Fhe True W^ay 
 
 -TO- 
 
 ■ivr 
 
 1 ' 1 f M 
 
 Simplify Our Lah'H' Titles, 
 
 And Improve Our Land Taxing Systemj 
 
 The Torrens System of Land Transfers, the German Sys- 
 tem of 'Titles and Taxation, and Other Land 
 Title System^ ^Related Thereto. 
 
 JOHN T. KBNNBY 
 
 MADISON, WISCONSIN. 
 Aug. 16, 1906. 
 

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 Digitized by the Internet Archive 
 in 2017 with funding from 
 
 University of Illinois Urbana-Champaign Alternates 
 
 https://archive.org/details/truewaytosimplifOOkenn 
 
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 CONTENTS 
 
 PART 1. 
 
 Page 
 
 Introduction 5 
 
 The Torrens and Other Systems of Land Transfers 5 
 
 Origin and Aim of Torrens System 6 
 
 “Merchant Shipping Acts” 6 
 
 Conveyancing by Book-keeping 6 
 
 Sir Robert Torrens’ Later Apparent Change of View 6 
 
 Development of Systepa in Australia 7 
 
 Method of Development 7 
 
 Cost and Complexity of Present Law 7 
 
 The Two Chief Features of the System 7 
 
 Indefeasible Titles 7 
 
 Indemnity Fund 7 
 
 The Two Old Systems 7 
 
 The Title Deeds System 8 
 
 The Recording System 8 
 
 Why the Title Deeds System was not alone relied upon in 
 
 the U. S 8 
 
 Why Recording System was developed in U. S 9 
 
 Torrens System and Constitutional Guarantees 9 
 
 Torrens System disposed of in the United States 9 
 
 Ohio and Illinois Supreme Court Decisions 9 
 
 The Insurance Feature 10 
 
 Repealed by Ohio Legislature 10 
 
 Illinois Devises new Scheme; So called Torrens Law 10 
 
 Chicago Abstract Monopoly Prolongs Struggle for Some New 
 
 Systems in Chicago and Cook County 10 
 
 Land Transfers by Lawsuit, Substituted for Conveyancing by 
 
 Book-keeping 11 
 
 New and Old Illinois Torrens Laws Compared 11 
 
 Illinois Supreme Court on New Law ' 12 
 
 Law almost Dead Letter in Illinois 12 
 
 Compulsory Registration of Titles Fails in Chicago 12 
 
 Interest in Systems declining; Official Attention turning to ab- 
 stracts 13 
 
 Number of Registrations Decreasing 13 
 
 Public Abstract Books being Rewritten 13 
 
 New Million Dollar Abstract Company organized 13 
 
 Cost of System to Cook County 13 
 
 Experience of Other States 13 
 
 The Minnesota Law 14 
 
 Registrations Set Aside 14 
 
 Judge Brooks’ Decision 1 . . . 14 
 
 Cost of Registration in Minnesota 14 
 
 The Massachusetts Law 15 
 
 Cost of Registration Court; Fees for Registration 16 
 
 Number of Titles Registered and Applications therefor 16 
 
 Change of Name and Jurisdiction of Court 16 
 
 Q 
 
— 4 — 
 
 Page 
 
 The Torrens and Other Systems of Land Transfers — continued. 
 
 Torrens System Indirectly abandoned by Officials under it 16 
 
 Law in any Form not yet passed upon by the U. S. Supreme Court . . 16 
 
 Legislative Action in U. S. as to System Generally Adverse 17 
 
 Defeated in Wisconsin 17 
 
 Radical Features of the Proposed Bill 17 
 
 By Whom Bill introduced and Passage Urged 18 
 
 The System Apart from Constitutional Limitations 19 
 
 System Wrong in Principle 20 
 
 Systems of Other Countries 21 
 
 The German System 21 
 
 Our Own System and German System Compared 2o 
 
 PART II. 
 
 The True Way to Simplify Our Land Titles and Improve Our Land Taxing 
 
 System 24 
 
 The Conclusion Reached by the City and State of New York 24 
 
 Some Suggested Improvements 25 
 
 Change in Statutes of Limitations 25 
 
 Simplification of Court Proceedings 25 
 
 Testing and Supervision of Conveyancers 26 
 
 Function of Notary in France 26 
 
 Instructions of Wisconsin Tax Commission as to Land De- 
 scriptions 26 
 
 Mistakes not Confined to Obscure Officials 26 
 
 Supervision and Control of Public Platting 27 
 
 When Complete General Survey and Plat Necessary 28 
 
 Bill Nye’s Style of Land Descriptions 28 
 
 Should not be left to Local Officers 29 
 
 Supervision of Register of Deeds Offices 29 
 
 Advance in Office Methods, Books and Appliances in last 
 
 five years 29 
 
 Private and Public Offices Compared 29 
 
 Supervision and Control of Abstract Work and Offices 29 
 
 As to Private Offices and Work 29 
 
 As to Abstracters from Public Indices and Records 29 
 
 As* to Making the Tract Indices and Abstract Books by Con- 
 tractors and their Employes 29 
 
 System Requires Head 29 
 
 Importance of Unity 30 
 
 $30,000.00 spent in getting Data for Tax Commission in Valu- 
 ing Railroads 30 
 
 Greater Sums Spent by Railroads for Same Purpose 30 
 
 Larger investigation of Land Values now in progress 30 
 
 Larger Task Remaining 30 
 
 Fixing Boundaries and getting acreage for Taxing Purposes. . 30 
 
 Basis of all Land Title and Land Taxing Systems same .... 30 
 
 The Abstracter’s Part of this Important Work 31 
 
 . ^Resultant Saving and Improvement 31 
 
 Final American System of Land Titles 31 
 
 Conclusion . . . .■ 31 
 
ADDRESS 
 
 O F 
 
 Jokn X. Kenney of tlie Madison Bar 
 
 Before the State Association of Wisconsin Abstracters, at 
 Madison, Wis., August 16, 1906. 
 
 Members of the Association and 
 Friends: 
 
 That our present system of land 
 transfers is in serious need of simpli- 
 fication and improvement or of com- 
 plete reform, no one is more fully 
 aware, I believe, than the members 
 of this association. The importance 
 of this need is greatly emphasized by 
 the work in respect to land titles and 
 transfers now being undertaken quite 
 generally, but particularly in this 
 state, in connection with the effort to 
 improve our taxing system. The 
 close relationship existing between 
 these two systems, and the similar 
 character of a large part of the work 
 under each, although not perhaps gen- 
 erally appreciated, is nevertheless a 
 very important fact in this connec- 
 tion I need not argue to you. Gov- 
 ernor 'LaFollette’s recommendation to 
 the last legislature to take up this 
 subject was, therefore, I believe you 
 will all agree with me, very timely 
 and still is well worthy of the most 
 careful consideration at the hands 
 
 not only of the legislature of this and 
 of, every other state in the country, 
 but of every one connected with each 
 of these systems, and particularly ot 
 those of us who have special oppor- 
 tunities to study the defects of our 
 present system of land transfers as 
 we 1 as the proper remedies therefor. 
 
 The Torrens and Other Sys- 
 tems of Land Transfers. 
 
 In this as |in all similar investiga- 
 tions the first question to be asked 
 by the impartial investigator is the 
 comparative one. What are the mer- 
 its and demerits of our system of 
 land titles as compared with those of 
 other progressive countries? In order 
 to answer this question intelligently 
 we must have a reasonably clear 
 idea of the salient features at least of 
 these other systems as well as of our 
 own, and of these the Australian or 
 Torrens System of land transfers is 
 undoubtedly the one to which atten- 
 tion has been most frequently di- 
 
— 6 — 
 
 rected by the speakers and writers 
 upon this subject in this country in 
 recent years. 
 
