WILD'S ANNOTATION OF THE Torrens Land Title Law OF CALIFORNIA By EDWARD N. WILD THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ERRATA )n page 64, in the last line preceding the notes, write in the word "subsisting" in place of "substituting." On page 84, Sec. 63, at the end of the first line, write in the word "charge." On page 86, Sec. 68, in the heading of the section, write in "with power of sale" in place of "without power of sale." TORRENS GUARANTEE TITLE Co. 526 CALIFORNIA BUILDING PHONE TR. 3497 - L>S ANCHtL8, CMj COPYRIGHT APPLIED FOR, 1915 BY EDWARD N. WILD. Pasadena, Cal. NEWS PRINTING COMPANY 1915 WILD'S ANNOTATION OF THE Torrens Land Title Law OF CALIFORNIA CONTAINING FULL FORMS FOR PRACTICAL USE UNDER ALL SEC- TIONS OF THE ACT ALSO THE DECISIONS OF THE SUPREME COURTS OF THE SEVERAL STATES WHERE THE LAW HAS BEEN IN OPERATION, RELATING TO THE DIFFERENT SECTIONS OF THE ACT. By EDWARD N. WILD Attorney at Law Pasadena, California AUTHOR OF Wild's Journal Entries, under the Codes of Civil, Criminal and Probate Procedure of the State of Ohio ; the first published Annotation of the Municipal Law of Indiana, Etc. 1915 4 PREFACE from practice under it, as has been the case under the code of civil procedure, and undoubtedly some of those given in this work will require modification ; but they may serve as a basis for practice, which is all I can reasonably expect. E. N. WILD. Pasadena, Cal., July 28, 1915. THE TORRENS SYSTEM The purpose of this system is to establish, and certify to the ownership of, an absolute and indefeasible title to realty, under Governmental authority, and as expressed by Judge Shaw of the Supreme Court of California, "It purports to establish a system for the registration of titles to land, whereby the official certificate will always show the state of the title and the person in whom it is vested, and to provide that after the original registration, trans- fer of the land may be made in the manner prescribed in detail in the act." The title is established in the person found to be the owner, registered and a certificate of title issued, and afterwards the title to the land can not pass except by entering the transfer on the register and the issuance of a new certificate. All mortgages, liens and other matters affecting the title to registered land must be noted on the folium of the official register which is set apart for that land. ADVANTAGES OF THE SYSTEM The advantages of the system will readily be seen, in the facility with which transfers of registered property may be made and recorded and the very small cost of the same. Also in the fact that the owner of a registered title has the authority of the Gov- ernment behind it. The law will be of special value to real estate owners who are putting on the market tracts of land cut up into lots and smaller tracts. They will find, as has been found in other states, that it will be an inducement for the purchase of lots to advertise and represent that thereafter a certificate of title can be obtained at a very small cost. GUARANTEE BEHIND A TORRENS REGISTRATION TITLE A land title registered under the Torrens law has behind it the authority of the State of California, and the protection given will be seen by reference to the provisions of the act, as follows : 1. The decree ordering registration shall forever quiet the title to the land against the rights of all persons, known and unknown, except only as in this act provided. Sec. 16. 2. The registered owner shall, except in case of fraud to which he is a party, hold the same subject only to the estates and inter- ests noted in the last certificate of title and free from all others, except as noted in Sec. 34. These are treated of under that sec- tion, and are ; ( 1 ) A lease not exceeding one year, where there is actual occu- pation of the land. (2) Land dedicated as a public highway. 6 TORRENS LAND LAW (3) An easement in respect to the land created within one year. (4) Current taxes, or special assessment. (5) Such right of action or claim as allowed by this act. (6) Liens under the laws of the United States which are not required by the laws of California to appear upon the register. 3. If the registered owner has taken bone fide for a valuable consideration, he is not affected by the fact that some former deed through which he claims was forged, or executed by a person under legal disability. Sec. 38. 4. Nor by the claims of any person defrauded exercising his rights and remedies under the general law. Sec. 37. 5. No title adverse to his title shall be acquired by any length of possession. Sec. 35. 6. No unregistered estate or claim shall prevail against it. Sec. 39. 7. The certificate of title shall be conclusive evidence of a good and valid title to the land in any action for specific perform- ance of a contract to purchase such land, and in an action for ejectment, partition, or possession. Sec. 41. 8. The register and certified copies shall be conclusive evidence that the person named therein as owner is entitled to the land. Sec. 42. 9. No person shall commence any action for the recovery of land adversely to the registered title after one year following the first registration ; and that, even though the person be an infant, lunatic, or under any disability. And when the action is brought within the year it must be made to appear that the person bring- ing such action had no actual notice of the proceedings in time to file his objections. And the provisions of this section sh'all in no way affect or disturb the rights of any person in said land acquired subsequent to the registration, bona fide, and without knowledge and for a valuable consideration. Sec. 45. In that case any person obtaining judgment against the land must resort to the assurance fund as next shown. 10. If any person, without fraud or negligence on his part is deprived of any estate in the land, solely by reason of the fraud, forgery omission, mistake, or misfeasance of any registrar, or deputy registrar, in performance of official duties, he may recover its fair value from the assurance fund. If his loss has been caused either wholly or in part by any person other than the registrar or deputy, and judgment against such person can not be satisfied on execution against such person, the amount due shall be paid out of the assurance fund. Sec. 105. 11. The production of the owners duplicate certificate, when- ever a voluntary instrument is presented for registration, shall be conclusive authority from the registered owner to issue a new certificate or to make a memorial in accordance with such instru- ment and the new certificate or the memorial shall be binding IN OTHER STATES / upon the registered owner and upon all persons claiming under him in favor of every purchaser for value in good faith. Sec. 60. REGISTRATION IN OTHER STATES Many of the governments of the old world have adopted modi- fied Torrens acts. The law of Australia of 1890 has been perhaps the most successful of any of the acts. IN THE UNITED STATES several of the States besides California have adopted varying forms of the act. Illinois in 1897 ; Massa- chusetts in 1898; Oregon and Minnesota in 1901 and Colorado in 1903. Washington in 1907; New York in 1908, repealed and a new act passed in 1909. IN MASSACHUSETTS its constitutionality was sustained by de- cision of the Supreme Judicial Court January 3, 1900. (Tyler vs. Judges of the Court of Registration, 175 Mass. 71). In that State a separate court was established, entitled The Court of Registration, composed of a Judge, an Associate Judge, and a Recorder with the land registration office in Boston, with jurisdiction throughout the Commonwealth. In each district of the State there is an assistant recorder, with whom the application may be filed. In regard to the operation of the act in that State, Judge Chas. T. Davis, of the Court of Registration, says : "The so-called 'Torrens System' as enacted into law and ad- ministered in Massachusetts greatly facilitates and makes safe and convenient, transactions in real estate. The reason is obvious. Under the law the oustanding certificate of title and owner's duplicate are conclusive evidence in all courts of the ownership of the land therein described and the nature and extent of all exist- ing encumbrances, not excepted in Sec. 38. In any deed or mort- gage transaction therefore, all that is necessary is for the deed or mortgage to be carried to the Registry with the owner's duplicate certificate, the original and the owner's duplicate certificate looked at to see that the entries correspond, and then pass the papers. A deed or mortgage transaction can thus be consummated on the same day the parties come to terms. "On the files of the four Registries of the Metropolitan District can now be found many mortgages to savings banks, trustees and trust companies, as well as to individuals ; and instances arise where banks loaning large amounts have required the title to the property loaned on to be registered before paying the money over. Such well-known concerns as the Boston Consolidated Gas Com- pany, the Boston Elevated Railway Company, the Fore River Shipbuilding Company, the New England Structural Company, the General Electric Company, the United Shoe Machinery Com- pany, the Bay State Street Railway Company and the Edison Electric Illuminating Company, and numerous manufacturing concerns, have had, or are having, valuable properties registered. 8 TORRENS LAND LAW The law is also being made use of with special advantage by real estate owners who are putting on the market tracts of land cut up into house lots. They find it to be an inducement in selling single lots to people of small means to advertise and represent that no cost of examination of title is required, as the land is registered and that a certificate of title can be obtained for $2.50 as the only expense. Two other kinds of cases are afforded relief that was not available before the establishment of the Land Court, viz : cases where the title is good as a matter of fact and law though defec- tive of record ; and cases involving the construction of wills where the Probate Court will decline jurisdiction on the ground that the determination of the question is not necessary for the purpose of settlement of the estate. "By successive steps of legislation since the passage of the orig- inal Registration Act of 1898, the Land Court has become the court of exclusive original jurisdiction for all real actions in the State, and a great majority of these actions are now brought in the form of a registration petition. "Up to the first of January, 1914, 4712 petitions for registration of land had been filed in the Land Court from about 250 of the 363 towns and cities of the Commonwealth. The assessed value of these properties at the time of filing the petitions amounted to $46,343,296. In the four largest Registries of the State 14,198 certificates of title have been issued and 32,984 documents regis- tered. As operations have begun in all of the twenty-one Regis- tries of the State, it is estimated that about 18,000 certificates alto- gether have been issued. "In the Suffolk Registry District during the year 1913 there were 49,272 unregistered entries, and 5,636 registered entries, showing that in about fifteen years about 10% of the business of Suffolk County had shifted to the new system. In ten years more it is probable that not less than one-quarter of the business of this county will then be under the Torrens System. "On the first day of January, 1914, the assurance fund in the hands of the State Treasurer amounted to $225,442.00. But one claim against this fund has been made since the law went into operation, and that is of small amount." IN ILLINOIS the Torrens act is very similar to that of California, but changes have been made from time to time since the original adoption, which was May 1, 1897, making more specific provis- ions, and the same will quite likely be required in some sections of our own law. The act was held constitutional in People vs. Simon, 176 111. 165. The following letter from the Registrar of Cook County, at Chicago, and the accompanying report of business done will fully explain the situation in that county: IN OTHER STATES REGISTRAR OF TITLES, COOK COUNTY, ILLINOIS. Chicago, December, 29th, 1914. Mr. E. N. Wild, 85 North Orange Grove Ave., Pasadena, Cal. Dear Sir: In reply to your favor of December 23rd, 1914, in regard to information relative to the Torrens System, beg to advise, we can say that it has been an uphill fight to have the people get acquainted with the Torrens System and to gain their confidence. No money has ever been appropriated for the purpose of advertising this system. A great deal of credit is due the Cook County Real Estate Board, which has taken up the system and endorsed it and have had neighborhood dinners in every section of Chicago, quarterly, attended by real estate men and bankers, at which lectures have been given by men familiar with the sys- tem ; on the other hand the title companies have paid commissions of ten per cent on the amount of business brought to them by real estate men, lawyers and bankers, which made an army of com- mission salesmen working against the system, but at last it has got over the hill and is coming fast. We can safely say that we expect during the year 1915 a large increase over 1914 and so on year after year. Also, attached report will give you an idea of the work done each year under the Torrens System. Hoping this information will be of some value to you in your efforts, I remain, Very truly yours, JOSEPH F. CONNERY, Registrar. ANNUAL REPORT OF THE TORRENS SYSTEM INCUMBRANCES TRANSFERS Year Number Consideration 1899 20 $ 31.125.00 1900 48 98,860.00 1901 55 198.170.00 1902 165 384,850.00 1903 309 741,030.00 1904 445 1,142,410,00 1905 748 1,254,049.00 1906 988 1.607,189.00 1907 1076 1,414.181.00 1908 1006 1,683,337.00 1909 1253 2,186,587.00 1910 1725 3.295,850.00 1911 2014 3,235,138.00 1912 2243 3.352,230.00 1913 3333 5.367,548.74 1914 3840 4,581,814.41 Year Number Consideration 1899 21 * 61,750.00 1900 30 30,300.00 1901 41 80,430.00 1902 93 172,275.00 1903 173 242,620.00 1904 268 510,730.00 1905 435 1,023,734.00 1906 621 1,163.777.00 1907 701 1,158,771.00 1908 682 1,510,067.00 1909 1085 2.205,041.00 1910 1268 2.450.260.00 1911 1502 2.828,333.00 1912 1882 4,045,379.00 1913 2643 5.506.214.16 1914 3189 7.626.162.49 10 TORRENS LAND LAW OF CALIFORNIA APPLICATIONS FOR INITIAL REGISTRATION Year Number Value of Property 1907 257 $ 786,500.00 1908 394 1,037,668.00 1909 545 2,076,875.00 1910 618 1,629,225.00 1911 649 2,809,425.00 1912 784 2,985,500.00 1913 916 4,167,707.00 1914 916 3,743,247.00 IN CALIFORNIA DECLARED CONSTITUTIONAL A former Torrens land law was passed by the legislature of California March 17, 1897, but very few tracts of land have been registered under it, owing to defects in the law which have been remedied in the present act. The consideration of the act, how- ever, came before the Supreme Court of the State, in the case of Robinson vs. Kerrigan reported in 151 Cal. Reports, p. 42, where the validity of the act was the sole question presented to the court. Judge Shaw rendered the decision of the court, and by reason of its application to the present act, it is well to quote his entire de- cision, which is as follows : "The object of the act is well stated in its title. It purports to establish a system for the registration of titles to land, whereby the official certificate will always show the state of the title and the person in whom it is vested, and to provide that after the original registration, transfer of the land may be made in the manner prescribed in detail in the act. As a foundation for the system, it is necessary to have the title established. To that end a proceeding is authorized whereby such title may be settled and declared by a decree of the superior court. The title thus estab- lished is to be certified by the County Recorder, and the certificate is made conclusive evidence of title in the person therein named as the owner. The principal point urged in opposition to the issuance of the writ is that the proceeding thus provided for is unconstitutional, because, "1. It would deprive persons of property without due process of law. "2. It would deprive persons of equal protection of the law. "3. It commits to the judicial department of the state func- tions which are not judicial in character, but purely administrative and executive, contrary to sec. 1 of artincle III. of the state con- stitution, prohibiting one department of state from exercising functions belonging to another. "It is necessary to give a brief statement of the essential fea- tures of the provision to establish and register titles. "Any person owning land which he desires to bring under the operation of the act, may avail himself of this proceeding. He is required to file in the Superior Court a verified petition, setting DECREE, DECLARING CONSTITUTIONAL 11 forth his name, occupation, residence and post office address; whether married or single, and if married the name and residence of the husband or wife, the description of the land, and a state- ment of his estate or interest in it; that the land is occupied or unoccupied, as the case may be, and if occupied, the name and post office address of each occupant, and the interest or estate such occupant has or claims in the land ; the liens and incum- brances thereon and easements therein, the name and address of the holder thereof if known ; whether or not any other person has or claims any estate or interest of any character in the land, and the name and address, if known, of every such person and the nature of the estate or interest owned or claimed by him ; and the name and address of all the owners of the adjoining lands, so far as the same can be ascertained. The petition must be accom- panied by a plat of a survey of the land made by a county sur- veyor, or a licensed surveyor, with a verified or certified abstract of title, made by some person or corporation, thereunto authorized as specifically provided in the act. (Sec. 6). The court must examine and determine from the abstract of title, whether or not it shows the title to be in the petitioner as alleged, and if it so determined it shall thereupon appoint a day for a hearing of the petition. (Sec. 12). Notice of the time and place of the hearing must be given by four weeks publication in some designated news- paper, of general circulation. Notice then must be served in the manner prescribed for service of summons in a civil action, either personally or by publication, as the facts may require, upon all parties shown by the petition, or by the abstract of title, to be interested, and also upon the husband or wife of the petitioner and upon the owners of the adjacent lands. (Sec. 13). "We construe this provision for service of notice to mean that the service to be thus made on these persons must be personal service, except in those cases wherein, under sections 412 and 413 of the code of civil procedure, service may be made by publication, and that service upon such persons by publication must be made upon affidavit and order, as in those sections provided, and for the period and in the manner therein required. "Upon the hearing, if the court finds in accordance with the petition, it must make and enter a decree that the petitioner is the owner of the land, accurately describing it, attaching thereto a diagram thereof and setting forth the particulars of the liens, encumbrances and easements, and an appeal may be taken there- upon as in civil cases. (Sec. 15). "The decree when it becomes final, is made conclusive of the title and estate therein declared and described, against the rights of all persons, known or unknown, whether named in the proceed- ings or not. (Sec. 17). A certified copy of the decree is to be filed with the county recorder, who is described as "registrar/ for the purpose of the act, and upon it he is to issue a certificate of title to 12 TORRENS LAND LAW OF CALIFORNIA the person named in the decree as owner, and make an entry thereof in a book kept in his office for that purpose. (Sec. 22, 23.). The land thereupon becomes 'registered land' and the owner named in the certificate thereupon holds it free from every claim, except those noted in the certificate. Subsequent transfers of such 'registered land' are to be made and entered in the manner pre- scribed in the act, and certificates thereof are to be issued by the registrar to the transferee, which shall be conclusive evidence of his title as therein stated. Any person who has been, or would be defrauded by the decree, and who has no actual notice of the pro- ceedings, may maintain an action- to establish his right, against the registered owner, at any time within five years after the first reg- istration. "1. It is conceded as a matter of course, that there would be no want of due process of law, if the proceeding affected only the persons who are named in the petition, and who consequently must be served with notice, either personal, or by publication, in the same manner as in the case of a summons in a civil action. The objection in this respect, is that the decree, by the terms of the act, will preclude persons who are not named, persons who really own the land, or an interest therein, but who, because of the fact that their claim or their existence are unknown to the peti- tioner, are not named in the petition, and who consequently will not receive any notice except that afforded by four weeks publica- tion, required by the act, and who may have no actual knowledge of the proceeding, or of the decree. "The proceeding is, in all important particulars, of similar char- acter to that provided by the act of 1906, known as the 'McEn- nery Act." (Stat. 1906, p. 78). In that act it was expressly pro- vided that the proceeding to establish title therein authorized, should be had against all person claiming any interest in, or lien on, the land, whether known or unknown, and that, if the re- quired notices were given and served, the decree should be con- clusive and binding on all persons whether named or not, al- though, as to those not named and unknown, the act required no notice except by publication. In the case of the Title and Docu- ment Restoration Co. v. Kerrigan, 150 Cal. 289, that act was attacked as unconstitutional in the same particulars as those here urged against the Torrens Law, and it was declared to be valid and constitutional. The reasons for holding that act valid are set forth in length in the elaborate opinion of Justice Sloss, rendered in that case. They are fully applicable to the case now under con- sideration, and we refer to that opinion for a full answer to the objection that the Torrens law does not provide for due process of law, nor afford to all persons the equal protection of the law. "The state has full control over the subject of the mode of transfers and establishing titles to property within its limits. For DECREE, DECLARING CONSTITUTIONAL 13 these purposes the state has power to provide a special process in the nature of a proceeding in rent, to fix the status of the land and declare the nature of the titles and interests therein and the per- son or persons in whom such titles and interests are at the time vested. It may do this whenever it may be considered necessary or likely to promote the general welfare. "2. The proposition that the proceeding is judicial and not administrative, that it is properly a matter for the judicial depart-* ment, was also fully considered and established in Title, etc., v. Kerrigan, 150 Cal. 289, and the reasons there given apply here. "The claim in behalf of the defendant in this particular seems to be based on the theory that there is, or may be no adverse party to the proceedings, that it may be had where there is in fact no adverse claim, lien or incumbrance to or upon the land, and hence that it is not adversary in character. That it may not become adversary in this sense is of course conceded. It would not necessarily follow that the proceedings were not judicial. It needs no citation of authorities to establish the proposition that the power of a court to entertain an action does not depend upon the appearance of the defendant and his active opposition to the claims of the plaintiff. "The contention is further made that judicial power can be exercised only to settle existing disputes and controversies, and that if none exist, the act of merely describing and declaring an undisputed title is necessarily administrative and can not be per- formed by the judicial department. This argument does not fully meet the case. It may be admitted that the existence of contro- versies which could not be settled by the interested parties was the primal cause for the institution of courts with power to ad- judge between the parties to the strife. But the refinements of civilized life, and the necessity for the orderly regulation and determination * * * have long required the extension of the judicial power beyond the settlement of controversies which have actually arisen, so as to include the function of providing security against disputes and claims which may arise. * * * "In the case of the Torrens law, the plan for a new method for registering and transferring titles made it necessary that the absolute title should first be established and declared. A status or right was to be established, declared and made conclusive, as the foundation for subsequent proceedings and transactions. This was a sufficient cause for placing the property to be thus affected within the jurisdiction of the court as a res, the ultimate right and title to which could be there adjudicated, after reasonable notice to all possible claimants to appear and assert their claims. Whether or not this is strictly in exercise of judicial power, as originally instituted, it can not be denied that it is a power of the class which, from time immemorial has been committed to, and exercised by, the courts. 14 TORRENS LAND LAW OF CALIFORNIA "3. The claim is made, although not argued, that by sections 48, 49, 55, 58, 59, 60, 61, 64, 67 and 68 of the act the registrar is given judicial powers. These sections require the registrar to note upon the duplicate certificate of title in his office, the existence and general character of instruments creating liens, incumbrances, trusts, powers or leases affecting the land described in the certifi- cate. The point is that the registrar is required to determine the legal effect of these instruments, and that this is a judicial func- tion which can be given only to a judicial officer. There is no force to this objection. Every administrative officer is frequently called upon, in the discharge of his duties, to decide questions of law relating thereto. The recorder is required to determine whether an instrument presented for record is a deed, a mortgage, a lease, a notice of action, or what not, so as to record it in its proper book. The sheriff must often determine for his own guid- ance in making a levy, the ownership of property. The clerk must determine the nature and legal effect of papers filed with him, and perform the appropriate duty respecting them. The duties required for the registrar by these sections are of the same nature. His decision in the matter is not conclusive. If he decides wrong- fully and refuses to perform the appropriate duty in the premises, he may be compelled to act properly by means of a writ of man- of purchasers in good faith of land registered under the act, and damus, the same as any other ministerial officer who mistakes his duty under the law and refuse to perform it. "4. It is claimed that the act is special, because it makes special provisions regarding the statute of limitations, the rights other matters peculiar to lands which are brought within its pro- visions. We perceive no merit in this contention. The fact that the land thus registered may be conveyed and transferred by means different from that required as to other lands, and the necessity for a special proceeding as a foundation for the system, creates a separate class of such registered lands, and another special provision of law on the subject, applying only to such reg- istered lands, the owners thereof, or persons interested therein, or to the procedure whereby the system is to be inaugurated. "5. The claim is made that the act violates the provisions of Sec. 24, of article 4 of the constitution, that "Every act shall embrace but one subject, which subject shall be expressed in its title.' The provisions of the act relating to the subjects of fel- onies, county officers, principal and surity, etc., are all germain to the general subject there expressed, and taken together they com- pose a part of the general scheme and are appropriate to effect the main object of the law, and do not render the act unconsti- tutional." DECREE, DECLARING CONSTITUTIONAL 15 In view of the foregoing decision, it is not likely that any ques- tion will be raised as to the constitutionality of the present act, and it can therefore be acted under at once. A system of practice will gradually be evolved, as has been the case in other states, and there will probably be a number of questions to be settled in regard to operations under the different sections of the act, for some of them are general in their char- acter and not as definite in their terms as in other States. 