall be entitled to have any 
'certificate of title, memorial or other entry upon the regis- 
'ter canceled, removed or modified, and the registrar or per- 
'son whose duty it shall be to cancel, remove or modify the 
'same or do any act towards the same, shall, upon request, 
'fail or refuse so to do, or is absent from the county, or can 
'not be found, or for any reason such request can not be 
'made upon him, a court of chancery may, upon petition by 
'the person interested, make such orders as may be accord- 
'ing to equity in the premises, and upon a certified copy of 
'such order being filed in the registrar's office, the registrar 
'shall make such cancellation, memorial or modification as 
'shall be decreed in such order.' 

'Persons feeling aggrieved by action of registrar may file a 
'bill, etc.] 94. Any person feeling himself aggrieved by 
'the action of the registrar or by his refusal to act in any 
'matter pertaining to the first registration of land or any 



THE ILLINOIS TORRENS LAW. 61 

'estate or interest therein, after the first registration or any 
'transfer of or charge upon the same, the filing, or neglect 
'or refusal to file any instrument, or to enter or cancel any 
'memorial or notation, or to do any other thing required of 
'him by this act, may file his bill or petition in equity in any 
'court of competent jurisdiction, making the registrar and 
'other persons whose interest may be affected, parties 
'defendant, and the court may proceed therein as in other 
'cases in equity and make such order or decree as shall be 
'according to equity in the premises and purport of this act.' 
'Nothing in two sections to remove bar limitations bona 
'fide purchasers.] 95. Nothing contained in either of the 
'two preceding sections shall be so construed as to remove 
'the bar of any order or decree, or extend the time of limita- 
'tion hereinbefore provided, nor to affect the right of any 
'bona fide purchaser or incumbrancer without notice filed 
'with the registrar and noted as in the case of other memor- 
ials.' 

No limit of time is prescribed within which the 
appeal to the court, authorized in 93 and 94, may be 
made, except as against a bona fide purchaser or 
incumbrancer. The title of such purchaser or incum- 
brancer cannot be upset. 

'Court in addition to costs may award damages, including 
'attorney's fees.] 96. The court may, in any case contem- 
'plated in sections 93 and 94, in addition to the costs, award 
'such damages, including reasonable attorney's fees, as it 
'shall deem just in the premises.' 

INDICES. 

'Indices.] 97. The registrar shall keep tract indices, 
'in which shall be entered the lands registered in the numer- 
'ical order of the townships, ranges, sections, and in cases 
'of subdivisions, the blocks and lots therein, and the name 
'of the owners with a reference to the volume and folium 
'of the register in which the lands are registered.' 

'Individual indices what to contain.] 98. He shall also 



62 LAND REGISTRATION IN ILLINOIS. 

'keep alphabetical indices, in which shall be entered in 
'alphabetical order the names of all registered owners and 
'all other persons interested in or holding charges upon 
'registered land, with a reference to the volume and folium 
'of the register in which the land is registered.' 
INDEMNITY FUND. 

'Indemnity fund.] 99. Upon the first bringing of land 
'under the operation of this act consequent upon the appli- 
'cation of the owner, as hereinbefore provided, and upon 
'the issuance of a certificate of title pursuant to section 
'eighty-three (83) and also upon the entry of a new certifi- 
'cate showing some one either by devise or by descent as 
'registered owner, there shall be paid to the registrar one- 
'tenth of one per cent of the value of such land. Such value 
'shall be ascertained by the registrar.' 

'How said fund should be invested and how paid out.] 100. 
'All sums of money received as aforesaid shall be paid by 
'the registrar to the county treasurer of the county in which 
'the land is situated, for the purpose of an indemnity fund 
'under the terms of this act. It shall be the duty of the 
'treasurer to invest all of said funds, principal and income, 
'in his hands from time to time if not immediately required 
'for payments of indemnities, in the manner herein pro- 
'vided, and report annually to the County Court the condi- 
'tion and income thereof. All investments of the fund or 
'any part thereof shall be made with the approval of said 
'court by order entered of record. The said fund shall be 
'invested only in the bonds or securities of the United 
'States, or of this State, or counties, or other municipalities 
'of this State.' 

PROCEEDINGS TO RECOVER COMPENSATION FOR LOSS OR 

DAMAGE. 

'Proceedings to recover compensation for loss or damage.] 
' 101. Any person sustaining loss or damage through any 
'omission, mistake or misfeasance of the registrar, or of any 
'examiner of titles, or of any deputy or clerk of the regis- 
'trar in the performance of their respective duties under the 
'provisions of this act, and any personally wrongfully 



THE ILLINOIS TORRENS LAW. 63 

'deprived of any land or any interest therein, through the 
'bringing of the same under the provisions of this act, or 
'by the registration of any other person as owner of such 
'land, or by any mistake, omission or misdescription in any 
'certificate, or in any entry or memorandum in the register 
'book, or by any cancellation, and who by the provisions of 
'this act is barred or in any way precluded from bringing 
'an action for the recovery of such land or interest therein, 
'or claim upon the same, may bring an action at law against 
'the treasurer of the county in which said land is situated 
'for the recovery of damages to be paid out of the indemnity 
'fund.' 

'Action to recover for loss or damage who to be made 
'defendants duty of state's attorney.] 102. If such action 
'before recovery for loss or damage arising only through any 
'omission, mistake or misfeasance of the registrar, or of 
'any examiner of titles, or any deputy or clerk of the regis- 
'trar in the performance of their respective duties under 
'the provisions of this act, then the county treasurer shall 
'be the sole defendant to such action. But if such action be 
'brought for loss or damage arising only through the fraud 
'or wrongful act of some person or persons other than the 
'registrar, his examiners of titles, deputies and clerks, or 
'arising jointly through the fraud or wrongful act of such 
'person or persons and the omission, mistake or misfeas- 
'ance of the registrar, his examiners of titles, deputies or 
'clerks, then such action shall be brought against both the 
'county treasurer and such person or persons aforesaid. In 
'all such actions where there are defendants other than the 
'county treasurer and damages shall have been recovered, 
'no final judgment shall be entered against the county treas- 
'urer until execution against the other defendants shall be 
'returned unsatisfied in whole or in part, and the officer 
'returning the execution shall certify that the amount still 
'due upon the execution can not be collected except by appli- 
'cation to the indemnity fund. Thereupon, the court, being 
'satisfied as to the truth of such return, may upon proper 
'showing, order the amount of the execution and costs, or 
'so much thereof as remains unpaid, to be paid by the 



64 LAND REGISTRATION IN ILLINOIS. 

'county treasurer out of the indemnity fund. It shall be 
'the duty of the State's Attorney or the county attorney, if 
'there be one of the county, to appear and defend all such 
'suits.' 

TIME OF PROCEEDING LIMITED. 

'Time of proceeding limited.] 103. No action or pro- 
'ceeding for compensation for or by reason of any depriva- 
'tions, loss or damage occasioned or sustained as provided 
'in this act, shall be made, brought or taken, except within 
'the' period of ten years from the time when the right to 
'bring or take such action or proceeding first accrued. 
'Except that if at the time when such right of action first 
'accrues, the person entitled to bring such action or take 
'such proceeding is within the age of twenty-one years, or 
'if a female, of the age of eighteen years, or insane, impris- 
'oned or absent from the United States in the service of the 
'United States or of this State, such person or anyone claim- 
'ing from, by or under him or her, may bring the action or 
'take the proceeding at any time within two years after 
'such disability is removed, notwithstanding the time 
'before limited in that behalf has expired.' 

PENALTIES. 

'Penalties.] 104. Whoever fraudulently procures, or 
'assists in fraudulently procuring, or is a privy to the fraud- 
'ulent procurement of any certificate of title or instrument, 
'or of any entry in the register or other book kept in the 
'registrar's office, or of any erasure or alteration in any 
'entry in any said book, or in any instrument authorized by 
'this act, or knowingly defrauds or is privy to defrauding 
'any person by means of a false or fraudulent instrument, 
'certificate, statement or affidavit, affecting registered land, 
'shall be guilty of a misdemeanor and fined not exceeding 
'five thousand dollars, and imprisoned not exceeding five 
'years, or either or both, in the discretion of the court.' 

'Whoever forges or procures to be forged, etc., the seal of 
'the registrar, etc.] 105. (1.) Whoever forges, or procures 
'to be forged, or assists in forging the seal of the registrar, 
'or the name, signature, or handwriting of any officer of the 



THE ILLINOIS TORRENS LAW. 65 

'registry office, in case where such officer is expressly or 
'impliedly authorized to affix his signature; or 

'(2.) Fraudulently stamps, or procures to be stamped 
'or assists in stamping any document with any forged seal 
'of said registrar; or 

'(3.) Forges, or procures to be forged, or assists in forg- 
'ing the name, signature, or handwriting of any person 
'whomsoever to any instrument which is expressly or impli- 
'edly authorized to be signed by such person; or 

'(4.) Uses any document upon which any impression, or 
'part of the impression, of any seal of said registrar has 
'been forged, knowing the same to have been forged, or any 
'document the signature to which has been forged, knowing 
'the same to have been forged, or swears falsely concern- 
'ing any matter or proceeding made or done in pursuance 
'of this act, shall be imprisoned in the penitentiary not 
'exceeding ten years, or fined not exceeding one thousand 
'dollars, or both fined and imprisoned, in the discretion 
'of the court.' 

'Conviction not to affect the remedy.] 106. No proceeding 
'or conviction for any act hereby [declared] to be a misde- 
'meanor or a felony shall affect any remedy which any per- 
'son aggrieved or injured by such act may be entitled to at 
'law or in equity against the person who has committed 
'such act or against his estate.' 

DOCKET FEES. 

'Docket fees.] 107., On the filing of any petition the 
'petitioner shall pay to the clerk of the court the sum of 
'$5.00, which shall be in full of all clerk's fees and charges 
'in such proceeding on behalf of the applicant. Any defend- 
'ant on entering his appearance shall pay to the clerk the 
'sum of |5.00, which shall be in full of all clerk's fees on 
'behalf of such defendant. When any number of defend- 
'ants shall enter their appearance at the same time, or 
'before default, but one fee shall be charged.' 
REGISTRAR'S FEES. 

'Registrar's fees.] 108. The fees to be paid to the regis- 
'trar shall be as follows: 



66 LAND REGISTRATION IN ILLINOIS. 

'At or before the time of referring the application for 
'initial registration, the applicant shall advance and pay 
'to the registrar the sum of $15, which shall be in full of all 
'services of the registrar and examiners up to the granting 
'of the certificate of title. In proper cases the court may 
'direct the payment of such further fees by the applicant 
'or any defendant as it may determine. When the applica- 
'tion includes titles derived from more than one source, an 
'additional sum of $5 for each source shall be advanced. 
'For granting certificate of title upon each appli- 
cation and registering the same $2 00 

'For registering each transfer, including the filing 
of all instruments connected therewith, and the 
issue and registration of the new certificate of 

title 3 00 

'When the land transferred is held upon any trust 

condition or limitation, an additional fee of 5 00 

'For entry of each memorial on the register, includ- 
ing the filing of all instruments and papers con- 
nected therewith and endorsements upon dupli- 
cate certificates 3 00 

'For filing copy of will with letters testamentary, 
or filing copy of letter of administration and 

entering memorial thereof 5.00 

'For the cancellation of each memorial or charge. . 1.00 
'For each certificate showing condition of the reg- 
ister 100 

'For any certified copy of register or any instrument 
'of writing on file in his office, the same fees now allowed 
'by law to recorders of deeds for like services.' 

The expense of bringing land under the system may 
therefore be stated as follows: 

Clerk of court on filing application. .$ 5 

Publication notice 2 

Registrar for examination of title 15 

Registrar on issue of certificate of title 2 

Total . |24 



THE ILLINOIS TORRENS LAW. 67 

If there be defendants upon whom summons is to be 
served there is to be added a sheriff's fee of $1 for each 
person so served. As stated elsewhere (p. 23) this 
expense is avoided where the defendants consent to 
the registration. 

Should oral testimony be taken, the ordinary sten- 
ographer's fees for attendance and transcript are also 
to be added. 

Each applicant for first registration, in addition, 
contributes to the indemnity fund one-tenth of one per 
cent of the value of the property, or f 1 on each $1000. 
( 99). This fee is payable only upon first registration 
and when the property passes by descent or devise. No 
fee of this nature is due upon any other transfer or 
dealing with the registered title. 

'Act how construed.] 109. This act shall be construed 
'liberally so far as may be necessary for the purpose of 
'effecting its general intent.' 

The spirit of this brief but important section is being, 
without exception, well observed by the courts of rec- 
ord in Cook County. 

SUBMISSION BY COUNTIES. 

'Submission to vote by counties.] 110. The provisions of 
'this act shall not apply to land in any county until this act 
'shall have been adopted by a vote of the people of the 
'county at an election to be held on the Tuesday next after 
'the first Monday in November or the first Tuesday in April 
'or any election for the election of Judges of the year in 
'which the question is submitted. 

'The question may be submitted in the following man- 
'ner: In any county of the first or second class, as the same 
'are classified in the act concerning "fees and salaries," on 
'the petition of not less than one-half of the legal voters, to 
'be ascertained by the vote cast at the last preceding elec- 
'tion for county officers, or in any county of the third class 



68 LAND REGISTRATION IN ILLINOIS. 

'upon petition of not less than twenty-five hundred (2,500) 
'legal voters praying the submission of the question of the 
'adoption of this act, the clerk shall give notice that such 
'question will be submitted at such election and shall cause 
'to be printed at the top of the ballots to be used for said 
'election: 



For the Torrens Land Title System 








Against the Torrens Land Title System 









'The votes cast upon that question shall be counted, can- 
'vassed and returned as in the case of the election of county 
'officers. If the majority of the votes cast on that subject 
'shall be for the Torrens land title system, this act shall 
'thereafter be in force and apply to lands in that county.' 

'Emergency.] 111. Whereas an emergency exists, 
'therefore this Act shall take effect and be in force from 
'and after its passage.' 

The act, in so far as it has come before them in the 
numerous registration cases already instituted, has 
been construed liberally by the judges of the circuit 
and superior courts of Cook County. As proper cases 
shall arise, no doubt, many of its provisions will receive 
from our Supreme Court more examination in detail 
than was involved in People v. Simon. Its general 
features are free from constitutional objection, and 
additional decisions of construction and practice will 
doubtless strengthen its efficacy and enlarge its use. 



CHAPTEK IV. 

THE OLD AND NEW SYSTEMS COMPARED. 

In Illinois, as in the other states, land titles have 
been dealt with under the system known as registra- 
tion of deeds. Titles pass and liens are created by the 
execution and delivery of sufficient instruments in writ- 
ing, and notice of these to subsequent purchasers is 
effected by the record of such instrument in the office 
of the recorder of deeds. Purchasers are also to search 
not only for recorded instruments, but for judgments 
and all other proceedings in any of the courts of rec- 
ord which may affect the title. On a transfer, a seller 
has to show that the deed to him is the last link in an 
unbroken chain of properly drawn, executed and rec- 
orded conveyances, reaching back to the patent from 
the government, a period of usually more than forty 
years. This search, reduced to writing and known as 
an abstract of title, can be made only by those skilled 
in the business. It contains a synopsis of every con- 
veyance or judicial proceeding affecting the land and 
constitutes a complete history of the title. On each 
fresh dealing with the land, this abstract of title is con- 
tinued or brought down to date. When completed the 
question whether the title so set forth is merchantable 
is determinable only by another set of experts, attor- 
neys skilled in examining titles. To each sale and mort- 
gage is shackled the delay and expense caused by the 
preparation of the abstract and its examination by 
counsel. Our usual abstract of title, with its perpetual 
continuations, is, as has been well said, but another edi- 
tion of The House that Jack Built. 

This system is found unsatisfactory in the following 
particulars : 

69 



70 LAND REGISTRATION IN ILLINOIS. 

1. The expense. The cost of the abstract, either in 
whole, or its continuation, is necessary in each trans- 
fer of title. To this must be added the cost of its 
examination by the attorney for the buyer. In Cook 
County the average outlay for these two items will be 
probably not less than $25. It is estimated that in Illi- 
nois, the annual cost of abstracts of title and their 
examination by counsel, is, upwards of $10,000,000, a 
sum exceeding every 20 years the entire losses by the 
great Chicago fire. The land owners of the United 
States pay annually for abstracts and examining law- 
yers' fees a sum greater than the yearly interest upon 
the national debt; 90 per cent of such expense would be 
saved were our titles under the Torrens system. 