 To a consideration of this system 
 therefore in so far as related to this 
 subject I desire to invite your atten- 
 tion first this afternoon. 
 
 Origin and Aim of Torrens Systsm. 
 
 The system received its name from 
 Sir Robert Richard Torrens, by whom 
 it was devised and under whose super- 
 vision it was first put into operation in 
 South Australia. It was enacted into 
 law there in 1857, but did not go into 
 •effeot until July 1st, 1858. It is, there- 
 fore, it will be noticed, just 48 years 
 one month and a half old today. It 
 embodies a scheme for the transfer 
 of land titles, modelled on what was 
 known in English law as the "Mer- 
 chant Shipping Acts’’ under which the 
 transfer of shares in ships was ac- 
 complished in a manner similar to 
 the way in which the transfer of 
 shares of stock in corporations is 
 conducted in this country at the pres- 
 ent time. 
 
 It has been called a system of con- 
 veyancing by book-keeping, and un- 
 doubtedly this designation expresses 
 more clearly, I think, than it could be 
 expressed in any other way, what its 
 author hoped to make it, when he set 
 to work upon it. (Hogg on Torrens 
 System, pp. 4 and 5.) He was not a 
 lawyer, or even student particularly of 
 this subject previously, and having no 
 special knowledge of the fundamental 
 differences in the very nature, of per- 
 sonal property and real estate, or of 
 the necessary consequences in human 
 action, custom and law flowing there- 
 from, it did not seem difficult to him 
 to devise a mere system of book-keep- 
 ing which should completely simplify 
 the whole matter of dealings in land, 
 by putting those dealings upon the 
 same basis as dealings in personal 
 property. 
 
 If the title to an apple, a pound of 
 
 coffee, a bushel of wheat, a share of 
 stock, , a, ship or other personal prop- 
 erty could be transferred from one per- 
 son to another by the mere making of 
 an entry in a book by a clerk in a 
 store or office, why could not the title 
 to land be transferred in the same 
 way? This fairly expresses his origi- 
 nal idea, as well as the popular impres- 
 sion in most quarters about the mai- 
 ler, I believe, even today. 
 
 Sir Robert Torrens’ Later Apparent 
 Change of View. 
 
 It seems, however, that after Sir 
 Robert Torrens had spent some yeai's 
 in endeavoring to put his system into 
 practical operation in Australia he be- 
 came less enthusiastic about its mer- 
 its, at least so far as any other than 
 a new country was concerned. 
 
 He does not appear to have clearly 
 formulated his views upon this sub- 
 ject it is true. There is no dispute 
 about the fact however that upon his 
 return to England and entering the 
 English par.iament, after several 
 years actual trial of his system under 
 his own supervision in Australia, that 
 he never urged the adoption of his sys- 
 tem of land titles in England, and 
 when a bill was introduced by another 
 and enacted, with his opposition it is 
 claimed, into law by the English par- 
 liament, permitting tit'es to lands in 
 some counties of England to be reg- 
 istered in a manner similar to his 
 Australian method, it is admitted that 
 he never registered the title to an 
 acre of his own land under it, al- 
 though a large land owner in the coun- 
 ties to which the law applied. (Reg- 
 istration of Title to Land. Brickdale. 
 D. 49.) It can well be imagined, there- 
 fore, that in the meantime he had 
 gained a clearer comprehension of 
 the essential differences in these two 
 grand divisions of human property, 
 known as real and personal, as well 
 as the inevitable difference there 
 must always and everywhere be, also. 
 

 in the great body of law applying to 
 each. 
 
 Development of System in Australia. 
 
 In the meantime, too, his system of 
 conveyancing in Australia had grown 
 into much more than a mere system 
 of book-keeping. By judicial inter- 
 pretation and new legislative enact 
 ments it had developed along many 
 lines of which, when he devised the 
 scheme, he had never thought, until 
 it had become a very complicated, as 
 well as a very novel system of land 
 transfers, with not only its own pe- 
 culiar system of ^ book-keeping but its 
 own peculiar body of technical as v/ell 
 as general laws and rules. 
 
 It has continued to develop in this 
 way ever since, until today as it ex- 
 ists in practical operation in Australia, 
 it is one of the most complicated, 
 costly and technical systems of land 
 titles, I believe, in the world, or 
 rather nine such entirely distinct sys- 
 tems. 
 
 If any one doubts this proposition, 
 I think they can speedily convince 
 themselves of its truth by a study oi 
 the latest book devoted to an expla- 
 nation of the statutes as they stand 
 today in the nine Australian territories 
 in which the system originated. This 
 work although carefully and ably writ- 
 ten, without any attempt to advocate 
 or oppose its adoption in any other 
 country, or to deal with the subject in 
 any but the most brief and practical 
 exp’anatory way, nevertheless, runs 
 into a volume of 1086 pages of about 
 as drj^ and difficult reading as I have 
 ever undertaken to digest. 
 
 It is to be found in the Supreme 
 Court law library in the capitol and 
 is entitled “The Australian Torrens 
 System” by James B. Hogg, London. 
 1905. 
 
 The Two Chief Features of the System. 
 
 It v/ou’d be impossible for me today, 
 it can readily be seen, to give any 
 complete idea of this system as it has 
 been developed. It is sufficient for 
 
 my purpose to call attention to ils two 
 main underlying ideas. These may 
 be briefly, but clearly set out I think, 
 as follows: 
 
 1st. At the time of each transfer of 
 land under this system it is sought ro 
 finally determine, and then to inde- 
 fensibly fix the title to it in the pur- 
 chaser, by the public registration or 
 entry of it in his name in the public 
 record book kept for that purpose. 
 
 This seems very plain, simple and 
 easy. In practice, however, it will be 
 noticed by anyone who stops to con- 
 sider the matter at all that this re- 
 sult would necessarily be attended 
 with two very serious consequences. 
 These are, (a) such a law constitutes 
 the person who makes the entry a 
 judge from whose decision there is no 
 appeal, and (b) it also constitutes bis 
 entry an official judgment of final and 
 conclusive authority. 
 
 2nd. An indenmity fund is collected 
 from the owners of registered or 
 other titles for the purpose of compen- 
 sating in damages any one whose 
 lands may be wrongfully taken by mis- 
 take or otherwise in registering titles 
 under the law. 
 
 This provision is quite as pregnant 
 with serious results as the other, a 
 moment’s consideration will disclose, 
 (a) It makes the state a guarantor, it 
 will be observed, of the acts of the 
 registering officer, and (b) it embarks 
 the state in the business of insuring 
 land titles.- This latter is a very im- 
 portant corollary, too, of the first men- 
 tioned feature of the law. For if 
 titles are to be made indefeasible by 
 registration, wthout -an infallible and 
 an incorruptible registering officer, it 
 requires no prophet to foresee that 
 many people will soon be unjustly de- 
 prived of their lands. 
 
 THE TWO OLD SYSTEMS. 
 
 Perhaps the best way to get a clear 
 understanding of this new system is 
 to first notice briefly the prominent 
 characteristics of the two oM systems. 
 
— 8 — 
 
 with a glance also at the history cf 
 their development. 
 
 The Title Deeds -System. 
 