16 TORRENS LAND LAW OF CALIFORNIA PROCEDURE FOR BRINGING LAND UNDER THE ACT FOR REGISTRATION OF TITLE PETITION. The application for registration of title is made by a petition to the Superior Court of the State in and for the county where the land is located, except that when the land lies in one body, partly in two or more counties, the proceedings may be brought in either county. 1 The petition will be filed in the office of the county clerk. The petition therefore becomes the basis of all the proceedings and should be most carefully drawn, to comply with the provisions of the act. Its requirements are set forth in Sec. 5. Any interested persons who have not joined in the petition may be served with notice as defendants, and so made parties to the proceeding. 2 Provided also that all persons having or claiming any interest in the land may assent in writing to the registration and need not then be made parties defendant. 2 SURVEY. A plat or plan of survey of the land made by the county or a licensed surveyor, must accompany the application, unless the land is part of a city, town or subdivision of which a map or plat made and verified, or an official map, is on file in the office of the recorder and upon such map the land appears hi such manner that it can be identified thereon by reference, in which case the appli- cation may refer to such map. ABSTRACT OF TITLE An abstract of title made as provided by the act, must accom- pany the application, except where registration is asked for on the ground of actual, exclusive and adverse possession for more than five years, by the applicant or his predecessors in interest, and proven to the satisfaction of the court. 8 In which case an abstract is not required. When the title to the land has been previously determined by a final decree of a court of competent jurisdiction, the abstract need not antedate the decree.. 8 When the title to the land has been previously insured by a corporation transacting business in insuring titles to real estate and a policy of insurance has been issued such policy may be made the starting point of the abstract. 8 iSec. 5 12. Sec. 6. PROCEDURE 17 EXAMINER OF TITLES. When an abstract is filed, the court will itself examine it or may refer it to an examiner of titles, to be appointed by the court. 4 NOTICE OF FILING OF PETITION. If it appears to the court from its own examination of the abstract of title, or from the report of the examiner, or from the petition alone, where no abstract is required, that the title to the land is substantially as alleged in the petition, the court will order notice to be given of the filing of the petition. 5 When notice is ordered it shall be issued and served according to the directions of Sec. 12. In all cases publication of the notice must be made in a newspaper of general circulation published in the county, to be designated by the court, for four consecutive weeks. In all cases assents in writing may be filed by the interested parties in the form provided, and such persons need not be served with notice. 8 The applicant should therefore obtain all assents possible from interested parties and from adjoining land owners, to save time and expense in making service. The assents may be attached to the petition or filed separately. HEARING OF THE APPLICATION. After all persons interested have been served and the time for appearance has expired, the case will be set down for hearing on like notice as in other civil actions, and the court will proceed to hear the case upon all the testimony and evidence offered and the objections made, and determine the title to all the land described in the petition, and will make and enter a decree confirming the title of the person found to be the owner of the land or any part of it, and order the registrar to issue a certificate of title therefor. 7 DECREE AND CERTIFICATE. Immediately upon the filing with the registrar of a certified copy of the decree he will make an entry in a book to be kept by him, 8 to be known as the "Register of Titles," and this entry constitutes the original certificate of title. He will also make a copy of this entry and deliver it to the owner of the land ; this is the duplicate certificate. 9 This constitutes the registration. TRANSFERS AFTER REGISTRATION. From the time the first certificate is issued all dealings with the land are completed by filing with the registrar the instrument See Sees. 11, 18, 19. "Sec. 11. Sec. 12. TSec. 14. sSec. 29. 9Sec. 23. 18 TORRENS LAND LAW OF CALIFORNIA of transfer or creating an incumbrance, accompanied by the own- er's duplicate certificate. 10 Like forms of deeds, mortgages, leases and other instruments as used in other cases are used in dealing with registered land 11 But the act does not provide for the same being recorded as in other cases, but only that they be filed with the registrar and re- tained in his office. 12 But an instrument duly acknowledged, in- dorsed on the duplicate certificate of title, in the form given, shall be sufficient to transfer the property. 11 Except in this last case a new certificate will be issued on every change of title. MORTGAGES AND LIENS and other instruments, less than a transfer, are noted on the original and duplicate certificates. 18 The cases of trusts, judgments, homestead and community property, tax sales and other matters are all treated of under their appropriate heads, and need not be repeated here. ASSURANCE FUND. An important feature of the Torrens system is the Assurance fund, for the reimbursement of loss to parties which may be sus- tained by the misfeasance or negligence of a registration officer, or by reason of fraud on the part of some one from whom title has been derived. The fund is available by the person who is deprived, without fraud or negligence on his part, of any interest or estate in land and who "is precluded from recovering such in- terest or estate." 14 This provision is evidently made in recognition of the fact that the title of the holder of the certificate of registra- tion is indefeasible and the fund is intended to reimburse the person who has lost it. The innocent holder of the estate is secure in his possession, no matter what fraud or negligence may have preceded his acquisition. The practical working of this provision is shown by the experi- ence of other States. On the first day of January, 1914, the assur- ance fund in the hands of the State Treasurer of Massachusetts amounted to $225,442.00 and but one claim and that a small one, against it had been made since the law went into operation in 1898. "Sec. 48. nSec. 53. "Sec. 51. "Sees. 7, 34. "Sec. 105, Sub. 2. LAND TITLE LAW SECTIONS AND FORMS 1. Registrars and deputies 19 5. Land Owners petition 20 (1) Petition for registration 24 (2) Petiton for registration Personal form 25 (3) General petition for registration 26 6. Plat Survey Abstract Adverse possession 31 (4) Order for survey 36 (5) Same, to determine line of public way 37 (6) Order that abstract be frunished when, etc 37 (7) Bond of persons making abstracts aproved 37 (8) Order for increase in amount of bond 38 7. Fee to be first registered 38 8. First registration of a tax title 38 9. 9. Amendment of application 39 (9) Order for amended petition 39 (10) Same on motion of applicant 39 10. Lis pendens 40 11. Order for notice of filing petition 40 (11) Order that notice be given 41 (12) Report of examiner approved and notice ordered 41 (13) Order refusing notice and dismissing petition 42 (14) Same on report of examiner of titles 42 12. Notice and service thereof 42 (15) Notice of filing of petition 44 (16) Publication of notice approved 45 (17) Affidavit of service of notice by other than sheriff 46 (18) Same of service by mail 46 (19) Answer objecting to registration 46 (20) Assent to registration 47 13. Guardian ad litem 47 (21) Appointment of guardian ad litem 48 14. Hearing of pettion 48 15. Decree of registration 49 (22) Decree for registration 50 16. Effect of decree 53 17. Registration in other proceedings 54 (23) Application for notice, etc 55 (24) Order that notice of intention to include registration be given 55 (25) Notice of intention to include registration, etc 55 18. Abstract referred to examiner of titles 56 (26) Order referring case to examiner of titles 56 (27) Order sending case to referee to report facts 57 19. Report of examiner 57 (28) Report of examiner of titles 58 (29) Report approved 60 (30) Report considered and further proof ordered 60 (1) SECTIONS AND FORMS 20. Application may be withdrawn 60 (31) Request for withdrawal of application 61 (32) Allowing application to be withdrawn. 61 21. On death or disability of applicant 61 (33) On death, etc., representative made party 61 (34) On transfer of Interest, action continued, etc 62 (35) On transfer of Interest, transferee substituted 62 22. Registration and certificate Delivery of duplicate 62 Form of book for receipts 62 23. Certificate of title 63 (36) Certificate of title Form 64 24. Form of certificate. 65 25. Tenants in common 66 26. Certificates exchanged _.. 66 (37) Memorial on cancelled certificate when one for several 66 (38) Memorial when several issued for one 66 27. On loss of duplicate _ 67 (39) Application for certified copy of certificate 67 (40) Order granting request, without notice 67 (41) Notice of application ordered 68 (42) Order granting request after hearing 68 (43) Order for certified copy to be used as evidence 68 28. Correction or change in certificate 68 (44) Application for change of name in certificate 68 (45) Order granting application without notice 69 (46) Order granting after hearing 69 29. "Register of titles" 70 30. Receipt for duplicate certificate 70 31. When land deemed to be registered 70 32. When transfer deemed to be registered 70 33. Complaint against registrar 71 34. Registered owner holds subject to what estates 71 35. Adverse title not acquired by possession 72 36. Transferee need not inquire into previous registration... 72 37. Fraud and forgery 72 38. Deed forged, ets _.. 72 39. Title not affected by unregistered estate 73 40. Certificate conclusive evidence 73 42. Register received as evidence 73 43. Memorial carried forward 73 44. Dealings with land after registration 73 45. Time limitation for adverse actions... 74 46. Registration in probate proceedings 74 47. Notations on instruments filed - 75 (47) Notations on back of deed transferring registered land 76 48. Transfer of registered land 76 (48) Memorial on certificate cancelled by transfer 77 49. Transfer of part 77 (49) Endorsement on certificate of subdivided tract, etc. . 78 50. Date of filing marked on instrument 78 51. Instruments retained in registrar's office 78 (ii) SECTIONS AND FORMS 52. Certified copies . 79 53. Forms of instruments 79 54. Name, etc., of grantee 79 (50) Notice of change of address 80 (51) Certificate of notice and process 80 (52) Order for further or different notice 80 55. Instruments to take effect as contracts 80 56. When transfer is subject to tax sale 81 57. Community property _ 81 58. Affidavit of transferee 81 (53) Affidavit of transferee 82 (54) Affidavit of executor, etc., transferee 82 59. Mortgages, etc., on registered land 82 60. Memorial of, or new certificate binding on all 82 (56) Order allowing memorandum, etc, without duplicate certificate 83 61. Instruments filed in duplicate 83 62. Certified copies of instruments 84 63. Assignment of a charge 84 (57) Memorial of assignment of charge 84 (57a) Same, of part of charge 84 64. Release of a charge _ 84 (57b) Memorial of release of whole or part of charge 85 65. Charges enforced as in other cases 85 (58) Notice of pendency of suit to foreclose, etc 85 66. Power of attorney 85 67. Deeds in trust how noted in certificate 86 68. Trustee with power of sale 8t> 69. Trustee without power of sale 86 70. Trustee under will 86 71. Distribution, etc., of registered land in other proceed- ings made as in othercases 86 72. Order for certificate or memorial 87 (59) Order in decree for transfer, etc., that certificate issue 87 73. Certified copy of decree filed 87 74. Sales by executors, etc., confirmed 87 (60) Order for certificate when sale confirmed 88 75. When executor given power of sale by will 88 (61) Order that words "with power of sale" be registered. . 88 (62) Order in decree confirming, for certificate 88 76. Certificate or memorial conclusive evidence 88 77. Tax sale of registered land Notice by purchaser 88 (63) Notice of purchase of 90 (64) Notice that registered land has been sold to State 90 78. Tax deed filed 90 (65) Application by tax purchaser for decree 91 79. To whom notice sent 91 (66) Order that notice be given of tax purchasers application 92 (67) Notice of application for decree 92 80. Decree and certificate on hearing 93 (68) Decree showing title invested in holder of tax deed 93 (iii) SECTIONS AND FORMS 81. When State or municipality is purchaser 93 82. How notice required in Sec. 79 served 94 83. Redemption from tax sale 94 84. Partition of registered lands Proof as to parties 94 85. Lands allotted by commissioners 94 86. Land sold in partition proceedings 94 (69) Certificate of officer making sale 95 87. Lien on undivided interest attaches to what 95 88. Sale of registered land to satisfy judgment 95 89. Lis Pendens _.. 95 90. When suit, etc., disposed of 95 91. When judgment becomes a lien on registered land 96 92. Levy on registered land certified to registrar 96 (70) Certificate of levy 96 93. Mechanic's lien 97 94. Ordinance for public improvement 97 (71) Notice of ordinance to lay out or improve street 97 (72) Notice of repeal of ordinance 97 (73) Notice that lien under ordinance is satisfied 98 95. When lien deemed to affect title of registered land 98 96. Certificate of clerk of suit, etc., to be filed 98 (74) Certificate of clerk of suit dismissed or judgment satis- fied 98 (75) Certificate of sheriff of release of levy, etc 98 97. Alterations, etc., of certificate or memorandum 99 98. Application for order correcting, etc 99 (76) Petition by registered owner for correction or altera- tion of certificate 100 (77) Order that summons issue 100 (78) Form of summons 101 (79) Order for correction, by consent 101 (80) Order for correction on hearing 101 99. Form of memorial referred to Court 102 (81) Form of memorial referred to Court on registrar's cer- tificate 102 (82) Same on suggestion of party 102 (83) Order prescribing form of memorial 102 100. Fees under this act 103 101. Right of eminent domain not affected 104 102. Property indices 104 103. Name indices 1 05 104. Partition of registered land _ 105 105. Torrens Title Assurance fund 105 106. In case of fraud 107 107. Appeal 107 (84) Notice of appeal given to registrar 107 108. Deputy recorders and registrars 107 109. Subdividing registered land 108 110. Permanency of documents 108 111. Fraud and forgery how punished 108 115. Act construed liberally 109 (iv) SEC. 4] REGISTRARS AND DEPUTIES. 19 LAND TITLE LAW As enacted by the People of the State of California at the gen- eral election held November 3, 1914. An act to amend an act entitled "An act for the certification of land titles and the simplification of the transfer of real estate," approved March 17, 1897. The people of the State of California do enact as follows : An act entitled "An act for the certification of land titles and the simplification of the transfer of real estate," approved March 17, 1897, is hereby amended to read as follows: REGISTRARS AND DEPUTIES. Section 1. Recorders and ex officio recorders in the several counties of this state shall be registrars of titles in their respec- tive counties, and their deputies shall be deputy registrars (a). 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, except as otherwise provided in this act (b). Registrars of titles shall be county officers within the meaning of the laws of this state. Sec. 2. The official bonds now required by law to be given by recorders before entering upon the discharge of their duties, shall also apply to and cover the faithful discharge of their duties as registrars, and of their deputies, whether such additional condi- tion be specifically provided for in such bonds or not; provided, however, that recovery on such bond be had only for damages sustained through the gross or wilful negligence or gross or wil- ful neglect of duty or gross or wilful mismanagement on the part of such recorder or registrar or any of his deputies. Sec. 3. Deputies may perform any and all duties of the reg- istrar, in the name of the registrar, and the acts of such deputies shall be held to be the acts of the registrar. Sec. 4. Registrars and deputy registrars are prohibited from practicing law, or acting as attorneys or counselors at law, or having as a partner a lawyer or any one who acts as such, or from acting as searchers of title under this act, excepting only such deputies as may be appointed as attorneys pursuant to the provisions of section 108 of this act. 20 TORRENS LAND LAW OF CALIFORNIA. [SEC. 5- LAND OWNERS PETITION. Sec. 5. All lands 15 may be brought under the operation of this act by the owner, 16 or owners, 17 of any estate or interest therein iThe Land Court may register the title to an estate in fee under a Rail Road location, although the rights of the rail-road corporation, assuming them to have been acquired by eminent domain, are sub- stantially permanent and practically exclusive so long as the land is used for the purpose of a rail-road. Battelle vs. N. Y., N. H. and H. R. R. R., 211 Mass. 442. Title to certain land which was procured by fraudulent and false representations, could not be registered against the objection of the person from whom the title was procured, because such owner has a right to avoid the deed as procured from her by false representations. Robinson vs. Richards, 209 Mass. 295. ieOwner Record title. The Torrens act of Minnesota provides, as does the California act, that the "owner" may have his title registered, etc. Held, that any owner of land whether his title be of record in the office of the re- corder of deeds or not, may maintain proceedings to register his title under the act. National Bond and Security Company vs. Alderson, 99 Minn. 137. The contention that the act contemplates registration only, at the instance of a fee title owner in possession, and not by an "apparent owner," who is not in possession, we think can not prevail. The pur- pose of the statute is to provide a speedy and sure remedy to clear up title to land. The title provided is not a substitute for an action of ejectment and a successful applicant may have to resort to ejectment to obtain pos- session. The statute furthermore in several places makes provision looking to cases where the land is occupied by another than the appli- cant. Nor can we sustain the contention that the applicant's title must be settled before he can apply. The very purpose of the act is to settle the title. Peters vs. City of Duluth, 119 Minn. 96. Lack of record title not a bar to registration. Browning, Petitioner. Mass. Land Court Decisions, 5. What lands may the owner include in one registration? Can several pieces of land belonging to the same owner, contiguous, or not contiguous, not derived from the same source, be registered in one proceeding? The provisions of the California statute in regard to such questions are not as specific as in the Massachusetts and Illinois acts. But there seems to be no objection to an affirmative answer to the foregoing question. Sec. 11 refers to one or more abstracts being presented with the petition, and of course abstracts would be required for each piece of land, in cases where abstracts are required. i7What owners can unite in one registration proceeding? Can several persons owning in severalty different pieces of land unite and ask registration of all the pieces in one proceeding? It would appear that an affirmative answer can be given to this from the provisions of this Section 5, that "if the application is by more than one person, any one of whom claims title in severalty to any part of the land described in the petition, the particular part of the land to which each petitioner severally claims title" must be set forth in the petition. Also Sec. 14 provides that the court "shall proceed to determine the title to all the land described in the petition and of all persons who may have any interest therein or in any part thereof," and Sec. 15 provides that upon the decree being filed with the registrar, he "shall -5.] LANDS OWNERS. 21 whether legal or equitable. 18 (other than an undivided share or an easement) by filing with the county clerk his or her or their veri- fied petition (1-2-3) to the superior court of the county within which such land is situated, which petition shall set forth the fol- lowing facts, to wit: (a) The full name, occupation, residence, and post-office ad- dress of the applicant or applicants, and where any applicant ap- pears by any representative because of any disability, also, the full name, occupation, residence and post-office address of the person so representing the applicant and the reasons for his so acting; (ft) if the application is by a corporation 19 its name, when and where incorporated, its principal place, of business and the names and post-office addresses of its president and secretary, or if none, its executive officers; (c) whether or not the applicant is married and if married, the full name and residence of the hus- band or wife ; and if unmarried, whether he or she has been mar- ried, and if so, how the marriage relation terminated, and if the marriage relation was terminated by annulment or divorce, where and by what court; (d) that each of the applicants is of the full age of twenty-one years and free from any disability, or if a thereupon issue a cretificate of title to each person declared by said decree to be the owner of any parcel of land in severally." "What interest must the applicant have in the land? The limitation in Sec. 5 sounds very broad, but we find that no provision is made for the initial registration of a lesser estate than a fee simple; and by Sec. 7, no lesser estate shall be registered unless the fee simple to the same land shall be first registered. Then after such registration the lesser estate shall be noted upon the certificate of title. It therefore appears that only the owner of a title in fee can ask for initial registration. Under the same provision as ours, in the Illinois act, HELD, That a life estate can not be registered unless the fee simple to the same land has first been registered. Cowan vs. Glos, 255 111. 377. TITLE MUST BE GOOD AS AGAINST THE WORLD. Evidence establishing the title as against the world is essential to warrant a decree awarding initial registration of a title. Glos vs. King- man, 207 111. 26. Glos vs. Bragdon, 229 111. 223. Waugh vs. Glos, 246 111. 604. Glos vs. Cesna, 207 111. 69. An applicant establishing title in himself need not show affirma- tively, invalidity of defendant's claim of title; burden was on a party claiming a title by tax deed. Glos vs. Hoban, 212 111. 222. Glos vs. Holberg, 220 111. 167. The title to be established may be shown by the production of deeds forming a chain of title from the government, or it may be shown by prescription or limitation, as provided for by Sec. 6 (c), and in the code of civil procedure. As the latter method does not require an abstract of title to be fur- nished, thus materially reducing the expense, it would seem that it will be very generally used for establishing title. loWhere the application for registration is filed by a corporation Its corporate existence can not be questioned without a specific de- nial. Unless the corporate existence of the applicant is thus put in issue by the answer it need not be proved. Gage vs. Consumers E. L. Co., 194 111., 30. 22 TORREN'S LAND LAW OF CALIFORNIA. [SEC. 5- minor or under disability, his age and the nature of such disa- bility; (e) a description of the land; (f) the value at which the land and permanent improvements, if any, were assessed on the last assessment for county taxation; (g) and if the application is by more than one person, any one of whom claims title in sev- eralty to any part of the land described in the petition, the par- ticular part of the land to which each petitioner severally claims title; (/i) a statement of the estate or interest which each appli- cant has or claims and whether or not the same is community property, 20 (t) or is subject to a homestead, 21 (/) or to any ease- ment, 22 lien or incumbrance and if so the name and post-office address, if known 23 of each holder thereof, the nature and the amount of the same, and if recorded, the book and page of the record; (k) a statement of whether or not the land is occupied 24 2<>Separate and community property are defined by the civil code as follows: Sees. 162 and 163, Civil Code of Cal. All property owned by the husband (or wife) before marriage and that acquired afterward by gift, bequest, devise or descent, with the rents, Issues and profits thereof is his (or her) separate property. Sec. 164. All property acquired after marriage by either husband or wife is community property; but whenever any property is con- veyed to a married woman by an instrument in writing, the presump- tion is that the title thereby vested in her as her separate property. 2iHomestead property is defined by the civil code as follows: Sec. 1237, Civil Code of California. Homestead consists of the dwelling house in which the claimant resides, and the land on which the same is situated, selected as in this title provided. Sec. 1262. In order to select a homestead, the husband or other head of the family * * * * must execute and acknowledge * * * * a dec- laration of homestead and file the same for record. Sec. 1264. The declaration must be recorded in the office of the Recorder of the county in which the land is situated. Sec. 1265. From and after the time the declaration is filed for record the premises therein described constitute a homestead. Sec. 1266 makes a similar provision as Sec. 1262 for selection by any person other than the head of a family. 22The complaint properly alleged the existence of easements on each side of plaintiff's property consisting of the right to maintain party walls, as showing the adjoining owner's interest in plaintiff's property to have a similar interest therein. Duffy vs. Rodriguez, 124 N. Y. S., 529. 23When, in proceedings under the Torrens act to register title, the applicant fails to disclose to the court the names of persons known to him to have an interest in or lien upon the property, and such par- ties are not named as parties to the proceedings or served with sum- mons, and do not have actual notice of the proceeding, a judgment rendered thereon is not binding upon such persons. Riley vs. Pearson, 120 Minn., 210. All claimants known to the applicant, either from the report of the Examiner, or from other sources, must be made defendants. Baart vs. Martin, 99 Minn.. 197. 2*In the absence of proof of her allegation that the premises are unoccupied, an applicant is not entitled to registration of title; even though she introduces in evidence an abstract showing title in her by -5.] PETITION. 