2. The delay. Too long a time intervenes between 
the making of the contract of sale and the delivery of 
the deed. Delays consequent upon procuring abstracts, 
their examination and hunting up matters that do not 
appear of record, frequently run into many months. 

3. The insecurity. The purchaser buys at his peril. 
Errors may intervene not only in the making of the 
abstract, but in the opinion of the buyer's attorney. As 
against all such errors the buyer assumes the risk. If 
the defects be sufficiently serious, he may lose the land, 
and then may recover damages from his grantor under 
covenants of warranty. Forged deeds are as easily 
recorded as genuine ones. The forged instrument is 
taken away after being recorded, and from the abstract 
the forgery cannot be detected. 

4. The always increasing record of instruments and 
matters connected with the title, the accumulation of 
books and indexes in the recorder's office, and the 
lengthening of the abstracts of title, steadily increase 
the costs of transfers and the risk of errors. Since Oc- 
tober, 1871, there have accumulated in the recorder's 
office in Cook County more than 7,300 large books of 



THE OLD AND NEW SYSTEMS COMPARED. 71 

records of deeds and mortgages each with about 600 
pages. At the present rate of annual increase, within 
fifty years these books will be so numerous as to 
require a large building for their keeping; and the time 
and expense necessary for their examination will very 
seriously interfere with transfers. 

5. These defects in the present system operate as a 
perpetual tax upon the holders of real estate, directly 
reduce its ease of convertibility into money, and thus 
lower its market value. This burden is always increas- 
ing. 

No way is perceived by which the present system can 
be retained, and these defects removed. 

Compared with our present system, the new method 
of transfer by registration of title shows the following 
advantages: 

1. Expense. The cost of an initial registration 
under the new law is about $25, less than the usual cost 
of a single transfer under the present system. The cost 
of all subsequent transfers is greatly reduced. The 
entire cost of an ordinary transfer of a piece of regis- 
tered land upon a sale or mortgage is $3. These charges, 
being fixed, are ascertainable in advance, so both seller 
and buyer know beforehand the expense of carrying 
out any sale or transfer. An ordinary transfer or mort- 
gage of registered land is a transaction so simple in its 
nature that the real estate broker, or even the parties 
themselves, if of ordinary business intelligence, may 
easily carry it into effect and without the aid of a law- 
yer or an abstract of title. Certificates, of title thus 
become available for short time loans, 30 or 60 days. 

2. Time. Kegistered land may be sold or mort- 
gaged and the money safely paid over within an hour 
or two after the making of the verbal contract. The 
ownership of the property, and whether incumbered or 
not, is shown by the register book at a glance. The cer- 



72 LAND REGISTRATION IN ILLINOIS. 

tiflcate held by the owner shows the title at its date, 
and inspection of the original certificate of title or in 
lieu thereof, a certificate of search obtainable from the 
registrar, will show all subsequent liens. If none 
appears, the money is paid over, the certificate of title 
accompanied by the deed or mortgage is delivered to 
the registrar, the proper entry made upon the register, 
and the transfer is complete. 

3. Security. The insecurity of the present system, 
is largely due to the fact that since upon each transfer 
the title must be searched back to the government, 
there can be no rest in such searches, and error in their 
making is possible. By the Torrens system the title is 
rested or quieted by law at each transfer, hence upon a 
proposed transfer no search back of the preceding 
transfer is necessary. Everything necessary to know 
must and will appear upon the original certificate of 
title. This curtailing of the search greatly reduces risk 
of error. All rights of the buyer to recover damages 
from the seller for any imperfection in the title, if war- 
ranted, are fully preserved. If any purchaser, through 
caution, desires to satisfy himself as to the correctness 
of any first registration, he will examine, or have his 
counsel examine, the abstracts and all other evidences 
of title upon which the first registration was effected. 
All subsequent transfers or dealings with the regis- 
tered title are matters of public record, and are also 
open to examination of the purchaser if he so desire. 
While such examinations may perhaps be made with 
more or less frequency during the first two years after 
registration, 1 yet, as the act of the registrar is final, 
they will be more and more infrequent until they cease 
altogether. Under the present system, security is 
dependent upon the examination made by the owner. 

1 Only three have been made since the system has been in use in 
Cook County. 



THE OLD AND NEW SYSTEMS COMPARED. 73 

Under the new system all such security is retained; and, 
in addition, the buyer has the benefit of (1) the official 
examination, made by the registrar before the title is 
registered, and the decree entered thereon ordering 
registration, which can be attacked only within the 
limitation period; (2) the collusiveness given by law 
to the act of the registrar in registering all subsequent 
transfers or dealings, and (3) the indemnity fund cre- 
ated especially to make good such losses. 

4. Shortening of the records. Under the present 
system, all deeds and mortgages are copied at length 
in the books of the recorder and the originals returned 
to the owners. There is no copying of any deed or mort- 
gage of a registered title, as the original instruments 
are retained by the registrar. The area of search is 
reduced to a single page. 

5. A safe method of much more quickly transferring 
titles at a smaller cost increases the salable value of 
the property. 

The new law is drawn upon the theory that the regis- 
ter book, composed as it is of the certificates of title 
issued by the registrar, shall be an authoritative list of 
the persons entitled to sell, mortgage or deal as owners 
with the registered land situated within the county. It 
is a public record started by a judicial decree and kept 
by an official under bond and other safeguards ample 
to ensure its accuracy; and if its authoritativeness be 
sanctioned by law, no reason is perceived why all can- 
not safely rely upon such accuracy. It has been most 
amply demonstrated in other countries that such a list 
can be both authoritative and accurate. 

The defects in our present system of transferring 
land, have brought into existence in Illinois title guar- 
anty or title insurance companies. Each of these is the 
owner of a set of abstract books. Their methods pro- 
vide for an examination of the title sought to be guar- 



74 LAND REGISTRATION IN ILLINOIS. 

anteed or insured, and upon those selected by the 
company as free from risk or doubt, policies of guaranty 
or insurance, are issued on payment of a premium or 
rate fixed by the company. This premium or rate in 
ordinary cases, when there are no defects in the title, is 
one per cent of the value of the land, which may be 
insured to its full value or less. The policy is a contract 
on the part of the company to defend all suits attack- 
ing the title brought against the insured, his heirs and 
devisees, to the extent of the sum insured. These pol- 
icies do not protect a subsequent purchaser or mort- 
gagee without being transferred by the issue of a new 
policy upon the surrender of the old one and payment 
of additional charges and costs fixed by the company. 
They do not cover any risk by reason of liens, convey- 
ances or other instruments of writing, not of record at 
the date of the policy, nor by the rights of persons in 
possession not shown of record. The policies are 
secured by the capital of the company. 

The method in use by these guaranty companies 
gives, no doubt, additional security to the title shown 
of record, but their policies contain many conditions 
and stipulations greatly limiting the value of the guar- 
anty. These are necessary, as these companies, in effect- 
ing such guarantees, have not the aid of the statutes of 
limitations and rules of property contained in a regis- 
tration of title act, which are so essential to the pro- 
tection of the title. 

These guaranty of title companies do not overcome 
to any great degree, any of the defects or disadvant- 
ages hereinbefore shown to exist in the present system. 
They do not materially reduce the expense of transfer- 
ring or dealing with the title, nor the necessary time 
involved therein. While they give the owner a guar- 
antee which he lacked before, yet it is only against mat- 
ters of record, and is limited to the face of the policy. 



THE OLD AND NEW SYSTEMS COMPARED. 75 

They do nothing toward lessening the length or volume 
of public records, and guaranteed titles must be still 
dealt with through the medium of abstracts prepared 
from these constantly increasing volumes in the 
recorder's office. The guarantee of a private corpora- 
tion cannot make a title conclusive or indefeasible. The 
issuance of such a policy can affect no adverse rights 
whatsoever. Neither does such a guaranty in any way 
rest or quiet a title. In short, the guaranty of title sys- 
tem, as used by these companies, although in one way 
giving an additional security of title, nevertheless in all 
other respects is little or no improvement upon the old 
system. Such companies seem better suited for large 
cities and are not likely to soon be able to aid the land- 
owner in smaller towns or country districts. These and 
similar objections to guaranty of title companies have 
been found to exist in other places where such compa- 
nies have been longer in existence. The very existence 
of those companies is a strong illustration of the 
necessity for a radical change in our method of dealing 
with titles to land. 

The following summary of benefits of the system of 
registration of titles, made by Sir Robert Torrens, has 
been fully justified in its use: 

"1st. It has substituted security for insecurity." 

"2d. It has reduced the cost of conveyances from 
pounds to shillings, and the time occupied from months 
to days." 

"3d. It has exchanged brevity and clearness for 
obscurity and verbiage." 

"4th. It has so simplified ordinary dealings that he 
who has mastered the 'three Rs' can transact his own 
conveyancing." 

"5th. It affords protection against fraud." 

"6th. It has restored to their just value many 
estates, held under good holding titles, but depreciated 



76 LAND REGISTRATION IN ILLINOIS. 

in consequence of some blur or technical defect, and 
has barred the reoccurence of any similar faults." 

"7th. It has largely diminished the number of chan- 
cery suits, by removing those conditions that afford 
ground for them." 

We may add an 

"8th. As to registered lands, it saves the rights of 
infants and others under disability, as no one can deal 
with the land except through the registrar's office, 
where all rights clearly appear and must be respected." 



CHAPTER V. 

THE TORRENS SYSTEM ADAPTABLE TO AMERICAN 
CONSTITUTIONS. 

The Torrens method, simply stated, provides that, 
after careful examination of the title, once for all, in 
any of the different manners selected to regulate the 
initial registration, all rights entitled to be noticed 
by those dealing with the land, will appear of record 
upon one page of the register. Any claim, however 
valid, not so appearing may be safely disregarded. 
The certificate of title is made conclusive evidence in 
all courts. The registered title is thus made manifest, 
certain and conclusive. Legislation, with such object 
in view, is entirely within the prerogative and duty 
of the State. As held in Arndt v. Griggs 1 , the power 
of the State to regulate tenure of land within its limits 
and the mode of its acquisition and transfer cannot be 
questioned. 

Two questions, of vital import, confront the framers 
of an American Torrens act: First, How to secure a 
valid initial registration ; and, second, To what extent 
may conclusiveness be given to the act of the registrar 
in his subsequent dealings with the registered title. 

Considering these in their order, it is to be noted 
that in Great Britain and her colonies, as well as in 
the continental countries, now using the Torrens sys- 
tem 2 there exists no written constitutional provision 
interfering with giving conclusive effect as against the 
world to the first certificate of title issued after due 
examination by an official styled a registrar who is 
not clothed with judicial powers. All certificates of 
title, including the first, are therefore made conclu- 

1 134 U. S. 316. 2 see chapter VII. 

77 



78 LAND REGISTRATION IN ILLINOIS. 

sive, and one injured by the initial registration is law- 
fully relegated to an indemnity fund. It is obvious 
that, under the provisions of the federal and state con- 
stitutions forbidding deprivation of property without 
due process of law, one so injured is entitled to his 
day in court, and without such due process of law or 
day in court his right in the land cannot be cut off 
by any certificate of title being made conclusive. Two 
methods have been adopted in order to avoid such 
difficulty. One provides that the first certificate of 
title issued by the registrar not himself a judicial 
officer, should be conclusive only after the expiration 
of some statute of limitation. Of such a character was 
the first act adopted in Illinois in 1895, with its limita- 
tion period of five years. As elsewhere stated this 
act failed to meet the approval of the supreme court 
of Illinois in People v. Chase, 3 where its provisions 
were found in effect to confer judicial power upon the 
registrar. To the other class belong the present 
Illinois law and the somewhat similar acts of Massa- 
chusetts, Ohio and California. In each of these, the 
initial registration is made the subject of a judicial 
inquiry at the application of the owner in a court of 
record of competent jurisdiction. The Massachusetts 
act was held valid and constitutional by the supreme 
court of that state in Tyler v. Judges, etc. 4 The 
case was subsequently taken by writ of error to the 
supreme court of the United States, where the writ 
was dismissed for want of jurisdiction, it not appear- 
ing that a federal question was involved. 5 The Ohio 
act, in the case of State v. Guilbert, 6 was held invalid 
upon the ground that its proceedings for initial regis- 
tration failed to provide for service of process upon 
adverse claimants, residing within the jurisdiction of 

a 165 111. 526. B 179 U. S. 405. 

4 175 Mass. 71. 6 56 Ohio St. 575. 



TORRENS SYSTEM AND AMERICAN CONSTITUTIONS. 79 

the court entertaining the proceeding. The California 
law has not yet been construed by the Supreme Court 
of that State. The present Illinois law was sustained 
by the Supreme Court of Illinois in the case of People 
v. Simon. 7 These decisions establish the necessity 
in any American registration of title act of a judicial 
proceeding upon which to base the first certificate of 
title. After the entry of the decree in such proceeding 
adverse claimants not parties thereto become bound 
by some stated statute of limitations. This in Illinois 
is two years, and no extension is granted minors or 
persons under any disability. 8 

We now consider the second question, as to the con- 
clusivenes-s, given to the act of the registrar in his 
subsequent dealings with the registered title. 

The Illinois, as well as the other American acts, 
contains the following provision : 9 

"The bringing of land under this act shall imply an 
agreement which shall run with the land, that the 
same shall be subject to the terms of the act and all 
amendments and alterations thereof, and all dealings 
with land or any estate of interest therein, after the 
same has been brought under this act, and all liens, 
encumbrances and charges upon the same subsequent 
to the first registration thereof, shall be deemed to 
be subject to the terms of this act." 

This provision, while probably superfluous as not 
increasing the legal effect of the initial registration, 
prevents the acquisition of any subsequent interest in 
registered lands, except upon the terms and conditions 
of the act, among which is the conclusive effect attend- 
ant upon the act of the registrar in his subsequent 
dealings with the registered title. 

T 176 111. 165. Sec. 46. 

s Sec. 26. 



80 LAND REGISTRATION IN ILLINOIS. 

The supreme court of Illinois, in discussing this 
question say: 10 

"It is further insisted, that by proceedings subse- 
"quent to the initial registration an owner may be 
"deprived of his property without due process of law. 
"In the consideration of this point, it must be remem- 
"bered that the right to alienate or inherit property 
"is always dependent upon the law. So long as vested 
"rights are not disturbed the law may at any time 
"change the tenure upon which land is held, and may 
"alter the conditions under which it may be alienated 
"and modify the rules of evidence by which the title 
"is to be determined. The true theory of this act, as 
"we understand it, that all holders of vested rights 
"shall be subjected to an adjudication in a court of 
"competent jurisdiction, upon due notice, in order 
"that the true state of the title may be ascertained, 
"and that thereafter the tenure of the owner, the right 
"of transfer and incumbrance and all rights subse- 
"quently accruing, shall be determined in accordance 
"with the rules now prescribed. 'A State may, by 
" 'statute, prescribe the remedies to be pursued in her 
" 'courts, and may regulate the disposition of the 
" 'property of her citizens by descent, devise or alien- 
" 'ation. 11 The right of ownership which an indi- 
" 'vidual may acquire must therefore, in theory, at 
" 'least, be held to be derived from the State, and the 
" 'State has the right and power to stipulate the con- 
" 'ditions and terms upon which the land may be held 
" 'by individuals.' 12 The power of the State to regu- 
late the terms of real property within her limits, 
"and the modes of its acquisition and transfer, and the 
"rules of its descent and the extent to which a testa- 

10 People v. Simon, 176 111. 165, 176. 

11 3 Washburn on Real Property, 4th ed., p. 187. 

12 Tiedeman on Real Property, 2d ed., sec. 19. 



TORRENS SYSTEM AND AMERICAN CONSTITUTIONS. 81 

"mentary disposition may be made of it by its owners, 
"is undoubted. 13 The power of the legislature in 
"this respect (as to changing the rules of evidence as 
"to the burden of proof) whether affecting proof of 
"existing rights or as applicable to rights subsequently 
"acquired or to future litigation, so long as the rules 
"of evidence sought to be established are impartial 
"and uniform in their application, is practically unre- 
"stricted." 14 

"It being true that the law may prescribe rules of 
"property and rules of evidence by which the title is 
"to be shown, we see no reason why the transfer of 
"real estate may not be made in the way contemplated, 
"and why it may not be made compulsory to make it 
"in that way, if the legislature so determines." 

This reasoning met the approval of the Supreme 
Court of Massachusetts in the following language: 15 

"The only rights are registered rights, and when 
"land is brought into the registry system, there seems 
"to be nothing to hinder the legislature from fixing 
"the conditions upon which it shall be held under that 
"system." 16 

COMPULSORY REGISTRATION OP TITLE. 