 The first and oldest general system 
 of land transfers nov/ in use is thai 
 which may be designated as the title 
 deeds system or method. Under this 
 system, which is still in operation in 
 most of the counties of England and 
 in many other parts of Europe, the 
 transfer of land is effected by the 
 production and delivery of all the title 
 deeds to the land in question, includ- 
 ing one from the seller to the pur- 
 chaser. Under this system no public 
 record of these deeds is kept at all. 
 Unquestionably this system would be 
 impossible of operation in this coun- 
 try, and it is only practicable in those 
 parts of the old country where the 
 law of primogeniture or other laws in 
 restraint of the alienation or sale of 
 land is in force, and land is scarcely 
 considered, consequently, a commer- 
 c’al commodity at all. Until very re- 
 cent years, it will be remembered, the 
 oldest son in England inherited, under 
 this law of primogeniture, all the real 
 estate of a deceased person, and by 
 reason of the law and custom pertain- 
 ing to entails it was rarely possible for 
 him to sell it at all. It will be seen, 
 therefore, that the possession and pro- 
 duction of all the title deeds, as a 
 means of establishing the title to land, 
 was so seldom necessary that its bur- 
 den and difficulty did not become a 
 serious hardship. 
 
 Prior to this system of title deeds or 
 other instruments in writing, for the 
 conveyance of lands, the custom was 
 to transfer it orally, as the purchase 
 and sale of the less important kinds 
 of personal property is conducted to- 
 day. It will be seen, therefore, that 
 this system of title deeds is a great 
 improvement on the prior way. 
 
 The Recording System. 
 
 The second system is that known as 
 the recording system. With this sys- 
 
 tem we are all familiar. It is a 
 clear step also in advance. It pro- 
 vides as is well known for the copying, 
 in part or at length, of all properly ex- 
 ecuted papers pertaining to the titles 
 to lands, on the public records of the 
 county where the land lies. In its 
 main features of notarial or other of- 
 ficial execution of instruments trans- 
 ferring land, and the public inscrip- 
 tion or record in a public registry or 
 recording office, of these instruments, 
 this system is in use in the republic 
 of France, in Holland, Italy, a large 
 part of Switzerland and several other 
 countries of Europe. It has been in 
 use in this country since the organiza- 
 tion of this government. Its adoption, 
 or rather its development in this 
 country, too, was not a mere matter of 
 chance but a natural outgrowth of 
 the fundamental principles upon which 
 this republic, and the government of 
 each of the states as well, was 
 founded'. 
 
 Why the Title Deed System Was Not 
 Alone Relied Upon in the U. S. 
 
 One of these fundamental principles 
 was that tenure in land should be free 
 or allodial, as opposed to what is 
 known in law and history as Feudal 
 Tenure. That is, in brief, that all un- 
 necessary restraints upon the aliena- 
 tion or sale of land, such as those im- 
 posed by the law of entail and primo- 
 geniture, should be abolished. This 
 is provided in section 14 of the con- 
 stitution of Wisconsin, and is to be 
 foundl in some form in the constitu- 
 tion of substantially every state in 
 the union. As a result of this free- 
 dom, granted to the people in this na- 
 tion from the beginning in the trans- 
 fer of lands, it toiiows as a necessary 
 consequence that the title deeds sys- 
 tem would not alone serve the practi 
 cal needs of the people of the United 
 States. Its burden would be intoler- 
 able, .and the American people conse- 
 quently were too wise to cling to it as 
 a complete system. 
 
— 9 
 
 Why Recording System Was Devel- 
 oped in U. S. 
 
 Upon the other hand another funda- 
 mental principle of American liberty 
 is that contained in both the 5th and 
 14th amendments to the constitution 
 of the United' States. These provide, 
 among- other things, that no person 
 shall be deprived of life, liberty, or 
 property “without due process of law’’ 
 nor be denied “the equal protection of 
 the laws.’' In other words, and as 
 construed by the courts, this language 
 is held to mean, as it was intended i. 
 should mean, that every person must 
 receive a full, fair and open trial witii 
 all proper rights of appeal to the 
 highest court in the land fully pre- 
 served, whenever any of his property 
 or other rights are called in question. 
 
 Torrens System and Constitutional 
 Guarantees. 
 
 These provisions were clearly in- 
 tended, it can readily be seen, to 
 guard against just such quick, easy 
 final judgments not only with refer- 
 ence to life and liberty, but with ref- 
 erence to property of every kind as 
 well as is urged upon us as the chief 
 merit of this Torrens law. 
 
 It can of course be easily under- 
 stood how such a law might be ac- 
 cepted and enforced without serious 
 protest in Eng’and, or its colonies, 
 where these fundamental principles 
 have never been recognizd or incor- 
 porated into written constitutions su- 
 perior to legislative enactments. 
 
 Great Britain you know has no writ- 
 ten constitution. The will of the Eng- 
 lish or any colonial parliament, there- 
 fore, is supreme in the land, so Tar as 
 the rights of any of its people are co i- 
 cerned. There is no higher law. if, 
 therefore, either of these legislative 
 bodies enact a law which sets up a 
 mere clerk in a minor office, vested 
 with no judicial authority, and having 
 no legal learning at all as the final 
 arbiter and supreme judge of any 
 
 property, or other right of its subjects 
 however sacred, there is no escape 
 from it in any way, except one. That 
 single way is opened only by invoking 
 that patriotic but sad and sanguinary 
 right which was appealed to in this 
 country against unjust acts of the Eng- 
 lish parliament in the memorable 
 days of 1776, — tne grave right of revo- 
 lution. 
 
 How then can we reconcile these 
 fundamental principles or constitu- 
 tional guarantees, as they are termed, 
 and which are the very bulwarks of 
 our American liberty, and at the 
 foundation of our whole theory of gov- 
 ernment in this country, with any 
 such easy method of getting an inde- 
 feasible judgment against any citizen 
 of the land, divesting him with one 
 stroke of the pen of an accidental 
 clerk, perhaps in the most casual, care- 
 less or even corrupt way, of all right 
 in the most valuable kind of property 
 k..own to our laws? 
 
 The Torrens System Disposed of in 
 the United States. 
 
 The answer to this question is sim- 
 ply that it cannot be done, and is lo 
 be found set fortli at length in two 
 leading decisions of our courts, of 
 last resort. These two decisions are 
 entitled People vs. Chase, 165 III., 527 
 and State vs. Gui’.bert, 56 Ohio St., 
 575. Ohio and Illinois were the first 
 two states in this country in which 
 the Torrens law experiment was 
 tried. The Illinois law was enacted 
 in 1895, the Ohio law the following 
 year. In these decisions both acts 
 were held wholly unconstitutional and 
 void, for the reasons I have indicated. 
 The language of the Ohio court in 
 concluding the decision is as follows, — 
 
 “However, the general system pro- 
 posed by this act may have operated 
 where no system of registration pre- 
 viously existed and the conserving in- 
 fluences of constitutions are not en- 
 joyed, it seems, in its prominent feat- 
 ures, to be inapplicable where constitu- 
 
— 10 — 
 
 tional provisions, paramount to legis- 
 lative enactments, protect vested 
 rights and restrict the state to the ex- 
 ercise of functions which are govern- 
 mental in their nature.’’ 
 
 The Insurance Feature. 
 
 With special reference to the in- 
 surance feature the Ohio supreme 
 court says further “That this is in 
 no sense a public purpose seems clear. 
 Considering the purposes for which 
 government is instituted and the 
 high conception of individual right 
 which prevailed at the time of the 
 adoption of the constitution it would 
 be strange if authority had been con- 
 ferred upon the state to carry on the 
 business of an insurer of private titles. 
 No such authority is conferred in any 
 of the terms of the constitution. It is 
 not implied in any of the enumerated 
 purposes for which government is 
 formed. It is entirely foreign to those 
 purposes.” 
 
 This presents an entirely different 
 question, it will be noticed, from that 
 presented by the question of public 
 ownership either municipal, state or 
 national, of public utilities. The 
 question presented here is solely as to 
 the propriety of public competition in 
 respect to properly conducted wholly 
 private enterprises. If we decide this 
 question in the affirmative, the fur- 
 ther question is at once raised as to 
 why the government should' not take 
 over all business enterprises and es- 
 tablishments of every character pri- 
 vate as well as public. The principle 
 of equality and fair play it seems 
 would require that all our people en- 
 gaged in any legitimate business 
 shou’d be treated the same, and put 
 upon the same footing in all respects. 
 