23 and if so, the full name and post-office address of each occupant and what interest he has or claims; (/) a statement of any other person who has any estate or claims any interest in the or any part of the land, in law or equity, in possession, remainder, rever- sion or expectancy, 25 and the names and post-office addresses, if known, of every such person ; (m) together with the names and post-office addresses of all the owners of adjoining lands, so far as the same can be ascertained upon diligent inquiry, (n) If the application is by a husband or wife and the property is community property or subject to a homestead, both spouses must join in the application ; (0) persons who collectively claim to own the entire legal estate in fee simple to the or any part of the land may join in the petition ; (/>) a corporation may apply by its duly appointed agent; (q) the estate of a deceased person by the administrator or executor ; (r) and a minor or other person under disability by his legally appointed guardian, but the person in whose behalf the application is made shall be named as applicant, (j) Land constituting a single parcel and lying partly in two or more counties may be included in one application, which may be made in either county in which the land lies, but the certificate issued therefor must be filed with the registrars of all the coun- ties within which such land is situate. PETITION The caption here given is not really necessary, and is not used in the forms given in either the Massachusetts or Illinois act; and is not recommended by some attorneys in California, on the ground that the proceeding is a petition to the Court and not an adversary one. But the term "defendant" is used in the act itself, and as it is a civil action, and may become adversary in character, and as it is very convenient to have all parties to the proceeding conveniently shown, and because there is no harm done in using the caption of a regular civil action, it appears good practice to use it. It is generally used in Los Angeles County. a chain of title from the Government, with proof that the abstract was made in the ordinary course of business, by a maker of abstracts, and no proof is offered by defendants except to show payment of taxes. Brooke vs. Glos, 243 111., 392. If the applicant alleges that the land is not occupied he should prove the fact, as the allegation Is not a negative one which requires no proof, nor is the application itself evidence of the fact. Jackson vs. Glos, 243 111., 280. An allegation in the application to register title that the premises are occupied by the applicant is a material one and must be proved; and it is error to decree registration If the proof falls to identify the premises occupied by the applicant as the premises described in the application. Mlhalik vs. Glos, 247 111., 597. zsPetitioner is required to set forth not only interests which he admits, but also adverse claims though denied by him. Tyler vs. Judges, 175 Mass., 71. 24 TORREN'S LAND LAW OF CALIFORNIA, [SEC. 5- 1. (Sec. 5. ) Petition for registration. In the Superior Court of the State of California, in and for the County of D. B. Petitioner. vs. No - Petition for registration of title C. H., D. M. and A. D., Defendants. to land. To the Superior Court of County : The petitioner herein makes application to have the land here- inafter described brought under the operation of the act for the certification of land titles, etc., enacted by the people of the State of California at the general election held November 3, 1914, and sets forth the following facts : I. The full name of the petitioner is D. B. ; he is of the full age of twenty-one years and is not under any legal disability. Continue as in one of the applications in No. 3. After Item IX add: Said land is not subject to any other lien, easement, or incum- brance, nor has any other person or corporation any estate, claim, or interest therein, or in any part thereof, in possession, reversion, or expectancy to his knowledge, and as he verily be- lieves, except as herein set forth. At conclusion let the prayer be as follows: Wherefore the petitioner, D. B., prays the Court that the land herein described may be brought under the operation of the act above named and for a decree declaring him to be the owner in fee of, 25 and confirming his title to, said land and ordering the registration thereof as provided by said act, and for such other relief as shall be according to law and equity. Attorney for Petitioner. State of California, County of D. B. being duly sworn, deposes and says that he is the peti- tioner in the above entitled application ; that he has heard read the foregoing petition and knows the contents thereof ; that the same is true of his own knowledge, except as to those matters which are therein stated on his information or belief, and as to those matters that he believes it to be true. D. B. Sec. 12, (a). -5] PETITION. 25 Subscribed and sworn to before me, , a Notary Public, in and for said County and State, this day of , 19 A. S. L., Notary Public. A personal form for the petition for registration is frequently used and fills all requirements, as follows: 2. (Sec. 5.) Petition for registration Personal form. To the Superior Court of California. In and for the County of I hereby apply to have the land hereinafter described brought under the operation of the act for the certification of land titles, etc., enacted by the People of the State of California, at the gen- eral election held November 3, 1914, and pray the Court for a decree declaring me to be the owner in fee of, and to confirm my title to, said land, and ordering the registration thereof as provided by the said act. 1st. My full name is Age I am not under any legal disability. My residence and postoffice address is Occupation I am married to , whose residence and postoffice address is 2nd. I am the owner in fee simple of the following described land in the State of California, County of , Towit : (describe.) Continue with further allegations as in one of the applications in Form 3, but using the personal pronoun. Dated this day of , 19 D. B. State of California, County of D. B. being by me first duly sworn, deposes and says that he is the petitioner in the foregoing application, that the statements in his petition are true of his own knowledge, except as to those matters which are therein stated on his information or belief, and as to those matters that he believes them to be true. Witness my hand and seal, this day of , 19 A. S. L. Notary Public in and for said County and State. Application for registration will frequently be made by several owners of separate pieces of land, in one proceeding, to save ex- pense. The form for a general petition is therefore given em- bracing several owners of different character. 26 TORREN'S LAND LAW OF CALIFORNIA, [SEC. 5- 3. (Sec. 5.) General petition for registration. In the Superior Court of the State of California, in and for the County of D. B., A. M., a minor by L. G., his guardian. A. E., Administrator of the estate of A. B., de- No. Petition for registraiton of title to land. ceased. W. C, M. C, and The C. H. R. Company, a cor- - poration, by L. A., its duly appointed agent. Petitioners. vs. C. H., D. M., and A. D., Defendants. To the Superior Court of County: The petitioners herein make appliction to have the lands here- inafter described brought under the operation of the act for the certification of land titles, etc., enacted by the people of the State of California at the general election held November 3, 1914, and set forth the following facts : A. Each of the several petitioners makes statement for himself or herself that his or her full name is as hereinafter given in his or her application ; that he or she is of full age of twenty-one years and not under any legal disability except as hereinfater stated, and that the land hereinafter described as being owned by him or her is not subject to any easement, lien, or incumbrance, nor has any other person or corporation any estate, claim or interest in said land, or any part thereof, in possession, reversion or expect- ancy, as he or she verily believes, except as hereinafter set forth. APPLICATION ONE The petitioner, D. B. 26 has never been married : (Or is married, and the full name of his wife is _.... , and her residence and postoffice address is _ Or, has been married, but the marriage relationship has been termin- ated by the death of his wife, or, by divorce given by the court of at His residence and postoffice address is No Street, His occupation is 2if the petition is filed by two or more persons as tenants in com- mon, under Sec. 25, state the fact, and the undivided interest of each. -5.] PETITION. 27 II. Said petitioner, D. B., is the owner in fee simple of the follow- ing described land in the State of California, County of , Towit: Lot No , on a plat of subdivision recorded in Book , Page , in the office of the Recorder of _ _ County. (// any official map is on file in the Recorder's office it may be referred to. In case there is no plat or map on file to be referred to, describe the property, and if a survey has been made, after giving a full description of the land, say: A plat of survey of said land made by. is filed herewith marked Exhibit III. Applicant obtained title to said land by deed dated , recorded ; 2T An abstract of title 28 to the land is filed herewith, marked Exhibit IV. 29 Applicant D. B. further avers that he has (or, that he and his predecessors in interest have) 80 been in the actual, exclusive and adverse possession of the land continuously, for more than five years next preceding the filing of this petition, as the owner, (or, owners), in fee simple, claiming to own the same as against the world. The possession of the said D. B. has been through ten- ants and representatives, of petitioner, claiming no other interest in the land adverse to the petitioner. (Or, state any character of possession.) 91 And that he has (or, he and his predecessors in interest have) paid all taxes, of every kind, legally levied or assessed against such property, during such period. "If the land has been derived through a tax sale, made before 1895, as provided for in Sec. 8, set forth the time and place of sale and the deed obtained under the sale. Then also adverse possession and pay- ment of taxes for five years must be averred as in Item IV of this petition. If the tax deed was obtained from the State, an averment of that fact should be made. See Sec. 8 and comments under. zswhen the title has been previously insured by a corporation, duly qualified, set forth the fact and the date, and file the policy as an exhibit. So also when the title to the, or any of the land has been previously determined by a final decree of a court of competent juris- diction, set forth the fact here and file a certified copy of the decree or produce the judgment roll (See note to Sec. 6, (d) as an exhibit. In such cases the abstract may be a limited one as provided by Sec. 6. If title is based on adverse possession as in IV. of this petition no abstract is required. zoSee Sec. 6, (c), and notes. Omit this item when the application is not based on adverse possession and payment of taxes for five years. soWhere the adverse possession has been in part by the predecessors the petition should set out the particulars, giving the names of the former owners, and the periods of their possession. As to making proof, see note to Sec. 6, (c). 3>See note to Sec. 6, (c), as to possession required. 28 TORREN'S LAND LAW OF CALIFORNIA. [SEC. 5- V. The land and permanent improvements were assessed on the last assessment for county taxation at $ VI. The land is the separate property of the said D. B., and is not subject to a homestead claim. (Or, is a homestead; or, is subject to a homestead claim.) VII. The land is now occupied by the applicant 32 as (state nature of occupancy, sufficiently to show his complete possession and super- vision. ) Or, the land is now occupied by O. C, for purposes of (state fully) ; his post office address is and the only interest claimed by him in said land is as ... Or, the land is unoccupied at present and consists of (state its character.) VIII. The land is bounded on the side by a public (or, pri- vate) way, but applicant claims no land within the boundary of said way and does not desire to have the line of way determined by the court. 33 IX. The liens and incumbrances on said land are as follows, and their priorites are in the order here set forth : 1. M. H., whose postoffice address is , holds a mortgage on the land for (describe), recorded in Book...... , Page. ,records of said County. 2. Etc. Set forth as indicated in Sec. 24. X. The property adjoining the above described land on the north is owned by , whose residence and postoffice address is The property on the east is owned by, etc. The applicant is unable, after diligent inquiry to ascertain the ownership of the property adjoining on the west. APPLICATION TWO The petitioner A. M. is a minor of the age of years ; his occupation is , and his residence and postoffice address is (make statement as to marriage, as in application one. This application is made on behalf of said A. M. by L. G., his to these allegations and proof of them, see notes to Sec. 5. Sec. 6. If claim is made, and applicant desires the court to determine the line of way, make petition accordingly and the court may order a survey to be made as In Entry No. 5, POST. -5] PETITION. 29 legally appointed guardian, whose occupation is , and his residence and postoffice address is _ Continue with other items as in Application One. APPLICATION THREE The petitioner, A. E., is administrator (or, executor) of the estate of A. B., deceased, duly appointed thereto (state when and where.) His occupation is ,and his residence and postoffice address As such administrator the said A. E. makes application to have the title of the land hereinafter described confirmed to the estate of the said A. B. or to such distributees of such estate as shall be found to be the owners thereof in fee. The full name of the deceased was ; his occupa- tion was , and his last place of residence was He was married to (make statement as to whether his wife is living and any facts bearing on the title, in- cluding date of his death. II. The said A. B. was in his life time the owner in fee simple of Continue as in Application One. The petitioners W. C. and M. C. are husband and wife. Their residence and postoffice address is The occupa- tion of W. C. is , and that of M. C. is house wife. Ill, IV AND V. As in Application One. VI. The land is community property of said petitioners (state as to homestead.) Continue as in Application One. APPLICATION FIVE The petitioner, The C. H. R. Company, is a corporation organ- ized under the laws of the state of , and incorporated in the City of , on the day of , 19 Its principal place of business is at The name of its President is , whose residence and postoffice address is Its Secretary is , whose residence and postoffice address is This application is made by L. A., who is the duly authorized agent of the said Company. His occupation is , and his residence and postoffice address is He is acting for said Company in this application by authority from 30 TORREN'S LAND LAW OF CALIFORNIA. [SEC. 5- their Board of Directors, given by resolution adopted, etc. (State particulars.) Continue as in Application One. E. Wherefore the petitoners, named in the foregoing Applications, severally pray the Court that the lands described herein belonging to each respectively, be brought under the operation of the act above named, and for a decree declaring each to be the owner in fee of, and confirming the title of each to their said lands, and ordering the registration thereof as provided by the said act ; and for such other relief as shall be according to law and equity. C. AND C. Attornevs for Petitioners. State of California, County of._ _ The Petitioners in the foregoing applications, D. B., L. G., as guardian of A. M., a minor, A. E., as administrator of the estate of A. B., deceased, W. C., M. C., and L. A., as the duly appointed agent of the C. H. R. Company, being each severally first duly sworn upon oath say, each for himself or herself, that he or she has read the foregoing petition so far as it relates to his or her claims, allegations and land, and knows the contents thereof, and that the same is in such respects true of his or her own knowledge, except as to the matters therein stated on informa- tion or belief, and that as to those matters he or she believes it to be true. D. B. L. G. Guardian of A. M., a Minor. A. E. Administrator of the Estate of A. B., Deceased. W. C. M. C. L. A. Agent of the C. H. R. Company. Subscribed and sworn to before me, , a Notary Public in and for said County and State, this _... day of. , 19 Notary Public. ASSENTS We, the undersigned, claiming an interest 34 in the land de- scribed in Application , in the foregoing petition, hereby give our assent to the registration of the same as prayed for in said petition . _ s* Assents to registration by persons having or claiming an interest -6] PLAT SURVEY ABSTRACT. 31 State of California, /-* r ss - County of ~ On this day of , 19 , before me, , a Notary Public, in and for said County, personally appeared , and ~ , and __ , known to me to be the persons whose names are subscribed to the foregoing instrument of assent and acknowledged that they executed the same. Witness my hand and official seal. Notary Public, in and for said County and State. (SEAL.) 35 We, owners of lands adjoining the land included in Applica- tion , in the foregoing petition for registration, hereby assent to the hearing of the petition and the registration of the land as prayed for therein. PLAT SURVEY ABSTRACT ADVERSE POSSESSION. Sec. 6. If said land is part of a city, town or subdivision of which a map or plat made and verified as required by the then existing laws of the State of California or an official map is on file in the office of the county recorder and upon such map the land appears in such manner that it can be identified thereon by reference, the application may refer to such map 36 In all cases where said land can not be identified by reference to such map or where no such map is on file in the office of the county re- corder, a plat or plan of survey of the land made by the county or a licensed surveyor must accompany the application. Such in the land must be acknowledged and filed with the clerk. Sec. 12. They may be attached to the petition or filed separately. When filed separately see Form No. 20, Sec. 12. If a defendant to an application to register title, attaches his con- sent to the entry of the decree, to the application itself, it is sufficient, and It is not material whether the statute expressly provides that the consent shall be evidenced In that manner. Mooney vs. Valentynovlcs, 262 111. 355. As a matter of practice, to save time and expense, it is better to obtain all assents possible. ssThe owners of adjoining lands may give their assent in writing, without an acknowledgment. Sec. 12. -"Registration was barred in a case where the land was referred to by subdivision and the number of the lot, but where the subdivision was not referred to properly, as of record, nor a plat of the same filed in the proceedings, on the ground that the description was not suffi- ciently definite to identify the land. Glos vs. Bragdon, 229 III. 223. Applicant must show title in himself, and it is therefore essential that the conveyance under which he claims should identify the prem- ises so that they could be as ascertained by the description. Same case. 32 TORREN'S LAND LAW OF CALIFORNIA. [SEC. 6- survey must show the boundaries of the land and its relation to adjoining lands and streets and any encroachment if any. (a) The court may, in any case, before decree, require a sur- vey to be made for the purpose of determining exact boundaries. [4.] (b) If the application describes the land as bounded by a public or private way, it shall state whether or not the applicant claims any and what land within the limits of the way and whether the applicant desires to have the line of the way deter- mined. 37 [5.] (c) If it appears by the petition that the applicant, either by himself or by himself and his predecessors in interest, has been in the actual, exclusive and adverse possession 38 of the or any part of the land described, continuously for more than five years next preceding the filing of the petition claiming to own the same in fee against the world, and that he has or that he and his prede- a case where the land of S. and other land bounded on a private way, and the line of the way was determined in registration proceed- ings, but was wrongly located, HELD, That the decision in S.'s case ap- plied only to S's lots and the part of the way on which they bounded, and that there was nothing in the circumstances to prevent the owner of another lot insisting upon having the way properly located where it bounded on his land. Pollard vs. Burchard, 119 Mass. 376. In the case of First National Bank vs. City of Woburn, 192 Mass. 220, the question which arose in the Land Court was, whether the petition- er's title was good up to the line of the street as originally laid out or whether the pubic had acquired a way by prescription over a strip of land about two and a half feet wide, lying between the easterly side of Main street as laid out and the base line of the bank building stand- ing on petitioner's lot. The court said: "A fundamental inquiry is, whether the Land Court, in a proceeding of this kind (for registration of the title) has a right to determine such a question. We have no doubt it has this right. An application for the registration of a title is by the terms of the statute a proceeding in rent, which operates directly to vest and establish title to the land. 38A person asking registration on the ground of adverse possession who had possession of inclosed property under claim and color of title for seven years (only five years are required in California) and had paid all taxes legally assessed during that time, is entitled to have his title registered. Tobias vs. Kaspzuk, 247 111. 80. Glos vs. Mickow, 211 111. 117. On Nov. 7, 1906, John N. Woods tiled an application to register his title to a lot in Norwood Park, alleging that the lot was vacant and unoccupied, and that Jacob Glos and others claimed some interest therein by reason of tax deeds and other conveyances of the lot to them Thereafter Jacob Glos took possession of the lot on July 12, 1906. Jacob Glos had color of title, acquired in good faith, under two tax deeds, and had paid all taxes and special assessments legally levied against the lot, for the seven successive years from 1897 to 1903, in- clusive, but had not taken possession of the lot, when the application was filed and it was then vacant and unoccupied. Section seven of the act in regard to limitation under which Glos claims, provides, in order that the bar of the statute may become complete there should -6.] TITLE OF ALVERSE POSSESSION 33 cessors in interest have paid all taxes of every kind legally levied or assessed against such property during said period, 39 the petition must then also state the character of such possession 40 and the be a concurrence of claim and color of title acquired In good faith, payment of taxes and actual taking possession of the premises. Held, that Glos could not perfect his claim after the application for registration had been filed. Woods vs. Glos, 257 111. 125. Possession of land is not shown by proof of the recording of the deed and making of entries in books with reference to the property. Glos vs. Wheeler, 229 111. 272. Mere record of title of marsh and beach land, not running back to the original grant or patent, raises no presumption of possession, but possession must be established by oral proof. Crabbe vs. Hardy, 135 N. Y. S. 119. 39payment of Taxes Color of Title. Where applicant produces receipts showing payment of general taxes for a series of years, the presumption will be indulged that these are all the general and special taxes and special assessments levied and assessed against the property, it is incumbent on the defendant to show that there were other taxes or special assessments. Glos vs. Mickow, 211 111. 117. In proving title by seven years possession (in California, five) coupled with the payment of taxes, any question as to the sufficiency of the proof of the payment of taxes must be raised by objections be- fore the examiner of titles. It can not be raised for the first time in a court of review. Gage vs. Consumers E. L. Co., 194 111. 30. Possession for sixteen years without proof of payment of taxes for at least seven consecutive years during the time petitioner was in possession under the deed, did not efetablish title in the petitioner by limitation or otherwise, as against the world. Glos vs. Holberg, 220 111. 167. Payment of taxes under color of title, may be shown "by any com- petent evidence, including testimony of a person having knowledge of the payment; and such payment is established by tax receipts and the testimony of the holder of color of title that he paid the taxes each year, even though his initials do not correspond with those given in several of the tax receipts introduced in evidence. The mere introduction of a tax deed in evidence without proof as to what amount, if any, they had paid on account of taxes, is not suf- ficient evidence to base a decree of re-imbursement upon and there was no error in ordering Title registered without any terms on the appli- cant. Tobias vs. Kaspzyk, 247 111., 80. The proof must show color of title, payment of taxes, etc. Glos vs. Wheeler, 229 111., 272. A partition decree which confirms report of commissioners and pur- ports to vest the title to the same extent as would a deed, though it may be erroneous, is color of title. Peters vs. Discus, 254 111., 379. ^"Establishing Title by Adverse Possession Neither the act of New York nor Illinois contains this clause as to finding adverse possession. But in Illinois decisions it is recognized that there are several ways of proving legal title for the purpose of registration besides patent title from the United States government, proven by original deeds and muniments of title. Among others is noted seven years possession and payment of taxes under claim and color of title, under section six of the limitation act. This corresponds to the California title by prescription. Any absolute title in fee may be registered however acquired. In California one method of conferring title is by occupancy (Sec. 1007, Civil Code) for the period prescribed 34 TORRENS LAND LAW OF CALIFORNIA [SEC. 6- applicant must prove the same to the satisfaction of the court on the hearing. 41 by the Code of Civil Procedure as sufficient to bar an action for the re- covery of the property. This period is by Sec. 322, et seq., of C. C. P. five years of adverse possession with the payment of taxes. The Torrens act makes no change in this respect. In the foregoing section it is provided that when the applicant bases his title on adverse possession and payment of taxes "the petition must then also state the character of such possession and the applicant must prove the same to the satisfaction of the court." But it is nowhere said in the act, that when he has done this he is entitled to registration. All that he accom- plishes by these allegations and proofs is to bring himself under the general statute by "stating the character of his possession" and making it appear that it comes under some one of the cases denned as consti- tuting adverse possession, by the code of civil procedure. If he does this he has a good title, and as owner of the land is entitled to regis- tration. We must therefore refer to the general statutes to determine the character of possession required for registration under this provision. The Code of Civil Procedure in prescribing the occupancy sufficient to bar an action for the recovery of property, defines adverse posses- sion as follows: Sec. 322. When it appears that the occupant, or those under whom he claims entered into the possession of the property under claim of title, exclusive of other right, founding such claim upon a written in- strument, as being a conveyance of the property in question, or upon the decree or judgment of a competent court, and that there has been a continued occupancy and possession of the property, under such claim' for five years, the property so included is deemed to have been held adversely, except that when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract. Sec. 323. For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occu- pied in the following cases: 1. Where it has been usually cultivated or improved. 2. Where it has been protected by a substantial inclosure. 3. Where, although not inclosed, it has been used for the supply of fuel, or for fencing timber for the purpose of husbandry, or for pastur- age, or for the ordinary use of the occupant. 4. Where a known farm or single lot has been partly improved, the part of said farm or lot that has been left not cleared, or not inclosed, according to the usual course or custom of the adjoining country, shall have been deemed to have been occupied for the same length of time as the part improved or cultivated. Sec. 324. Where there has been an actual, continuous occupancy of the land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, Judgment, or decree, the land so actually occupied, and no other, is deemed to have been held adversely. Sec. 325. For the purpose of constituting adverse possession by any person claiming a title not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occu- pied in the following cases, to-wlt: 1. Where it has been protected by a substantial inclosure. 