With the advantages of registration conceded, it 
must be admitted that compulsory registration of land 
titles is the better course. In England and in the 
German empire, the compulsory use of the system has 
been adopted. The English Colonial acts, like those 
of Illinois and Massachusetts, permit but do not 
require an owner to register his title. Of such char- 
acter was the English act of 1875. Under such 
optional acts, the want of familiarity with the advan- 

is Arndt v. Griggs, 134 U. S. 316, on p. 321. 
i* Gage v. Caraher, 125 111. 447, on p. 455. 
is Tyler v. Judges, etc., 175 Mass. 71. 
is People v. Simon, 176 111. 176. 

6 



82 LAND REGISTRATION IN ILLINOIS. 

tages of registration, together with the usual active 
opposition of those "whose work and living are fur- 
nished by conveyancing" 17 operate to discourage the 
bringing of land under the act, whereby a needlessly 
long period intervenes before the benefits of the system 
are generally felt. 

Public discussion in England, more or less active for 
thirty years, resulted, in 1897, in compulsory registra- 
tion. 18 By the act of that year, it is provided that, by 
order in council, it may be declared that as to any 
county, or part of a county, registration of title to 
land is to be compulsory on sale, and in that case the 
title shall not pass until the buyer is registered as the 
proprietor of the land. 19 

Another method proposed is to require the executor 
or administrator of a deceased owner to apply for 
registration, and thus prevent devise or descent until 
after registration of the title. 

In so populous a county as Cook, where sales are 
so numerous, it seems probable that the latter method 
will be found preferable. The prevention of all sales 
of land in Chicago until registration be first had, might 
crowd the registrar's office with too many applications. 
A smaller number of titles pass each year through the 
Probate Court, and during the period required for such 
transmission, registration might be effected without 
inconvenience. In this way the entire land in the 
county would come under the act, as rapidly, perhaps, 
as desirable. The expense of initial registration being 
upon devisees and heirs would be found least onerous. 

There seems to be no constitutional difficulty in the 
way of compelling registration, before permitting a 
sale, or transmission by devise or descent. As pointed 

IT Dumas on Registering Title to Land, 61. 
is 60 and 61, Viet. c. 65. 
10 Sec. 20. 



TORRBNS SYSTEM AND AMERICAN CONSTITUTIONS. 83 

out in the opinion of the Supreme Court of Illinois 
above quoted, 20 the power of the State to regulate the 
disposition of land within her confines, by descent, 
devise or alienation, is. undoubted. 

20 People v. Simon, 176 111. 176. 



CHAPTER VI. 

SUPREME COURT OPINIONS. 

Supreme Court of Illinois, People v. Simon.* 

Mr. Justice Wilkin delivered the opinion of the 
court: 

This action originated in the court below upon an 
information in the nature of a quo warranto against 
appellee, requiring him to show by what authority of 
law he was exercising the powers and duties of the 
office of registrar of titles in and for the county of 
Cook. In answer to the information the defendant 
set up the act of the legislature entitled "An act 
concerning land titles," approved and in force May 1, 
1897, commonly known as the "Torrens Law." 2 The 
relator filed a general demurrer to this answer, which 
was overruled and the information dismissed. The 
ground of the demurrer was, that the act under which 
the respondent sought to justify is unconstitutional 
and void, and that is the question now presented for 
our decision. 

The act is very voluminous and some of its provisions 
are not skillfully drafted. Its validity is attacked on 
numerous grounds, and the briefs and arguments on 
either side are very extended. We will endeavor to 
consider the objections raised to the law in the order 
in which they are discussed by counsel. 

It is first insisted that the act confers judicial powers 
upon the registrar of titles, or upon him and the exam- 
iners of title, in violation of the constitution of this 
State. A somewhat similar act passed in 1895 was 
held invalid on that ground in People v. Chase. 3 By 

1 176 111. 165. s 165 111. 527. 

2 Laws of 1897, p. 141. 

84 



SUPREME COURT OPINIONS. 85 

the provisions of the law of 1895 the registrar was 
clothed with power to determine the ownership of land 
when application was made for the initial registration 
thereof, and to issue his certificate accordingly. Tfre 
present act provides that the ownership shall be deter- 
mined by a decree in equity entered in a court of 
competent jurisdiction, upon which decree the regis- 
trar shall issue the first certificate of registration. In 
this regard his duties under the present law are clearly 
ministerial only, and the fatal objection to the former 
act is therefore removed. 

But it is insisted that the law is still vulnerable, in 
that it vests judicial power in the registrar in the 
performance of his duties as to subsequent registra- 
tions. Waiving the question whether this would, if 
true, necessarily vitiate the whole act, is the position 
tenable? Like a mere recorder, the registrar is required 
to file all deeds, mortgages, leases and other instru- 
ments affecting the title to land, and make proper 
notations upon the instruments and upon the record. 
He is to keep a record to be known as the "Register 
of Titles," in which must be entered the original and 
all subsequent certificates of title, and such notations 
as to liens, incumbrances and the like as are requisite 
to show the true condition of the title. When any 
instrument is filed with him which is intended to create 
a charge, lien or incumbrance upon land, it is made 
his duty, by section 60, to enter a memorial upon the 
register and also upon the original certificate. Thus 
far his duties are clearly and simply ministerial. But 
it is contended this section 60 authorizes him to deter- 
mine the validity of liens, incumbrances or charges, 
and the argument is, that this is an exercise of judicial 
power, which, under our constitution, can be conferred 
upon no officer or tribunal save those which belong to 
the judicial department. The language of the section 



86 LAND REGISTRATION IN ILLINOIS. 

applicable to this question is as follows: "It appearing 
to the registrar that the person intending to create the 
charge has the title and right to create such charge, 
and that the person in whose favor the same is sought 
to be created is entitled by the terms of this act to 
have the same registered, he shall enter upon the 
proper folium of the register, and also upon the 
owner's certificate, a memorial of the purport thereof," 
etc. It will be noticed that the provisions in case of 
a transfer of the property are substantially the same. 
Section 47 says: "Upon its being made to appear to 
the registrar that the transferee (evidently intending 
transferrer) has the title or estate proposed to be 
transferred and is entitled to make the conveyance, 
and that the transferee has the right to have such 
estate or interest transferred to him, he shall make 
out and register as hereinbefore provided, a new cer- 
tificate," etc. Article 3 of the constitution of 1870 
reads as follows: "The powers of the government of 
this State are divided into three distinct departments, 
the legislative, executive and judicial; and no per- 
son or collection of persons, being one of those depart- 
ments, shall exercise any power properly belonging to 
either of the others, except as hereinafter expressly 
directed or permitted." 4 The question therefore is, can 
the legislature devolve the duties named upon an 
officer not a member of the judicial department? 

That the duties mentioned are judicial in their 
nature may be admitted, but it does not necessarily 
follow that their exercise is prohibited by the consti- 
tutional provision to all but officers belonging to the 
judicial department. Numerous instances may be cited, 
as is done in Owners of Lands v. People 5 (referred to 
in People v. Chase, supra), where executive and legis- 
lative officers are authorized to exercise powers which 

* Rev. Stat. p. 60. 6 H3 m. 296. 



SUPREME COURT OPINIONS. 87 

in a sense are judicial, and the laws imposing such 
duties held not to be in violation of the constitutional 
provision quoted. These duties or powers are generally 
and properly termed "quasi judicial," to distinguish 
them from those which are judicial in the sense of 
belonging to the judicial department exclusively. In 
theory all governmental power is divided into the 
three named divisions, and upon a casual consideration 
the division would seem to present no difficulty, but in 
the practical application of the principles involved 
courts have been compelled to observe that the line 
of demarkation between the exclusive powers of the 
three departments is far from clear. 6 Judge Cooley, 
in his work on Constitutional Limitations on the Legis- 
lative Branch of the Government, has given a definition 
of "judicial power." It is this: "The power which 
adjudicates upon and protects the rights and interests 
of individual citizens, and to that end construes and 
applies the laws." As a general definition of the 
functions of the judicial department it is sufficiently 
accurate, and we adopted it in the case of People v. 
Chase, supra. We then thought, and are of the opinion 
still, that it was applicable to that case, the functions 
of the registrar, under the act of 1895, being not quasi 
judicial, merely, but strictly so, and such as are usually 
exercised by the courts alone, constituting the exercise 
of judicial power within the constitutional prohibition. 
Under the present act his duties more nearly resemble 
those frequently exercised by members of the executive 
department. 

The definition given by Judge Cooley does not 
attempt to mark the line between those quasi judicial 
functions which may be vested elsewhere, and those 
strictly judicial, which can be reposed nowhere save 
in the courts, and for that reason it cannot be properly 

6 Am. & Eng. Ency. of Law, 2d ed., p. 1007. 



88 LAND REGISTRATION IN ILLINOIS. 

adopted in this case. As we said in another case: "It 
may in many cases be a matter of difficulty to deter- 
mine the precise line which divides the executive and 
judicial functions. It has been said that where the 
functionary hears, considers and determines, then he 
performs judicial acts. This definition is not strictly 
accurate. * * * It embraces cases that are not 
judicial, and hence is too comprehensive." 7 And 
appreciating the difficulty of defining the limits of the 
several departments of government we also said in an 
earlier case: "Nevertheless, when we come to apply 
them to actual controversies growing out of the varied 
relations which the citizens sustain to the State and to 
one another, we encounter doubts and difficulties of 
the gravest character. Just where the dividing line 
is to be drawn between judicial and legislative power, 
with respect to certain subjects, often presents ques- 
tions about which enlightened courts and eminent 
jurists widely differ. So while the powers of courts 
seem so very simple and clearly defined, yet in the 
application of them to actual cases their proper limits 
are often difficult to determine." 8 Also: "The first and 
second sections of the first article of the constitution 
(of 1818) divide the powers of government into three 
departments, the legislative, executive and judicial, 
and declare that neither of these departments shall 
exercise any of the powers properly belonging to 
either of the others, except as expressly permitted. 
This is a declaration of a fundamental principle, and, 
although one of vital importance, it is to be understood 
in a limited and qualified sense. It does not mean that 
the legislative, executive and judicial power should be 
kept so entirely distinct and separate as to have no 
connection or dependence, the one upon the other; but 

7 Donahue v. Will County, 100 111. 94, on p. 108. 
s Dodge v. Cole, 97 111. 338, on p. 357. 



SUPREME COURT OPINIONS. 89 

its true meaning, both in theory and practice, is, that 
the whole power of two or more of these departments 
shall not be lodged in the same hands, whether of one 
or many." 9 

Judge Story, in his work on the Constitution, says: 
"But when we speak of a separation of the three great 
departments of government, and maintain that their 
separation is indispensable to public liberty, we are 
to understand this maxim in a limited sense. It is not 
meant to affirm that they must be kept wholly separate 
and distinct and have no common link of connection 
or dependence, one upon the other, in the slightest de- 
gree. The true meaning is, that the whole power of one 
of these departments should not be exercised by the 
same hands which possess the whole power of either 
of the other departments, and that such exercise of the 
whole would subvert the principles of a free constitu- 
tion. 10 " "Notwithstanding the memorable terms in 
which this maxim of a division of powers is incorpor- 
ated into the bills of rights of many of our State con- 
stitutions, the same mixture will be found provided 
for, and, indeed, required, in the same solemn instru- 
ments of government. * * * Indeed, there is not 
a single constitution of any State in the Union which 
does not practically embrace some acknowledgment 
of the maxim and at the same time some admixture 
of powers constituting an exception to it." 11 

In the case of Murray's Lessee v. Hoboken Land and 
Improvement Co., 12 in discussing whether the issuing 
of a distress warrant by the solicitor of the treasury 
was the exercise of executive or of judicial power, the 
Supreme Court of the United States (p. 280) say: "It 

Field v. People, 2 Scam. 79, on p. 83. 

10 1 Story on the Const., 5th ed., sec. 525. 

11 Ibid. sec. 527, p. 395. 
"18 How. 272. 



90 LAND REGISTRATION IN ILLINOIS. 

is not sufficient to bring such matters under the 
judicial power that they involve the exercise of judg- 
ment upon law and fact. * * * That the auditing 
of the accounts of a receiver of public moneys may be, 
in an enlarged sense, a judicial act, must be admitted. 
So are all those administrative duties the performance 
of which involves an inquiry into the existence of facts 
and the application to them of rules of law. * * * 
We do not doubt the power of Congress to provide by 
law that such a question shall form the subject matter 
of a suit in which the judicial power can be exerted. 
The act of 1820 makes such a provision for reviewing 
the accounting officers of the treasury, but until it is. 
reviewed it is final and binding; and the question is, 
whether its subject matter is necessarily, and without 
regard to the consent of Congress, a judicial contro- 
versy, and we are of opinion it is not." 

From these authorities it is apparent that the mere 
fact that the registrar is required by this act to inquire 
into the existence of certain facts and to apply the law 
thereto in order to determine what his official conduct 
shall be, and that his action may affect private rights, 
does not constitute the exercise of judicial power, 
strictly speaking. It is not the intention of these two 
sections (60 and 47) to provide a tribunal for the 
adjudication of disputes concerning land titles. The 
primary purpose is the issuing of the certificate, 
and the exercise of the judgment of the registrar is 
incidental. The prohibition in question "has never 
been held to apply to those cases where judgment is 
exercised as incident to the execution of a ministerial 
power." 13 The powers exercised by the registrar under 
this law are analogous to those exercised by the com- 
missioner of patents. A power of decision is given to 
that officer in many matters, not only between the 

is Owners of Lands v. People, supra. 



SUPREME COURT OPINIONS. 91 

government and the patentee, but also between differ- 
ent claimants, as to priority, patentability and like 
matters, and in the performance of these duties it has 
never been considered that he was encroaching upon 
the judicial domain. They are also, in a measure, like 
the duties performed by officers of the land office. 
Duties of a similar nature, involving judgment or 
discretion and the application of the law to the facts, 
are devolved both under the State and Federal laws 
upon many other executive officers, legally. In some 
instances it is even held that in the exercise of such 
judgment the officer is free from judicial interference. 
But in the case of the registrar this act provides that 
any person feeling himself aggrieved by the act or 
neglect of this officer, in any matter pertaining to the 
duties required of him, may file a petition in equity in 
the proper court, making the registrar and other per- 
sons interested parties defendant, and that the court 
may proceed therein as in other cases in equity, and 
may make such order or decree as shall be according 
to equity in the premises and the purport of the act. 
This, with the well known jurisdiction of the courts in 
mandamus, injunction, rescission, cancellation, bills of 
relief, and the like, will effectually protect the citizen 
against any arbitrary conduct on the part of the 
officer. 

Recurring to the duties of the registrar, we find that 
in case of a tax sale or judgment, or levy under an 
attachment or execution, or in case of a mechanic's 
lien, the registrar, upon the filing of the proper certifi- 
cate, enters a memorial thereof upon his record, and 
in case the lien ripens into a title the former certificate 
of title is canceled and a new one issued to the proper 
party. These duties do not differ in character from 
those already mentioned, and what has been said is 
equally applicable thereto also. Particular stress, 



92 LAND REGISTRATION IN ILLINOIS. 

however, is laid by counsel for appellant upon the con- 
tention that the duties of the registrar as to the subse- 
quent registration of land held in trust upon conditions 
or limitations, are the exercise of judicial power, in 
violation of the terms of the constitution. The act 
requires, where the land is subject to a trust, condition 
or limitation, that the original certificate issued shall 
contain the words "in trust," "upon conditions" or 
"with limitations," as the case may be. When such 
land is to be transferred, it is provided that the regis- 
trar shall not issue a new certificate, nor shall any 
transfer of or charge upon or dealing with the land 
be made, unless pursuant to the order of some court, 
or upon the written opinion of the two examiners that 
such transfer, charge or dealing is in accordance with 
the true intent and meaning of the trust, condition or 
limitation, whereupon he shall proceed to register the 
title, and such registration is to be conclusive in favor 
of the grantee, and those claiming under him in good 
faith and for a valuable consideration, that such trans- 
fer, charge or other dealing is in accordance with the 
true intent and meaning of the trust, condition or limi- 
tation. 14 If the registration be made pursuant to the 
order or finding of a court of competent jurisdiction 
the acts of the registrar are purely ministerial, but if 
made upon the opinion of the two examiners he is 
required to exercise a judgment of his own. These 
duties do not differ materially from those already 
examined, except that here the decision is made con- 
clusive in favor of the person taking the transfer in 
good faith and for a valuable consideration, that the 
transfer or charge is in accordance with the true intent 
and meaning of the trust, condition or limitation. This 
does no more than abrogate the rule in equity which 
requires the purchaser of trust property to see to the 
14 Sees. 68, 69. 