 So far as the actual original Torrens 
 law is concerned or any other lav^^ 
 embodying its basic principles, the 
 history of it in this country ends right 
 here. The argument was closed with 
 these decisions and has never been re- 
 opened by anyone since. 
 
 Repealed by Ohio Legislature. 
 
 So far as Ohio is concerned, nothing 
 further has ever been done about the 
 Torrens law or any substitute for it, 
 except to repeal it. It w^as unani- 
 mously repealed by the legislature of 
 that state in 1898, to which fact, if 1 
 may be pardonea for a personal allu- 
 sion, I cani bear indubitable witness 
 de hors the record, for I happened to 
 be a member of that body at that ses- 
 sion and quite clearly recall the facts. 
 General Wi'ey, one of the ablest and 
 most highly respected members of 
 either house, one morning called at- 
 tention to the blunder that had been 
 made at the previous session in at- 
 tempting to ingraft inTo our system of 
 laws this body of law of wholly for- 
 eign and conflicting character and 
 asked ^o haye the act repealed. Not 
 a single dissenting voice was raised 
 in reply, and not a vote was cast in 
 either house against its repeal, al- 
 though at the previous session it was 
 passed 'by a great majority and hailed 
 by its advocates as one of the great- 
 est and most beneficial reforms of the 
 age. 
 
 Chicago Abstract Monopoly Prolongs 
 Struggle for Some Ne\A/ System in 
 Illinois. 
 
 This was not, however, the end of 
 the attempt to introduce a new system 
 of land titles into this country. In the 
 state of Illinois, or rather merely in 
 Cook county, of that state, where Chi- 
 cago is situated, the situation was pe- 
 culiar. There a single corporation 
 had succeeded in obtaining a complete 
 monopoly of the abstract business. 
 This was made possible by the famous 
 Chicago fire of 1871, when all the pub- 
 lic records were burned. 
 
 It was claimed and believed quite 
 generally by the people throughout 
 Chicago and Cook county that ex- 
 tortionate prices were charged by 
 this corporation commonly known as 
 the “Abstract Trust”. The people 
 there were not willing, therefore to 
 
— 11 — 
 
 give up the attempt to free themselves 
 from this alleged extortionate monop- 
 oly. 
 
 Land Transfers by Lawsuit Substi- 
 tuted for Conveyancing by Book- 
 keeping. 
 
 And so in 189Y the legislature of Illi- 
 nois adopted a new so-called Torrens 
 law intended to meet the constitu- 
 tional requirements in that state. In 
 order to do this it was necessary to 
 frame the act so as not to give the 
 registering officer judicial authority, 
 as contemplated by the original Tor- 
 rens law and principle. This now 
 law therefore provided for the regis- 
 tration of the title by proceedings in 
 court, amounting substantially to an 
 ordinary suit to quiet title, with pra,c- 
 tically all the delay and expense nec- 
 essarily incidental to such a suit. 
 The vital features of the Torrens law, 
 therefore, upon which its much prized 
 certainty, rapidity and cheapness in 
 making transfers depended, were 
 pretty thoroughly eliminated from this 
 act, it seems scarcely necessary to 
 mention. It became, in consequence. In- 
 stead of a system of land transfers by 
 bookkeeping attended to by a clerk, a 
 system of land transfers by law suits 
 attended to by lawyers. 
 
 There may be some similarity in the 
 ory between these twO' methods of land 
 transfer, but in practice, I think it need 
 not be argued that they are about as 
 wide apart as any two things can well 
 be, — opposite poles of the land trans- 
 fer sphere, in fact. 
 
 Old and New Illinois Law Compared. 
 
 This new Illinois law for the regis- 
 tration of land titles was, it is admit- 
 ted, based upon, not the Torrens law 
 and principle but upon what is known 
 
 as the “Burnt Record Act” for quiet- 
 ing titles in Cook county, Illinois, after 
 the great fire in Chicago of October 9, 
 1871, when all the public records were 
 burned. It followed generally the 
 
 usual practice for the quieting of titles 
 in that state, and established titles in 
 the applicant after the expiration of 
 two years provided the proceedings 
 had been properly conducted, and the 
 necessary parties had been broughL 
 into court as defendants. If not the 
 proceedings as in all other quiet title 
 cases did not bind. All usual rights of 
 appeal and error, as in any other law 
 suit are preserved by it. This new so- 
 called “Torrens Law” differs from the 
 old so-called “Burnt Record Act” 
 chiefly in this, that instead of the title 
 being said to be quieted, when the pro- 
 ceedings are completed it is said to be 
 registered, and instead of the work of 
 preparing the evidence and presenting 
 it to the court being done in the cus- 
 tomary way by an abstracter and at- 
 torney employed by each man for him- 
 self, it is done by a set of newly cre- 
 ated officials for each county through- 
 out the state called referees, registrars 
 and examiners of title. The services 
 of the privately employed abstracter 
 and attorney are not however dis- 
 pensed with by the creation of these 
 new officials. In practice the privately 
 employed abstracter and attorney are 
 regularly employed to assist and guide 
 these new officials. Common pru- 
 dence, if no express provision of the 
 law, is found to requite this. These 
 new officials, it can be readily seen, 
 merely add to the public burden as 
 well as the private expense in at- 
 tempting to correct titles instead of 
 simplifying or cheapening the process. 
 
 It is further provided by the Illinois 
 law and most of the others that tract 
 indices shall be made, and kept up in 
 all counties where the law goes into 
 effect. This is another evidence of 
 the fact that it is well understood by 
 the advocates of this system, that it 
 is utterly useless and impracticable to 
 put any reliance upon the new system, 
 except SO far as it is based upon the 
 old system, and checked up in the old 
 way. The law also re-enacted the in- 
 demnity feature of the former law. 
 
— 12 — 
 
 Illinois Supreme Court on New Law. 
 
 This new registration law was 
 passed upon by the Illinois supreme 
 court in the case of People vs. Simon, 
 17G 111., 1G5. It held merely in this 
 case, with many qualifications, that 
 so far as the registration of titles un- 
 der it was concerned it could be con- 
 strued so as to make it constitutional. 
 This was a case, however, which pre- 
 sented to the court the single question 
 as to whether or not the registrar of 
 titles could exercise authority under 
 it. This did not require the court to 
 examine the constitutionality of the 
 law further than to determine whether 
 or not enough of the act was valid to 
 authorize the existence of this officer, 
 and this is as far as the decision goes. 
 
 So far as the insurance of titles is 
 concerned, any decision is expressly 
 disclaimed. The court simply says 
 “In our view of the case the indem 
 nity feature of the law need not be 
 considered.” 
 
 The court was careful to leave the 
 construction of the other provisions 
 of the law “until the necessity for 
 such construction should arise in 
 cases involving rights under them.” 
 The court in this decision does say. 
 however, that “To the extent that the 
 actual attempt is made by it to trans- 
 fer property without due process of 
 law it cannot be upheld,” and again 
 “we are impressed with the soundness 
 of the objections which were made 
 to those sections of the statute per 
 taining to the descent of lands and 
 the sale or mortgage of land belonging 
 to minors and others under disability.” 
 
 Law Almost Dead Letter in Illinois. 
 