2. Where it has been usually cultivated or improved. Provided, however, that in no case shall adverse possession be con- sidered established under the provisions of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party, persons, their -6.] ABSTRACT OF TITLE 35 (d) Each application must be accompanied by an abstract of title to all land which does not appear by said petition to have been adversely held as hereinabove provided. When the title to the or any of the land described has been previously determined by a final decree of a court of competent jurisdiction 42 no abstract regarding the same need antedate such decree. (?) When the title to the or any of the land described has been previously insured by a corporation transacting business in insuring titles to real estate and a policy of insurance has been issued by said corporation 43 and at the time of the issuance of said policy, said company had fully complied with all laws of the State of California, such policy may be made the starting point of any abstract to be filed under the provisions of this act and the abstract of title so to be presented need only commence at the date of such title insurance policy and the verification thereof hereinafter provided need only apply to the portion of said abstract subsequent to the date of said title insurance policy, but must include all defects or exceptions stated in said policy. (/) All abstracts herein referred to must be verified by the searcher making the same, as in proceedings in partition, 44 or if predecessors or grantors, have paid all the taxes, State, County, or municipal, which have been levied or assessed upon such land. Sec. 1007, Civil Code of California, provides; Occupancy for the period prescribed by the code of Civil Procedure, as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all. By Sec. 13. Also if the land borders on a navigable stream or an arm of the sea, notice must be given to the Attorney General of the State. 8 See form of notice, 15, Sec. 12. This clause may be omitted here and the notice prepared in accordance with the order. 42 TORRENS LAND LAW OF CALIFORNIA [SEC. 12- 13. Order refusing notice and dismissing petition. [Title.] As in Entry No. n to * and continue) that the title to the land described in the petition is not so vested in said appli- cant as to authorize the registration thereof in him, his applica- tion is therefore dismissed at his cost. 14. Order refusing notice and dismissing application, on report of Examiner of Titles. 61 As in Entry No. n to f and continue} and the said J. M. having certified his opinion that the title of the land is not so vested in the applicant as to authorize its registration in him, the said report is hereby approved and confirmed as the finding of the court, and the application for registration of such title is dismissed. And a fee of $ to said examiner is allowed as a part of the costs in this case, which costs the applicant is ordered to pay. Sec. 12. NOTICE AND SERVICE THEREOF : When the court shall order notice given, a notice [15.] must be issued, under the seal of the court, which shall contain the name of the court and the county in which the action is brought, the name or names of the applicant or applicants and a particular description of the land involved, which notice shall be directed to all parties appearing by the petition or the petition and abstract, or by the report of the examiner of titles, if any, to have any interest in the land or any part thereof, (a) and which notice shall contain a state- ment that the petition has been filed by the applicant or applicants for the registration of the title to the land described therein as provided by this act (b) and praying for a decree declaring the applicant or applicants to be the owner in fee of such land in accordance with the prayer of said petition (c) and which notice shall direct all whom it may concern to appear and answer said petition within ten days after personal service if served within the county, or within thirty days if served elsewhere, and that other- jwise the court will grant said petition and direct registration of the title to said land in accordance with the terms of this act and that said person so served will be forever barred from disputing the same. (d) When the notice is issued, service thereof shall be made as follows : In all cases said notice shall be published in a news- paper of general circulation published in the county, to be desig- nated by the court for four successive weeks; if the notice be published in a daily newspaper, publication therein once a week for four successive weeks shall be sufficient. 52 [16.] "Where the proof does not authorize the registry of the title, the application should be dismissed. Glos vs. Cessna, 207 111. 69. Glos vs. Holberg, 220 111. 167. "Failure to republish the notice after amendment of the description -12.] APPLICATION FOR REGISTRATION 43 (*) All parties who have not joined in the petition or as- sented thereto in writing and who appear by the petition or peti- tion and abstract or report of the examiner of titles to be inter- ested in the fee, all occupants named in the petition and the hus- band and wife of the applicant, if married, shall be personally served [17.] with a copy'of the notice, attached to a copy of the petition if they reside in the state and can, with reasonable dili- gence, be found and served therein, (f) All owners of adjoining lands who have not given their written consent to the hearing of the petition and who reside in the state and can, with reasonable diligence, be found and served therein, shall be served with a copy of said notice, without a copy of said petition, personally. (g) As to all persons who have not joined in the petition or who have not in writing assented to the hearing thereof, who do not reside in the state or who can not, with reasonable diligence, be found and served therein, a copy of such notice, without a copy of the petition, shall, within thirty days after the first pub- lication of such notice, be sent to such party at his last known place of residence, by mail, postage prepaid [18.], and if his last known place of residence can not with reasonable diligence be ascertained, then such notice must be mailed to him in care of the county clerk of the county in which the land is situated; (/) provided, however, that as to all such persons so to be served by mail who appear by the petition or petition and abstract or re- port of the examiner of titles to be interested in the fee, a copy of the petition shall be attached to the copy of the notice mailed to them as herein provided, (') provided, further, that no copy of abstract, order or map need be served with any notice. (/) All persons who claim an interest may appear 83 and object to the granting of the application [19.] and if such objection is sustained, the costs of the same shall be paid by the applicant ; if not, by the person so objecting. of the lots, as given in the application, is not fatal, where all the parties who had, or claimed, to have any interest in the lots were personally served by summons or entered their appearance. Tower vs. Glos, 256 111. 121. Registration not barred by failure to properly serve by publication, defendants who had no interest, or were only nominal defendants. Where a party to the suit releases or quit claims his interest pend- ing the suit and prior to the entry of a decree therein, the question whether jurisdiction has been properly acquired over his person be- comes of no importance. O'Laughlan vs. Covell, 222 111. 162. SEEMS, that when a person who has a right to appear in such action (for registration of title) has not been named as a defendant by the plaintiff, the orderly proceeding is for him to enter his appearance, demand a copy of the complaint, and to answer it within the time allowed. The action is in rem, and the judgment entered therein is conclusive upon all the world. As the statute gives to every person whose inter- ests may be affected by the judgment the right to appear, such person 44 TORRENS LAND LAW OF CALIFORNIA [SEC. 12- (k) The time for appearance shall be ten days after personal service within the county ; thirty days after personal service out of the county and in the state ; all persons not required by this section to be served personally shall have sixty days after the first publication of such notice within which to appear. (/) All persons having or claiming any interest in the land or any part thereof may assent in writing [20.] to the registration thereof, and the person thus assenting need not be named as a defendant in the registration proceeding, or, if already named as a defendant, need not be served with notice therein. Such assent shall be executed and acknowledged in the manner now required by law for the execution and acknowledgment of a deed and shall be filed with the clerk of the court. 54 15. (Sec. 12.) Notice of filing of petition. In the Superior Court of the State of California, in and for the County of [Title.] (Naming all the applicants and defendants.) The State of California to the above named defendants, and to all persons, known and unknown, who have or claim any interest in, or lien upon any part of the land described herein, and to all whom it may concern Greeting: You and each of you are hereby notified that the above named petitioners did on the day of , 19 , file in the office of the County Clerk of said county their verified petition for the registration of the title to the lands described therein, and hereinafter, as provided by the act therefor, enacted by the people of the State of California at the general election held November 3, 1914, and praying for a decree declaring the applicants to be the owners in fee of such lands described as need not apply to the court for leave to appear, nor can that right be determined by the plaintiff. Sunderman vs. People, 148 N. Y. 124. An abutting owner has an absolute right to appear and answer the complaint. Ib. Where an abutting property owner held an easement in the property sought to be registered, to the extent of a right to support a party wall, and was not made a party to the registration proceedings, he was en- titled to appear in the action and assert his easement. Hawes vs. U. S. Trans. Co., 127 N. Y. S. 632. 54 A defendant to an application for registration of title may consent in writing, to the entry of a decree of registration and in such case it is not necessary to have summons issued against him or that he have any opportunity to be heard, nor will he be permitted to appeal from such decree or assign error upon it. If he attaches his consent to the decree, to the application itself, it is sufficient, and it is not material whether the statute expressly pro- vides that the consent shall be evidenced in that manner. Mooney vs. Valentynnovics, 262 111. 355. -12.] APPLICATION FOR REGISTRATION 45 belonging to each of them respectively, in accordance with the prayer of said petition. ONE : The land claimed as belonging to the petitioner D. B. is described as follows: (Describe as in the petition.) TWO : The land claimed as belonging to the petitioner A. M. is described as follows, etc. You are hereby directed to appear and answer said petition within ten days after personal service of this notice upon you, if served within this county, or thirty days after personal service out of the county and within the State, or within sixty days after the first publication of this notice, if it has not been personally served upon you in this State. And if you fail to so appear and answer and show cause why said petition should not be granted the court will grant said petition and direct registration of such land in accordance with the terms of said act, and you will be forever barred from disputing the same. Witness the Hon , Judge. Given under my hand and the seal of said court, this day of , 19 [SEAL.] H. J. L., County Clerk. 65 C. and C, Attorneys for Applicant. First publication , 19 16. (Sec. 12.) Publication of notice approved. 56 (Title.) Affidavit of publication having been filed in this case showing that notice of the filing of the petition for registration was duly published for four successive weeks, on and after the day of , 19 , in the a news- paper of general circulation published in this county, and the court finding such publication and the evidence thereof in all respects regular and according to law and the former order of this court, does hereby approve the same. By Sec. 1707, C. C. P., a citation must be served in the same manner as a summons in a civil action, and by Sec. 410, C. C. P., summons may be served by the sheriff or by any person over eighteen years of age, not a party to the action. By Sec. 415 "Citations must be issued by the clerk, under the seal of the court. Sec. 1707, Code of Civil Procedure. 8Sec. 2010, Code of Civil Procedure, provides that evidence of the publication of a document or notice to be published in a newspaper may be given by the affidavit of the publisher of the newspapers, or his foreman, or principal clerk, annexed to a copy of the document or notice specifying the times when, and the paper in which the publication was made, but in all cases it is better to have an order of the court approv- ing the publication. 46 TORRENS LAND LAW OF CALIFORNIA [SEC. 12- proof of service by a person other than the sheriff must be made by his affidavit. 17. Affidavit of sen'icc of notice by other than sheriff. State of California, ) ss County of J. D., being duly sworn, deposes and says, that he was at the time of service of the papers herein referred to, a citizen of the United States, over the age of eighteen years, and not a party to the within named action ;* that he personally served the within notice on the hereinafter named defendants, by delivering to and leaving with each of said defendants personally, in the county of .......................................... , State of California, at the times set opposite their respective names, a copy of said notice (attached to a copy of the petition referred to in said notice). Names of defendants served Time of service. Fees for service, $ .................. Mileage, $ .................. Total, $. ................. (Subscribed and sworn to.) 18. Affidavit of service by mail, by other than sheriff. Same as in above to * and continue) : that he deposited a copy of the within notice in the United States postoffice at ............ .............................. in a sealed envelope, postage prepaid, addressed to each of the defendants hereinafter named at his last known place of residence, on the dates and directed to the city or town set op- posite his name : City or Town Names of persons. Date of mailing. to which sent. (Subscribed and sworn to.) When the place of residence of the defendant can not with reasonable diligence be ascertained, and the notice is mailed in care of the county clerk of the county where the land is situated, make the affidavit accordingly, stating the reason. 19. Ansiuer, objecting to registration. ( Title) O. D., one of the parties claiming an interest in the land sought to be registered in this case, now by his counsel, J. E., for answer to the application for registration of the title to said land comes and objects thereto and for cause says: (State cause of objec- tion. ) Wherefore said O. D. prays the court that the registration asked for by the applicant be refused and his petition dismissed at cost of the applicant, and for such -other relief as shall be ac- cording to equity. (Verify as in other cases.) -12.] APPLICATION FOR REGISTRATION 47 20. (Sec. 12.) Assent to registration by person claiming inter- est." In the Superior Court of the State of California, in and for the County of D. B. et al, \ M Applicants. I ys. f Petition for Registration of C. H. D. and M A. D., Title to Land Defendants J We, the undersigned, claiming an interest in the land de- scribed in the petition for registration of title, filed in the above case, viz.: (describe the land) do hereby give our assent to the registration thereof as in said petition prayed for. State of California, ) ss County of On this day of , 19 , before me, a Notary Public, in and for said County and State, personally ap- peared _ and known to me to be the persons whose names are subscribed to the foregoing instrument of assent and acknowledged that they executed the same. Witness my hand and official seal. Notary Public in and for said County and State. [SEAL.] Sec. 13. GUARDIAN AD LITEM. PUBLIC WAY, ETC.] Upon the petition of the applicant or of any person interested in the pro- ceedings, the court shall appoint a disinterested person to act as guardian ad litem for minors and other persons under disability and for all persons not in being who may appear to have any interest in or lien upon the land. [21.] (a) If the petition prays to have the line of any public way determined, notice shall be given to the mayor or other presiding officer of any incorporated city or town in which such way is situated, or if such way be situated outside of any incorporated city or town, then to the chairman or presiding officer of the board of supervisors of the county in which such way lies, by delivering to such mayor or other presiding officer or to the chairman or presiding officer of such board of supervisors a copy of such notice personally. (b) If the land borders on a navigable stream or on an arm of the sea, or if it otherwise appears from the application or the proceedings that the state may have a claim adverse to that also, assent attached to petition. 48 TORRENS LAND LAW OF CALIFORNIA [SEC. 13- of the applicant, 88 notice shall be given in the same manner to the attorney general. (c) The court may also cause such other or further notice of the application to be given as it may deem necessary and proper. 21. (Sec. 13.) Appointment of guardian ad litem. (Title.) It appearing to the court that is a minor (or under other disability), and that he has an interest in this proceeding, now on petition of the applicant herein, (or, who is interested in these proceedings), H. B., a disinterested person, is hereby appointed guardian ad litem for said minor. And now comes the said H. B. and accepts said appointment (and files his answer herein). Sec. 14. HEARING OF PETITION.] After the notice required to be given by this act has been given and the time for all persons to appear has expired, the court shall set the petition down for hearing upon notice to all persons who have appeared, as is required in other civil actions, and shall proceed to determine the title to all the land described in the petition and of all persons who may have any interest therein or in any part thereof, 89 and "Under the provision in the Minnesota act, that "when the State has some interest in or claim upon the land it shall be joined as a party in said proceedings," it was held that tax liens held by the State were not interests in, or claims upon the land on which they are a lien, with- in the meaning of the law. Any other construction would entail much expense on the State. National Bank and Security Company vs. Daskan, 91 Minn. 81. In 1905 the act as above stated was amended, as follows : "Whenever in the opinion of the examiner, the State has any interest in, or lien upon, the land the State shall be joined as a party .... in order that its interest, estate, or lien may be denned and preserved." Under this wording it was held, that a tax lien held by the State was within the terms of the amended section and the State a necessary party. B. and S. Co. vs. Hopkins, 96 Minn. 119. oThe object and purpose of the Torrens act was to provide a speedy and summary method of determining rights and interests in registered property, and to authorize the court in proceedings thereunder to hear and determine all controversies respecting the title, and by proper de- cree to definitely fix, establish and declare the title, rights and interests of all interested parties. It can determine and decree the existence of a mechanics lien, but not order its foreclosure. Reed vs. Siddall, 94 Minn. 216. By Sees. 15 and 25 of the Illinois Torrens act, the court is specifically authorized to remove clouds from titles, by decree in registration pro- ceedings. The California act does not contain such specific provision, but the power of the court, as set forth in this section, when called into exercise, would appear to be sufilcient for the determining and settling of all questions, and consequently the removal of all clouds. The most common cloud upon titles, as appears from the cases reported in the Supreme Court of Illinois, is that of a tax deed or tax sale, which the applicant seeks to have set aside. -15.] DECREE OF REGISTRATION 49 whether or not the, or any part of the, land, the title to which is so determined is the separate or community property of the party found to be the owner, 60 and whether or not the title to the or any part of the land is held in any special capacity and shall make, give and enter a decree, 81 confirming the title of the person found to be the owner whether he be the applicant or any other person who may, in the proceedings, ask to have his title registered and shall order the registration of all such land. 62 [22.] (a) Upon the trial of any issue of fact raised by the verified pleading of any person claiming by such pleading to have an in- terest in the or any part of the land or appurtenances, such issue shall, upon demand of any party appearing, be submitted to a jury in the same manner and to the same extent as such issue can, under general law and the constitution of the state, be sub- mitted to a jury trial in like matters and, when so submitted, the verdict of the jury shall have the same force and effect as is provided by general law upon the submission of like issues to a jury. DECREE FOR REGISTRATION. Sec. 15. Every decree shall state whether or not the owner of the land directed to be registered is married or unmarried and, if married, the full name of the spouse; (a) If the owner is under a disability it shall state the nature of the disability and the person acting for him and the source of his author- ity, and if a minor, it shall state his age and in whose cus- tody his estate then is; (&) it shall also contain an accurate de- scription of the land to which the court shall determine title and shall set forth the estate of the owner and also, in such a manner as to show their relative priority, all particular estates, mortgages, easements, liens, attachments and other incumbrances, including the rights of husband or wife, if any, to which the land or the owner's estate therein is subject and may contain any other facts properly to be determined by the court. <>See note to Sec. 5 as to community property. iA decree registering title after a full hearing of the cause, is a final decree, and after the adjournment of the term the court loses jurisdiction of the cause and has no power at a subsequent term to vacate or set aside the decree, except as to matters of form, or for clerical errors of the clerk. Mooney vs. Valentynovicz, 255 111. 118. 2On application for registration of certain described property, a decree may be entered for the registration of any part thereof, even though it be less in extent than the premises described in the applica- tion. Glos. vs. Holberg, 220 111. 167. Glos vs. Murphy, 225 111. 58. Where proof does not authorize the registration of the title the application should be dismissed. Glos vs. Cisna, 207 111. 69; Glos vs. Holberg, 220 111. 167. 50 TORRENS LAND LAW OF CALIFORNIA [SEC. 15- (c) The decree shall be stated in a form convenient for tran- scription upon the certificate of title 68 and any lien or other charge against the property, if recorded, shall be referred to by book and page of the record. (d) Any party aggrieved by such decree may appeal therefrom in the manner now or hereafter provided by law for appeals in civil actions; 64 (c) such decree shall be filed with the clerk and a certified copy thereof filed with the registrar, who shall thereupon issue a certificate of title to such person declared by said decree to be the owner of any parcel of land in severalty and said regis- trar's act in filing said decree and issuing said certificate shall have the effect of bringing said land under the operation of this act as herein provided as of the date of filing of the petition. (/) Said certificate shall contain a description of the property registered and shall also show the character of the ownership and whether or not the land is separate or community property and if community the names of both husband and wife, the nature, amount and order of the liens and incumbrances and other charges against the same and any other interest or condition which shall be found to exist by the decree. 22. (Sees. 14 and 15.) Decree for registration. [Title.] After due notice to all parties in interest of the hearing of this case it came on to be heard this day of , 19 , upon the petition for registration, (Make statement of the plead- ings), and upon the exhibits and testimony; and upon full con- sideration thereof the Court finds : A. That notice of the filing of the petition herein was duly pub- lished in the (Name newspaper), as required by law and in ac- cordance with the former order of this court; that all persons esit would appear that this clause contemplates that the decree, or a synopsis of it, should be entered on the certificate of title. But neither this section, nor Sec. 23 in specifying the requirements for the certifi- cate, nor the form permitted by Sec. 24, mention the decree as a part of the certificate. It is therefore likely that a reference in the certificate to the decree, will be sufficient. 6 C C County of \ L. W., being first duly sworn, says that he is the transferee in the foregoing deed (or, in a certain deed filed with the registrar of said County, dated , 19 , transferring land registered in certificate of title No ) ; that he is married and the name of his wife is (or, that he is not mar- ried) ; and the land conveyed by said deed is (or, is not) com- munity property. L. W. Subscribed and sworn to, etc. 54. (Sec. 58.) Affidavit by Executor, etc., transferee. State of California, ) County of } L. W., being first duly sworn, says that he is the legally ap- pointed of and as such is the transferee in the foregoing deed (or, in a certain deed, etc.) and that the land conveyed by such deed is (or, is not) com- munity property. L. W., As of Subscribed and sworn to, etc. MORTGAGES, ETC., ON REGISTERED LAND. Sec. 59. BECOME CHARGES UPON REGISTRATION : Every mort- gage, lease, contract to sell, or other instrument intended to create a lien, incumbrance, or charge upon registered land, or any interest therein, shall be a charge thereon immediately upon registration thereof. Sec. 60. MEMORIAL OF PURPORT OF INSTRUMENT NEW CERTIF- ICATE OR MEMORIAL BINDING ON ALL: On the filing of an instru- ment intended to create a charge in the registrar's office and upon the production of the duplicate certificate of title, whenever it ap- pears from the original certificate of title that the person intending to create the charge has the title and right to create such charge and 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, the register shall enter upon the original and duplicate certificates a memorial of the purport thereof, and the date of filing the in- strument, 95 with a reference thereto by its file number, which 5 By Sec. 50 the date of filing must be the same as endorsed on the instrument. See Sec. 55 and note as to stamping certificate. -61.] DEALINGS WITH REGISTERED LAND 83 memorial shall be signed by the registrar. The registrar shall also note upon the instrument on file the number of the certifi- cate of title where the memorial is entered. (a) No new certificate of title shall be entered and no mem- orandum shall be made upon any certificate of title by the regis- trar in pursuance of any deed or other voluntary instrument, un- less the owner's duplicate certificate of title is presented with such instrument, except in cases expressly provided for in this act, or upon the order of the court, for cause shown, [56.] and whenever such order is made, a memorial thereof shall be en- tered upon the new certificate of title and on the owner's dupli- cate. The production of the owner's duplicate certificate, when- ever a voluntary instrument is presented for registration, shall be conclusive authority from the registered owner to the registrar to issue a new certificate or to make a memorial in accordance with such instrument and the new certificate or the memorial shall be binding upon the registered owner and upon all persons claiming under him in favor of every purchaser for value in good faith. If the mortgage or other charge is assigned, enter on the certi- ficate, Memorial No. 57 or 57a under Sec. 63. 