SUPREME COURT OPINIONS. 93 

application of the purchase money, and the inclination 
of courts now is to withdraw from that rule. We 
recently said, quoting from Judge Story: "These are 
some of the most important and nice distinctions which 
have been adopted by courts of equity upon this 
intricate topic, and they lead strongly to the conclu- 
sion, to which not only eminent jurists but also eminent 
judges have arrived, that it would have been far better 
to have held in all cases that the party having the right 
to sell had also the right to receive the purchase money, 
without any further responsibility on the part of the 
purchaser as to its application." 15 This statute also 
changes the rule of law as to notice. We know of no 
reason why the legislature might not change either or 
both of these rules without violating the constitution. 
Certainly, as to the future all trusts could be entirely 
abolished by the legislature, as was done in cases of 
uses by the Statute of Uses. As the law now stands, 
cases frequently arise in .which bona fide purchasers 
take property free from existing trusts, and are not 
held bound to see to the application of the consider- 
ation. 

The second point insisted upon in the argument is, 
that the provisions of the act permit the taking of 
private property without "due process of law." In the 
initial registration the provisions are for an application 
to a court of chancery, and that the fee must be first 
registered. To this application the following persons 
are to be made defendants: The occupant, if the land 
is occupied by any other person than the applicant; 
the holder of any lien or incumbrance; other persons 
having any estate or claiming any interest in the land 
in law or in equity, in possession, remainder, reversion 
or expectancy. 16 All other persons are to be made 

is Seaverns v. Presbyterian Hospital, 173 111. 414, on p. 424. 
is Sec. 11. 



94 LAND REGISTRATION IN ILLINOIS. 

parties defendant by the name and designation of "all 
whom it may concern." 17 Summons is to issue against 
all persons mentioned as defendants, and is to be 
served as in other cases in chancery. Notice is also to 
be published and mailed to such defendants substan- 
tially as in other chancery cases, and the court may 
direct further notice to be given. 18 Upon a failure to 
answer default may be entered, and upon the hearing 
decree entered finding in whom the title is vested, and 
declaring the same subject to such liens, incumbrances, 
trusts or interests, if any, as are shown to exist, and 
directing the registration to be made. 19 The exception 
taken to these provisions is, that they authorize, judg- 
ment to be taken against a resident of the State upon 
mere constructive service. It is certainly fundamental 
that no man shall be condemned unheard or without 
notice. While a substituted service is permitted in 
some instances, particularly in case of non-residents, 
this is because of the necessities of the case. The act 
does contemplate, in some contingencies at least, 
actual personal service, and the general law provides 
for publication as to unknown owners and persons in 
interest, and non-residents. An applicant may proceed 
in this way, and in strict accordance with the act 
obtain a decree or finding as to his title which will be 
binding beyond all question, so that even if the proper 
construction of the provision were that it attempted 
to authorize judgment against a resident notified only 
by publication, yet the law can be given practical 
effect, in which event only the particular provision 
would fail, and not the whole law. 

It is further insisted, that by proceedings subsequent 
to the initial registration an owner may be deprived 
of his property without due process of law. In the 

i? Sec. 16. i Sees. 23, 25. 

is Sees. 19, 20, 21. 



SUPREME COURT OPINIONS. 95 

consideration of this point it must be remembered that 
the right to alienate or inherit property is always 
dependent upon the law. So long as vested rights 
are not disturbed the law may at any time change the 
tenure upon which land is held, and may alter the 
conditions under which it may be alienated and modify 
the rules of evidence by which the title is to be deter- 
mined. The true theory of this act, as we understand 
it, is, that all holders of vested rights shall be subjected 
to an adjudication in a court of competent jurisdiction, 
upon due notice, in order that the true state of the 
title may be ascertained and declared, and that there- 
after the tenure of the owner, the right of transfer and 
incumbrance, and all rights subsequently accruing, 
shall be determined in accordance with the rules now 
prescribed. "A State may, by statute, prescribe the 
remedies to be pursued in her courts, and may regulate 
the disposition of the property of her citizens by 
descent, devise or alienation." 20 "The right of owner- 
ship which an individual may acquire must therefore, 
in theory, at least, be held to be derived from the State, 
and the State has the right and power to stipulate the 
conditions and terms upon which the land may be held 
by individuals." 21 "The power of the State to regulate 
the tenure of real property within her limits, and the 
modes of its acquisition and transfer, and the rules of 
its descent, and the extent to which a testamentary 
disposition of it may be exercised by its owners, is 
undoubted." 22 "The power of the legislature in this 
respect (as to changing the rules of evidence as to the 
burden of proof), whether affecting proof of existing 
rights or as applicable to rights subsequently acquired 
or to future litigation, so long as the rules of evidence 

20 3 Washburn on Real Prop., 4th ed., p. 187. 

21 Tiedeman on Real Prop., 2d ed., sec. 19. 

22 Arndt v. Griggs, 134 U. S. 316, on p. 321. 



96 LAND REGISTRATION IN ILLINOIS. 

sought to be established are impartial and uniform in 
their application, is practically unrestricted." 23 

It being true that the law may prescribe rules of 
property and rules of evidence by which the title is to 
be shown, we see no reason why the transfer of real 
estate may not be made in the way contemplated, and 
why it may not be made compulsory to make it in that 
way, if the legislature so determines. 

In our view of the case the indemnity fund feature 
of the law need not be considered. The law can, as 
we think, stand and accomplish its purpose without it. 

Objection is also made that by section 26 any person 
who has any interest in the land, whether personally 
served, notified by publication or not served at all, 
must, within two years after the entry of the decree, 
appear and file an answer, and that after the expiration 
of that term of two years the decree shall (with certain 
exceptions) be "forever binding and conclusive upon 
all persons." This provision seems to attempt to make 
a decree binding upon persons not parties to the suit, 
and if given effect literally, would deprive persons of 
vested rights without due process of law. A limitation 
may be placed upon the time within which a person 
who has a mere right of action shall bring it, but 
"limitation laws cannot compel a resort to legal pro- 
ceedings by one who is already in the complete enjoy- 
ment of all he claims." 24 To the extent that the act 
attempts to transfer property without due process of 
law it cannot be upheld. On all parties to the suit 
properly before the court the decree may, after the 
lapse of two years, become conclusive and forever bind- 
ing, and as to all who have merely a right of action 
the expiration of two years may complete the bar. 
Even though the language of this section may be broad 

23 Gage v. Caraher, 125 111. 447, on p. 455. 
2*Cooley's Const. Lim. p. 366. 



SUPREME COURT OPINIONS. 97 

enough to amount to an attempt to transfer an estate 
by the law or by decree, yet it is possible to carry out 
the purposes of the act without violating the consti- 
tution in the respect complained of. Such objectionable 
features, or those calling for construction, must be left 
to future legislation, or determination by the courts in 
cases where the conflict is apparent and the question 
directly involved. 

We are also of the opinion that sections 26 and 40 
can be sustained by construing them as a limitation 
law. "Whenever an act of the legislature can be so 
construed and applied as to avoid conflict with the 
constitution, and give to it the force of law, such con- 
struction will be adopted by the courts. Therefore, 
acts of the legislature in terms retrospective, and 
which, literally interpreted, would invalidate and 
destroy vested rights, are upheld by giving them pros- 
pective operation only, for, applied to and operating 
upon future acts and transactions only, they are rules 
of property, under and subject to which the citizen 
acquires property rights, and are obnoxious to no con- 
stitutional limitation, but as retroactive laws they 
reach to and destroy existing rights, through force of 
the legislative will, without a hearing or judgment of 
law. So will acts of the legislature having elements 
of limitation, and capable of being so applied and 
administered, although the words are broad enough to, 
and do, literally read, strike at the right itself, be 
construed to limit and control the remedy, for as such 
they are valid, but as weapons destructive of vested 
rights they are void, and such force only will be given 
the acts as the legislature could impart to them." 25 

The recent case of State of Ohio v. Guilbert 26 is 
relied upon by counsel for appellant in support of the 

25 Newland v. Marsh, 19 111. 376. 
20 47 N. E. Rep. 551. 
7 



98 LAND REGISTRATION IN ILLINOIS. 

position taken by them on both of the above points. 
We have given that case careful consideration. With 
its conclusion, viz., that the Ohio statute was uncon- 
stitutional, we agree, but what is said in argument 
cannot be adopted as applicable to this case. The 
main ground upon which that decision rests is, that 
the statute, in providing for the initial registration, 
attempts to give jurisdiction to the court without 
service of summons, and this, it is held, falls short of 
that due process of law guaranteed by the constitution. 
The only notice which that act required was to be given 
by the applicant himself, and in the application it was 
unnecessary to name any person claiming an adverse 
interest, as party defendant. On the other feature of 
the case, viz., as to what constitutes the exercise of 
judicial power, the opinion is not clear. In the reason- 
ing on that point Judge Cooley's definition of judicial 
power is adopted, which we have seen does not serve 
to distinguish between such quasi judicial powers as 
may be properly exercised by executive or ministerial 
officers and those powers which belong solely to the 
judicial department. 

The third point made against the law is, that the 
provision which says that the law shall take effect only 
after a favorable vote by counties, is an attempt to 
delegate legislative power; and the fourth is, that the 
law is not a general but special law. It is unnecessary 
to discuss these points. It is sufficient to say that 
both have been decided adversely to the contention 
of appellant in the case of People v. Hoffman. 27 That 
decision has become the rule of law in this State, and 
we see no sufficient reason for overruling it. 

We are not impressed with the soundness of the ob- 
jections to those sections of the statute which relate to 
the descent of lands on the death of a registered owner, 

27 116 111. 587. 



SUPREME COURT OPINIONS. 99 

and to the sale and mortgage of real estate belonging 
to minors or others under disability. They are, how- 
ever, objections which do not go to the validity of the 
entire law. They involve a construction of those sec- 
tions, and can only be satisfactorily determined if cases 
shall arise involving their validity. It would be alike 
impracticable and unprofitable to attempt now to give 
a construction to every provision of this law. The 
question here is, does the act violate the constitution 
so far as to render it void, and therefore furnish no 
justification for the exercise of the acts of the respond- 
ent challenged? In the determination of that question 
every reasonable doubt must be resolved in favor of 
the validity of the law. 

We have endeavored to give the case that delib- 
erate consideration its importance demands, and have 
reached the conclusion that the judgment of the 
Criminal Court should be affirmed. 

Judgment affirmed. 

SUPREME COURT OF MASSACHUSETTS. 
Tyler v. Judges of the Court of Registration.^ 

Holmes, C. J. This is a petition for a writ of prohi- 
bition against the judges of the court of registration 
established by St. 1898, c. 562, and is brought to prevent 
their proceeding upon an application concerning land 
in which the petitioner claims an interest. The ground 
of the petition is that the act establishing the court is 
unconstitutional. Two reasons are urged against the 
act, both of which are thought to go to the root of the 
statute and to make action under it impossible. The 
first and most important is that the original registra- 
tion deprives all persons except the registered owner 
of any interest in the land without due process of law. 

1 175 Mass. 171. 



100 LAND REGISTRATION IN ILLINOIS. 

Tliere is no dispute that the object of the system, 
expressed in section 38, is that the decree of registra- 
tion "shall bind the land and quiet the title thereto," 
and "shall be conclusive upon and against all per- 
sons" whether named in the proceedings or not, subject 
to few and immaterial exceptions. And this being 
admitted, it is objected that there is no sufficient proc- 
ess against, or notice to, persons having adverse 
claims in a proceeding intended to bar their possible 
rights. 

The application for registration is to be in writing 
and signed and sworn to. It is to contain an accurate 
description of the land, to set forth clearly other out- 
standing estates or interest known to the petitioner, 
to identify the deed by which he obtained the title, to 
state the name and address of the occupant, if there is 
one, and also to give the names and addresses, so far 
as known, of the occupants of all lands adjoining 
(section 21). As soon as it is filed, a memorandum 
containing a copy of the description of the land con- 
cerned is to be filed in the registry of deeds (section 
20). The case is immediately referred to an examiner 
(appointed by the judge, section 12), who makes as full 
an investigation as he can, and reports to the court 
(section 29). If in the opinion of the examiner the 
applicant has a good title as alleged, or if the applicant 
after an adverse opinion elects to proceed further, the 
recorder is to publish a notice by order of the court in 
some newspaper published in the district where any 
portion of the land lies. This notice is to be addressed 
by name to all persons known to have an adverse inter- 
est, and to the adjoining owners and occupants so far 
as known, and to all whom it may concern. It is to 
contain a description of the land, the name of the appli- 
cant and the time and the place of the hearing (section 
31). A copy is to be mailed to every person named in 



SUPREME COURT OPINIONS. 101 

the notice whose address is known, and a duly attested 
copy is to be posted in a conspicuous place on each 
parcel of land included in the application, by a sheriff 
or deputy sheriff, fourteen days at least before the 
return day. Further notice may be ordered by the court 
(section 32). 

It will be seen that the notice is required to name 
all persons known to have an adverse interest, and this 
of course includes any adverse claim, whether admitted 
or denied, that may have been discovered by the exam- 
iner, or in any way found to exist. Taking this into 
account we should construe the requirement in section 
21, concerning the application, as calling upon the 
applicant to mention not merely outstanding interests 
which he admits, but equally all claims of interest set 
up although denied by him. We mention this here to 
dispose of an objection of detail urged by the peti- 
tioner, and we pass to the general objection that, how- 
ever construed, the mode of notice does not satisfy the 
constitution, either as to persons residing within the 
State upon whom it is not served or as to persons 
residing out of the State and not named. 

If it does not satisfy the constitution, a judicial 
proceeding to clear titles against all the world hardly 
is possible, for the very meaning of such a proceeding 
is to get rid of unknown as well as known claims, 
indeed, certainly against the unknown may be said to 
be its chief end; and unknown claims cannot be dealt 
with by personal service upon the claimant. It seems 
to have been the impression of the Supreme Court of 
Ohio, in the case most relied upon by the petitioner, 
that such a judicial proceeding is impossible in this 
country. 2 But we cannot bring ourselves to doubt that 
the constitution of the United States and of Massa- 
chusetts, at least, permit it as fully as did the common 

2 State v. Guilbert, 56 Ohio St. 575, 629. 



102 LAND REGISTRATION IN ILLINOIS. 

law. Prescription or a statute of limitations may give 
a title good against the world, and destroy all manner 
of outstanding claims without any notice or judicial 
proceedings at all. Time and the chance which it gives 
the owner to find out that he is in danger of losing 
rights are due process of law in that case. 3 The same 
result used to follow upon proceedings which, looked 
at apart from history, may be regarded as standing 
half-way between statutes of limitations and true judg- 
ments in rem, and which took much less trouble about 
giving notice than the statute before us. We refer to 
the effect of a judgment on a writ of right after the 
mise joined and the lapse of a year and a day. 4 It 
would have astonished John Adams to be told that the 
framers of our constitution had put an end to the 
possibility of these ancient institutions. A somewhat 
similar statutory contrivance of modern days has been 
held good. 5 Finally, as was pointed out by the counsel 
for the petitioner, a proceeding in rem in the proper 
sense of the word might give a clear title without other 
notice than a seizure of the res, and an exhibition of 
the warrant to those in charge. 6 The general require- 
ment of advertisement in admiralty cases is said to be 
due to rules of court 7 

The prohibition in the fourteenth amendment of the 
United States against a State depriving any person of 
his property without due process of law, and that in 
the twelfth article of the Massachusetts bill of rights 

s Wheeler v. Jackson, 137 U. S. 245, 258. 

* Booth, Real Actions, 101, in margin; Fitz. Abr. Continual Claim, 
pi. 7, Faux Recovere, pi. 1; Y. B., 5 ed., 111. 51, pi. 60; and of a fine 
with proclamations after the same time or by a later statute after 
five years. 2 Bl. Comm. 354. 2 Inst. 510, 518. St. 18 Ed. I. modus 
levandi fines. 34 Ed. III. c. 16. 4 and 5 Hen. VII. c. 24. 32 Hen. 
VIII. c. 36. * 

B Turner v. New York, 168 U. S. 90. 

2 Browne, Civ. & Adm. Law, 398. 

?U. S. Adm. rule 9; Betts, Adm. Practice (1838), 33, 34, App. 14. 