 This act provides, however, that it 
 is not to go into operation in any 
 county of the state of Illinois until 
 approved by a majority vote of the 
 people, and then it was to be optional 
 in all cases with every landowner a? 
 to whether he would bring his land 
 under the provisions of this act or 
 continue under the old system. It has 
 
 never been approved of by such vote 
 in any county of Illinois except Cook, 
 where Chicago is situated, and there* 
 notwithstanding the peculiar condi- 
 tion existing as to abstracts only 
 1,508 titles had been registered under 
 it in a period of about seven years. 
 This is stated by the court to be the 
 number registered at date of decision 
 in the case of Harvey vs. Cook 
 County, 111., handed down April 17th. 
 190G, and reported in the N. E. Re- 
 porter, vol. 77, page 424. I am reli- 
 ably informed, also, that these titles 
 registered are largely properties of 
 small value, or properties for which 
 no merchantable abstract of title could 
 be obtained, and it was sought in this 
 way merely to remove clouds upon the 
 titles registered. 
 
 Compulsory Registration of Titles 
 Fails in Chicago. 
 
 This lack of patronage of course did 
 not suit the officials created by the 
 act, and so aided by the deep seated 
 feeling of dissatisfaction generally en- 
 tertained against the so-called “Ab- 
 stract Trust” in Chicago, a crusade 
 was begun by these officials to secure 
 the adoption of a law to compel the 
 registration of titles in Cook county, 
 Illinois, and finally in 1903 an act was 
 passed by the legislature of that state 
 which did attempt to make the regis- 
 tration of titles compulsory so far as 
 the estates of deceased persons were 
 concerned. Before going into effect in 
 any county, however, this compulsory 
 statute must also be adopted by a vote 
 of the people in that county. 
 
 This compulsory law has never been 
 adopted by such a vote, or I believe 
 even submitted to a vote at all in any 
 county of Illinois, exce])t Cook. There 
 it was submitted to a vote of the peo- 
 ple of Chicago and Cook county in 
 November, 1904, in such a way that 
 the supreme court of Illinois in the 
 decision of April 17, 190G, last referred 
 to, held it to have been void and sub- 
 stantially fraudulent. The supreme 
 
— 13 — 
 
 court points out in that decision that 
 the question as submitted was hidden 
 away under a number of other ques- 
 tions on a special ballot, and then put 
 in such a form that it was practically 
 impossible to vote against it. 
 
 There is no place in this country, 
 therefore, at the present time, where 
 registration of titles is compulsory on 
 any one. 
 
 Interest in System Declining; Official 
 Attention Turning to Abstracts. 
 
 Interest in the whole matter is now 
 rapidly declining, even in Chicago it 
 clearly appears. As evidence of this 
 on the part of the people of Chicago, 
 it is sufficient to notice that the rec- 
 ords disclose the fact that the num- 
 ber of titles registered for the first six 
 months of this year is much smaller 
 than the number for tlie coresponding 
 six months of either 1905, 1904, 1903 
 or 1902. The exact number of titles 
 registered for the first six months of 
 each of these years are as follows: 
 1902, 190; 1903, 213; 1904, 146; 1905, 
 183; 1906, 130. For these exact fig- 
 ures from the record I am indebted to 
 the kindness of Mr. Wm. Niblack of 
 Chicago, author of “Niblack on the 
 Torrens System.” 
 
 So far as the official view of the 
 matter is concerned it may be gath- 
 ered from the fact, I think, that the 
 Cook county hoard in August, 1904 
 let a contract for $124,400 to re-write 
 the abstract books in the register of 
 deed’s office covering the period sub- 
 sequent to the Chicago fire. 
 
 As an indication of the way it is 
 looked upon by private Chicago cap- 
 ital it is sufficient to call attention to 
 the fact that something over a year 
 ago a new private abstract company 
 was organized in Chicago with a cap 
 ital of $1,000,000 which has ever sinc^' 
 been going ahead with several hun- 
 dred people doing the enormous work 
 of getting up a complete new set of 
 abstract records and indices so far as 
 this is possible. 
 
 It is apparent from these facts, 1 
 think, that the whole people of Chi- 
 cago are beginning to understand at 
 last that their only hope of relief from 
 the abstract monopoly alleged to exist 
 in that county is through competition 
 in the abstract business, and not by 
 the introduction of a foreign system 
 of land transfers. 
 
 Cost of System in Cook County. 
 
 It may be of interest to notice in 
 passing what this paucity of product 
 costs Cook county annually. It is 
 claimed, about $30,000 a year is paid 
 to officials under it, while only about 
 $8,000 a year is the amount taken in, 
 in fees annually. This includes the 
 amount taken in from fees from the 
 abstract work done in the Cook 
 county register’s office as well as for 
 registering titles. No official report, 
 however, is made of the actual cost of 
 the system in that county and it is 
 claimed by the opponents of it that 
 everything possible is done to cover 
 up the fact of this deficit. The main 
 effort now being made in that county 
 by the Torrens law officials seems to 
 be to develop the abstract plant in 
 the register of deed’s office, which 
 they have been handling for some 
 years in connection with the registra- 
 tion work. It is to this end that the 
 contract was let for the re-writing of 
 the bool^s to which I have referred. 
 
 Experience of Other States. 
 
 Other states which have adopted 
 this so-called Torrens law are Cali- 
 fornia, Oregon, Colorado, Minnesota 
 and Massachusetts. None of the acts 
 in these slates, however, can fairly be 
 called Torrens laws. They are all 
 acts similar to the second Illinois act. 
 introducing transfers by law suits in- 
 stead of by bookkeeping. Under the 
 provisions of each of these laws, the 
 lands are to be registered by proceed- 
 ings in court in which everything that 
 is required to be done in an ordinal^’ 
 
— 14 — 
 
 quiet title suit must be complied with. 
 There have been no adjudications re- 
 ported so far under the California, 
 Oregon or Colorado acts, and very lit- 
 tle notice taken of their existence in 
 any way in fact in those states. 
 Nothing whatever has been done un- 
 der the California act in any county 
 in this state. The situation is practi- 
 cally the same in Oregon and in Cali- 
 fornia. 
 
 The Minnesota Law. 
 
 The Minnesota law was not passed 
 until 1901 and is substantially the 
 same as the Illinois law, in its main 
 features. It has been passed upon by 
 the supreme court of Minnesota, in 
 case of State ex rel. Douglass vs. 
 Westfall, 85 Minn., 436. This decision 
 like the second Illinois decision merely 
 co;isidered the provision of the act 
 viih reference to registration. It is 
 held constitutional in this regard for 
 the express reason that it complies 
 with all the provisions and require- 
 ments of a suit to quiet title. The 
 language of the court is, “The provi 
 Sion of the act for serving the sum- 
 mons and giving notice of the pend- 
 ency of the proceedings are full and 
 complete and satisfy both state and 
 federal constitution. To hold other- 
 wise would be to hold that the courts 
 Oi this state cannot in any manner 
 acquire jurisdiction to clear and quiet 
 the title to real estate.” 
 
 As to the value of registration when 
 obtained this decision is silent. That 
 question was not before the court in 
 this case. In some recent decisions 
 in that state that question has been 
 considered with a rather disquieting- 
 effect upon those who were inclined 
 to pin their faith to this law. Shortly 
 after the law went into effect a title 
 which had been some years previously 
 sold and conveyed to another by tax 
 deed was registered in an applicant 
 and the purchaser at the tax sale by 
 proceedings in court get the registri.- 
 tion set aside. This tended somewhat 
 
 to open people’s eyes, especially as to 
 the much vaunted certainty and seen 
 lity of titles under it. 
 
 Judge Brooks’ Decision. 
 
 One of the most illuminating deci- 
 sions in this respect, however, is that 
 of Judge Brooks in the Hennipen 
 county district court, Minneapolis, 
 Minn., reported in full in the Minne- 
 apolis Journal of April 8, 1905. 
 