56. (Sec. 60.) Order allowing memorandum to be made with- out duplicate certificate. [Title.] Now comes and represents to the Court that he desires to file in this case (name instrument) but that he has not in his possession the duplicate certificate of title, and the court finding that there is good cause therefor, and that no harm will be done thereby, it is now on motion of said ordered that the said be filed and received by the registrar and entered on the register of this case, No , together with a memorial of this order. And the said is directed to produce his duplicate certificate for entry thereon. A similar order may be made for cause shown for a new cer- tificate. Sec. 61. INSTRUMENTS FILED IN DUPLICATE: When any mort- gage, lease, or other instrument creating or dealing with a charge upon registered land, or any estate or interest therein, is in dupli- cate, triplicate, 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, triplicate, or as the case may be, and shall also mark upon the others "mortgagee's duplicate," "lessor's duplicate," lessee's duplicate," or as the case 84 TORRENS LAND TITLE LAW OF CALIFORNIA [SEC. 62- 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. Sec. 62. CERTIFIED COPIES OF INSTRUMENTS: When an instru- ment is not executed in a sufficient number of parts for the con- venience 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 indorsements 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. Sec. 63. ASSIGNMENT OF A CHARGE: The holder of any upon registered land, desiring to transfer the same or any part thereof, may execute an assignment of the whole or any part thereof. The assignment of a part only must state whether the part transferred is to be given priority, to be deferred, or to rank equally, with the remaining part. Upon such assignment being filed in the office of the registrar, and the production of the dupli- cate 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 [57] and how it ranks, with a reference to the assignment by its file number; [57a] 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 valume and folium where the memorial is entered, with the date of the entry, (a) The transferee shall be entitled to have a certified copy of the instrument of transfer with the indorsement thereon, and in case of the transfer of the entire charge, the duplicate or certified copy of the instrument creating the charge. 57. (Sec. 63.) Memorial of assignment of charge. By an assignment, File No , dated filed this day of , 19 , the mortgage from to File No , has been transferred to (Signed by registrar.) 57a. (Sec. 63.) Memorial of assignment of part of charge. By an assignment, File No , dated filed this day of , 19 , an undivided interest in the mortgage from to. File No , has been transferred to , and the part transferred is given priority over (or, is deferred to, or, ranks equally with) the remaining interest in said mortgage. (Signed by registrar.) Sec. 64. RELEASE OF A CHARGE : A release, discharge, or sur- -66.] DEALINGS WITH REGISTERED LAND 85 render 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 transfer. Incase 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 re- leased, discharged, or surrendered at the same or several times, the registrar shall stamp across the instrument on file, and the memorial therof, and the duplicate or certified copy produced, the word "canceled." 57b. (Sec. 64.) Memorial of release of whole or part of charge. By an instrument of release dated filed this day of , 19. , File No , the. from .to being File No , is released in full. (Or, is released to the amount of ) (Signed by registrar.) Sec. 65. CHARGES ENFORCED AS IN OTHER CASES : All charges upon registered land, or any estate or interest in the same, may be enforced as now or hereafter allowed by law, and all laws with reference to the foreclosure and release or satisfaction of mort- gages shall apply to mortgages upon registered land, or any estate or interest therein, except as herein otherwise provided, and except that until notice [58] of the pendency of any suit to enforce or foreclose such charge is filed in the registrar's office, and a memorial therof entered on the register, the pendency of such suit shall not be notice to the registrar, or any person deal- ing with the land. 58. (Sec. 65.) Notice of pendency of suit to foreclose or en- force charge. Notice is hereby given that on the day of , 19 , a suit was begun in the Superior court of this county, by ~ against , case No , to enforce (or, foreclose) the , File No , entered as memorial No on certificate No in the registrar's office. And the registrar and all persons dealing with the property on which such is a charge shall take notice thereof. (Signed.) Sec. 66. POWER OF ATTORNEY : Before any person can convey, charge, or otherwise deal with registered land, or any estate or interest therein, as attorney in fact for another, the deed or in- strument empowering him so to act shall be filed with the regis- trar, and a memorial thereof entered upon the original duplicate certificates. If the attorney shall so desire, the registrar shall deliver to him a certified copy of the power of attorney, with the indorsements thereon. Revocation of a power may be registered in like manner. 86 TORRENS LAND TITLE LAW OF CALIFORNIA [SEC. 67- DEEDS IN TRUST Sec. 67. How NOTED IN CERTIFICATE: Whenever a deed or other instrument is filed in the registrar's office for the purpose of effecting a transfer of, or charge upon, registered lands, or any estate or interest therein, and it appears from such instru- ment that the transfer or charge is to be in trust, or upon any condition or limitation therein expressed, the registrar shall note in the certificate, and the duplicate thereof, or memorial, the words "in trust," or "upon condition," or "with limitations," as the case may be, but no entry need be made of the particulars of any such trust, condition, or limitation. 96 Sec. 68. TRUSTEE WITHOUT POWER OF SALE: The trustee or transferee in any such instrument named, if the instrument con- tains the words "with power of sale," shall have power to deal with the land as the owner thereof; and a bona fide purchaser, mortgagee, or leseee is not bound to inquire into or determine whether or not the acts of such trustee are in accordance with the terms and conditions of the trust. When such power is con- ferred, the registrar shall note upon the certificate and duplicate thereof the words "with power of sale." 96 Sec. 69. TRUSTEE WITHOUT POWER OF SALE: If, however, such instrument does not contain the words "with power of sale," such trustee shall have no power to sell or otherwise deal with the land without an order of court so to do, duly given and made, a cer- tified copy of which said order shall be filed with the registrar, and a memorial therof entered upon the certificate of title, which shall be conclusive evidence as against all persons that the author- ity of such trustee was duly exercised in accordance with the true intent and meaning of the trust, condition, or limitation. Sec. 70. TRUSTEE UNDER WILL : A trustee under any will ad- mitted to probate unless such power shall have been expressly withheld by the terms of such will, shall have power to deal with any registered land held by him in trust as fully in every respect as if such lands belonged to him individually. DISTRIBUTION, ETC., OF REGISTERED LAND IN OTHER PROCEED- INGS Sec. 71. MADE AS IN OTHER CASES: The distribution, transfer, leasing, mortgaging, or other change in the status of the title of registered land that is within the jurisdiction of any court by reason of the pendency of probate, insolvency, or equity proceed- ings, shall be made under the same conditions and limitations as now or hereafter provided by the law of this state. See note 75, under Sec. 23. -74.] IN PROBATE AND OTHER PROCEEDINGS 87 Sec. 72. ORDER FOR CERTIFICATE OR MEMORIAL : The court in its order or decree making such distribution, transfer, leasing, mortgaging, or other change in the status of the title of registered land shall direct the registrar to issue a certificate of title, or to note a memorial of the transaction, as the case may require, in accordance with such order or decree. [59.] The decrees called for by sections 69, 71, 72 and 74 are under the general laws of the state and therefore forms are not given here, but only the addenda to the decrees. 59. (Sec. 72.) Order in decree for transfer, etc., that certi- ficate issue, or memorial be made. Add to such decree, or to decree of confirmation; And it is ordered that upon a certified copy of this decree, and the deed (or other instrument) made thereunder, being filed with the reg- istrar, he shall issue a new certificate of title to (or, note a memorial on the certificate of title) in accordance with this decree. Sec. 73. CERTIFIED COPY OF DECREE, ETC., FILED WITH REGIS- TRAR: The executor, administrator, assignee, receiver, or other person acting under the direction of said court, shall file with the registrar a certified copy of such order or decree, also the deed, lease, mortgage, or other instrument executed in accordance with such order or decree, and also a certified copy of the order or de- cree confirming such sale, lease, mortgage, or other transaction, when such confirmation is required by law. Sec. 74. SALES BY EXECUTORS, ETC., CONFIRMED: Executors, administrators, trustees in bankruptcy, and assignees in insolvency shall have no power of sale of lands registered in their names as such, without an order of court obtained for that purpose, (a) Before any certificate can be issued to the purchaser, such sales shall be reported for confirmation to the court under whose authority such executor, administrator, or assigne is acting, and if confirmed a duly certified copy of the order of confirmation shall be filed in the office of the registrar, and a memorial thereof entered upon the certificate of title. Upon the filing of the certi- fied copy of such order of confirmation and the entry of such memorial, the registrar shall issue a certificate to the purchaser at such sale [60.] which certificate, in addition to the usual contents thereof, shall refer to the said order of confirmation. Such order of confirmation shall be conclusive evidence that the sale was in all respects conducted in accordance with law, and the pur- chaser shall not be bound to inquire into the regularity of the proceeding, or power to make such sale. 88 TORRENS LAND TITLE LAW OF CALIFORNIA [SEC. 74- 60. (Sec. 74.) Order for certificate when sale made by execu- tor is confirmed. Add to the decree of confirmation as follows; And it is ord- ered that upon a certified copy of this decree and the deed made thereunder being filed with the registrar he make a memorial thereof upon the certificate of title and issue a new certificate to the purchaser of the land, in accordance with, and which certificate shall refer to, this decree of confirmation. Sec. 75. WHEN EXECUTOR GIVEN POWER OF SALE BY WILL: If a testator, by his will, has provided that the executor thereof shall have a power of sale of real estate, the court shall direct the registrar to register the words "with power of sale," in respect of the land of the deceased, [61] and such executor shall have power to sell such land without an order of court so to do, but such sales must be confirmed by the court in the manner now or hereafter provided by the law of this state, and a duly certified copy of the order of such confirmation shall be filed with the registrar before any certificate of title can be issued to the pur- chaser of such land. [62.] 61. (Sec. 75.) Order that words "with power of sale" be registered. [Title.] It appearing to the court, from inspection of the will of F. C. f that said testator has therein provided that the executor E. S. shall have a power of sale of the real estate therein devised, and registered in certificate of title No , it is hereby directed that the registrar enter upon the register and duplicate certificate the words "with power of sale" in respect to the land of the de- ceased. 62. (Sec. 75). Order in decree confirming sale made by execu- tor for certificate. Use form of Entry No. 59. Sec. 76. CERTIFICATE OF MEMORIAL CONCLUSIVE EVIDENCE: Thereupon the registrar shall issue the certificate of title, or note the memorial, as the case may require ; and such certificate of title or memorial noted shall be conclusive evidence in favor of all persons thereafter depending thereon. TAX SALE OF REGISTERED LAND Sec. 77. NOTICE BY PURCHASER: A purchaser of registered land sold for any tax or assessment 97 shall, within five days after TThe general statutes of California governing tax sales are set forth under Sec. 8 ante, and they govern both registered and unregistered land. By reference to these statutes it will be apparent that the pur- chaser referred to in the first part of this section must be one who purchases from the State after the five years allowed for redemption -77.] TAX SALES OF REGISTERED LAND 89 such purchase, file in the office of the registrar a written notice of such purchase, [63] And thereupon the registrar shall enter a memorial thereof upon the certificate of title, and shall mail to each person named in the certificate, and in the memorials there- on, a copy of said notice, a sufficient number of said copies to be furnished to the registrar by said purchaser at the time of filing said notice, (a) In case the state or a municipal corporation be- comes the purchaser of land sold for any tax or assessment, the tax collector or other officer attending to such purchase shall, within five days thereafter, file with the registrar a notice to that effect. [64] And thereupon the registrar shall enter a me- morial thereof upon the register, and shall mail notices to inter- ested parties, as in the case of an individual purchaser. Unless such notice is filed as herein provided, the land shall be forever released from the effect of such sale, and no deed shall be issued in pursuance thereof. has expired and the title has become absolute In the State. Still, not- withstanding this, he must give notice, and go through all the formali- ties required by this and subsequent sections, before he can acquire a title to the land. All of this is certainly not for the benefit of the "tax shark" as claimed by some opponents of the law. The case of the State, in the second part of the above section must refer to its being declared the purchaser at the tax sale as provided in sections 3767 and 3771 P. C. The provision here made is also for the protection of the original owner. The steps required for purchaser to obtain a certificate of title to registered land sold for nonpayment of taxes are as follows: By Sec. 77: 1. Within five days a written notice filed in the office of the reg- istrar. 2. Memorial thereof entered on the certificate of title. 3. Registrar must mail a copy of the notice to each person named in the certificate and in the memorials. 4. The tax deed issued to purchaser. Sec. 78: 5. The tax deed presented to the registrar. 6. Memorial thereof made by registrar. 7. Application for a decree filed by holder of deed with the clerk. Sec. 79: 8. Order of Court that notice of application be given. 9. The notice, sent to all persons appearing on the register to be interested in the lands and to the person who paid the last tax or assessment. Sec. 80: 10. Application set for hearing and heard by the Court wherein the applicant must show affirmatively that all the requirements of the statute have been complied with. 11. Decree of the Court, showing him to be the owner, and order- ing a certificate to be issued. 12. The certificate of title issued to purchaser. 90 TORRENS LAND TITLE LAW OF CALIFORNIA [SEC. 77- 63. (Sec. 77.) Notice of purchase of registered land sold for taxes. In the matter of registered land sold for non-payment of taxes. To all whom it may concern : Notice is hereby given that the undersigned did on the day of. , 19. , purchase from the State of California the land hereinafter described, registered in certificate of title No and sold by the state for non-payment of taxes; and that the undersigned has applied (or, will apply), to the Superior court of said county for a decree snowing the title of said land to be vested in him. Which said land is described as follows : (describe.) Dated this day of , 19 L. E. W. 64. (Sec. 77.) Notice that registered land has been sold to state. To all whom it may concern : Notice is hereby given that on the day of 19 , the following registered land was declared sold to the State of California, for delinquent taxes, to-wit: Land registered in certificate of title No , described as follows : (describe.) Given this day of 19 Collector of Taxes. Sec. 78. TAX DEED FILED APPLICATION FOR DECREE: A tax deed of registered land, or of any estate or interest therein, issued in pursuance of any sale for a tax or assessment made after the taking effect of this act, may be presented by the holder thereof to the registrar, who shall thereupon enter upon the register a memorial of such deed ; but such deed, unless the same shall have been issued to the state, shall have only the effect of an agree- ment for the transfer of the title, and before any certificate of title shall be issued for the land described in such deed, the holder thereof must file with the clerk of the Superior court an application for a decree showing the title to said land to be vested in him. [65.] Shall the application for the decree provided for in the above section be filed in the original case for registration, or under a new number and proceeding? The latter would appear to be the best practice, as it might be filed long after the original -79.] TAX SALES OF REGISTERED LAND 91 case had been closed, and as this application is treated, and notice of it served and decree entered in the same manner, as in case of the original petition for registration. In this view make the application as follows : 65. (Sec. 78.) Application by tax purchaser for decree. In the Superior court of California, in and for the county of T. P. vs. (Name all persons ap- pearing on the register to be interested in the land, Application for decree. and the person who last paid taxes.) > The applicant, T. P., now comes and represents to the court that at a sale of land for delinquent taxes, held in said county of. on the day of , 19 , the land hereinafter described was duly declared sold, and was sold to the State of California; that the person who appears by the tax collector's books to have paid the tax last paid before said sale is H. W. ; that afterwards, on the day of , 19 , the applicant herein purchased said land from the State of California and received a deed, duly executed therefor. He further states that within five days after the said purchase he duly filed a notice thereof in the office of the registrar of said county, and that the registrar entered a memorial thereof on the certificate of title in his office and sent a copy of said notice to each of the defendants, being the persons named in said cer- tificate of title and the memorials thereon, as required by law, and to said H. W. Applicant states that all the proceedings in such tax sale and in the sale to him have been regular and according to law, and that thereby the title to said land became vested in him in fee simple. The said land is registered in certificate of title No and is described as follows: (Describe.) Wherefore the applicant prays the court for a decree showing the title of said land to be vested in him, and directing the regis- trar to issue to him a certificate of title therefor ; and for such other relief as shall be according to law and equity. ( Usual verification. ) Sec. 79. To WHOM NOTICE SENT : All persons appearing upon the register to be interested in said land, and also the person who appears by the tax collector's books to have paid the tax or assessment last paid before the sale on which the deed is issued, 92 TORRENS LAND TITLE LAW OF CALIFORNIA [SEC. 79- shall be notified; [67] and any person claiming an interest in the land may, upon the hearing of such application, show, as cause why a certificate of title should not issue to the holder of said deed, any fact that might be shown in law or in equity on his behalf to set aside such tax deed, and the applicant shall be re- quired to show affirmatively that all the requirements of the statute to entitle him to a deed have been complied with. This notice must, by section 82, be served in the manner pro- vided for service of notice of application for original registra- tion. But it would not seem that an order of court for the notice as required by Sec. 11 is needed in this case, except that the court designate the newspaper in which publication is to be made ; but a form for the order is here given, to be used if deemed necessary. 66. Order that notice be given of tax purchaser's application for decree. [Title.] T. P. having filed with the clerk of this court an application for a decree showing the title of certain registered land sold by the State for non-payment of taxes and purchased by him as described in his deed, to be vested in him, and the court finding that said tax deed has been filed with the registrar, as required by law; it is now ordered that notice be given of the filing of the application herein as provided in the act for registration of land titles. The notice attached hereto is approved, and it is ordered that it be published in the , a newspaper of general circulation published in this county, once a week for four succes- sive weeks, and service made as provided by the act aforesaid. 67. (Sec. 79.) Notice of application for decree. In the Superior court of California, in and for the county of. [Title as in No. 65.] The State of California to the above named defendants and to all whom it may concern: You are hereby notified that the applicant above named did on the day of 19 , file in the office of the county clerk of said county an application for a decree of the court, showing the title of certain land purchased by him at tax sale, registered in certificate No to be vested in him. Which said land is described as follows: (describe.) You are hereby directed to appear and answer such applica- tion within ten days after personal service of this notice upon you, if served within this county, or thirty days after personal service out of the county and within this state, or within sixty days after the first publication of this notice, if it has not been -81.] TAX SALES OF REGISTERED LAND 93 personally served upon you in this state. And if you fail to appear and show cause why such application should not be granted, the court will grant the same. Witness: the Hon. L. R. W., Judge. Given under my hand and seal of said court, this- day of 19- [SEAL.] H. J. L. County Clerk. First publication 19 Sec. 80. DECREE AND CERTIFICATE ON HEARING: Such applica- tion shall be heard by the court, which shall render a decree [68] showing the condition of the title to such land, and who is the owner thereof, and upon presentation to him, of a duly certified copy of such decree, the registrar shall issue a certificate for said land in accordance with the terms and conditions of said decree. 68. (Sec. 80.) Decree showing title vested in holder of tax deed. [Title, as in No. 65.] After due notice to all parties in interest of the hearing of this case, it came on to be heard this day of 19 , upon the application of T. P. for a decree showing the title of the land in the application described, to be vested in him by tax deed, and upon the exhibits and testimony; and upon full consideration thereof the court finds : (make finding of service and pleadings, as in decree No. 22, ante.) 2. The court coming now to determine the title to the land finds that the allegations of the applicant, T. P., are true ; that all of the proceedings in the sale of the land as described were regular and in strict accordance with the statutes in such case provided, and with the orders of this court; that all acts re- quired by law to be done in such cases by the registraar were properly performed and that the tax deed to the said T. P. was properly made and executed, and that all other acts in regard thereto have been properly performed. It is therefore found and adjudged and decreed that the said T. P. is the owner in fee simple of said land, and his title thereto is hereby established and confirmed. Said land is described as follows: (describe.) It is further ordered that the registrar issue to him a certi- ficate of title as provided by law. (Make any other findings required, as in Decree No. 22.) Sec. 81. WHEN STATE OR MUNICIPALITY is PURCHASER: In case a tax deed of registered land is issued to the state or any mu- nicipal corporation, in pursuance of any sale for a tax assessment made after the taking effect of this act, the registrar shall, upon 94 TORRENS LAND TITLE LAW OF CALIFORNIA [SEC. 82- the filing of such deed in his office, cancel the certificate for the land in said deed described 98 and issue a new certificate to the purchaser. Sec. 82. How NOTICE REQUIRED IN SEC. 79 SERVED: The notice required by Section 79 shall be served upon persons interested in the manner provided in this act for the service of notice of application for original registrations. Proof of such service and publication must be made in the manner now or hereafter re- quired by the laws of this State. 98a Sec. 83. Redemption from tax sale: Upon presentation to him of a certificate of redemption from any tax sale, the regis- trar shall cancel the memorial of said sale upon the certificate of title. PARTITION OF REGISTERED LAND (See also Sec. 104.) Sec. 84. PROOF AS TO PARTIES: In proceedings for partition of registered land, proof must be made that all persons, shown by the register of title to be interested in the land, have been made parties to such proceedings. Sec. 85. LANDS ALLOTTED BY COMMISSIONERS: On confirmation of the report of the commissioners setting off registered lands in proceedings for partition, it shall be the duty of the parties to whom the lands are allotted, to cause a certified copy of the judgment or decree to be filed with the registrar. 99 Thereupon the registrar shall transfer the same upon the register, and issue certificate of title to the persons entitled thereto, as shown by said decree. Sec. 86. LAND SOLD IN PARTITION PROCEEDINGS : Whenever, in proceedings for partition of registered land, the court shall order a sale of such land and the same is sold under such order, the purchaser shall file with the registrar a certified copy of the order confirming said sale, 99 together with certificate of the officer making the sale [69] that the terms of the sale have been com- plied with. Thereupon, the registrar shall transfer said land upon the register, and issue a certificate of title to the purchaser therefor. 8For memorial to be entered on cancelled certificate see Form No. 48. Sec. 12 and notes under that section. order for the registrar to issue a new certificate should be added to the decree of confirmation as an assurance to the registrar. and because a certificate under the direct order of the court carries more weight with some persons. Entry No. 59 or 60 may be modified to suit each case. -90.] PARTITION OF REGISTERED LAND 95 69. (Sec. 86.) Certificate of officer making sale. [Title.] I, do hereby certify that on the day of 19_...., I made a sale, as ordered by the court, in the above named proceedings in partition, of the land registered in certificate of title No ; and that the terms of sale were in all respects complied with and all the proceedings of sale regular and according to law. Given under my hand this day of 19 Sec. 87. LIEN ON UNDIVIDED INTEREST, ATTACHES TO WHAT: When a tenant in common has given any mortgage, or granted any other lien or interest upon his undivided interest, and the same is set off in severalty in proceedings in partition, such mortgage, lien, or other interest shall attach only to the lands so set off, and the registrar shall note the same upon a new register of title, and a new certificate of title, and shall indorse a memo- randum of the partition upon the instrument creating such lien, mortgage, or other interest, if the same be on file in his office, before a new certificate of title shall be issued therefor. Sec. 88. SALE OF REGISTERED LAND TO SATISFY JUDGMENT: Whenever registered land shall be sold to satisfy any judgment, decree, or order of court, the purchaser shall file with the reg- istrar a duly certified copy of the order of sale, or of the order confirming such sale, when the same needs to be confirmed by the court, and also the certificate, if any, of the officer, that the terms of sale have been complied with, and thereupon the regis- trar shall transfer the land to him, and issue a new certificate of title therefor to said purchaser. 100 Sec. 89. Lis PENDENS: 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 notice of the pendency of such suit, bill, or proceeding 101 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 ; provided, however, this section shall not apply to attachment proceedings when the officer making the levy shall file his certificate as hereinafter provided. Sec. 90. WHEN SUIT, ETC., DISMISSED, OR DISPOSED OF : When any suit, bill, or proceeding affecting registered lands has been iooSee note under Sees. 85 and 86. loiMake notice in form of No. 58. 