SUPREME COURT OPINIONS. 103 

refer to somewhat vaguely determined criteria of justi- 
fication, which may be found in ancient practice, 8 or 
which may be found in convenience and substantial 
justice, although the form is new. 9 The prohibitions 
must be taken largely with regard to substance rather 
than to form, or they are likely to do more harm than 
good. It is not enough to show a procedure to be 
unconstitutional to say that we never have heard of 
it before. 10 

Looked at either from the point of view of history or 
of the necessary requirements of justice, a proceeding 
in rem dealing with a tangible res may be instituted 
and carried to judgment without personal service upon 
claimants within the State or notice by name to those 
outside of it, and not encounter any provision of either 
constitution. Jurisdiction is secured by the power of 
the court over the res. As we have said, such a pro- 
ceeding would be impossible were this not so, for it 
hardly would do to make a distinction between the 
constitutional rights of claimants who were known 
and those who were not known to the plaintiff, when 
the proceeding is to bar all. 11 In Hamilton v. Brown, 
161 IT. S. 256, a judgment of escheat was held conclusive 
upon persons notified only by advertisement to all 
persons interested. It is true that the statute under 
consideration required the petition to name all known 
claimants and personal service to be made on those so 
named. But that did the plaintiffs no good, as they 
were not named. So a decree allowing or disallow- 

s Murray v. Hoboken Land Co., 18 How. 272, 277. 

Hurtado v. California, 110 U. S. 516, 528, 531; Holden v. Hardy, 
169 U. S. 366, 388, 389. 

10 Hurtado v. California, 110 U. S. 516, 537. 

yiiPennoyer v. Neff, 95 U. S. 714, 727; The Mary, 9 Cranch, 126, 
W4; Mankin v. Chandler, 2 Brock. 125, 127; Brown v. Levee Com- 
mission, 50 Miss. 468, 481; 2 Freeman, Judgments, 4th ed., sections 
606, 611. 



104 LAND REGISTRATION IN ILLINOIS. 

ing a will binds everybody, although the only 
notice of the proceedings given by a general notice 
to all persons interested. And in this case, as in that 
of escheat just cited, the conclusive effect of the decree 
is not to put upon the ground that the State has an 
absolute power to determine the persons to whom a 
man's property shall go at his death, but upon the 
characteristics of a proceeding in rem. 12 Admiralty 
proceedings need only to be mentioned in this connec- 
tion, and further citation of cases seems unnecessary. 
Speaking for myself, I see no reason why what we 
have said as to proceedings in rem in general should 
not apply to such proceedings concerning land. In 
Arndt v. Griggs, 13 it is said to be established that "a 
State has power by statute to provide for the adjudi- 
cation of titles to real estate within its limits as against 
non-residents who are brought into court only by 
publication." In Hamilton v. Brown, 14 it was declared 
to be within the power of a State "to provide for deter- 
mining and quieting the title to real estate within the 
limits of the State and within the jurisdiction of the 
court after actual notice to all known claimants, and 
notice by publication to all other persons." I doubt 
whether the court will not take the further step, when 
necessary, and declare the power of the States to do 
the same thing after notice by publication alone. 15 But 
in the present case provision is made for notice to all 
known claimants by the recorder, who is to mail a copy 
of the published notice to every person named therein 
whose address is known (section 32). We shall state in 

12 Bonnemort v. Gill, 167 Mass. 338, 340. See 161 U. S. 263, 274. 
is 134 U. S. 316, 327. 
1*161 U. S. 256, 274. 

is See Ruling v. Kaw Valley Railway Improvement Co., 130 U. S. 
559, 564; Parker v. Overman, 18 How. 137, 140, 141 et seq. 



SUPREME COURT OPINIONS. 105 

a moment our reasons for thinking this form of notice 
constitutional. 16 

But it is said that this is not a proceeding in rem. 
It is certain that no phrase has been more misused. In 
the past it has had little more significance than that 
the right alleged to have been violated was a right in 
rem. Austin thinks it necessary to quote Liebnitz, for 
the sufficiently obvious remark that every right to 
restitution is a right in personam. So as to actions. 
If the technical object of the suit is to establish a claim 
against some particular person, with a judgment which 
generally, in theory at least, binds his body, or to bar 
some individual claim or objection, so that only certain 
persons are entitled to be heard in defence, the action 
is in personam, although it may concern the right to 
or possession of a tangible thing. 17 If, on the other 
hand, the object is to bar indifferently all who might 
be minded to make an objection of any sort against the 
rights sought to be established, and if any one in the 
world has a right to be heard on the strength of alleg- 
ing facts which, if true, show an inconsistent interest, 
the proceeding is in rem. 18 All proceedings, like all 
rights, are really against persons. Whether they are 
proceedings or rights in rem depends on the number 
of persons affected. Hence the res need be personified 
and made a party defendant, as happens with the ship 
in the admiralty, it need not even be a tangible thing 
at all, as sufficiently appears by the case of the probate 
wills. Personification and naming the res as defendant 
are merely symbols, not the essential matter. They are 
fictions, conveniently expressing the nature of the proc- 
ess and the result, nothing more. 

is See, further, Cook v. Allen, 2 Mass. 462, 469, 470; Dascom v. 
Davis, 5 Met. 335, 340; Brock v. Old Colony R. R., 146 Mass. 194, 195. 
IT Mankin v. Chandler, 2 Brock. 125, 127. 
is 2 Freeman, Judgments, 4th ed., 606, ad fin. 



106 LAND REGISTRATION IN ILLINOIS. 

It is true as an historical fact that these symbols are 
used in admiralty proceedings, and also, again merely 
as an historical fact, that proceedings in rem have 
been confined to cases where certain classes of claims, 
although of very divers sorts, for indemnification for 
injury, for wages, for salvage, etc., are to be ascer- 
tained. But a ship is not a person. It cannot do a 
wrong or make a contract. To say that a ship has 
committed a tort is merely a shorthand way of saying 
that you have decided to deal with it as if it had com- 
mitted one, because some man has committed one in 
fact. There is no in priori reason why any other claim 
should not be enforced in the same way. If a claim 
for a wrong committed by a master may be enforced 
against all interests in the vessel, there i no juridical 
objection to a claim of title being enforced in the same 
way. The fact that it is not so enforced under existing 
practice affords no test of the powers of the legis- 
lature. The contrary view would indicate that you 
really believed the fiction that a vessel had an inde- 
pendent personality as a fact behind the law. Further- 
more, naming the res as defendant, although a con- 
venient way of indicating that the proceeding is 
against property alone, that is to say, that it is not 
to establish an infinite personal liability, is not of the 
essence. If, in fact, the proceeding is of that sort, and 
is to bar all the world, it is a proceeding in rem. 

Then as to seizure of the res. It is convenient in the 
case of a vessel, in order to secure its being on hand to 
abide judgment, although, in the case of a suit against 
a man, jurisdiction is regarded as established by ser- 
vice, without the need of keeping him in prison to await 
judgment. It is enough that the personal service 
shows that he could have been seized and imprisoned. 
Seizure, to be sure, is said to be notice to the owner. 19 

i Scott v. Sherman, 2 W. Bl. 977, 979; Mankin v. Chandler, 2 
Brock. 125, 127. 



SUPREME COURT OPINIONS. 107 

But fastening the process or a copy to the mast would 
seem not necessarily to depend for its effect upon the 
continued custody of the vessel by the marshal. How- 
ever this may be, when we come to deal with immov- 
ables, there would be no sense whatever in declaring 
seizure to be a constitutional condition of the power 
of the legislature to make a proceeding against land 
a proceeding in rem. 20 The land cannot escape from 
the jurisdiction, and, except as security against escape, 
seizure is a mere form, of no especial sanctity and of 
much possible inconvenience. 

I do not wish to ignore the fact that seizure, when 
it means real dispossession, is another security for 
actual notice. But when it is considered how purely 
formal such an act may be, and that even adverse 
possession is possible without ever coming to the 
knowledge of a reasonably alert owner, I cannot think 
that the presence or absence of the form makes a con- 
stitutional difference, or rather, to express my view 
still more cautiously, I cannot but think that the 
immediate recording of the claim is entitled to equal 
effect from a constitutional point of view. I am free 
to confess, however, that, with the rest of my brethren, 
I think that the act ought to be amended in the direc- 
tion of still further precautions to secure actual notice 
before a decree is entered, and that, if it is not 
amended, the judges of the court ought to do all that 
is in their power to satisfy themselves that there has 
been no failure in this regard before they admit a 
title to registration. 

The quotations which we have made show the intent 
of the statute to bind the land, and to make the pro- 
ceedings adverse to all the world, even if it were not 
stated in section 35, or if the amendment of 1899 did 
not expressly provide that they should be proceedings 

20 Hamilton v. Brown, 161 U. S. 256, 274. 



108 LAND REGISTRATION IN ILLINOIS. 

in rem. 21 Notice is to be posted on the land, just as 
admiralty process is fixed to the mast. Any person 
claiming an interest may appear and be heard 
(section 34). 

But perhaps the classification of the proceeding is 
not so important as the course of the discussion thus 
far might seem to imply. I have pursued that course 
as one which is satisfactory to my own mind ; but, for 
the purpose of decision, a majority of the court prefer 
to assume that, in case in which under the consti- 
tutional requirements of due process of law it hereto- 
fore has been necessary to give to parties interested 
actual notice of the pending proceeding, by personal 
service or its equivalent, in order to render a valid 
judgment against them, it is not in the power of the 
legislature, by changing the form of the proceedings 
from an action in personam to a suit in rem, to avoid 
the necessity of giving such a notice, and to assume 
that, under this statute, personal rights in property 
are so involved, and may be so affected, that effectual 
notice and an opportunity to be heard should be given 
to all claimants who are known, or who, by reasonable 
effort, can be ascertained. 

It hardly would be denied that the statute takes 
great precautions to discover outstanding claims, as 
we already have shown in detail, or that notice by 
publication is sufficient with regard to claimants out- 
side the State. With regard to claimants living within 
the State and remaining undiscovered, notice by publi- 
cation must suffice, of necessity. As to claimants living 
within the State and known, the question seems to 
come down to whether we can say that there is a con- 
stitutional difference between sending notice of a suit 
by a messenger and sending it by the postoffice, beside 
publishing in a newspaper, recording in the registry 

21 St. 1899, c. 131, 51. 



SUPREME COURT OPINIONS. 109 

and posting on the land. It must be remembered that 
there is no constitutional requirement that the sum- 
mons, even in a personal action, shall be served by an 
officer, or that the copy served shall be officially 
attested. Apart from local practice, it may be served 
by an indifferent person. It may be served on residents 
by leaving a copy at the last and usual place of abode. 
When we are considering a proceeding of this kind, it 
seems to us within the power of the legislature to say 
that the mail as it is managed in Massachusetts is a 
sufficient messenger to convey the notice, when other 
means of notifying the party, like publishing and post- 
ing, also are required. We agree that such an act as 
this is not to be upheld without anxiety. But the dif- 
ference in degree between the case at bar and one in 
which the constitutionality of the act would be unques- 
tionable seems to us too small to warrant a distinction. 
If the statute is within the power of the legislature, it 
is not for us to criticise the wisdom or expediency of 
what the legislature has done. 

We do not think it necessary to refer to the elaborate 
collection of statutes presented by the Attorney-Gen- 
eral for purpose of showing that the principle of the 
present act is old. Although no question is made on 
that point, we may mention that an appeal is given to 
the Superior Court, with the right to claim a jury. In 
our opinion, the main objection to the act fails. 22 

The other objection to the constitutionality of the 
statute is with regard to the powers and duties of the 
recorder and assistant recorder. It is said that they 
are given judicial powers after the original registra- 
tion, although not judicial officers under the constitu- 
tion. The act of registration is the operative act to 

22 See Shepherd v. Ware, 46 Minn. 174; People v. Simon, 176 111. 
165; Short v. Caldwell, 155 Mass. 57, 59; Loring v. Hildreth, 170 
Mass. 328. 



110 LAND REGISTRATION IN ILLINOIS. 

convey title (section 50), and by the act of 1898 the 
assistant recorder does it, unless in doubt (sections 53, 
55, 57, 58, 61, 62, 63). It is said that, as his decision 
affects title, it must be judicial. But here again it is 
necessary to use a certain largeness in interpreting 
broad constitutional provisions. The ordinary business 
of registration is very nearly ministerial. There is no 
question to be raised, or which can be raised. If there 
is a question, either raised by any party in interest or 
occurring to the assistant recorder, it is to be referred 
to the judge for decision (section 53). But, whatever 
may be thought of the original act, by amendment even 
the ordinary business is to be done only "in accordance 
with the rules and instructions of the court." 23 Under 
this amendment registration is the act of the court. 
The fact that it may be done by the assistant recorder 
under general orders when there is no question is not 
different from the power of the clerk to enter judgment 
in cases ripe for judgment under a general order or rule 
of the Superior Court. It should be observed that by 
section 55 the production of the owner's duplicate cer- 
tificate, whenever any voluntary instrument is pre- 
sented for registration, is conclusive authority from the 
registered owner for the entry of a new certificate or 
the making of a memorandum of registration, and that 
a registration procured by presenting a forged certifi- 
cate, etc., is void. 

Finally, it is said that there is no provision for notice 
before registration of transfers or dealings subsequent 
to the original registration. It must be remembered 
that at all later stages no one can have a claim which 
does not appear on the face of the registry. The only 
rights are registered rights, and when land is brought 
into the registry system there seems to be nothing to 
hinder the legislature from fixing the conditions upon 

as St. 1899, c. 131, 8. 



SUPREME COURT OPINIONS. Ill 

which, it shall be held under that system. 24 By section 
45 the obtaining of a decree of registration, which is a 
voluntary act, is an agreement running with the land 
that the land shall be and remain registered land and 
subject to the provisions of the act. Furthermore, in 
deciding whether substantial justice is done, it is to be 
borne in mind that ordinary cases will present no ques- 
tion at all. It is contemplated, as we have said, that, 
if there is a question to be discerned, it shall be referred 
to the court, and, of course, that the court will order 
notice to any party interested. The act shows through- 
out the intent that no one shall be concluded without 
having a chance to be heard; and although some of its 
methods are new to this Commonwealth, we cannot say 
that the precautions as to notice are insufficient in 
substance or form. 
Petition denied. 

2* People v. Simon, 176 111. 165, 176. 



CHAPTER VII. 

REGISTRATION IN OTHER COUNTRIES AND STATES. 

The general principle of registration of title, whereby 
a title, examined once for all, is thereafter evidenced 
only by the certificate of title, which is conclusive and 
shows at all times all claims, adverse and otherwise, 
which need be noticed by one proposing to deal with 
the land, has been in continuous successful operation 
in some parts of Europe for several hundred years. The 
differences in different localities are only in details of 
mechanism. In Austria-Hungary registration dates 
from the twelfth century. In Baden the system dates 
from 1809; in Saxony, from 1843; and from successive 
dates, as adopted from time to time, it has come into 
use in all or nearly all of the German states, the latest, 
Alsace-Lorraine, beginning its use in 1891. Registra- 
tion of title was made universal in Austria in 1811, in 
Hungary in 1849, and in Prussia in 1872. 

The variety of conditions under which the system is 
administered in continental Europe is well stated in 
the following: 1 

"The particular examples collected in the detailed 
report (accompanying the main report) include, for 
instance, such great estates as the ancestral domains 
of the Bohemian nobility (among whom are to be found 
some of the largest land owners of Europe), subject to 
the strictest entails, carrying political privileges of the 
highest importance, and especially registered in 
immense separate volumes in the provincial capital; 

* Report of C. Fortescue Brickdale, Esq., registrar of the land 
registry (England), made to the British government on the system 
of registration of titles now in operation in Germany and Austria- 
Hungary, 31 American Law Review, 827. 

112 



REGISTRATION IN OTHER COUNTRIES, ETC. 113 

they also include (by way of contrast) the tiny subdi- 
visions of the peasant proprietors of the Rhine prov- 
inces, where the principles and practices of the Code 
Napoleon are still deeply rooted in the customs and 
feelings of the people. They include, on the one hand, 
specimens taken from the rapidly developing building 
properties in the suburbs of Berlin, with their villa 
residences and restrictive covenants, and, on the other, 
remote Silesian manors, with their tenant farmers, 
antique rights of common and commuted rents, and 
services dating from feudal times. They show the 
system as applied to vast, featureless plains, like the 
corn-growing regions of Hungary, to the busy mining 
and industrial districts of Saxony and the Black Coun- 
try of Germany close to the Russian frontier, as well 
as to the picturesque Alpine hamlets and pastures, 
with their innumerable independent right of way, 
water and other complicated easements, to be found in 
Syria and the Saltzkammergut; they pass from the 
intricacies of cellars and flats, courts and passages, of 
the Jews' quarter of the City of Prague, to the simple 
conditions of a quiet agricultural district in Branden- 
burg; from mortgages on first-class properties involv- 
ing hundreds of thousands of pounds, and subject to 
the most complicated subsequent dealings by way of 
transfer, alteration, subdivision and collateral security, 
down to rows of petty charges on diminutive shares in 
an inconsiderable estate from great cities, where values 
are measured almost by the square inch, to trackless 
wastes and bare mountains of scarcely any value at 
all. Over the w T hole of this vast and diversified tract, 
embracing an area more than seven times the size of 
England and Wales, systems of registration of title 
differing in no essential particular from the systems 
established under the Torrens Acts in Australia, and 
partially established under the Land Registry Acts in 



114 LAND REGISTRATION IN ILLINOIS. 

England and Ireland, having been in almost universal 
operation for a considerable period, amounting in the 
principal Austrian provinces to upwards of eighty 
years, and in certain places dating from a much more 
remote period." 