 The court in this decision, held a 
 mortgage for $1,850 on a registered 
 title to be invalid, and refused fore- 
 closure of it on account of the failure 
 of title in the registered owner. The 
 case is entitled P. A. Baart vs. Cath- 
 erine and Michael Martin et al. and 
 C. H. Dean, intervenor. The lan- 
 guage of the decision in part is as fol- 
 lows: 
 
 “One, therefore, who accepts a reg- 
 istered title may find it subject to 
 pending litigation, bankruptcy pro- 
 ceedings or a judgment or other lien, 
 the existence of which can only be 
 ascertained by an examination and 
 search of the records in the federal 
 courts. It has moreover been ex- 
 pressly decided that the decree is void 
 because rendered without jurisdiction, 
 as against the owner of land in terms 
 registered who was in actual posses- 
 sion but not made a party or served 
 with a summons. 
 
 “Such want of jurisdiction may eas- 
 ily arise when, as is frequently the 
 case [and as in fact occurred in this 
 instance] in determining the supposed 
 tenants or other occupants who should 
 be made defendants, the husbands or 
 heads of families are alone included 
 and no regard paid to the married 
 women or others, any of whom may 
 in fact own the property in fee and be 
 in actual possession. Such a decree 
 is also void as against those whom 
 the examiner finds should be made a 
 party and who are not specially and 
 by name made such. And if a person 
 is proceeded against as a non-resident 
 and as such served by publication 
 
— 15 — 
 
 when in fact he is a known resident 
 and should be served personally, the 
 court would appear to be without jur- 
 isdiction and the decree and resulting 
 registration invalid as to the appli- 
 cant or any person other than an inno 
 cent purchaser for value, and the 
 same would seem to be true as re- 
 spects any known party proceeded 
 against not by name but as a party 
 unknown. And after a registration in 
 all respects regular, a loss may ensue 
 through a forged deed or mortgage, 
 and the party sustaining the loss have 
 no redress whatever against the land 
 or the assurance fund. Gibbs vs. Mes- 
 ser, 7 A. M. L. R., 89, also 54 Cent. L. 
 J., 286. Such infirmities in a regis- 
 tered title cannot be obviated until 
 forgery, perjury and fraud become ob- 
 solete or our constitution be amended 
 so one’s property may be appropriated 
 by another without due process of 
 law.” 
 
 He suggests further, however, that 
 this does not dispose entirely of the 
 Torrens law. It takes a legal micro- 
 scope, however, to see what is loft of 
 it after he gets through so far as any 
 benefit conferred by it is concerned. 
 His reason for holding that it is not 
 completely destroyed i)y his decision 
 is in his own language: 
 
 “Under this system a purchaser 
 maj^ if he so desires, secure the opin- 
 ion of an attorney of his own selec- 
 tion as to all the records including 
 those upon which the decree of regis- 
 tration is based and subsequent con- 
 veyances which the law requires to 
 be on file with the registrar. But par- 
 ties must still take their chances. 
 The titles may prove invalid because 
 of the failure of the court to acquire 
 jurisdiction. This is true as to an in- 
 nocent purchaser whom the law would 
 protect if it could; and is still more 
 true, and should not be otherwise as 
 to those who undertake to secure reg- 
 istration by methods such as those 
 disclosed by the record in this case.” 
 
 The purchaser seeking an indefeasi- 
 ble title, it will be noted, is still rele- 
 
 gated to the opinion of an attorney 
 employed and paid by himself, to ex- 
 amine not only the abstract but all 
 the records including that of the reg- 
 istration proceedings. The expense 
 and delay are increased in practice, 
 unhappily, instead of that security or 
 certainty of title so much talked about 
 in theory. 
 
 The Minnesota law applies only to 
 the three counties in which are situ- 
 ated the cities of Minneapolis, St. 
 Paul and Duluth. It went into effect 
 September 1, 1901, and according to 
 the letter of Mr. Clarence Childs, a 
 Torrens law examiner, which letter 
 is on file in our legislature reference 
 library in the Capitol, only 320 appli- 
 cations in all had been made in Hen- 
 nepin County, where the city of Min- 
 neapolis is situated, to date of his let- 
 ter of January 9, 1905. The number 
 of actual registrations is not stated in 
 his letter but from another later let- 
 ter on file in the same place, it is 
 stated that only 270 certificates had 
 been issued at the later date. 
 
 Cost of Registration in Minnesota. 
 
 Mr. Rush B. Wheeler, whose letter 
 is also on file in the same place and 
 who is an attorney and advocate of 
 the system, and probably an official 
 under it, although this is not stated, 
 writes that it costs about $50.00 be- 
 sides the fees of the attorneys to put 
 an ordinary lot under the Torrens 
 system. 
 
 The Law in Massachusetts. 
 
 The Massachusetts act so far as 
 the United States is concerned only 
 remains to be considered. This went 
 into effect in 1897 and departed fur- 
 ther from the original Torrens scheme 
 in one respect at least than any of 
 the other acts. It provides not 
 merely for a quiet title suit but in ad- 
 dition provides an entirely new court 
 which is to have exclusive final juris- 
 diction of all this work. This court 
 was called under the original act 
 
— 16 — 
 
 passed, The Court of Land Registra- 
 tion. 
 
 Judge Leonard A. Jones, the leading- 
 advocate of this system in that state, 
 and probably the most distinguished 
 advocate of it in this country, was 
 made the chief judge of this court 
 with an appropriation of $33,925.00 
 to pay its expenses the first year. 
 This did not include $32.25 provided 
 to be paid in fees by each applicant 
 nor an additional 2-10 of 1% of the 
 value of the land to be paid into the 
 indemnity fund. (Outlook, vol. 61, 
 page 392.) This law was upheld by 
 the supreme court of Massachusetts, 
 so far only as the registration fea- 
 ture was concerned in the decision 
 entitled Tyler vs. Judges, 175 Mass 
 71. The indemnity or insurance fea- 
 ture was not passed upon by either 
 the Minnesota or Massachusetts 
 courts and expressly left out of con- 
 sideration, it will be remembered, by 
 the Illinois court so that to date the 
 decision of the Ohio supreme court 
 stands as the only adjudication with 
 reference to it in this country. So 
 far as the workings of the Massachu- 
 setts law are concerned it appears, 
 that notwithstanding all this elabor- 
 ate machinery for its introduction in- 
 to that state that on June 15, 1903. 
 only 662 petitions for registration had 
 been filled in the entire state and only 
 533 certificates of title had been is- 
 sued. Later information I have not 
 been able to get. In 1904 an attempt 
 was made to have the law made com- 
 pulsory upon administrators and exec- 
 utors of estates in the city of Bos- 
 ton. but this attempt was overwhelm- 
 ingly defeated by the Massachusetts 
 legislature. Later in the session, 
 however, an act was passed changing 
 the name and jurisdiction of Judge 
 .Tones’ court from Court of Land Reg- 
 istration to T^and Court and giving 
 this court original and exclusive juris 
 diction, except where jury trials were 
 reauired, of practically all matters 
 pertaining to land and incumbrances 
 upon the same. 
 
 Torrens System Indirectly Abandoned 
 by Officials Under It. 
 
 It will be observed that this court 
 has, therefore, now become the head 
 of the old system of land titles and 
 that it has been given work as such 
 which any lawyer will readily see, 1 
 think, will easily occupy the entire 
 time of the court. 
 
 Does this not mean that the so- 
 called Torrens law has been impliedly 
 though not expressly abandoned in the 
 state of Massachusetts? It will be 
 noticed, however, that in Massachu- 
 setts and in Chicago the distinguished 
 official advocates of the new system 
 of land titles are seeking to attach 
 their incomes to the old system. In 
 Chicago by turning the office provided 
 for registering titles into an office for 
 making abstracts, and in Massachu- 
 setts by continuing a court, which 
 has almost ceased to have anything 
 to do under the new system, by pro- 
 viding work for it under the old. 
 