96 TORRENS LAND TITLE LAW OF CALIFORNIA [SEC. 91- dismissed or otherwise disposed of, or any judgment, decree, or order has been satisfied, released, reversed, or modified, or any levy of execution, attachment, or other process has been released, discharged, or otherwise disposed of, it shall be the duty of the sheriff, or the clerk of the court in which such proceedings were pending, or had, as the case may be, forthwith, under his hand, and, if the clerk, under the seal of the court 102 to certify to and file with the registrar, an instrument showing such dis- charge or release. Upon the same being filed, the registrar shall enter a memorial of such discharge on the register. The costs of such certificate and memorial shall be taxed as other costs in the case. LIENS ON REGISTERED LAND Sec. 91. WHEN JUDGMENT BECOMES A LIEN : No judgment, or decree, or order of any court shall be a lien on or in any wise affect registered land, or any estate or interest therein, until a certified copy of such judgment, decree, or order, under the hand and official seal of the clerk of the court in which the same is of record, 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. Sec. 92. LEVY ON REGISTERED LAND : CERTIFIED TO REGISTRAR : 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 forthwith to file with the registrar a certificate of the fact of such levy, ] 70] 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 notwithstanding. 70. (Sec. 92.) Certificate of levy. Sheriff's Office, County of State of California. To the Registrar of County : I hereby certify that the land registered in certificate No (or, describe the land) was on the day of levied on by virtue of a writ of issued in case No in (name court.) Given under my hand, etc. Sheriff of -County. Sec. 96, practically the same as this section, and forms under that section. -94.] LIENS ON REGISTERED LAND 97 Sec. 93. MECHANIC'S LIEN : Notice of liens under the provi- sions of the mechanic's lien laws of this state shall be filed in the registrar's office, and a memorial thereof entered by him upon the register, as in the case of other charges, and such liens may be enforced as now or hereafter allowed by law. Until such notice is so filed and registered, no lien shall be deemed to have been created. Sec. 94. ORDINANCE FOR PUBLIC IMPROVEMENT: When in a city, town, or county, an ordinance, resolution, or order is passed or made, to lay out, establish, alter, widen, grade, regrade, relo- cate, or construct or repair a street, sidewalk, drain, or sewer, or to make any other public improvement, or to do any work, the whole or a portion of the expense for which assessments may be made upon real estate, if any registered land or any land included in an application for registration then pending is affected by the act or proceeding and liable to such assessment, the clerk of the board passing such ordinance, resolution, or order must, within five days after the passage of such ordinance, resolution, or order, file in the registrar's office a notice of the passage thereof, [71] and a memorial must thereupon be noted on the register, (a) In case of the repeal of such ordinance, [72] resolution, or order, the clerk of said board, and in case of the satisfaction of any lien [73] thereunder, the superintendent of streets or other of- ficer required by law to collect and receive such assessments, must within five days thereafter, notify the registrar, in writing, who shall thereupon cancel such memorial. 71. (Sec. 94.) Notice of ordinance to lay out or improve street, etc. To the registrar of county : Notice is hereby given that on the. day of , 19 , an ordinance No , was passed by the council of the of , to establish (or, otherwise affect} street, for the expense of which an assessment may be made on registered land included in certificate of title No (Or. describe the land.} Given this day of , 19 Clerk of , 72. (Sec. 94.) Notice of repeal of ordinance. To the Registrar of County : Notice is hereby given that Ordinance No for the of. street affecting land registered in certificate No (or, describe land} passed on the day of , 19. , was repealed on the day of , 19 Given this day of , 19 Clerk of.. 98 TORRENS LAND LAW OF CALIFORNIA [SEC. 94- 73. (Sec. 94.) Notice that lien under ordinance is satisfied. To the Registrar of. County : Notice is hereby given that the lien on land registered in cer- tificate of title No , for the improvement of. street in the city of was satisfied on the day of , 19....... Given this day of , 19 Collector. Sec. 95. WHEN LIEN DEEMED TO AFFECT TITLE OF REGISTERED LAND: 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. Sec. 96. CERTIFICATE OF DISMISSAL OF SUIT, ETC., TO BE FILED: The filing in the registrar's office of a certificate of the clerk [74] 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 dismissed or otherwise disposed of, or the judgment, decree, or order has been satisfied, released, reversed, or overruled, or of any sheriff ]75[ or other officer that the levy of any execution, attachment, or other process cer- tified by him has been released, discharged, or otherwise dis- posed of, shall be sufficient to authorize the registrar to cancel or otherwise treat the memorial of such suit, bill, proceeding, judgment, decree, or levy, according to the purport of such cer- tificate. 74. (Sec. 96.) Certificate of clerk of suit dismissed or judg- ment satisfied. Clerk's office. County of State of California. To the registrar of county : I hereby certify that suit (or, that judgment in suit) No in the Superior court of county, California, affecting land registered in certificate of title No (or, describe the land,) was dismissed (or, satisfied) on the day of , 19. Given under my hand and the seal of the court this -day of , 19....... [ SEAL. ] _ Clerk. 75. (Sec. 96.) Certificate of sheriff of release of levy, etc. Sheriff's Office, County of State of California. -98.] ALTERATION OF CERTIFICATE OR MEMORIAL 99 To the registrar of county. I hereby certify that the levy of execution under judgment in case No of the Superior court of this county, heretofore certified by me, affecting land registered in certificate of title No , (or, describe the land,) was released on the day of , 19 Given under my hand this day of , 19. Sheriff. ALTERATIONS, ETC., OF CERTIFICATE OR MEMORANDUM. Sec. 97. After a title has been registered and a certificate issued therefor, or after a memorandum, notation, or memorial has been made on the register of title and has been attested, no correction, alteration, or erasure shall be made therein or thereof, except in the manner herein provided. Sec. 98. APPLICATION FOR ORDER CORRECTING, ETC. : A regis- tered owner or other person in interest or the registrar, may at any time apply by petition [76] to the court, upon the ground that registered interests of any description, whether vested, contin- gent, expectant or inchoate, have terminated and ceased; (a) or that new interests have arisen or been created which do not ap- pear upon the certificates; (b) or that there is an error or omis- sion in any certificate or memorial; (c) or that any certificate or memorial has been made, entered, indorsed, issued, or can- celed by mistake; (d) or that the name of any person on the cer- tificate has been changed by divorce, adoption, or other than by marriage as provided for in section 28 of this act; (e) or that an owner, registers as married, has ceased to be such ; ' x or that a corporation which owned registered land has been dissolved and has not legally conveyed the same after its dissolution ; (g) or upon any other reasonable ground;, (h) for an order cor- recting or altering any certificate to comply with the true facts as shown by the petition and proof adduced and the court shall have jurisdiction to hear and determine the petition after notice to all parties in interest, (t) The court shall issue an order [77] summoning all persons registered as interested in the lands to which such certificate or memorial relates, to appear at an ap- pointed time and place and produce their duplicate certificates and show cause why such omission, or mistake, or change, or alteration, should not be corrected or made. (/) The registrar shall, upon receiving notice of such petition, enter a memorial of such application upon the certificate of title affected, (fc) If at the time and place appointed all such persons appear and consent, the court may order the entry of a new certificate, the the entry or cancellation of a memorandum upon a certificate, or 100 TORRENS LAND LAW OF CALIFORNIA [SEC. 98- grant any other relief upon such terms, requiring security if necessary, as it may consider proper. [79] If such persons, or any of them, fail to appear or do not consent, the court may proceed to hear testimony and if it appears to the satisfaction of the court that the relief as petitioned for should be granted, it shall order and direct the registrar to make such corrections or modifications on such certificates or memorials as may be neces- sary. [80] (m) A certified copy of such order of the court shall be filed in the registrar's office before any such corrections or modifications shall be entered or made, (n) When such action has been caused by the fault or neglect of the registrar, the costs of such proceedings shall be paid by the county out of the fees collected by the registrar under the provisions of this act that go into the county treasury ; if by the fault of the person registered as interested in such land, by such person, (o) The provisions of this section shall not give the court authority to open the original decree of registration and nothing shall be done or ordered by the court which shall impair the title or other interest of a purchaser who holds a certificate for value and in good faith, or his heirs or assigns without his or their written consent. Sec. 28 provides for change of name in a certificate, on appli- cation. More formality is required in making corrections, altera- tions and erasures under this section. The petition here provided for, it would appear, may be filed in the original proceedings for registration, or as a separate action. 76. (Sec. 98.) Petition, by registered owner, for correction or alteration of certificate. [Title.] The pettioner, A. B., now comes and represents to the court that he is the owner of certificate of title No to land de- scribed as follows: (describe} ; and states that (here set forth any of the conditions provided for in this section, and the true facts.) The petitioner therefore prays the court for an order correct- ing (or, altering) his said certificate in the particulars here set forth to make it comply with the facts as above stated, and for such other relief, etc. (Usual verification.) 77. (Sec. 98.) Order that summons issue. [Title.] On consideration of the petition herein, it is ordered that all persons named as defendants in the petition, registered as inter- ested in the lands in said petition described, be summoned to ap- pear (name time and place,) and produce their duplicate certifi- -98.] ALTERATION OF CERTIFICATE OR MEMORIAL 101 cates and show cause why the correction (or, alteration) peti- tioned for should not be made. 78. Form of summons. In the Superior court of the State of California, in and for the County of [Title.] You, and each of you, are hereby directed to appear at (name place), on the day of , 19 , at o'clock M., and answer the petition of A. B., filed herein for the correction (or, alteration) of his certificate of title No , relating to the following described land to-wit: (describe). And you are directed to there produce your duplicate certificates and show cause why the correction (or, alteration) asked for should not be made. Given under my hand and the seal of said court, this day of , 19 H. J. L., Clerk. 79. (Sec. 98.) Order for correction, by consent. [Title.] Now came A. B., by his attorney, this day of , 19 , and thereupon this cause came on to be heard on his peti- tion for correction (or, alteration), of his certificate of title and the proof adduced in support thereof. And upon considera- tion of the premises the court finds that all the persons regis- tered in this case as interested in the lands to which such certi- ficate relates, have appeared in person, or by answer filed herein, and have consented to the correction (or, alteration), prayed for; and the court finding that the petition is made upon reas- onable grounds, it is therefore ordered* that correction (or, alter- ation) of said certificate No be made as follows: (state form) ; and the registrar is ordered and directed to issue a new certificate (or, make a memorandum on the certificate) in accordance with this order upon a certified copy hereof being filed with him and on payment of the costs hereof. 80. (Sec. 98.) Order for cerrection on hearing. [Title.] Now came A. B., the petitioner herein, by his counsel, J. M., this day of , 19 , and thereupon this case came on to be heard on his petition for cerrection (or, altera- tion) of his certificate of title and the proofs adduced in sup- port thereof, and on the answer filed herein of E. F. objecting to such correction, and upon the testimony offered ; and there- upon the court finds that all of the persons registered as inter- ested in the lands to which the certificate relates, have been duly served with summons as heretofore ordered by the court, 102 TORRENS LAND LAW OF CALIFORNIA [SEC. 99- and that all of said persons are in default for failing to appear or answer, except as shown in the pleadings here named ; and as to all so in default it is adjudged that the allegations of the petition be taken as confessed and true. And upon full consideration of the premises the court finds that the petition is made upon reasonable grounds and that the relief petitioned for should be granted. It is therefore ordered (Conclude as from * in last entry.) Sec. 99. FORM OF MEMORIAL REFERRED TO COURT: When the registrar is in doubt or when the parties in interest fail to agree as to the proper memorial to be made in respect to any deed, mortgage or other voluntary instrument presented for registra- tion, the question shall be referred to the court for decision, either on the certificate of the registrar, [81] stating the ques- tion, or upon the suggestion in writing of any party or parties in interest; [82] and the court after due notice to all parties in interest and a hearing, if necessary or proper, shall enter an order prescribing the form of the memorial to be made by the registrar, who shall make the memorial accordingly. [83.] 81. (Sec. 99.) Form of memorial referred to court on regis- trars certificate. [Title.] A certain , which is herewith submitted to the court, having been presented to me for registration, and being in doubt as to the proper memorial to be made in respect there- to, the question is hereby referred to the court for decision, and I certify the question to be as follows : (state fully.) Registrar. 82. (Sec. 99.) Same, on suggestion of party. [Title.] N. R. now conies and represents to the court that he is one of the parties in interest in this case, and states that the parties herein can not agree as to the form of the proper memorial to be made by the registrar in respect to a certain deed (or, other instrument) presented for registration, and herewith shown to the court, and suggests that the question be referred to the court for decision. The question agreed upon by the parties to be submitted is as follows: (State fully.) (Signed by the parties.) 83. (Sec. 99.) Order prescribing form of memorial. [Title.] It appearing that the registrar is in doubt (or, that the parties herein fail to agree) as to the proper memorial to be made in respect to (any voluntary instrument) presented for registra- -100.] FEES 103 tion in this case, and the question having been referred to the court on the certificate of the registrar (or, upon the suggestion in writing of N. R. and agreement of the parties in interest) the court after due notice to all interested parties and full con- sideration, hereby prescribes the following form of the memorial to be made, which the registrar is directed to make accordingly, to- wit: (Set forth form for tnemorial or prescribe new certifi- cate.} Sec. 100. FEES UNDER THIS ACT: For services performed under the provisions of this act, there shall be paid to the regis- trar the following fees : Subdivision 1. For filing decree directing land to be brought under the operation of this act, including original registration and issuing original certificate of title and duplicate and the fil- ing of all instruments connected therewith, for each separate parcel of land affected, one dollar, (a) For each subsequent registration and issuing of certificate of title, including one dup- licate and the filing of all instruments connected therewith, for each separate parcel of land affected, one dollar, (b) For filing certified copy of any petition filed in the Superior court of another county in probate proceedings or any notice of any action in another county wherein registration of land is asked for, one dollar, (c) For the entry of each memorial on the register, including the filing of all instruments and papers con- nected therewith and the endorsement upon the duplicate cer- tificate, for each separate parcel of land affected, fifty cents, (rf) For filing copy of will with letters testamentary or filing copy of letters of administration with or without will annexed and entering memorial thereof, one dollar, (e) For the can- cellation of each memorial or charge, appearing on one certifi- cate, twenty-five cents. (/) For each certificate showing the condition of the title to all land appearing on one certificate, three dollars, (g) For filing any instrument or furnishing a certified copy of any instrument or writing on file not herein specially provided for, the same fees which are allowed by law to recorders for like services. Subdivision 2. In addition to the fees provided in subdivision 1, for services performed by the registrar there shall be paid to him the following fees: Upon the original registration of any land, a sum equivalent to one-tenth of one per cent of the as- sessed value of the land including permanent improvements thereon as the same were valued for county taxation the last time said land and permanent improvements or either thereof were assessed for county taxes next preceding the filing of the petition. Subdivision 3. All the fees collected by the registrar under the provisions of subdivision 1 of this section shall be accounted 104 TORRENS LAND LAW OF CALIFORNIA [SEC. 101- for, paid, disbursed and disposed of by him in the manner that fees collected by him as county recorder are now or may here- after be by law accounted for, paid, disbursed and disposed of. (a) All fees collected under the provisions of subdivision 2 of this section shall be paid by the registrar, between the first and fifth days of the month following receipt thereof, to the treas- urer of the state, to be by him accumulated as and for an assur- ance fund, (b) Should there be a surplus in any year derived from fees hereunder other than those provided to be paid to the state treasurer for an assurance fund, such surplus shall be carried into the general fund and be subject to appropriation for any purpose. In case such fees shall not amount to the sum required for theadministration of this act, the deficiency shall be paid from any funds in the county treasury, not otherwise appropriated, (c) All books, blanks, papers and other things necessary, including clerks for the purpose of carrying out the provisions of this act, shall be furnished by the board of super- visors at the expense of the county. Sec. 101. RIGHT OF EMINENT DOMAIN NOT AFFECTED: Nothing in this act shall be construed to in any wise affect or modify the exercise of the right of eminent domain. When any suit or proceeding shall have been brought in the exercise of such right for the taking of registered land, or any interest therein, or to test the validity of any such taking, or to ascertain and establish the amount of damage by reason of any such taking, it shall be the duty of both parties to the proceedings to see that a certified copy of the judgment or decree therein is duly filed and a memo- rial thereof entered upon the register; (a) but in the case of an assessment of damages, no such memorial shall be entered by the registrar until such damages have been paid, in which event the register shall also show the payment of such damages ; provided, however, that the deposit with the treasurer, as al- lowed by law, of such damages, shall be deemed a payment thereof, and in such case the treasurer shall forthwith file with the registrar a certificate of such deposit, and thereupon a memo- rial thereof shall be entered upon the register, (b) Upon the filing of the certified copy of the order or decree of the court and the payment of damages, the registrar shall note on the register of title of the owners whose lands have been appropri- ated, and shall register in the name of the person, corporation, or other body entitled thereto, the title of the land taken, and is- sue a certificate therefor. Sec. 102. PROPERTY INDICES: The registrar shall keep prop- erty indices, the pages of which shall be divided into columns, showing, first, the section or subdivision ; second, the range of block; third, the township or lot; fourth, any further descrip- -105.] ASSURANCE FUND 105 tion necessary to identify the land ; fifth, the name of the reg- istered owner; sixth, the volume; and seventh, the page of the register in which the lands are registered. Sec. 103. NAME INDICES: He shall also keep name indices, the pages of which shall be divided into columns, showing in alphabetical order, first, the names of all registered owners and all other persons interested in or holding charges upon register- ed land ; second, the nature of the interest ; third, a brief descrip- tion of the land; fourth, the volume; and fifth, the page of the register in which the lands are registered. Sec. 104. PARTITION OF REGISTERED LAND: (See Sees. 84, et seq.^An owner of an undivided interest in registered lands may bring an action for the partition thereof. A notice of such action shall, at the time of the commencement thereof, be filed with the registrar and a memorial entered by him upon the register. A certified copy of any judgment or decree rendered in pursuance of such action shall be filed with the registrar, who shall there- upon issue new certificates in accordance therewith. TORRENS TITLE ASSURANCE FUND. IOS Sec. 105. Subdivision 1. The state treasurer shall keep all sums paid to him by the registrars under the provisions hereof in a seprarate fund to be known as the "Torrens title assurance fund," and shall keep the same invested and reinvested in bonds of the United States or of the State of California or of any county or municipality thereof, the income derived from said investment to be, as the same is received, added to said fund. Said treasurer shall render to the governor, at least once in each fiscal year, a full and detailed report, showing all receipts, dis- bursements and investments on account of such fund. Subdivision 2. Any person who, without fraud or negligence on his part, is deprived of any interest or estate in land through the operation of any provision of this act or by reason of the fraud, forgery, negligence, omissioin, mistake or misfeasance of any person, and who is precluded from recovering such interest or estate, may commence an action in the Superior court of the county in which the land or a part thereof is situated, to recover not over the fair market value of the interest or estate of which he has been deprived. If such deprivation has been caused solely by reason of any act of any registrar or deputy registrar in the performance of official duty as such, the state treasuerer, in his official capacity, shall be the sole defendant. If such depriva- tion has been caused either wholly or in part by any person or persons other than such registrar or deputy registrar, while act- ing in the official performance of duty as such, such person or ""See remarks as to the assurance fund, ante, page 18. 106 TORRENS LAND LAW OF CALIFORNIA [SEC. 105- persons shall be joined as defendants with said state treasuerer. (a) In any such action said court shall have jurisdiction, after the service of -summons, as provided in ordinary actions in said court, to determine the reason of such deprivation and to render judgment therein accordingly, either against said state treasuerr alone or against him and all or any of the other defendants. (b) In any action where there are defendants other than said state treasurer against whom judgment has been rendered, exe- cution shall first issue against such other defendants and upon the return of such execution unsatisfied, either in whole or in part and upon it appearing to the satisfaction of the court that said execution cannot be satisfied out of the property belonging to such judgment creditors other than said state treasurer, or where judgment is had against said state treasurer alone, said court shall make its order directing the payment of the amount due out of the assurance fund, and such order shall constitute the warrant for the payment of the same, and the state con- troller shall thereupon audit and certify the amount of such claim in the same manner as other claims, against the state are audited, and the state treasurer shall thereupon pay the amount of said claim out of the assurance fund without any other act or resolve making an appropriation therefor, (c) If the assur- ance fund is at any time insufficient to pay the amount of any judgment in full, so much thereof as can be paid out of such fund shall be paid, and the unpaid balance shall bear interest at the legal rate and shall be paid out of the first moneys com- ing into such assurance fund, (d) The attorney-general shall defend the state treasurer in all actions brought under the pro- visions hereof, (e) If the person who is deprived of land or of any estate or interest therein in the manner above stated, has a right of action or other remedy for the recovery thereof, he shall exhaust such remedy before resorting to the action herein provided, (f) The provisions of this section shall not deprive the plaintiff of any action in tort which he may have against any person for loss or damage or deprivation of land, or any estate or interest therein, but if such plaintiff elects to pursue his remedy in tort and also brings an action under the provisions of this section, the action against said state treasurer shall be held in abeyance to await the final result of such action in tort, (g) In every case in which payment has been made by the state treasurer under the provisions of this section, the state shall be subrogated to all the rights of the plaintiff against any other parties or securities, and the state treasurer shall en- force the same in behalf of the state. Any amounts recovered by reason of such subrogation shall be paid into the state treas- ury to the account of the Terrens title assurance fund, after de- ducting therefrom the proper expenses in recovering the same. Subdivision 3. The assurance fund shall not be liable to pay -108.] APPEAL 107 for any loss, damage or deprivation occasioned solely by a breach of trust on the part of any registered owner who is trus- tee, or by the improper exercise of any power of sale in a mort- gage, nor shall any plaintiff recover as compensation under the provisions of this act more than the fair market value of the land or of the estate or interest held by him at the time when he suf- fered the damage, loss or deprivation complained of. (/) Ac- tions for compensation out of the assurance fund under the pro- visions of this act shall be commenced within four years from the time when the right of action accrued or they shall be for- ever barred ; provided, that if at the time the right of action ac- crued, the person entitled to bring such action is a minor, or insane, or imprisoned, such person or any one claiming under him may commence such action within two years after the re- moval of such disability. Sec. 106. IN CASE OF FRAUD: 104 In the case of fraud, any per- son defrauded shall have all rights and remedies that he would have had if the lands were not under the provisions of this act; provided, that nothing contained in this section shall affect the title of a registered owner who has taken bona fide for a valu- able consideration, or of any person bona fide claiming through or under him. Sec. 107. APPEAL: In case of an appeal from any proceed- ing under this act, or from any judgment, order, or decree af- fecting registered lands, the clerk of the court in which the notice of appeal is filed shall forthwith notify the registrar thereof, [84] and thereupon the registrar shall enter upon the register a memorial of such appeal. 