The success of the system in Australia is most nota- 
ble. The first act, passed in 1858 in South Australia, 
was drafted by Sir Robert Richard Torrens. All other 
acts in English-speaking countries follow that act in 
general outlines, and the method is commonly known 
as the Torrens system. In 1861 it was adopted in 
Queensland, Tasmania and Victoria, and in 1862 in 
New South Wales. New Zealand followed in 1870, and 
Western Australia in 1874, since which date it has 
come into general use throughout all of the British 
Australian colonies. Its unquestioned success in the 
Australian colonies has led to its use in the greater 
part of Canada and the other British possessions in 
North America, British Columbia having adopted it in 
1870, and Manitoba and Ontario in 1885. The system 
is in use also in a part of Switzerland and in Tunis. 

The history of the system in England is instructive. 
Three different laws have sought to give to English 
land owners the benefits of registration of title: The 
Westbury Act in 1862, the Cairns Act in 1875, and the 
present Land Transfer Act of 1897. The first two 
furnished but partial relief, registration being optional 
and opposition constant from the legal profession. The 
act of 1897 establishes compulsory registration of title. 
It is not by its terms operative at once upon all land, 
but the law is made operative upon all land in such 
county or part of a county named from time to time by 
order in council, and, after such order, no owner is per- 
mitted to sell his land without previous registration of 
title. A large part of the land in London is now under 
the act, and by May 1, 1901, no title in the city or 



REGISTRATION IN OTHER COUNTRIES, ETC. 115 

county of London can be transferred unless registered. 
A similar policy is likely to be soon pursued by the 
council with reference to lands in the other counties. 
Compulsory registration is thus proceeding as rapidly 
as the necessary examination of titles can be made by 
the registrar and his officials. A large number of 
properties have already been placed upon the register 
without any yet reported loss to adverse claimants, 
and the certificates of title meet with general satisfac- 
tion. 

The order now in force as to lands in the County of 
London is as follows: 

ORDER IN COUNCIL. 

At the court at Windsor, the 28th day of November, 
1899. Present the Queen's Most Excellent Majesty, in 
Council. 

Whereas, it is expedient as regards certain portions 
of the County of London that the operation of the order 
in council, dated the eighteenth of July, one thou- 
sand eight hundred and ninety-eight, and made pur- 
suant to the Land Transfer Act, 1897, should be post- 
poned; 

Now, therefore, Her Majesty is pleased, by and with 
the advice of her Privy Council, to order and declare 
that as regards the hereunder mentioned portions of 
the said county the said order is to be read and to take 
effect as if the schedule therein had been expressed as 
follows : 

Days on and after which. 

PORTIONS OF THE COUNTY. registration of title to 

land Is to be compul- 
sory on sale. 

The parishes of Christ Church 
(Southwark), 

St. George the Martyr, Camber- 
well Horselydown. 

Lambeth, Bermondsey, Newing- 
ton, Rotherhithe. 



116 LAND REGISTRATION IN ILLINOIS. 

Saint Olave and Saint Thomas, 
Saint Saviour and the detached part 
of the Parish of Streatham, situate 
between the parishes of Lambeth 
and Camberwell. 1 January, 1900. 

The parishes of Battersea, Clap- 
ham, Putney, Tooting Graveney, 
Wandsworth and the remainder 
of the Parish of Streatham. 1 May, 1900. 

The remainder of the county, 
except the City of London. 1 November, 1900. 

The City of London. 1 May, 1901. 

The present buildings in London occupied as the 
offices of the registrar, having become inadequate to 
the wants of the land registration department, by the 
terms of a recent act of parliament, 2 the sum of f 1,325,- 
000 has been appropriated for the acquisition of a large 
tract of land in Lincoln's-inn-fields and the erection of a 
new building suitable for the enlarged needs of the de- 
partment. The new quarters are in course of progress, 
and when completed will provide sufficient office space 
for the registration of all land titles in England. 

Four of the States in the United States have adopted 
a Torrens law, each with registration optional to the 
owner. These are, in order of time, Illinois, in 1895 
and 1897, Ohio in 1896, California in 1897 and Massa- 
chusetts in 1898. 

What has been done in Illinois is stated in a pre- 
ceding chapter. The Ohio act was held invalid by the 
Supreme Court of that State in the case of State v. 
Guilbert. 3 The California law has not yet received 
judicial construction. 

Agitation upon the subject of land transfer in Massa- 
chusetts was formally begun in 1891, by a discussion 

2 Land Registry (New Buildings) Act, 1900. 
s 56 Ohio St. 575. 



REGISTRATION IN OTHER COUNTRIES, ETC. 117 

of the Torrens system in the inaugural address of the 
late Governor Russell, and his message to the legisla- 
ture, dated February 17, 1891, in which he strongly 
recommended the adoption of registration of titles a 
follows: 

"In my inaugural address I referred to the fact that 
the subject of a thorough reform in our system of land 
registration and transfer would be brought before 
you, and commended the matter to your serious con- 
sideration. Since that time public-spirited citizens of 
various business organizations have been manifesting 
an interest in this question, and through the press and 
otherwise it is coming prominently before the people 
for discussion. In view of the great benefits which I 
believe can be realized by the adoption of the new 
methods, I deem it proper to bring the matter specially 
and prominently to your attention. 

"I believe that the Australian system of land regis- 
tration and transfer, more commonly referred to, from 
the name of its originator, as the Torrens system, is the 
longest step that has yet been taken anywhere towards 
that freedom, security and cheapness of land transfer 
which is conceded to be so desirable in the interest of 
the people. Our citizens demand the enactment of the 
best legislation that can be devised, whether originated 
here, or elsewhere, and, while another country, whose 
conditions are similar to our own, has gained the credit 
of first adopting the admirable and simple plan of land 
transfer which I now call to your attention, we can 
yet be the first among the States of the Union to place 
this legislation upon our statute book and to lead the 
way in its adoption by the American people, as we have 
already done in the case of the Australian ballot. The 
universal favor with which this latter system has been 
received by our people should at least remove any 



118 LAND REGISTRATION IN ILLINOIS. 

prejudice against following the legislation of the same 
country in another respect. 

"The need of some new system of land transfer is 
shown by the growing public dissatisfaction caused by 
the delays and the expense attending our present sys- 
tem of registration of deeds. That system has existed 
in this Commonwealth for a little more than two 
hundred and forty years. In former days, when our 
population was smaller, it apparently satisfied the 
popular demand; but, with increase of population, it 
has become less serviceable. Our people are now 
largely concentrated in cities and populous towns. The 
last national census shows that forty-seven cities and 
towns, having each more than eight thousand inhabi- 
tants, contain seventy per cent, of our whole popula- 
tion. The density of the population, with the greater 
subdivision of land and increase of real estate transac- 
tions which it involves, is reflected in the mass of the 
records in our registries of deeds. The four containing 
the largest number of volumes are those of the Middle- 
sex south District, of Suffolk county, of the Worcester 
district and of the Essex south district. These contain 
respectively at the present time 2,022, 1,979, 1,355 and 
1,300 volumes. The increase in the number of volumes 
in three of these registries during the period of thirty 
years, from the end of the year 1860 to the end of the 
year 1890, was as follows: In the Suffolk registry, 
from 790 to 1,974 volumes, an increase of 150 per cent. ; 
in the Middlesex south district registry, from 872 to 
2,014 volumes, an increase of 131 per cent., and in the 
Essex south district registry, from 617 to 1,297 vol- 
umes, an increase of 110 per cent. Middlesex south 
registry now contains 2,810 volumes; Suffolk, 2,677; 
Worcester district, 1,653, and Essex south district, 
1,606. 

"In the historical pamphlet written by John T. Has- 



REGISTRATION IN OTHER COUNTRIES, ETC. 119 

sam, A. M., on the registers of deeds for the County of 
Suffolk, being a part of the proceedings of the Massa- 
chusetts Historical Society for March, 1900, the author 
says: 'The great increase in the bulk of the records in 
the Suffolk registry of deeds can be best comprehended 
by bearing in mind that nineteen books contained all 
the deeds and other instruments left for record from 
the first settlement of the country down to the year 
1700. On January 1, 1800, the number had risen to 
193; on January 1, 1850, there were 606 books on the 
shelves, and on January 1, 1875, 1,250 of them; on 
January 1, 1900, they had increased to 2,656 in number. 
So that there have been added in the last twenty-five 
years more books than had been filled during the entire 
period that had preceded it. These are huge folio 
manuscript volumes, containing, most of them, 640 
pages each. When the present register entered upon 
the duties of his office there were 1,029 volumes in the 
registry, so that he has attested as many volumes of 
the records as all his predecessors put together and 
half as many more besides.' 

"These figures indicate such a rapid growth in the 
mass of the records that at no distant day even the 
question of providing room for the records will be a 
matter of serious concern. But we are already met by 
the more serious difficulty that the present mass of 
records is so great that much time and labor must be 
spent in searches in order to ascertain the transactions 
which affect the title to any piece of land. This causes 
delay and expense in completing transfers, even if the 
most complete methods of indexing should be 
employed, so as to reduce to a minimum the time 
required in searching the records and our present 
methods are by no means perfect. The delay and 
expense attending the present system form a serious 
tax upon purchasers and mortgagors of land, which 



120 LAND REGISTRATION IN ILLINOIS. 

bears with special weight upon owners of small estates. 
"The first point which should be noted in connection 
with the Torrens system is that its use is optional and 
not compulsory; existing methods of transfer can be 
continued precisely as at present. It remains entirely 
within the option of every land owner whether he will 
avail himself of the privileges offered by the new sys- 
tem or not, and, therefore, no one loses any right which 
he now possesses. The new method must secure sup- 
port from the public not through compulsory legisla- 
tion, but through the greater advantages which it 
offers. 

"The contrasts between our present system of regis- 
tration of deeds and the Torrens system of registration 
of titles are very marked. Under our system title to 
land depends not only upon instruments recorded in 
the registry of deeds, but also upon facts and proceed- 
ings which lie outside of those records. There is a 
constant increase in the mass of records of deeds and 
of proceedings affecting titles to land, which makes 
the work of examination a constantly growing burden. 
If any man's title to a piece of land is questioned or 
attacked by any particular person the Commonwealth 
has provided courts with appropriate jurisdiction in 
which the owner can have his rights ascertained and 
established as against that person. But it has failed to 
provide any method by which one can have his title 
ascertained and established as against all the world. 
Under our practice a new examination of the title is 
usually made upon each sale or mortgage of a piece of 
land, in spite of the fact that sufficient examinations 
may have been made in former transactions. These 
repeated re-examinations, generally needless, not only 
cause useless expense, but delays which often involve 
a serious loss. 



REGISTRATION IN OTHER COUNTRIES, ETC. 121 

"Under the Torrens system an official examination of 
title is substituted for an unofficial one, and the result 
when once sufficiently ascertained is given conclusive 
effect in favor of the owner, and his title is made per- 
fect against all the world. In effect, under the Torrens 
system, the State provides a proper court in which any 
one can have his rights in relation to a piece of land 
declared and established, not only as against particular 
persons who may have an adverse interest upon special 
notice to them, but also as against everybody. The 
principle of basing decrees upon general notice to all 
persons interested already prevails in our probate law. 
Laws providing for the removal of clouds upon title to 
land, after general notice to all unknown defendants, 
exist in many States of the Union, and the validity of 
decrees made under such laws has been established by 
decisions of the Supreme Court of the United States. 

"The contrasts in practical effect between the two 
systems are, therefore, very great. Under the system 
of registration of deeds, we have needless expense from 
repeated re-examinations, loss from delays, and possi- 
ble insecurity arising from the fact that title depends 
not only upon the records, but also upon facts outside 
of the records and not disclosed by them. Under the 
Torrens system, the title is examined once for all, and 
there is no needless re-examination; as all subsequent 
acts and proceedings must be brought one by one to 
the registrar to be noted, the state of the title can be 
ascertained at any time by simple inspection of the 
certificate on record. Therefore, with the added 
advantage of great simplification of the forms of legal 
instruments, transfers can be made quickly, easily and 
at small expense; and, further, there is absolute 
security in the possession of the premises bought, 
resulting from the indefeasibility given to the certifi- 
cate of title issued by the State. The result is that 



122 LAND REGISTRATION IN ILLINOIS. 

under the Torrens system real estate can be transferred 
or pledged for loans with almost as much ease as stock 
in corporations. 

"A further feature of the system is worthy of notice. 
When land is first registered and a certificate of title is 
issued, or when it passes by will or descent on the death 
of an owner, the applicant, devisee or heir is required to 
pay a small percentage of the value of the land, gen- 
erally about one-fifth of one per cent., into the public 
treasury. The sums so paid form an 'assurance fund' 
which is held for the payment of indemnity to any per- 
son who may have had some claim upon, or interest in, 
land admitted to registration, and who failed to receive 
notice of the application, or for other sufficient cause 
did not assert his claim. Under our system, on the 
other hand, a purchaser may have paid full value for 
his land, yet if any outstanding claim or interest is 
overlooked, he is obliged to make further payment and 
may be remitted for his remedy to a suit upon cove- 
nants which have no practical value. 

"Again, technical claims are sometimes passed over 
by one attorney as of no consequence, but by subse- 
quent requirement of some other attorney, who thinks 
them of importance, the owner may be subjected to 
delay and expense in obtaining a release. 

"Such being, in brief, the features of the Torrens sys- 
tem as contrasted with that which we now employ, 
argument seems almost superfluous in support of the 
advisability of adopting it. While a system which 
gives absolute security of title and makes transfers 
easy, quick and inexpensive, tends to make all land 
more valuable, its benefits will be especially felt by two 
great classes of our people, the small land owners 
and the borrowers upon mortgage. Widely distributed 
proprietorship of land and the ownership by the people, 
to the greatest possible extent, of the homes in which 



REGISTRATION IN OTHER COUNTRIES, ETC. 123 

they live, are so obviously desirable that I need not 
dwell upon them. It is evident that the masses of the 
people are more injuriously affected by the insecurity 
and expense connected with our present system than 
the rich; the smaller the piece of real estate, the greater 
is the proportionate expense of transferring it. Under 
the Torrens system, the expenses of transfer are based 
upon a fixed percentage of the value of the estate, so 
that a small estate is not subjected to a greater propor- 
tionate charge than a large one. Then, too, ease and 
cheapness of transfer are of more consequence to a man 
whose whole property is invested in a small piece of 
real estate than to the large land owner, as it is more 
important to the former to be able easily to dispose of 
his property to meet any sudden exigency. 

"The convenience and relief afforded by this new 
system to all who borrow upon mortgage will be very 
great. The facility of raising money easily and cheaply 
upon landed security is of great consequence to the 
prosperity and development of a community. By 
abolishing the tax formerly imposed upon mort- 
gages, our State has already relieved borrowers 
of one unjust and oppressive burden, to the great 
advantage of the public, and the additional step now 
proposed will confer further benefit in the same direc- 
tion. The power of readily pledging real estate will 
also prove of great importance to the business com- 
munity. At present the delays involved in an examina- 
tion of title often prevent a business man from obtain- 
ing a needed advance to meet a sudden stringency in 
the money market. At times when loans are con- 
tracted and credit is shaken it would be of great benefit 
to business if all the real estate of the community, pos- 
sessing, as it does, greater stability of value than any- 
thing else, could be as immediately available as a 



124 LAND REGISTRATION IN ILLINOIS. 

means of raising money as stocks of goods or other 
personal property." 

After the consideration of several bills relating to 
the subject, in 1898 the present law was enacted. 5 This 
act went into effect October 1, 1898, and the court of 
land registration, which exercises supervision over the 
recorder (or registrar) and his assistants, who are the 
recorders of deeds in the several counties of the State, 
was opened for business on October 14, 1898. The 
validity of the act was before the Supreme Court of 
Massachusetts in Tyler v. Judges of the Court of Regis- 
tration, 6 and there held valid and constitutional. Upon 
an attempted review of the case in the Supreme Court 
of the United States 7 it was found that no federal ques- 
tion was involved, and the writ of error was, therefore, 
dismissed for want of jurisdiction. 