 Law in any Form not yet Passed Upon 
 by the U. S. Supreme Court. 
 
 It is sometimes claimed that this 
 system has been upheld by the su- 
 preme court of the United States. 
 This, however, is a mistake. The 
 Massachusetts case, the only case 
 pertaining to the subject so far to go 
 to the United States supreme court 
 was disposed of by the court holding 
 that the complainant Tyler did not 
 have the requisite status to challenge 
 the constitutionality of the law. The 
 language of Justice Brown in the case 
 was “The court could not decide moot 
 questions or abstract propositions 
 presented by a party who did not him- 
 self show that he would be affected.” 
 The case is entitled Tjder vs. Judges 
 and to be found 179 U. S., 405. 
 
 This constitutes the history of the 
 movement in this country so far as 
 any practical results are concerned. 
 The matter has been before our legis 
 latures and courts in one form or an- 
 other now for fifteen years, with the 
 net result which I have outlined. 
 
— 17 — 
 
 Legislative Action in the U. S. as to 
 System Generally Adverse. 
 
 Of course bills to establish this 
 system have been defeated in a num- 
 ber of states by state legislatures, 
 and for the District of Columbia by 
 the congress of the United States. 
 Bills providing for the appointment of 
 commissions to investigate it have 
 been passed on in about every state 
 in the Union. In some states these 
 bills were defeated but in many others 
 they passed but nothing further was 
 ever done by the legislature in re 
 gard to the matter. Of all these gen- 
 erally I have not thought it worth 
 while to take any special note. Some 
 effort is being made toward introduc- 
 ing the system into Hawaii and the 
 Philippines but as to the extent or re- 
 sults of this experiment no definite 
 information is yet obtainable. 
 
 Defeated in Wisconsin. 
 
 The matter has been before the 
 legislature of Wisconsin a number of 
 times and in a variety of forms, but 
 as you are aware, has always met 
 with defeat. 
 
 With the efforts made at the last 
 session of the Wisconsin legislature 
 to enact a law of this kind, I believe 
 you are all familiar. The bill which 
 passed the house was in form similar 
 to the Illinois law, but much more 
 radical in several of its provisions 
 than that, or any other law ever en- 
 acted in any state in this country 
 Some of these features in which this 
 proposed law differed radically from 
 all other laws enacted elsewhere in 
 the United States, it may be worth 
 while to notice. 
 
 One of these radical provisions was 
 that registration of all lands or es 
 tates should be compulsory upon ad- 
 ministrators and executors, without 
 regard to the wishes of the heirs as to 
 private fees and consequences upon 
 the one hand, and witljout any submis- 
 sion of the question to the people of 
 the county, or even the county board. 
 
 in any way upon the other hand, not 
 withstanding the large public expense 
 involved in any attempt to introduce 
 the system, even where made entirely 
 optional as to whether or not land 
 owners should register. 
 
 One of the important consequences 
 of this provision would have been an 
 enormous increase in the inheritance 
 tax on estates, arising from fees al- 
 lowed by the act for such compulsory 
 registration of the lands of such es- 
 tates. These fees would have been 
 actually confiscatory of small, cheap 
 tracts or lots such as are to be found 
 usually in unplatted villages and the 
 like. These are seldom worth more 
 than about $50.00 a piece, and this is 
 precisely the amount which, you will 
 remember, it is stated in Mr. Rush G. 
 Wheeler’s letter, that it costs to reg- 
 ister each separate title under the 
 laAv, and this exclusive of attorney’s 
 fees. Other lands or property must 
 be drawn upon to pay the necessary 
 attorney’s fees in such cases. 
 
 Upon a majority vote of the people 
 however in any county in favor of the 
 law, it was provided that it was to 
 become compulsorv upon eveiybody 
 at the time of each sale, transfer or 
 pledge of any land to have it regis- 
 tered. No other law ever enacted in 
 this country provided or attempted to 
 provide for making registration com- 
 pulsory upon any but administrators 
 and executors. To make it compul- 
 sory upon all as a prerequisite to its 
 transfer or pledge was a wholly new 
 idea in legislation in this country. 
 It would have been equivalent to levy- 
 ing a tax many times as great as any 
 war tax ever levied upon real estate 
 transfers, by a popular election merely 
 and without any public necessity for 
 it being required to be shown. 
 
 Another provision of this proposed 
 law gave to the examiners of titles 
 annointed under it the exclusive 
 authority to do this work in each 
 county. An important consequence of 
 this provision in practice would be I 
 believe that such appointments would 
 
— 18 
 
 ■carry with them the practically exclu- 
 sive control and monopoly of all legal 
 business pertaining to such estates in 
 each county. It can be readily under- 
 stood by every one that administrat- 
 ors and executors would as a matter 
 oi convenience not desire to be ham- 
 pered by two legal advisers in respect 
 to any one state. If they must go to 
 a Torrens attorney or examiner to 
 have their titles registered, why 
 should they go to another attorney to 
 attend to any other part of the busi- 
 ness in regard to the same estate? 
 The Torrens attorney, it must not be 
 forgotten, by his appointment as the 
 exclusive examiner of titles in that 
 county would be oiRcially designated 
 as the only thoroughlj" reliable and 
 trustworthy practitioner in this re- 
 spect. Why then should the admin- 
 istrator Or executor seek further for 
 legal advice in respect to the estate 
 of which he has charge. He is him- 
 self acting merely for others and he 
 could not be expected to put himself 
 to personal inconvenience and trouble 
 where no personal interest was in- 
 volved. 
 
 It is carefully provided by another 
 provision of this law, however, that no 
 registrar or deputy registrar should 
 be permitted to practice law in any 
 way. No restriction, it will be no- 
 ticed, is placed upon the examiner of 
 titles in regard to taking advantage 
 of his position in this respect. He 
 would be permitted to get all the busi- 
 ness he could in any way. I can con- 
 ceive of no reason for making this 
 distinction between the registrar and 
 deputy registrar who v/ould not ordi- 
 narily be attorneys, and the examin- 
 ers of titles who must be an attorney, 
 but one. It was* perhaps thought 
 best not to permit these two monopo- 
 lists in each county to clash, and as 
 the examiner could not get any of the 
 registrar’s fees, since not permitted 
 to register titles, it was perhaps only 
 fair not to let the registrar or deputy 
 compete with him for the legal busi- 
 ness of estates. 
 
 The law also provided for the imme- 
 diate making and keeping up of a tract 
 index in each county in the state with- 
 out any submission whatever of this 
 to the county board as at present pro- 
 vided by section 762 of the Statutes 
 of Wisconsin. 
 
 The bill was in numberless details 
 very crudely drawn, tc say the least, 
 and contained many other radical and 
 extraordinary provisions which I will 
 not attempt to enunnerato. It was 
 passed upon adversely by the judi- 
 ciary committee of the house by a 
 vote of 9 to 2, and by the judiciary 
 committee of the senate, I believe, 
 unanimously or very nearly so, and 
 yet, it passed the house by a large 
 majority, and as you know, it ap- 
 peared at one time very possible that 
 it would pass the senate. 
 
 This can be accounted for, however, 
 by the fact that the bill was very 
 skillfully lobbied for, and its passage 
 persistently and energetically pro- 
 moted throughout the session by two 
 influential classes of persons; (1). 
 Land agents, owners and attorneys 
 or other representatives of land com- 
 panies having many of them large 
 tracts of northern lands to sell, the 
 title to which was based merely upon 
 a recent tax sale, or otherwise so 
 defective that good abstracts of title 
 could not be furnished. The interest 
 manifested in the bill by some few 
 members of both house and senate 
 and at least one ver}’’ well known 
 state official, who was quietly very ac- 
 tive for it, was accounted for in this 
 way. I am reliably informed this 
 particular official has been for several 
 years and is yet the regularly retained 
 attorney of a land company of this 
 kind in this state. 
 