84. (Sec. 107.) Notice of appeal given to registrar. Clerk's office, County of State of California, To the registrar of ~ county : You are hereby notified that on the day of , 19 , there was filed in this office a notice of appeal from the decree of registration entered- in registration proceed- ings case No H. J. L., Clerk of Superior Court Sec. 108. DEPUTY RECORDERS AND REGISTRARS: The county recorders or registrars in the several counties shall have and they are hereby granted the power to appoint, whenever the business in their respective offices under this act shall, in their ioThis section is a duplicate of Sec. 37. See note under that sec- tion. 108 TORRENS LAND LAW OF CALIFORNIA [SEC. 109- opinion, justify the same, one or more deputies, each of whom shall be an attorney admitted to practice before the Supreme court of the State of California for at least five years prior to his appointment, in good standing, skilled in the examination of titles and in proceedings under this act. The compensation of such attorneys shall be such as may be agreed upon between them and the registrar subject to the approval of the board of supervisors of the county and shall be paid in the same manner that the salaries of other deputies are paid. Such attorneys, so appointed, shall be competent to act as referees when appointed by the court in proceedings under this act. It shall be the duty of said attorneys to assist the registrar in all matters in and arising out of proceedings urrder this act. Sec. 109. SUBDIVIDING REGISTERED LAND: The owner of regist- ered land may plat the same and subdivide it into lots and blocks in like manner as in case of unregistered land. All laws with reference to the subdivision and platting of unregistered land shall apply with like force and effect to registered land. Owners of subdivisions transferring lots which are subject to building or other restrictions, may, at their own expense, furnish the registrar with printed forms of certificates of title for use by the registrar. Such printed forms must conform to the adopted size, quality of paper, workmanship and form and must first be submitted to the registrar for his approval ; provided, however, the registrar shall have no authority over what restric- tions shall be included. Sec. 110. PERMANENCY OF DOCUMENTS: It shall be the duty of the registrar to require that all documents offered for filing concerning registered land, shall be made out with a view to permanency. The registrar may refuse to accept any document for filing which in his judgment is wholly or partly written, made out or filled in with inferior ink or faded typewriter rib- bon and likely to fade rapidly and may require such documents to be redrawn in India or indelible ink to insure permanency, (a) Registrars must in every instance in making out new cer- tificates of title, memorials or entries of any kind in connection with registered land, use India ink for handwriting and indeli- ble ink for typewriter or rubber stamp. Sec. 111. FRAUD AND FORGERY, HOW PUNISHED: Whoever fraudulently procures, assists in fraudulently procuring, or is privy to the fraudulent procurement of any certificates of title or other 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 farudulent instrument, certi- -115.] FRAUD AND FORGERY 109 ficate, statement, or affidavit affecting registered lands, shall be guilty of a felony, and fined not exceeding five thousand dollars, or be imprisoned not exceeding five years nor less than one year, or either or both such fine and imprisonment. Sec. 112. Whoever (1) forges, or procures to be forged, or assists in forging the seal of the registrar, or the same, signa- ture, or handwriting of any officer of the registry office in cases 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 forging the name, signature, or handwriting of any person whomsoever to any instrument which is expressly or impliedly authorized to be signed by such person ; or (4) uses any document upon which any impression, or part of the im- pression, of any seal of said registrar has been forged, know- ing the same to have been forged, or any document the signature to which has been forged, knowing the same to have been forged ; or (5) swears falsely concerning any matter of procedure made and done in pursuance of this act, shall be guilty of a felony and fined not exceeding five thousand dollars or be improsined not exceeding ten years nor less than one year, or either or both such fine and imprisonment. Sec. 113. No proceeding or conviction for any act hereby declared to be 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, or against the registrar, or upon his bond. Sec. 114. REGISTRARS' RULES: Registrars shall not make any rules or regulations that work a hardship or inconvenience upon owners or others desiring to avail themselves of the provisions of this act, who live at a distance from the office of the regis- trar and shall in writing consent to accept notice of all proceed- ings, of which notice is required, by mail and in such cases reg- istrars shall assist those who desire to use the mails in connec- tion with registered lands in every way possible. Such docu- ments as are sent by mail shall be entirely at the risk of the owner and if lost, the netire expense of replacing same shall be borne by the owner. Sec. 115. ACT CONSTRUED LIBERALLY: This act shall be con- strued liberally so far as may be necessary for the purpose of effecting its general intent. SURVEYS It is provided by Sec. 6 of this act that a plat or plan of sur- vey of the land made by the county or a licensed surveyor must accompany the application unless such land is part of a city, town or subdivision of which a map or plat, or an official map is on file in the office of the county recorder and upon such map the land appears in such manner that it can be identified thereon by reference. Such survey must show the boundaries of the land and its relation to adjoining lands and streets, and any encroachments. The court may in any case before decree require a survey to be made to determine the exact boundaries, or to determine the line of a public or private way by which the land is bounded. DUTY OF SURVEYORS, UNDER THE CALIFORNIA STATUTES. General Laws of California, Chap. Sec. 5. Every licensed surveyor shall have a seal of office, the impression of which must contain the name of the surveyor, his principal place of business, and the words, "licensed surveyor;" and all maps and papers signed ,by him, and to which said seal has been attached, shall be prima facie evidence in all the courts of this State. Sec. 7. Every licensed surveyor is authorized to administer oaths, when it becomes necessary to take testimony to identify or establish old or lost courses ; or if a corner or monument be found in a perishable condition and it appears desirable that evidence concerning such corner or monument be perpetuated ; or when- ever the importance of the (survey) makes it desirable, to ad- minister an oath, for the faithful performance of duty to his assistants. A record of such oaths shall be preserved as part of the field notes of the survey. Sec. 8. Every licensed surveyor is hereby authorized to make surveys relating to sale or subdivision of lands the retracing or establishing of property or boundary lines, public roads, streets, alleys, or trails ; and it shall be the duty of each surveyor, when- ever making any such surveys, except those relating to the re- tracing or subdivision of cemetery or town lots, whether the sur- vey be made for private persons, corporations, cities or counties, SURVEYS 111 to set permanent and reliable monuments, and such monuments must be permanently marked with the initials of the surveyor setting them. Sec. 9. Within sixty days after a survey relating to the sale or subdivision of lands, the retracing or establishing of property or boundary lines, public roads or trails, original cemetery or town sites, and their subdivisions, has been made by a licensed surveyor, he shall file with the recorder of the county in which such survey, or any part thereof, lies, a record of survey. Such record shall be made in a good draughtsmanlike manner, on one or more sheets of firm paper of the uniform size of 21 by 30 inches. This record of survey shall be either an original plat, or a copy thereof and must contain all the data necessary to en- able any competent practical surveyor to retrace the survey. The record of survey must show: All permanent monuments set, describe their size, kind and location, with reference to the corners which they are intended to perpetuate; All bearing or witness trees marked in the field ; Complete outlines of the several tracts or parcels of land sur- veyed within the courses and lengths of boundary lines ; The Angles, as measured by Vernier readings, which the lines of blocks or lots, if the record relate to an original town site sur- vey, make with each other and with the center lines of adjacent streets, alleys, roads, or lanes ; The variation of the magnetic needle with which old lines have been retraced ; The scale of the map, the date of the survey; A proper connection with one or more points of an original or larger tract of land, and the name of the same ; The name of the grant, or grants, or of the township and range within which the survey is located ; The signature and seal of the surveyor. Provided that nothing in this section shall require record to be made of surveys of a preliminary nature, where no monu- ments or corners are established. Sec. 10. The record of survey thus filed with the county re- corder of any county must be by him pasted into a stub book pro- vided for that purpose, and he must keep a proper index of such records, by name of owner, by name of surveyor, by name of grant, city or town and by United States subdivisions ; and in all cases where such maps, plats, diagrams, or descriptions are filed by a state licensed land surveyor the county recorder shall make no charge for filing and indexing such records of surveys. Sec. 11. * * * * A violation of section 9 of this act shall be a misdemeanor, and any person convicted of such violation shall 112 TORRENS LAND LAW OF CALIFORNIA be punished by a fine not to exceed one hundred dollars, or im- prisonment in the county jail not exceeding thirty days. GENERAL REQUIREMENTS. In the office of the county surveyor of Los Angeles County. Nothing less substantial than a two inch pipe, with a tack and plug driven into the pipe will be considered as a permanent monument, and must be at least two and a half feet long, and driven two feet into the ground. Maps, where property is offered for dedication for public pur- poses to the city of Los Angeles, or the county, must be accom- panied by a blue print of the map, together with a certificate of title. All roads offered to the county of Los Angeles for highway purposes must be forty feet or more in width. The scale to which the map is drawn and a north point must be given on each sheet. Total distance of exterior boundaries must be shown on maps. Form for Report of Survey. PLAT OF SURVEY. By C. H. T., Being part of Rancho San Antonio (which is also part of the Rancho La Laguna), the property of Mrs. Arcadia Bandini de Baker. In T N., R W., S. B. M., Los Angeles County, California. (Map.) (With notes and descriptions as required by statute.) Scale I, hereby certify that I am a li- censed surveyor of the State of California, and that this map consisting of sheets, correctly represents a survey made under my supervision, (date), and that all monuments shown herein actually exist, and their positions are correctly shown. Witness my hand and seal this day of _ 19 (SEAL) Licensed Surveyor. TABLE OF CASES Page Arnold vs. Smith, 121 Minn. 117 72 Baart vs. Martin, 99 Minn. 197 22,53,72 B. and S. Co. vs. Hopkins, 96 Minn. 119 48 Battelle vs. N. Y., N. H., and H. R. R. R., 211 Mass. 442 20 Bjork vs. Glos, 256 111. 447 58 Brace vs. Superior Land Co., 65 Wash 681 81 Brooke vs. Glos, 243 111. 392 23 Browning, Petitioner, Mass. Land Court, 5 20 Carlson vs. Glos, 257 111. 149 58 Cowan vs. Glos, 255 111. 377 21 Crabbe vs. Hardy, 135 N. Y. S., 119 33,35 Dewey vs. Kimball, 89 Minn. 454 41 Doyle vs. Wagner, 108 Minn. 442 53 Duffy vs. Rodriguez, 124 N. Y. S. 529 22 First Nat Bank vs. City of Woburn, 192 Mass. 220 32 Foss vs. Atkins, 204 Mass. 337 60, 61 Gloss vs. Kingman, 207 111. 26 21 Gloss vs. Mickow, 211 111. 117 32,33 Gloss vs. Bragdon, 229 111. 223 21,31 Gloss vs. Wheeler, 229 111. 272 33, 35 Gloss vs. Cesna, 207 111. 69 21, 42, 49 Gloss vs. Hoban, 212 111. 222 21, 58 Gloss vs. Holberg, 220 111. 167 21,33,42,49 Gloss vs. Murphy, 225 111. 58 39,49,60 Gage vs. Consumers E. L. Co., 194 111. 30 21, 33, 57 Harper, Admin., vs. Rowe, 53 Calif. 233 35 Hawes vs. U. S. Trans. Co., 127 N. Y. S. 632 44 Henry vs. White, 123 Minn. 182 72 Jackson vs. Gloss, 243 111. 280 23 Keeney vs. Gloss, 258 111. 555 58 Lachman vs. People, 127 N. Y. S. 910 40 McMahon vs. Rowley, 238 111. 31 58,60 Mihalik vs. Gloss, 247 HI. 597 23 Mooney vs. Valentynnovics, 262 111. 355 31, 44, 49 Mundt vs. Gloss, 231 111. 158 50 Natl. Bond and Security Co. vs. Alderson, 99 Minn. 137 20, 48 O'Laughlan vs. Covell, 222 111. 162 43,58 Partenfelder vs. People, 157 N. Y. 462 40 People vs. Simon, 176 111. 165 76 Peters vs. City of Duluth, 119 Minn. 96 20 Peters vs. Dicus. 254 111. 379 33 Pollard vs. Burchard, 199 Mass. 376 32 Riley vs. Pearson, 120 Minn. 210 22 Robinson vs. Kerrigan, 151 Cal. 42, full decision 10,77 Robinson vs. Richards, 209 Mass 295 20 Reed vs. Siddall, 94 Minn. 216 48 Santa Barbara vs. S. & L. Soc., 137 Calif. 463 39 State, ex rel. vs. Westfall, 85 Minn. 446 56 Sunderman vs. People, 148 N. Y. 124 44 The City and Sub. House Co. vs. People, 157 N. Y. 459 40 Tobias vs. Kaspzyk, 247 111. 80 32,33 Tower vs. Gloss, 256 111. 121 43 Tyler vs. Judges, 175 Mass. 71 23 Waugh vs. Gloss, 246 111. 604 21 Woods vs. Gloss, 257 HI. 125 33 IN_DEX Section Page Abstract of Title when to accompany application 6 16, 35 required when adverse possession not proven 6 36 (6) Order for 37 need not antedate decree determining title 6 35 title insurance policy may be starting point 6 35 how verified by searcher G 35 who entitled to make, undertaking required 6 36 (7) Bond of person making, approved 37 (8) Order for increase in amount of bond 37 referred to Examiner of Titles. See Examiner of Titles. (26) Order referring to examiner 56 when returned to applicant 20 61 Act to be construed liberally 115 109 Action See Suit Address See Residence Adjoining land name and address of owner stated in petition 5 23, 28 owner of must assent or be served with notice. See Assent. Administrator See Executor Administration of estates registration may be included in proceedings for 17, 46 54, 74 Advantages of registration system 5 Adverse possession when alleged in the petition 6 27, 32 establishing title by, note 33 defined by the code, note 34 character of, must be stated in petition 6 33 how proven, note 35 when not proven abstract required 6 36 (6) Order for abstract 37 when required in registry of tax title 8 38 title to registered land not acquired by 35 72 Affidavit (17) Of service of notice, by other than sheriff 46 (18) Of service by mail 46 by transferee of registered land 58 81 (53) Affidavit 82 (54) Affidavit by executor, etc., transferee 82 Agreement what implied by registration 44 74 Alteration of certificate See Certificate of title Amendment of application See Application for registration Appeal from decree for registration 15, 107 50, 107 six months allowed for, note 50 notice of, given to registrar 107 107 (84) Notice 107 INDEX 115 Section Page Appearance time for, after service 12 44 Applicant for registration how described in petition 5 21 claiming title in severally 5 22 must show title in himself, note 31 on death or disability of, proceedings continued 21 61 (33) Representative made party 61 on transfer of interest of 21 61 (34) Action continued for benefit of transferee 62 (35) Transferee substituted 62 Application for registration See also Petition how made by petition 5 21 when to be accompanied with map or plat 6 31 of tax title. See Tax title. amendment of, how made 9 39 (9) Order for amended petition 39 (10) Same on motion of applicant 39 filing, notice of lis pendens 10 40 notice of filing, how given and served. SeeNotice. persons claiming interest may object to 12 43 (19) Answer objecting to registration 46 set down for hearing 14 48 may be withdrawn 20 60 (31) Request for withdrawal 61 (32) Order allowing withdrawal 61 Arm of the sea See Sea Assent to registration by adjoining property owners 12 43, 31 by person claiming interest 12 44 (20) Assent to registration 47 may be attached to petition, note 30 form of, attached to petition 30 Assessment noted on certificate 24 66 sale for non-payment of. See Tax sale. registered land held subject to what special 34 71 for public improvement, notice of 94 97 Assignee in insolvency certificate to, must show name of insolvent 23 63 same when transferee in deed 58 82 has no power of sale without order of court 74 87 sale made by, confirmed by the court 74 87 what the certificate to the purchaser shall contain 74 87 Assurance fund comment on 18 how accumulated by the State Treasurer 100 104 shall be kept invested 105 105 not liable for payment of loss, when 105, Sub. 3 107 nor for more than fair market value 105, Sub. 3 107 time limit for actions for compensation 105, Sub. 3 107 payments out of, how audited and paid 105, Sub. 2 106 when not sufficient to pay claims 105, Sub. 2 106 other remedy must be exhausted 105, Sub. 2 106 when payment will be ordered out of 105, Sub. 2 106 when payment made, State subrogated 105. Sub. 2 106 116 INDEX Section Page Attachment set forth in decree 16 49 when proceedings in, deemed Us pendens 89 95 disposal of to be certified to registrar 90 96 certificate by sheriff authority for registrar to cancel, etc 96 98 levy not a Hen until certified to registrar 92 96 Attorney at law qualifications for appointment as deputy registrar. ... 108 108 Attorney general when notice of application shall be served on 13 48 shall defend the state treasurer in suit 105 106 Attorney in fact power of attorney filed with registrar 66 85 may have certified copy of the power of attorney. ... 66 85 revocation of power of, registered 66 85 Bill See Suit Bond, official of recorders, applies to duties as registrars 2 19 to be given by title examiners 6 36 qualification and liability of sureties on 6 36 (7) Order approving bond 37 (8) Order for increase in amount of 38 Books land register docket to be kept by county clerk 6 36 showing to whom certificates are issued, kept by registrar 22 62 form of 62 "Register of Titles" for entry of certificates 29 70 form of 64 to be furnished by Board of Supervisors 100 104 Boundaries survey to determine may be ordered 6 32 (4) Order for survey 36 Certificate of service to be attached to notice 54 79 (51) Certflcate of service 80 of officer making sale in partition, required 86 94 (69) Certificate of officer making sale 95 of satisfaction of suit, etc., required 90,96 95,98 (74) Certificate of satisfaction 98 of levy on registered land required 92 96 (70) Certificate of levy 96 of release of levy, required 90, 96 95, 98 (75) Certificate of release of levy 98 Certificate of title filed in all counties in which any part of land lies.. 5 23 issued by registrar, when 15, 22 50, 62 to whom issued and what to contain 15, 23, 24 60-63, 65 no particular form required 24 65 issuance to be recorded 22 62 made in duplicate, numbered, dated and sealed 23 63 original, what constitutes 23 64 entered in "register of titles" 23, 29 63, 70 form given 24 65 (36) Form 64 INDEX 117 Section Page certified copy issued on loss of duplicate 27 67 (39) Application for 67 (40) Order granting request, without notice.... 67 (41) Notice of application ordered 68 (42) Order granting request after hearing 68 certified copy to be used as evidence 27 67 (43) Order for 68 duplicate, a copy of the original 23 63 issued to owner of the land 23 63 receipt for, to be taken 22, 30 62, YO witnessed or acknowledged 30 VO book showing to whom delivered 22 62 form for 62 plat made on 65 if lost. See Loss of duplicate certificate. endorsement on, sufficient to transfer property 53 '/9 must be presented on the filing of instrument 60 82 except on order of Court 60 (56) Order allowing memorial, without duplicate how issued to tenants in common 25 66 several may be put in one, or one made several 26 66 memorial on. See Memorials. alteration and correction of certificate or memorial: if owner's name is incorrect or changed 28 68 (44) Application for change of name 68 (45) Order granting without notice 69 (46) Order for correction, after hearing 69 only made as here provided 97 99 applied for by petition 98 99 grounds for 98 99 (76) Petition 100 (77) Order that summons issue 100 (78) Summons 101 (79) Order for correction by consent 101 (80) Same, on hearing 101 penalty for fraundulently making Ill 108 new certificate issued to purchaser 48 76 court's ruling as to certificate after first, note 76 notation made on old certificate 48 77 (48) Memorial when part only transferred 49 77 for lots in subdivision 49 77 (49) Endorsement on certificate of subdivided tract 78 printed forms may be furnished for lots 109 108 transfers, mortgages and leases, how noted on 55 80 endorsement on, when transfer subject to tax sale. . 56 81 of affidavit of transferee '. 58 81 of instrument creating charge 60 82 when transfer is in trust 67 86 of tax deed. See Tax Deed. order for, in decree entered in probate, insolvency or equity proceedings relating to registered land 72 87 (59) Order in decree for transfer, etc., that certifi- cate issue or memorial be made 87 exceptions in sec. 34 printed on 71 conclusive evidence of valid title in what suits 40, 41 73 in favor of all persons depending on 76 88 in sales by executors, issued after confirmation . 74, 75, 76 87, 88 (60) Order for certificate 88 (62) Same 88 118 INDEX Section Page to be made with India and indelible ink 110 108 penalty for fraudulently procuring Ill log Certified copy of decree filed with registrar 15, 22 60, 62 of certificate of title. See Certificate of Title. of register received in evidence 42 73 of petition for registration. See Petition for Registra- tion. of instruments to be furnished by Registrar 51 78 recived as the original 52 79 issued and marked when not enough parts of instru- ments 62 84 have force and effect of duplicates 62 84 transferee of charge on land entitled to 63 84 of power of attorney issued to attorney 66 85 of decree, filed by executor 73 87 of report of commissioners in partition, filed 85 94 Change of address See Residence Charge on land shall not be registered, unless fee is first registered . . 7 38 shall be noted on certificate 7, 15, 23, 24, 93 38, 50, 63, set forth in decree 15-49 [65, 97 referred to by book and page 15 50 title subject only to those noted, except 7,34,39 38,71,73 owner not affected by notice of unregistered 36 72 endorsement made when instrument creating filed ... 60 82 may be assigned in whole or in part 63 84 (57) Memorial of assignment 84 if assigned in part, priorities must be stated 63 84 (57a) Memorial of assignment of part 84 how release of effected 64 85 (57b) Memorial of release of charge 85 enforced as in other cases 65 85 (58) Notice of pendency of suit to enforce 85 Chicago Torrens system in 9 City, town or county when land part of, in subdivision, how described in petition 6 31 public improvements made in, notices to be given .... 94 97 (71) Notice of ordinance 97 (72) Notice of repeal of ordinance 97 (73) Notice that lien for, satisfied 98 Claims See Charge on land Clerk of county See County clerk Clerk of court See also County clerk application for decree by tax purchaser filed with 78 90 shall certify disposal of suit, etc., and satisfaction of judgment 90, 95 shall certify judgment, etc., to registrar 91 96 his certificate authority for registrar to act 96 98 (74) Certificate of dismissal or satisfaction 98 shall notify registrar of appeal 107 107 (84) Notice of appeal given registrar 107 Clerks under this act furnished by board of supervisors 100 104 INDEX 119 Section Page Commissioners in partition when report setting off registered land confirmed, cer- tificate will be issued 85 94 Community property defined by code, note 22 petition must state whether or not 5 22 both spouses must join in application for registration 5 23 court will determine as to 14 49 found in decree 61 certificate shall state as to , 15 50 both spouses must join in disposal of registered 57 81 affidavit of transferee must state as to 58 81 Compensation of registrars and deputies 1, 108 19, 107 of examiners of titles 18 56 Confirmation of sales made by executors, etc., conclusive evidence of regularity of sale 74 87 of report of commissioners in partition 85 94 of sale in partition proceedings 86 94 Consent to registration See Assent Contract no unregistered shall prevail against title of reg- istered owner 39 73 for purchase of real estate, certificate conclusive evi- dence in suit to enforce 40 73 for sale of land becomes charge upon registration 59 82 Corporation application for registration, how made 5 21, 23, 29 petition by, form 29 for insuring titles must enter into undertaking 6 36 how to verify abstracts 6 35 dissolution of, ground for altering certificate 98 99 Correction of certificate See Certificate of Title Cost for examination of abstract, by whom paid 18 56 for making change in certificate, by whom paid 98 100 County shall pay expense of books, blanks, papers and clerks under this act 100, Sub. 3 104 County clerk See also Clerk of court petition for registration filed with 5 21 and by him endorsed and entered in the Land Reg- ister Docket 6 36 to return papers to applicant, when 20 61 certificate of service, conclusive proof 54 79 certificate of dismissal of suit by 90 96 Court petition for registration to Superior, of county 5 21 Damages for taking registered land paid before judgment will be registered 101 104 120 INDEX Section Page Date of Registration shall be as of the date of filing of the petition 15 60 of deed, instrument or notice shall relate back to time of filing in the registrar's office 32 70 Dealings with land brought under this act deemed to be subject to Its terms 44 73 Death of applicant, proceedings continued 21 61 (33) On death of, representative made party 61 Deceased Person registration of estate of. See Executor. Decree for registration. See Registration, showing title under tax deed of registered land. See Tax Deed. Deed See Instrument of transfer ; Trust Deed Defendant in registration so named in act and caption 23 Deputy recorders shall be deputy registrars 1 19 Deputy registrars who are, their duties, and laws governing 1, 2, 3 19 prohibited from practicing law 4 19 acting as searchers of titles 4, 108 19, 108 one or more may be appointed in each county 108 107 may act as referees, when appointed by court 108 108 qualification and compensation of 108 108 Disability nature of must be stated in petition 5 22,25,26 stated in the decree 5 49 stated in the certificate 23 63, 64 person under, guardian ad litem for 13 48 (21) Appointment of guardian ad litem 48 decree shall state who acting for him, his authority 15 49 registration of deed made by, void 38 73 action for registration brought by guardian 5 23, 28 time limitation for adverse action by 45 74 action for, by whom brought 45 74 when suit for compensation out of assurance fund brought by 105, Sub. 3 107 Discharge See Charge on land Divorce change of name made by, changed in the certificate. See Certificate of title. Documents for filing made with view to permanency 110 108 penalty for forging 112 109 sent by mail at the risk of the sender 114 109 Drains See Streets Duplicate instruments only one of the parts filed, notations on others 61 83 INDEX 121 Section Page Duplicate certificate See Certificate of title loss of. See Lose of Duplicate Certificate. Easement ownership of not sufficient for registration 5 21 petition must state as to 5 22 set forth in decree 15 49 noted on certificate 24 65,64 when registered land subject to, though not noted on certificate 34 71 Ejectment in action for, the certificate conclusive evidence of valid title 41 73 Eminent domain right of not affected by this act 101 104 certified copy of judgment filed and registered Ill 104 Encroachments on land land to be shown in report of survey 6 32 Endorsement upon duplicate certificate sufficient to transfer title, form 53 79 on instruments presented for filing with hegistrar 47 75 (47) Notations on back of instrument 76 on deed or voluntary instrument offered for registra- tion 54 79 includes endorsement on certificate of title 54 79 Entry penalty for fraudulently procuring Ill 108 no person shall make, on land adversely to title after one year 45 74 Equity proceedings See Probate proceedings Error in certificate See Certificate of title Establishing title registration included in action for. See Registration in other proceedings. Estate in lands See Lands Estates of deceased persons See Executor Evidence certified copy of certificate to be used as 27 67 (43) Order for 68 certificate of title conclusive in certain suits 41, 41 73 register and certified copy as 42 73 Examiner of titles registrars can not act as 4 19 court may appoint one or more and refer abstract to. .11, 18 40, 56 shall be attorney in good standing, etc 18 56 compensation of and by whom paid 18 56 (26) Order referring case to 56 power of considered 56 shall examine into title and report 19 report must be filed before decree can be entered .... 