B Mass. Acts of 1898, ch. 562. 

175 Mass. 71. 

i Tyler v. Judges of Court of Registration, 179 U. S. 405. 



CHAPTER VIII. 

CIRCULAR LETTERS REGARDING OPERATION OF 
TORRENS LAW IN COOK COUNTY. 

April 15, 1900. 
Dear Sir: 

At the regular meeting of the Chicago Real Estate 
Board, February 7, 1900, the following resolution was 
passed : 

"Resolved, That we approve of the Torrens Law as 
now in operation in this County, and direct the Tor- 
rens Committee to take, from time to time, without 
expense to this Board, all steps necessary to conserve 
the interests and secure the public use of that law; 
and be it further 

"Resolved, That Francis B. Peabody and John S. 
Miller be added to- the Committee." 

The Torrens land title law has been in operation in 
Cook County, 111., since February, 1899. During this 
period property valued at over $1,100,000.00 has been 
registered, on which are mortgage liens amounting to 
upwards of $180,000.00. 

A title registered under the Torrens system can be 
dealt with more safely, quickly and inexpensively than 
under the old system. The expense of the first regis- 
tration, in most cases about $24.00, is not equal to the 
cost of an abstract since the Chicago fire, if there have 
been many transfers; and the cost of each subsequent 
transfer under the Torrens system, $3.00, is much less 
than the expense of a continuance of abstract and 
examination of title. 

When the title is once registered, a sale or mortgage 
loan can generally be closed within a few hours. 

125 



126 LAND REGISTRATION IN ILLINOIS. 

If desired, surety bonds upon registered titles under 
the Torrens Law, can be obtained at a reasonable cost, 
at any time after the issuance of the certificate, from 
the American Surety Company, a corporation with 
assets of over five million dollars, 

Sales and mortgages, thus quickly closed, secure 
owners from the danger of unnecessary delay in wait- 
ing for an abstract, or its examination, or complica- 
tions arising from illness, death or absence of any 
party interested. 

Owners of registered titles are enabled to sell or 
mortgage their property without annoying delays or 
difficulties. It is apparent that they appreciate the 
benefits of this law. 

In promoting this reform, the Chicago Real Estate 
Board has spent many thousands of dollars, and 
devoted its unremitting efforts for over NINE YEARS. 

The Torrens system, was first introduced to the 
Illinois Legislature in 1891. Through the influence of 
the Board, in 1897, the present law was passed. This 
law has since been declared CONSTITUTIONAL and 
VALID by the SUPREME COURT of ILLINOIS. 

We respectfully call the attention of all property 
owners to this law and its advantages, and urge the 
registration of titles, believing that the saving of time 
and of money, together with the security afforded by 
registered title, will be a boon to all property owners. 

The facility of transfer and safeguards obtained 
through this law will add to the value of the land. 

The law is of special value to smaller property hold- 
ers, to whom the present system is a source of never- 
ending and heavy expense. 

Registration blanks and general information regard- 
ing the Torrens Law can be obtained at the office of the 
Registrar of Titles of Cook County, Room 320, County 



CIRCULAR LETTERS REGARDING TORRENS LAW. 127 



Building. Inquiries by mail will receive prompt reply. 
Respectfully yours, 

Louis A. Seeberger, 
William A. Bond, 
Dunlap Smith, 
Willis G. Jackson, 
Francis B. Peabody, 
John S. Miller, 
Eugene H. Fishburn, 
Josiah L. Lombard, 
Joseph Donnersberger, 
Henry S. Dietrich, 
C. L. Hammond, 



The 

Torrens 

Committee 
of the 
Chicago 
Real 

Estate 
Board. 



PEABODY, HOUGHTELING & CO., 

164 DEARBORN STEEET. 

CABLE ADDRESS, 
"HOTJGHT, CHICAGO." 

Chicago, December 28, 1899. 
Louis A. Seeberger, Esq., 

Chairman Torrens Committee, 

Chicago Eeal Estate Board, City. 
Dear Sir: 

Mr. Sheldon, Official Examiner of Titles under the 
Torrens Law, has asked me to say something to you in 
regard to my experience under the law and my opinion 
of its practical working, which I am glad to do. 

Fortunately, the Supreme Court, after hearing argu- 
ments of very able counsel upon all the material fea- 
tures of the law, sustained its constitutionality, so that 
the public mind is now at rest as to validity of the law. 

The practical working of the law has proven so sim- 
ple, expeditious and inexpensive that it is growing in 
popular favor, and when the public shall have become 
quite familiar with the system I believe it will come 
into very extensive use. 



128 LAND REGISTRATION IN ILLINOIS. 

My firm accepts the Registrar's certificates of title 
without further guaranty, whenever offered in our 
mortgage loans, and are glad to get them. 
Yours truly, 

(Signed) FRANCIS B. PEABODY. 



CHAPTER IX. 

REGISTRATION OF TITLE LITERATURE. 
Periodical Articles, Addresses, etc. 

Registration of Title. 

Land Reforms. Duke of Argyle. Contemporary 
Review. April, '85. 

Question of Land. G. S. Lefevre. Nineteenth Cen- 
tury. October, '85. 

Transfer of Land. H. W. Elphinstone. Law Quar- 
terly Review. January, '86. 

An American View of the English Land Problem. 
J. Swann. National Review. January, '86. 

The Laws Relating to Land. J. F. Stephen. National 
Review. February, '86. 

Free Land. Lord Hobhouse. Contemporary Review. 
February-March, '86. 

Registration of Title to Land. Westminster Review. 
July, '86. 

Registration or Simplification of Title. H. Green- 
wood, 6 Law Quart. Rev., 144. 

Compulsory Registration of Titles. H. W. Challis, 6 
Law Quart. Rev., 157. 

Forged Certificates of Title. 11 Canadian Law Times, 
127. 

Forged Transfers. J. R. Adams, 8 Law Quart. Rev., 
151. 

Registration of Title in Ireland. 93 Law Times, 51. 

Registration of Title in Ireland. 92 Law Times, 106. 

Record of Title to Land. H. W. Chaplin, 6 Harv. L. 
Rev., 302. 

Registration of Title in Ireland. C. F. Brickdale, 7 
Law Quart. Rev., 184. 

9 129 



130 LAND REGISTRATION IN ILLINOIS. 

The supposed collusiveness of a land transfer cer- 
tificate under the Torrens system. 27 Am. L. Rev., 89. 

Reply to Criticisms of the Torrens System. 7 Har. 
L. Rev., 24. 

Registration of Guaranteed Title. 31 Solicitors' 
Journal and Rep., 104. 

Dealing With Registered Land. 35 Solicitors' Jour- 
nal and Rep., 291. 

Thoughts on Registration of Title. 28 Solicitors' 
Journal and Rep., 627. 

Registration of Title to Land. Jos. H. Beale, 6 Harv. 
L. Rev., 369. 

Registration Bill. 55 Just, of Peace, 83. 

Registration of Title. 37 Solicitors' Journal and 
Rep., 795, 797, 801, 802. 

Land Transfer. Australian System. B. G. Schley, 
32 Cent. L. J., 160. 

Land Transfer Bill of 1888. 85 Law Times, 32. 

Land Transfer Bill of 1889. H. M. Humphrey, 5 Law 
Quart. Rev., 275. 

Same. 86 Law Times, 423, 430, 445, 480. 

Same. 24 Law Journal, 178. 

Land Transfer Bill. 32 Sol. J. & Rep., 3, 285, 301, 
318, 365, 444; 33 id., 411, 435. 

The Proposed Land Transfer. A. Rumsey, 12 Law. 
Mag. & Rev. (4th S.), 361. 

Land Transfer Bill, 1887. A. Robertson, 13 Law 
Mag. & Rev. (4th S.), 85, 155. 

Land Transfer Bill, Exit of. 33 Sol. J. & Rep., 585. 

Solicitors and Land Transfer. 34 Sol. J. & Rep., 91. 

Australian Land Transfer. H. Chaplin, J. Hassam, 
4 Harv. L. B., 271, 280. 

Same. J. Lowman, 25 W. L. Bui., 209. 

Land Transfer. H. B. Hurd, 25 Am. L. Rev., 367. 

Land Transfer Reform. 28 Can. Law Journal, 35. 



REGISTRATION OF TITLE LITERATURE. 131 

Third Reading of Land Transfer Bill. 33 Sol. J. & 
Rep., 555; 24 Law Jour., 389. 

Land Transfer Reform. J. W. Jenks, 2 Annals Am. 
Acad., 48. 

Land Transfer and Registration. W. D. Turner, 25 
Am. Law Rev., 755, 806. 

Land Transfer. F. V. Balch, 6 Harv. L. R., 410. 

Land Transfer Bill. Action of the Profession. 33 
Sol. J. & Rep., 279; 37 id., 773. 

Land Transfer Bill. 33 Sol. J. & Rep., 264; 34 id., 
311. 

Land Transfer Bill. Sir Henry James, on 33 Sol. J. 
& Rep., 538. 

Land Transfer Bill. 82 Law Times, 409, 428, 439; 
83 id., 3, 102, 133, 265, 305, 329, 359, 355, 408, 446, 467; 
37 id., 351, 368, 384, 754; 38 id., 35, 550, 585; 40 id., 
124, 560; 44 id., 251, 289, 308, 380, 344, 324, 168, 466, 
691. 

Same. 31 Sol. Journal & Rep., 359, 374, 381, 390, 
407, 424, 425, 439, 476, 490, 505, 521, 541, 545, 563, 572, 
589, 622, 673, 715, 743, 761, 771; 42 id., 42, 61, 179, 210; 
43 id., 750, 759, 815; 44 id., 81, 87. 

Same. F. H. Colt, 23 Law Journal, 141. 

Same. 3 Law Quart. Rev., 263. 

Same. 22 Law Journal, 201, 210, 225, 251, 266, 299. 

Registration of Land Titles in Prussia. 31 Sol. Jour- 
nal & Rep., 606. 

Transfer of Land Titles. (Symposium.) A. Oren- 
dorff, H. Bigelow, E. Callahan, H. B. Hurd. Proceed- 
ings Illinois State Bar Association for 1892, page 170, 
et seq. 

Registration of Title in Prussia. C. F. Brickdale. 
34 Law Quart. Rev., 63. 

Land Titles in Australia, Edward Atkinson. Vol. 
21, Century, 586. 



132 LAND REGISTRATION IN ILLINOIS. 

Registration of Title. Theodore Sheldon, Chicago, 
1883. 

The Torrens System. F. T. Terry, in Report of Sec- 
ond Congress, National Real Estate Association, 1892. 
Page 157. 

Titles and Transfers. J. C. Simpson, in Report of 
Second Congress, National Real Estate Association, 
1892. Page 163. 

Transfer of Land in Australia. G. H. Wallace, U. S. 
Consular Reports, Vol. 42, p. 327. 

Land Transfer Reform. Charles F. Libby, 28 Am. 
L. Rev., 96. 

Registration of Title in Germany and Austria-Hun- 
gary. C. F. Brickdale, 31 Am. L. Rev., 827. 

Land Registration, 32 Am. L. Rev., 760, 930. 

Land Title Registration. W. D. Turner, 33 Am. L. 
Rev., 42, 136. 

Land Transfer. R. R. Torrens, 53 Spectator, 1024. 

Reform of Land Laws. 29 Nation, 270. 

Consular Report of G. W. Griffin. State Depart- 
ment, Washington, D. C. 

Registration of Title. H. B. Hurd, before Illinois 
State Bar Association, Jan. 29, 1892. 

Torrens System. A. M. Pence, Chicago Legal News, 
13 Jan., 1894. 

Torrens System. M. M. Yeakle, Chicago, 1895. 

Land Law Reform. G. A. Morgan, Fortnightly Rev., 
Dec., 1879. 

Registration of Title. Proceedings of World's Real 
Estate Congress, Chicago, Oct., 1893. 

PARLIAMENTARY AND LEGISLATIVE REPORTS. 

Report of the Real Property Commissioners, '32. 
Report of the Registration and Conveyancing Com- 
missioners, '50. 



REGISTRATION OF TITLE LITERATURE. 133 

Report of the Commissioners on Sale and Transfer 
of Land, '57. 

Report of Special Committee on Sand, Tile and 
Transfers, '78-79. 

Supplementary Returns to the House of Commons, 
upon the System of Conveyancing by Registration of 
Title, in Operation in South Australia, Queensland, 
New South Wales, Victoria, Tasmania, Western Aus- 
tralia, New Zealand, British Columbia and Fiji, '79. 

Report of the Royal Commission of Inquiry into the 
Working of the Real Property Acts, '61-77. Queens- 
land, '79. 

Same, '83. 

Handy Book of the Land Transfer Acts, Containing 
Copies of Acts Issued from the Office of the Registrar- 
General of Land. Wellington, New Zealand, '78. 

Registration of Titles in the British Colonies. House 
of Commons Returns by Colonial Authorities, '81. 

The Torrens System of Conveyancing, Report to the 
Legislature of the Straits Settlement. W. E. Maxwell, 
Singapore, '83. 

Report of Joint Special Committee, Massachusetts, 
1892. 

Report of Land Transfer Commission, Illinois, 1893. 

Report of Australian Governors, House of Commons 
Blue Book, 1872. 

Report of Real Property Commission, Adelaide, 1861. 

TREATISES. 

Registration of Title to Land. Brickdale, Lond., '86. 

Registration of Title and Transfer of Land. P. H. 
Colt, London, '73-85. 

Registration of Title. H. B. Leech, Lond., '91. 

Registration of Titles to Real Estate. L. W. Coutlee, 
Toronto, '90. 



134 LAND REGISTRATION IN ILLINOIS. 

The Reform in the English Land System. Land 
Transfer Reform. J. H. Mason, Toronto, '83. 

Torrens System of Land Transfer in Ontario and 
Manitoba. H. C. Jones, Toronto, '86. 

An Essay on the Transfer of Land by Registration. 
R, Torrens, Lond., '91. 

Practice of the Office of Titles of Victoria. Sedge- 
field, Melbourne, '89. 

Statement on the Land Laws by the Council of the 
Incorporated Law Society, 1893. 

Land Transfer; Report of Bar Committee. Lond., '86. 

Manitoba and Northwest Territories. L. W. Coutlee, 
Toronto, '90. 

New Zealand Land Transfer Act, 1885, with amend- 
ments. Wellington, N. Z., '85-89. 

La Propriete Consolidee. E. Worms, Paris, '88. 

Official Draft of the Law Relating to Registration of 
Titles for the German Empire. (Nebst Motiven.) Offi- 
cial edition. (Ger.) Berlin, '89. 

Prussian Legislation concerning Registration of 
Title. 2nd official edition. (Ger.) Dr. Fischer. Ber- 
lin, '92. 

System of Land Tenure in Various Countries. Lon- 
don, '92. 

Registration of Title. W. B. Dill. London, 1893. 

Land and Mortgage Registration. H. Morris. Lon- 
don, 1895. 

Land Registry. C. F. Brickdale. Lond., 1892. 

Registration in Middlesex. C. F. Brickdale. Lond., 
1892. 

Notes on Land Transfer. C. F. Brickdale. Lond., 
1894. 

Land Transfer and Registration of Title in Ireland. 
Madden. London, 1892. 

Les Livres Fonciers. Emmanuel Besson. Paris, 
1892. 



REGISTRATION OF TITLE LITERATURE. 135 

Registering Title to Land. Jacques Dumas. Cal- 
laghan & Co., Chicago, 1900. 

Land Registration Act of Mass. C. C. Smith. Bos- 
ton, 1900. 



APPENDIX. 



AMERICAN SURETY COMPANY OF NEW YORK. 

Capital 12,500,000.00 

Assets 15,283,636.00 

Principal Offices, 100 Broadway, New York. 
Chicago Office, 704-711 Marquette Building. Tele- 
phone, Central 395. 



CHICAGO LOCAL BOARD. 

JESSE SPALDING, Resident Vice-President. 
JOHN J. MITCHELL, E. S. LACEY, 

ROBERT T. LINCOLN, T. S. KIRKWOOD, 

JAMES H. ECKELS, J. V. CLARKE. 

DANIEL T. HUNT, Manager. 

FREDERIC F. NORCROSS, Attorney and Resident 
Assistant Secretary. 

The American Surety Company will promptly exe- 
cute bonds guaranteeing the performance of warranties 
of title contained in instruments of conveyance of land 
upon which the Registrar's certificate of title has issued 
under the Torrens Law at any time after the issuance 
thereof. Such bonds run for the minimum period of 
five years, which is sufficiently long to cover the term 
during which the certificate of title is not conclusive 
evidence of title. Applications for such bonds may be 
made at the Chicago office of said Company. The rates 
are as per the following schedule: 

136 



APPENDIX . 



137 



Each addi- 






5 years 





7 


8 


9 


10 


tional 






or less 


yrs. 


yrs. 


yrs. 


yrs. 


yrs. 


year 


$ 1 


$2,000 


$10.00 


$12.00 


$14.00 


$16.00 


$18.00 


$20.00 


$2.00 


2,001 


2,500 


12.50 


15.00 


17.50 


20.00 


22.50 


25.00 


2.50 


2,501 


3,000 


15.00 


18.00 


21.00 


24.00 


27.00 


30.00 


3.00 


3,001 


3,500 


17.50 


21.00 


24.50 


28.00 


31.50 


35.00 


3.50 


3,501 


4,000 


20.00 


24.00 


28.00 


32.00 


36.00 


40.00 


4.00 


4,001 


4,500 


22.50 


27.00 


31.50 


36.00 


40.50 


44.50 


4.50 


4,501 


5,000 


25.00 


30.00 


35.00 


40.00 


45.00 


50.00 


5.00 


5,001 


5,500 


26.50 


31.50 


36.75 


42.00 


46.25 


52.50 


5.25 


5,501 


6,000 


27.50 


33.00 


38.50 


44.00 


49.50 


55.00 


5.50 


6,001 


6,500 


28.75 


34.50 


40.25 


46.00 


51.75 


57.50 


5.75 


6,501 


7,000 


30.00 


36.00 


42.00 


48.00 


54.00 


60.00 


6.00 


7,001 


7,500 


31.25 


37.50 


43.75 


50.00 


56.25 


62.50 


6.25 


7,501 


8,000 


32.50 


39.00 


45.50 


52.00 


58.50 


65.00 


6.50 


8,001 


8,500 


33.75 


40.50 


47.25 


54.00 


60.75 


67.50 


6.75 


8,501 


9,000 


35.00 


42.00 


49.00 


56.00 


63.00 


70.00 


7.00 


9,001 


9,500 


36.25 


43.50 


50.75 


58.00 


65.25 


72.50 


7.25 


9,501 


10,000 


37.50 


45.00 


52.50 


60.00 


67.50 


75.00 


7.50 


For each addi- 


tional 500 


1.25 


1.50 


1.75 


2.00 


2.25 


2.50 


.25 



INDEX. 



[The page number is given.] 

ACT, when took effect, 18. 

ACTION, real, judgment on, how registered, 57. 

against assurance fund, 62. 

who shall be parties to such suit, 63. 

must be begun within ten years, 64. 

ACTION AT LAW, not to affect registered land unless memoran- 
dum is registered, 57. 
ADDRESS, of owners, how and where entered, 44. 

change of, to be endorsed, 44. 
ADMINISTRATION, copy of decree granting letters of, to be filed, 

when, 52. 

ADMINISTRATOR, notice to, before issue of certificates to heirs or 
devisees, 52. 

jurisdiction of probate court to license sale or mortgage of regis- 
tered land, 54. 
ADVERSE CLAIMS, how registered, 10, 60. 

fee for registering, 66. 

ADVERSE POSSESSION, not to run against registered land, 40. 
AFFIDAVIT, of adverse claim, 60. 
AGENT, required for foreign owner, 20. 

AGREEMENT, registration is, running with registered land, 42. 
AMENDMENTS, what and how allowed, 25. 

terms of allowance, 25. 

ANSWER, when filed, by whom, and what shall contain, 30. 
APPEAL, from court of registration to Supreme court, 34. 
APPLICATION FOR REGISTRATION, by whom made, 20. 

by corporations, how made, 20. 

by married woman, how made, 20. 

where filed, 25. 

what it shall contain, 21. 

form of, 24. 

by non-resident, 20. 

amendments to, 25. 

how much land included, 23. 

if subject to a mortgage, 20. 

139 



140 INDEX. 

APPLICATION FOR REGISTRATION Concluded. 
reference of, to examiner, 26. 
report on, by examiner, 26. 
answer to, by objectors, 27. 
order of court, dismissing, 28. 
may be withdrawn, 28. 

ASSIGNEE IN INSOLVENCY, entitled to certificate of debtor's 
land, 55. 

certificate issued to, surrendered when, 55. 

order for conveyance by, to be registered, 55. 
ASSIGNMENT, of mortgage, how registered, 48. 

entered on mortgagee's certificate, 48. 
ASSURANCE FUND, how accumulated, 62. 

action against, 62. 

parties to action, 63. 

payments, how made from, 63. 

income, how used, 62. 

damages, recoverable, 63. 

actions against, to begin within ten years, 64. 
ATTACHMENT, filed is notice to all persons, 58. 

to be noted on entry book, 58. 

how made and registered, 58. 

to be noted on duplicate certificate, 58. 

how reduced, discharged, etc., 59. 

certificates of the action or proceeding of court to be regis- 
tered, 59. 

ATTORNEY, powers of to be acknowledged and registered, 49. 
BOND, of registrar, 18. 

of examiner, 19. 
CANCELLATION, of interests less than estates in fee simple, 49. 

of certificates on making new, 45. 
CERTIFICATES OF TITLE, registrar may issue, 36. 

subject to what encumbrances, 20. 

original and subsequent, what are, 36. 

to two or more, as tenants in common, 37. 

of distinct parcels surrendered for one or all, 45. 

of subdivisions of registered land, how obtained, 45. 

conclusive evidence of all matters stated, 41. 

shall contain what, 37. 

new encumbrances, how noted, 59. 

new, not entered unless duplicate is presented, 47. 

new, how made, 47, 

when grantor sells part of his registered land, 43. 

how show a trust, 50. 

new, to assignee in insolvency, 80. 



INDEX. 141 

CERTIFICATES OF TITLE Concluded. 

new, after insolvency closed, 80. 

new, by descent or devise, 51. 

new, by license of probate court, 53. 

See "Duplicate Certificate." 
CERTIFIED COPY, of mortgage, when registered, 48. 

of certificate, conclusive evidence, 39. 
COMPULSORY REGISTRATION, 81. 
CONDITION, equitable, how registered, 50. 
CONVEYANCE, in fee, how made, 42. 

of portion of registered land, 43. 

in mortgage, how made, 47. 

in trust, how made, 50. 

by descent and devise, 51. 

by license of probate courts, 53. 

COPIES, of instruments filed duly certified may be obtained,. 66. 
CORPORATIONS, how apply for registration, 20. 
COURT OF EQUITY, decrees, how registered, 57. 
COURT OF LAND REGISTRATION, jurisdiction of, 25, 32. 

always open, 25. 

not bound by report of examiner, 32. 

may order registered owner to produce his certificate, 60. 

may order surrender or cancellation of certificate, 60. 
DAMAGE, action in contract for, 62. 

when action for, lies against treasurer of county, 63. 
DECISIONS, of court, how appealed from, 34. 
DECREE, affecting registered land to be registered, 57. 

court of equity may require registered owner to execute 

deeds, 60. 
DECREE OF REGISTRATION, appeals from, 34. 

when entered, 32. 

dismiss, may be without prejudice, 28. 

for registration after hearing, 32. 

binds the land and quiets title, 32. 

conclusive against all persons, 39. 

not to be opened by reason of the disability of any person, 33. 

not opened after transfer for value, 40, 61. 

subject to encumbrances named, 32. 

is an agreement that land shall forever remain registered, 42. 
DEED, of registered land, form and effect of, 44. 

registration the operative act, 44. 

filed, is notice to all persons, 43. 

what should contain, 44. 

how registered, 44. 



142 INDEX. 

DEFAULT, when entered and when concluded, 31. 
DESCENT AND DEVISE, on transfer by, new certificate to issue, 52. 
DESCRIPTION OF LAND, in application for registration, 22. 
DISABILITY, persons under, how make application, 20. 

decree not opened by reason of, 33. 

Of owner to be stated in decree of registration, 37. 
DISCHARGE, of mortgage, how effected, 49. 

of liens and attachments, how effected, 59. 
DOCUMENTS, registrar has custody, and where kept, 44. 

open to public inspection, 18. 
DOCKET, of court, by whom kept, 25. 
DOWER, a legal incident of registered lands, 45. 
DUPLICATE CERTIFICATE, issued to owner, 38. 

one to each if several owners, 37. 

must be presented with all instruments for registration, 42. 

surrendered and cancelled on entry of new certificate, 42. 

lost, how replaced, 46. 

surrender, how enforced, 60. 

DUPLICATE, of instruments may be registered with originals, 47. 
EASEMENTS, appurtenant to registered land, 40. 
ENCUMBRANCES, every certificate subject to what, 39. 

how entered on certificate, 47. 

how carried to new certificate, 47. 

how discharged, 49. 

memorandum to be entered on certificate, 47. 

enforcement of, 49. 

ENTRY BOOK to be kept, and contents, 44. 
EQUITY, bill in, how to affect registered land, 57. 

decree, how to affect registered land, 57. 

less than fee simple, registered by memorandum, 37. 
EVIDENCE, conclusive, as to all matters stated in certificate, 41. 
EXAMINERS OF TITLE, how appointed and removed, 19. 

reference of application to immediately, 26. 

court not bound by report of, 32. 

may act as master, 27. 
EXECUTION, to be filed and registered, 58. 

lien-holder obtaining, may petition court for new certificate, 58. 

against co-defendants only with treasurer of county, 63. 
EXECUTOR, notice to, before issuing new certificate to devisee, 53. 

may have license to sell or mortgage registered land, 53. 
FEES, of registrar, payable to whom, 66. 

for assurance fund, 62. 

under act, general provisions, 66. 



INDEX. 143 

FEE SIMPLE, owners of estates in, may apply for registration, 20. 
FORECLOSURE OF MORTGAGE, same methods of as of unregis- 
tered land, 49. 

FORGERY, penalties for, 64. 
FORMS, of application, 4. 

certificate of title, 36. 
FRAUD, effect of upon decree, 39. 

certificate obtained by, 39. 

remedies against parties to, 60. 

remedies after original registration, 60. 

registration omcials and others, 60. 
GUARDIAN, application by, 20. 
HEIR, may have new certificate of registered land, 55. 

decree subject to, if certificate does not determine boundary 

of, 40. 

INDEX, tract and alphabetical to be kept, 61. 
INFANTS, application for registration by, 20. 
INFANCY, decree not opened by reason of, 33. 

INNOCENT PURCHASER, no right of review against, 40, 41, 61. 
his certificate subject only to encumbrances written thereon, 40. 
vendor's fraud not to affect, 40. 

INSOLVENCY, assignee in, may recover registered land, 55. 
of owner of registered land, 55. 
after discharge, new certificate, 55. 

INSTRUMENT, voluntary, how take effect, 44. 

time of reception to be noted, 44. 

registration is from time noted, 44. 

to be numbered, indexed and endorsed, 44. 

voluntary, how registered, 44. 

INTERESTS IN REGISTERED LAND, less than fee, how regis- 
tered, 39. 

JUDGMENT, notice of, to affect registered land, 57. 

nal, notice to be registered, 57. 
In real action to be registered, 57. 
against treasurer of county alone, when, 63. 

JURISDICTION, of court of registration, 25, 32. 

of probate courts not impaired, 54, 55. 
LAND, when becomes registered land, 39. 
LEASE, certificates subject to, for less than five years, 39. 

for more than five years to be registered, 39. 
LIEN, filed is notice to all persons, 59. 

how filed and to contain what, 59. 



144 INDEX. 

LIEN Concluded. 

how noted on owner's duplicate certificate, 59. 
how discharged, 59. 

LIMITATION OF ACTION, for filing writ of error, 34. 

for compensation under act, 64. 
LOSS OF DUPLICATE CERTIFICATE, notice to be given, 46. 

procedure to obtain new, 46. 

MARRIED WOMAN, application for registration must have consent 

of husband, 22. 

MASTER, examiner may act as, with same authority, 27. 
MECHANIC'S LIEN. See "Lien." 

MEMORANDUM, of instrument creating interest less than a fee 
simple, 39. 

authority for making, 60. 

of issue of mortgagee's duplicate certificate, 48. 
MINOR, application by, how made, 20. 
MORTGAGE, to which application or decree is subject, 20. 

to be presented for registration, 47. 

registration the operative act, 47, 43. 

filed is notice to all persons, 47. 

should contain what, 47. 

may be registered in duplicate and one taken away, 47. 

how dealt with, 48. 

takes effect from time of registration, 47, 43. 

how registered, 47. 

mortgagee's duplicate certificate, 48. 

how assigned and discharged, 48. 

how foreclosed, 49. 
MUNIMENTS OF TITLE, to accompany application, 27. 

when may be withdrawn, 28. 

NEGLIGENCE, of registration officials, remedy for, 62. 
NOTICE, of court, returnable as court may direct, 28. 

of application, to whom addressed, 29. 

of application, how and when published, 29. 

form of, 29. 

of application, on whom and when served, 28. 

of application, court may order additional, 30. 

to all persons, every filed instrument to be, 43. 

of pending suit, etc., 57. 
OATH, examiner may administer, 26. 

by applicants for registration, 21. 

to amendments of application, 25. 
OCCUPANTS, of land, to be named in application, 22. 

of adjoining land, to be named when boundary in dispute, 22. 



INDEX. 145 

OPERATIVE ACT, what is, to convey registered land, 43. 
OWNERS, of adjoining land to be named in citation, if boundary 
in dispute, 22. 

of registered land may convey, mortgage, lease, etc., 42, 47. 
OWNER'S DUPLICATE CERTIFICATE, what is and who entitled 
to, 38. 

to have memorandum of what, 38. 

noted with all interests less than fee, 38. 

to be presented, when, 42, 47. 

to be produced by order of court, 60. 

if lost, remedy, 46. 

surrender of, how enforced, 60. 
PARTITION, final judgment, how registered, 57. 
PENALTY, for taking certificate wrongfully, 64. 

for false oath, 64. 

for mutilating records, 64. 

for forgery, 65. 

PETITION. See "Application." 
POST-OFFICE ADDRESS, of grantee to be endorsed on deed, 44. 

any change of, to be endorsed, 44. 
POSSESSION, ADVERSE, no title by, acquired in registered 

land, 40. 

PRESCRIPTION, no rights by, as against registered land, 40. 
PROCESSES OF COURT, where returnable, 28. 
REGISTRAR, who, and duties, 18. 

may employ deputies, 18. 

pays over assurance fund to state treasurer, 62. 

when liable personally, 19. 
RECORDS, open to public inspection, 18. 
REGISTRATION, who may apply for, 20. 

decree for, when entered, 32. 

decree for, conclusive against all persons, 41. 

every decree subject to what, 39. 

the operative act to convey the land, 43. 

dates from date of reception of instrument, 43. 

of voluntary instruments, how made, 42, 47. 

of involuntary encumbrances, how made, 57, 58, 59, 60. 
REGISTER OF TITLES BOOK, what it is, and how kept, 37. 
RETURN DAY OF SUMMONS, not less than ten days from issue, 28. 
SALARIES, of officials, how fixed and paid, 18. 
SALE, of land, after decree of registration, 42. 

of registered land by license of probate court, 55. 
SEAL, to be on certificates, 37. 



146 INDEX. 

SUBSEQUENT CERTIFICATES, form of, 36. 

SUITS, pending, notice of, to be filed and registered, 57. 

SURRENDER, of owner's duplicate, when conveyance in fee, 42. 

of mortgagee's duplicate, when mortgage is discharged, 49. 

of duplicate certificates, how enforced by court, 60. 
SURVIVAL, of action against assurance fund, 64. 
SUPREME COURT DECISIONS 

Illinois, 84. 

Massachusetts, 99. 
TAXES, certificate of title subject to what, 40. 

memorandum of sale for, to be registered, 56. 

deed for, how registered, 56. 
TENANTS, of undivided shares, not to apply separately, 20. 

in common, each may have certificate, 37. 
TIME, of reception of instruments to be noted, 44. 
TRUST, how registered, 50. 

transfers under, 50. 

implied or constructive, how noted, 50. 
WAYS, certificate subject to what, 40. 
WILL, memorandum as to probate of, 52. 

certified copy to be filed, when, 52. 
WRIT, of error, when allowed, 34. 

of execution, sale under, how registered, 58. 

memorandum of, to be registered, 58. 



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