19 57 (28) Report of (29) Report approved 60 (30) Report considered and further proof ordered 60 122 INDEX Section Page Execution levy certified to registrar 92 96 (70) Certificate of levy 96 no lien arises until filing and entry of certificate 92 96 when levy disposed of, certified to registrar 90,96 96,98 (75) Certificate of sheriff of release of levy 98 certificate of release authority for registrar to cancel 96 98 Executor or administrator registration of estate applied for by 5 23, 29 may apply for registration in probate proceedings 17 See Registration In other proceedings. what shall be shown in certificate issued to 23 63 action for recovery of estate of deceased brought by 45 74 may file petition for registration, in Probate proceed- ings 46 74 when transferee, certificate must show name of de- ecased 58 81 has no power of sale as such of land registered in his name 74 87 sale made by must be confirmed 74 87 decree confirming, conclusive evidence of regularity. . 74 87 certificate issued to purchaser, what to contain 74 87 (60) Order for certificate on confirmation 88 if power of sale given executor by will, court will direct registrar to enter words "with power of sale" 75 88 (61) Order that such words be registered 88 sale must be confirmed 75 88 (62) Order In decree confirming for certificate 88 certificate conclusive evidence In favor of all depend- ing thereon 76 88 False swearing how punished 112 109 Fees allowed registrar under this act 100 103 how accounted for and disbursed 100 103 Fee simple required for initial registration, note 21 must be registered before any lesser estate can be 7 38 estate of deceased person may be registered in Pro- bate proceedings 46 74 Felony in relation to registered land, and penalty Ill 108 no conviction to affect remedy at law 113 109 Forging seal of registrar, penalty for 112 109 conviction for not to affect remedy at law or equity. . 113 109 Forms table of 113 Fraud in procuring registration 34, 36 71, 72 same remedies for, as though land not registered. .37, 106 72, 107 but not to affect title of registered owner who has taken bona fide 37, 106 72, 107 forged deed void, but title of bona fide registered owner not affected 38 72 person defrauded has claim on assurance fund . . 105, Sub. 2 106 penalty for procuring certificate or entry by Ill 108 INDEX 123 Section Page Grantee full name, etc., to be shown In instrument 54 79 Guaranty behind a registered title 6 Guardian application for registration made by 5 23, 28 shall bring action to protect rights of ward 45 74 Guardian ad litem appointed for minors, etc 13 47 (21) Appointment of 48 Hand writing penalty for forging 112 109 Highway See Public way Homestead petition must state as to 5 22 what it consists of, note both spouses must join in registration of 5 23 and in transfer of 56 noted in decree 51 noted In certificate 64 Husband or wife name and residence set forth in petition 5 21, 26 name of in decree 15 49, 51 both must join in registration of community or home- stead property 5 23 rights of, set forth in decree 15 49 names of both in certificate of commuity property.. 15 50 both must join in transfer of homestead 56 81 and in disposition of community property 57 81 Illinois operation of Torrens system in 8 Imprisonment when person under, may commence suit for loss through this act 105, Sub. 3 107 for felony and forgery Ill, 112 109 Incumbrances See Liens Indices of property, how kept by registrar 102 104 of names, how kept 103 105 Infant See Minor Ink India and indelible may be required in registration. . 110 108 registrar must use in new certificate and memorials 110 108 In rem decree for registration in nature of decree in rem 16 53 Insane person See Disability Insolvency proceedings See Assignee in In- solvency ; and Probate Proceedings Instruments of transfer See also Transfer made in any authorized form 48, 53 76, 79 endorsement on duplicate certificate sufficient to transfer 53 79 124 INDEX Section Page duplicate certificate must be presented with instru- ment to registrar, except by order of court 60 83 (56) Order allowing memorandum without duplicate 83 what notations on, when offered for filing 47, 53 75, 79 not to be filed unless notations made 47 75 (47) Notations on back of 76 what to contain or have endorsed on 54 79 how marked by registrar when tiled 50 78 retained and kept in registrar's ofllce 51 78 shall take effect only by way of contract and as au- thority to register 55 80 when filed with duplicate certificate in office of regis- trar, transfer complete 48 76 thereupon certificate will be issued and transfer noted on certificate 48 77 subject to tax sale, if shown in last certificate 56 81 conveying homestead or community property both spouses must join 56, 57 81 intended to create a charge, how endorsed and en- tered on certificate 60 83 when in duplicate only one part need be filed, nota- tions on other parts 61 83 certified copies of, how marked, force and effect of 62 84 in trust or conditional. See Trust Deeds. may be returned to applicant, when 20 61 forged or made by person under disability, registra- tion void 38 72 but title of bona fide registered owner not affected 38 73 certified copies furnished by registrar 51 78 which shall be received in place of original 52 79 penalty for alteration of, etc Ill 108 penalty for forging 112 109 Issue of fact raised by pleadings, may be tried by jury 14 49 Judgment or decree proceedings when registered land sold to satisfy. ... 88 95 when to become a lien on registered land 91 96 satisfaction of, to be certified to registrar 90,96 96,98 (74) Certificate of satisfaction 98 appeal from, registrar notified. See Appeal. Jury may try issue of fact rased by pleadings 14 49 Lands See also Registered land what brought under operation of this act 5 20 what included in one application for registration, note 20 what interest must applicant have in, notes 5 20 occupancy of. See Occupancy. single parcel, lyingpartly in two or more counties. . . 5 23 description and assessed value given in petition 5 22 when map or plat on file, how described 6 31 when plat of, must accompany application 6 31 if bounded by public or private way 6 32 (5) Order for survey to determine line of 37 if bordering on navigable stream or arm of the sea. . . 13 47 adjoining. See Adjoining Lands. when State has claim in, adverse to applicant 13 48 INDEX 125 Section Page accurate description must be given in decree 15 49 description and character of ownership given in cer- tificate 15 50 belonging to estate of decesed person how registered, See Executor, registration of. See Registration. when deemed to be registered 31 70 registered lands. See Registered Land. Land register docket See Books Land Title Law Enacted by People 19 Lease See also Instruments of Transfer when registered land subject to, though not noted on last certificate 34 71 assignment of. See Charge on Land. Levy See Execution Lien See also Charge on Land petition shall state as to 5 22 noted in decree 15 49 by book and page of record 15 50 shown in certificate 15, 23, 24 50, 63, 65 on registered land. land subject to what unregistered 34 71 deemed subject to this act 44 73 time limit for asserting adverse 45 74 becomes charge upon registration 59 82 on undivided interest when land partitioned 87 95 for public improvements. See Ordinance. when judgment becomes 91 96 when levy becomes 92 96 when mechanics lien attaches 93 97 not to affect until entered on register 95 98 Limitation, title by See Prescription Lis pendens filing of, not required when 10 40 when suit, etc., deemed to be 89 95 Loss of duplicate certificate certified copy of original issued 27 67 no transfer of land until 27 67 (39) Application for certified copy 67 (40) Order granting without notice 67 (41) Notice of application ordered 68 (42) Order granting after hearing 68 Lunatic See Disability Man when notice of filing petition may be sent by 12 43 (18) Affidavit of, by other than sheriff 46 how notices, etc., served by, after registration 54 79 (51) Certificate of service by 80 Map or plat how referred to in petition 6 31 no copy need be attached to notice of petition 12 43 126 INDEX Section Page Marriage statement made as to, in petition 5 21, 26 In decree 15 49, 51 in certificate 23 63, 64 owner's name changed by. See Certificate of Title. Massachusetts torrens system in 7 Mayor when notice of petition given to 13 47 Mechanics lien See Lien Memorial lesser estate to be entered on certificate as 7, 60 38,82 form for 65 carried forward on all certificates 43 73 on cancelled certificates 26 66 (37) when one issued for several 66 (38) When several issued for one 66 binding on owner and all claming under him 60 83 duplicate certificate presented before entry of 60 (56) Order allowing entry without 83 court may determine form of 99 102 (81) Form referred to court by registrar 102 (82) Same on suggestion of party 102 (83) Order prescribing form 102 must be made with India or indelible ink 110 108 Minor See also Disability how application for registration made by 5 21, 28 decree to state age and custody of estate 15 49 certificate to state age 23 63 Mortgage See also charge on Land how marked when filed with registrar 50 78 like forms as in other cases 53 79 takes effect as contract and authority to register 55 80 on filing of, land becomes mortgaged 55 80 upon registration becomes a lien 59 82 notations made by registrar on filing of 60 82 how foreclosed 65 85 (58) Notice of suit to foreclose 85 on undivided interest, when land" partitioned 87 95 Municipal corporation becoming purchaser at tax sale. See Tax Sale. Names of applicants for registration 5 21 of persons holding adverse interests 5 22 correction or change of in certificate. See Certificate of Title, indices of, to be kept 103 105 Navigable stream when land borders on, notice 13 47 Newspaper designated by the court for publication of notices, etc. 12 42 (11) Order designating 41 INDEX 127 Section Page Next friend ' when action brought by 45 74 Notation on instruments filed with registrar 47,54 75,79 (47) On back of deeds, etc 76 Notice of filing of petition for registration, when court will order 11 40 (11) Order for 41 (12) Same on report of examiner 41 (13) Order refusing and dismissing petition 42 (14) Same on report of examiner 42 what to contain, to whom directed, how served . . 12 42 (15) Notice of filing petition 44 (16) Publication of, approved 45 service of, how made 12 42, 43 on defendant consenting 12 44 must in all cases be published 12 42 who served personally 12 43 who served by mail 12 43 on owners of adjoining land 12 43 by sheriff or other person 45 (17) Affidavit of, by other than sheriff 46 (18) Same by mail 46 on whom when line of way to be determined 13 47 when land borders on stream or sea 13 47 when State has adverse interest 13 47 of intention to include registration in other proceed- ings 17 54 (23) Application for 55 (24) Order for 55 (25) Notice of intention 55 how published and served 17 55 of filing petition for registration in probate proceed- ings 46 74 kept in registrar's office 51 78 how served by mail after registration 54 79 (51) Certificate of service by mall 80 different or other service may be ordered 54 80 (52) Order for 80 of change of address of grantee in deed 54 79 (50) Notice of 80 of suit to foreclose mortgage 65 85 (58) Notice of pendency of 85 of purchase of registered land at tax sale. See Tax Sale. of pendency of suit, etc., to create 11s pendens 83 95 of mechanics lien 93 97 of ordinance for improvement of street, etc. See Ordinance of filing petition for alteration of certificate 98 99 (77) Order for summons 100 Objection to registration by interested person 12 43 (46) Answer of, objecting 46 128 INDEX Section Page Occupancy of Land stated In petition 5 22, 28 must be proven as alleged, note 22 occupant served with notice of petition 12 43 character of, stated in decree 61 52 Occupation of applicant for registration stated in petition 5 21. 25. 26 Ordinance for public improvement, notice filed with registrar. . 94 97 (71) Notice of 97 (72) Notice of repeal 97 (73) Notice of lien satisfied 98 Owner may bring land under operation of this act 5 20 who may unite in one application, note 20 Registered owner holds land subject to what estates 34, 36 71, 72 when not affected by fraud or forged deed 37, 38 72 nor by unregistered estate 39 73 register as evidence that he is entitled to land .... 42 73 Ownership character of shown in certificate 15 50 Papers kept in office of registrar 51 78 taken out on subpoena duces tecum 51 78 Partition of registered land owner may bring action for 104 l(>5 certificate conclusive proof of valid title 41 73 all persons shown on register made parties 84 94 certificate issued on report of commissioners con- firmed 85 94 or on sale of land 86 94 (95) Certificate of officer making sale 95 lien on undivided interest attaches to what 87 95 registration in proceedings for See Registration. Penalty for fraud in procuring registration Ill 108 for forging seal of registrar 112 109 Petition for registration basis of registry proceedings 16, 17 to Superior court, filed with county clerk 5 21 facts to be set forth in 5,6 21, 22, 31 caption for 23 (1) Petition for registration 24 (2) Same personal form 25 (3) General petition for registration 26 endorsed by clerk and entered in land register docket 6 36 when adverse possession claimed, what alleged in . . 6 33 how amended 9 39 (9) Order for amended 39 (10) Same on motion of applicant 39 date of filing deemed date of registration 15 50 filed in probate proceedings. See Registration. may be withdrawn by applicant 20 60 certified copies filed in counties where any part of land lies . 46 75 INDEX 129 Section Page Plat See Map- Policy of title insurance made starting point for abstract of title 6 35 Possession See Adverse possession. no length of shall give adverse title after registration 35 72 in action for, certificate evidence of valid title 41 73 character of stated in petition 6 33 how proven, note 35 Power of attorney See Attorney in fact Power of sale when given in trust deed, trustee may deal with land as owner 68 86 how noted on certificate 68 86 when none given in trust deed 69 86 of trustee under will 70 86 when given in will to executor. See Executor. Prescription title by, note 35 Private way when land is bounded by 6 32 Probate proceedings registration of title in. See Registration. change in status of title of registered land made in, as provided in the law of the state 71 86 court in its decree will direct registrar to issue cer- tificate 72 (59) Order In decree, for certificate of memorial. . 87 certified copy of decree also deed, etc., and decree of confirmation filed with registrar 73,74 87 Procedure for bringing land under this act 16 Process notice of, how given by mail 54 79 levy of, certified to registrar 92 96 (70) Certificate of levy 96 disposal of, certified to registrar 90, 96 95, 98 (76) Certificate of release 98 Publication of notice See Notice Public improvements See Ordinance Public way See also, Street when land is bounded by, what stated in petition 6 32, 38 (5) Order for survey to determine line of 37 to whom notice to be given 13 47 when owner holds subject to right of though not noted on certificate 34 71 Purchasers when not required to inquire into acts of trustee, grantor 68 86 when not bound to inquire into regularity of sale. . 74 87 of registered land at tax sale. See Tax sale. at sale in partition, certificate 86 94 at sale of registered land sold on judgment 88 95 title of, not affected by proceedings to correct cer- tificate 98 99 130 INDEX Section Page Quieting title decree ordering registration shall have effect of.... 16 63 registration may be included in action for. See reg- istration. Receipt to be given for certificate of title 22, 30 62, 70 printed or pasted in book *. 22 62 form 63 evidence of genuineness of owner's signature 22 62 Receiver shall file certified copies of proceedings 73 87 Recorder of county shall be registrar of titles 1 19 official bond of, shall apply to duties as registrar, and deputies 2 19 duties of, as registrar. See Registrars. recovery on bond of only for gross negligence, etc. 2 19 may appoint deputy registrars. See Registrars. Recovery of land action for, of registered land must be brought within one year 45 74 Referee sending case to, to report facts, note 18 57 (27) Order 57 when deputy registrar may act as 108 108 Register of titles form for 64 kept by registrar, what entered in 29 70 and certified copies of, received as evidence 42 73 correction and alteration of, how made. See Certifl- cate of title, penalty for fraudulently procuring entry on Ill 108 Registered land See Lands guaranty behind title to 5 no adverse title acquired, by possession 35 72 purchaser of, need not inquire into registration 36 72 dealings with, deemed subject to terms of this act. . 44 73 no action for recovery of, after one year 45 74 how transferred. See Instruments of transfer. sale of, by executor. See Executor. sale of, for tax or assessment. See Tax sale. partition of. See Partition. lien on. See Lien. public improvement made on. See Ordinance. right of eminent domain in, not affected by this act. 101 104 may be platted or subdivided. See Subdivision. Registered Owner See Owner Registrar recorder of county shall be 1 19 official bond of 2 19 liability on bond 2 19 INDEX 131 Section Page governed by laws relating to recorders 1 19 is a county officer 1 19 prohibited from practicing law 4 19 how act as searcher of titles 4 19 shall issue certificate of title, when 15, 22 50, 62 books to be kept by 22, 29 62, 70 complaint against, may be filed in the superior court 33 71 duty of, in marking deeds and other instruments filed in his office 50, 60, 63 78, 82, 84 authorized to cancel memorial, when 96 98 may apply for correction or change in certificate 98 99 may refer form of memorial to court for determina- tion 99 102 fees of, for services under this act 100 103 shall keep property and name indices 102, 103 104, 105 may appoint deputies. See Deputy registrar. duty of, to see that documents are made out with view to permancy 110 108 remedy in law against him and his bond, not affected by conviction of felony 113 109 rules and regulations made, not to work hardship. . . . 114 109 Registration advantages of system 5 in other States 7 application for. See Application for registration, petition for. See Petition for registration, what lands brought under. See Lands. of a tax title. See Tax title, assent to. See Assent. party interested may object to 12 43 (19) Answer objecting to 46 ordered by court on hearing 14 49 decree for registration 15 49 what to be stated in 15 49 in convenient form for transcription on certificate 15 50 may be appealed from 15 50 filed with clerk and certified copy with registrar. . 15 50 (22) Decree for registration 50 shall be in nature of decree in rem, quiet title, and conclusive against rights of all persons 16 53 date of, deemed date of registration 15 50 not entered until after report of examiner 19 57 effected by filing decree and issuing certificate 15 50 when land deemed to be registered 31 70 when transfer and other dealings deemed registered 32 70 but relate back to time of filing instruments in reg- istrator's office 32 70 confers title subject to what estates 34 71 adverse title not acquired by any length of possession 35 72 void if instrument forged or made by person under disability 38 but not to affect title of bona fine subsequent pur- chaser 38 gives title against unregistered claims 39 73 bringing land under implies agreement, etc 44 of land lying partly in another county 46 75 registration in other proceedings 17 54 (23) Application for notice of intention (24) Order that notice of intention be given 55 (25) Notice of Intention order for registration, how made 56 132 INDEX Section Page Release or satisfaction See Charge on land Report to be made by examiner of titles. See Examiner of titles, of commissioners in partition must be confirmed 85 94 Residence of applicant given in petition 5 21, 25, 26 noted in decree 51 noted in certificate 64 of grantee contained in, or endorsed on instrument. . 54 79 change of endorsed by registrar 54 79 (50) Notice of change of address 80 Reversal of judgment or order certified to registrar 90, 96 96, 98 Right of way when land subject to though not noted on certificate 34 71 Satisfaction See Release Sea when land borders on arm of, notice 13 47 Seal of registrar, penalty for forging 112 109 Searcher of titles See Examiner of titles Separate property defined, note 22 court will determine as to 14 49 certificate shall show as to 15 60 Severalty registration of land held in, by one of applicants 5 22 Service of notices. See Notice. of process. See Process. proof of made by certificate of clerk, when 54 79 Sewer See Street Sheriff to certify levy to registrar 92 96 (70) Certificate of levy 96 to certify disposal of process to registrar 90, 96 95, 98 (75) Certificate of release 98 Sidewalk See Street Signature genuineness evidenced by receipt 22 62 Spouse See Husband or wife State tax title derived through sale by 8 38 having adverse title, notice of petition 13 47 becoming purchaser at tax sale 77 89, 38 subrogated to rights of plaintiff, when 105, Sub. 2 106 INDEX 133 Section Page State Controller shall audit and certify amount ordered paid from assurance fund 105, Sub. 2 106 State treasurer See Assurance fund Stream See Navigable stream Street See also Public way survey must show relation of land to 6 32 improvement of. See Ordinance. Subdivision how plat of, referred to in petition 6 31 of registered land, what certificates given 49 77 (49) Endorsement on certificate of tract 78 made as in case of unregistered land 109 108 when owner may furnish forms of certificates .... 109 108 Substitution of parties See Death; and Transfer Suit time limitation of, for recovery of land, etc 45 74 to foreclose mortgage. See Mortgage. against registered land, when deemed lis pendens. . 89 95 for compensation out of assurance fund. See Assur- ance fund. disposal of certified to registrar 96 98 (74) Certificate of clerk of 98 In exercise of right of eminent domain 101 104 by person deprived of land through this act. See Assurance fund. Summons order for on petition to correct certificate 98 99 (77) Order that summons issue 100 (78) Form of summons 101 Supervisors of county notice to, when line of public way to be determined . . 13 47 furnish books, etc., for carrying out provisions of this act 100, Sub. 3 104 approve compensation of deputy registrars 108 107 Sureties See Bond Survey when required 16 when made and what to show 6 31,32 ordered by court at any time 6 32 (4) Order for 36 (5) Order for, to determine line of way 37 California statutes relating to 110 general requirements 112 form of report of 112 Swearing penalty Tor false 112 109 Tax collector shall file notice when State or Municipality becomes purchaser at tax sale 77 89 (64) Notice of land sold to State 90 134 INDEX Section Page Tax deed of registered land, shall not be issued unless notice of sale filed 77 89 may be presented to registrar and memorial entered 78 90 shall have effect only as agreement to transfer 78 90 except when issued to state 78 90 holder of, must file application for a decree 78 90 (65) Application for decree 91 (66) Order that notice be given of application 92 (67) Notice of application 92 court will find ownership and enter decree 80 93 (68) Decree showing title under tax deed 93 when issued to State or Municipality 81 93 Taxes payment when adverse possession alleged in petition 6 33 how proven, note 33 when registered land held subject to, though not noted on certificate 34 71 sale for. See Tax sale. Tax sale general law declares all delinquent land sold to State 38 if not redeemed sold by State after five years .... 39 of registered land when shown in last certificate, transfer subject to 56 81 fact shown on new certificate, note 65 notice of must be filed by purchaser 77 88 (63) Notice of purchase 90 when filed by tax collector 77 89 (64) Notice of sale to State 90 memorial of notice and copies mailed 77 89 when sold to municipality or State hereafter new certificate issued 81 93 on certificate of redemption, memorial of sale can- celled 83 94 Tax title first registration of 8 38 when derived through direct purchase at tax sale, note 38 five years adverse possession required, note 38 when derived through purchase from State, note. . 38 five years possession not required, note 39 application for registration, how made, note 27 27 of registered land, how certificate obtained. See Tax deed. Tenants in common how named in petition, note 26 certificates to, how made 25 66 lien given by one, attaches how, on partition 87 95 Testator power of sale given by. See Executor. Title what required for registration, notes 20, 21 may be established by chain or by prescription, notes 21, 33 will be determined by court. See Registration de- cree. INDEX 135 Section Page to be examined into by examiner of titles 19 57 forever quieted by decree for registration 16 53 of registered owner. See Owner. certificate of. See Certificate of title. of registered land not affected by instrument, unless notations made thereon 47 75 not affected by lien until memorial entered 95 98 Title insurance policy of, starting point for abstract 6 35 Torrens land title law enacted in California 19 former law declared constitutional 10 Torrens system advantages of 5 in other states 7 Torrens title guarantee behind 5 Torrens title assurance fund See Assurance fund Tort person not deprived of right of action in, by this act 105, Sub. 2 106 Town See City Transfer See also Instruments of transfer during proceedings for registration 21 61 (34) On transfer of interest, action continued 62 (35) Same, transferee substituted 62 not to be made when certificate lost, until new one issued 27 67 when deemed to be registered 32 70 person taking, need not inquire into circumstances of registration 36 72 of registered land, how effected. See Instruments of transfer. of part only of land, certificate given 49 77 may be made by endorsement, on duplicate certificate, form given 53 79 made subject to tax sale, noted on last certificate.. 56 81 of homestead or community property, both spouses must join 56, 57 81 of charge on registered land, how made 63 84 (57) Memorial of 84 (57a) Same, of transfer of part 84 Transferee of registered land need not inquire into previous registration 36 72 affidavit to be furnished by 58 81 (53) Affidavit 82 if executor or administrator, affidavit 58 (54) affidavit by executor 82 if assignee or trustee 58 81 of charge on land entitled to certified copy of instru- ment 63 84 under deed from trustee, with power of sale, need not inquire into acts of trustee 68 86 136 INDEX Section Page Treasurer of State See Assurance fund Trust noted in certificate 24, 67 64, 65, 86 unregistered, not to affect transferee of registered land 36 72 not to prevail against title of registered owner 39 73 Trust deed words "in trust" to be noted on certificate 67 86 when it contains the words "With power of sale" trustee may deal with land as the owner 68 86 when it does not contain words "With power of sale" trustee has no power to deal with land without order of court 69 86 Trustee power of sale under trust deed. See Trust deed. under will has power to deal with land as his own, unless expressly withheld by terms of will 70 86 in bankruptcy. See Assignee in insolvency. when transferee, name of insolvent or bankrupt stat- ed in certificate 58 81 Undertaking See Bond, official Unregistered estate when registered owner not affected by 34, 36, 39 71, 72, 73 Verification of abstracts 6 35 Way See Public way Wife See Husband or wife Will excepted from provision making instrument of con- veyance a contract only 55 80 power of sale by trustee under. See Trustee. when executor has power of sale under. See Executor. LAW LIBRARY UNIVERSITY OF CALIFORNIA . m.T^-t^T T^Gt 000 706 322