 Of course, if the bill had passed, 
 these land owners, agents and attor- 
 ney who advocated the bill would 
 have a very nice political pull with 
 those appointed under it if not in 
 many cases themselves appointed, and 
 if they were thus enabled to secure 
 certificates of title which would en- 
 
— 19 — 
 
 able them to sell their lands notwith- 
 standing the flaws in the title, the 
 scandals arising, as in Minnesota, 
 out of the subsequent setting aside of 
 such registrations, would not matter 
 to them. There are in my estimation 
 perhaps few less conscienceless crea- 
 tures than some western land agents 
 or land sharks rather, intent upon the 
 sale of their lands to the strangers 
 among whom they usually operate. 
 The senator who introduced the bill 
 in the senate, a duplicate of which 
 constituted the house bill has 
 amassed a fortune, it is claimed, in 
 this way. Immediately upon the ad- 
 journment of the legislature he or- 
 ganized a further $250,000 company to 
 exploit lands largely of this character, 
 it is said, in other states. 
 
 Of course if such operators could 
 be relieved of the necessity of having 
 their titles gone over and approved by 
 abstracters and attorneys, it would 
 give a great impetus to their business. 
 Like all other gamblers they hate to 
 be left in a position, after making a 
 good stroke of business, where they 
 have no recourse but to disgorge and 
 make good, if called upon to do so by 
 their victims. 
 
 (2) Several others who were very 
 active in seeking its passage had for 
 their equally apparent object the de- 
 sire to secure appointments under it. 
 Of course its advocates could only be 
 trusted to properly put it into opera- 
 tion in each county, it undoubtedly 
 M^ould have been argued, had it 
 passed. 
 
 The great majority of those mem- 
 bers who voted for it, however, both 
 in the house and senate as well as 
 those in ofiicial positions who advised 
 its passage, acted, I believe, honestly 
 and with the best of motives but on 
 account of a lack of time and of pre- 
 vious knowledge of the subject as 
 well, were unable to give the mattei’ 
 sufficient attention to perceive its fal- 
 lacies and so were merely misled by 
 the great theoretical advantages al- 
 
 ways claimed for it, to which I have 
 alluded and shown to be without 
 foundation. 
 
 Gov. LaFollette’s Recommendation. 
 
 The guarded reference to the Tor- 
 rens system contained in Governor 
 La Follette’s recommendation in his 
 first message, to take some action 
 with reference to the simplification of 
 land titles, was made the basis of 
 much misrepresentation or at least 
 misunderstanding, I believe, of the 
 governor’s real views an 1 position in 
 this respect. The genera,! subject of 
 the simplification of land titles was 
 wholly lost sight of in the unwar- 
 ranted assumption that this simplifi- 
 cation which he recommended w'as 
 synonymous with the Torrens plan. 
 This spirit of course closed the door 
 to any proper consideration of the 
 main matter, and was not the spirit 
 I believe in which the then Governor 
 La Follette desired the legislature to 
 act in reference to this or any other 
 matter presented to it, by his mes- 
 sages or otherwise. 
 
 The System Apart from Constitutional 
 Limitations. 
 
 The broad practical question re- 
 maining is what are the merits of this 
 law aside from all constitutional re- 
 quirements? Is it an advance or a 
 retrogression? If it is an advance 
 along the right lines then the state 
 constitutions, that are in conflict with 
 it, even the constitution of the United 
 States, if it conflict with it, must 
 give way. If it is a retrograde move- 
 ment upon the other hand, no consti- 
 tutional objection need be interposed 
 to bar its progress. The American 
 people will when it is put into practi- 
 cal operation readily enough discern 
 its trend, and by disuse quickly dis- 
 card it. 
 
 The answer to these questions is 
 clear. The Torrens system of land 
 transfer marks unquestionably a re- 
 
— 20 — 
 
 trograde movement — a return to 
 methods aa.d ideas that have long ago 
 been tried and failed. There is noth- 
 ing new about it. It is an attempt in 
 principle as I have indicated to put 
 real estate and personal property in 
 the same category so far as the mak- 
 ing of laws governing their transfer 
 is concerned. But that is precisely 
 the view that was taken of it in the 
 earliest times and by the most premi- 
 live peoples. It was not thought at 
 first necessary to have any entries in 
 books, even, as a record of the trans- 
 fer. 
 
 In the ti]iie of Abraham it appears 
 that lands were transferied orally. 
 The only formality that seems to have 
 been thought necessary in bible times 
 generally was chat the tiansfer should 
 be made :n the presence of witnesses. 
 This continued for a long time, but it 
 was found that this informality was 
 fruitful of fraud and perjury so about 
 500 years ago the so-called statute of 
 frauds was passed to protect owners 
 of real estate against these crimes 
 which we are told were becoming 
 alarmingly frequent. 
 
 Nor is even the conveyance by law 
 suit new. Those of you who have 
 studied the history of real property 
 law will remember that for about 200 
 years this was the only method bv 
 which certain estates tail could be 
 sold and conveyed in England. 
 
 “Pines and Common Recoveries" 
 were the names given, you will recall 
 to this method of judicial conveyance 
 Both these suits were mere “legal fic- 
 tions.” “Solemn pieces of Legal Jug- 
 gling” as it is now phrased by all 
 commentators upon the law of that 
 time, for the simple reason that thei'e 
 was Tin real contest and nothing con 
 sequently settled or actually decided 
 since no real dispute over the title 
 existed. Unless there is this actual 
 nr constructive conflict in claim<= 
 there can not be in the nature of 
 things a real law suit. The modern 
 ■registrations contemplated by the 
 Torens acts in this country, except 
 
 in the rare cases where a quite little 
 suit is necessary, are just as much a 
 “Legal Fiction and Solemn piece of 
 Legal Juggling” as were these “fines 
 and recoveries” of old. These suits 
 as a method of conveyance were to- 
 tally abolished in 1833 by an act of 
 parliament. 
 
 System Wrong in Principle. 
 
 The main reason why this system 
 has been found so unworkable in oper- 
 ation, therefore, is not, as generally 
 claimed by its advocates, because the 
 particular act in question in each 
 case was not drawn with sufficient 
 skill and attention to detail, but be- 
 cause the whole system is based upon 
 a wrong principle. The proposition 
 that the great ineradicable differences 
 between real and personal property 
 can be ignored in making laws with 
 reference to the transfer of each are 
 completely disproven by the experi- 
 ence of mankind. How’’ otherwise can 
 the universality of the acceptance of 
 this statute of frauds both in England 
 and the United States be explained? 
 It provides, as is well known that all 
 transactions with reference to land 
 only “shall be void unless the con- 
 tract or some note or memorandum 
 thereof is in writing” and is enacted 
 into the statute law of every state in 
 the union. The great distinction be- 
 tween personal and real property 
 which it recognizes and upon which 
 in fact it is based is unmistakable and 
 clear. 
 
 But perhaps it may be argued that, 
 personal property is sometimes the 
 more valuable of the two. Even so, 
 leal estate still remains the more im- 
 portant and complex. Why? Simply 
 because property in each separate 
 piece of real estate may bo divided 
 ordinarily, into a varietj'’ of estates 
 or rights in reference not only to the 
 various uses to which it may be ap- 
 plied, but also with reference to the 
 period of time for which each of 
 these uses may continue. Each of 
 these separate estates or rights may 
 
— 21 — 
 
 again be greatly moaified by subsid- 
 iary rights, as easements or the like. 
 Each piece of personal property ordi- 
 narily is, however, intended for only 
 one use and its life is usually com- 
 paratively short. The one kind of 
 property may be subject to larceny 
 and is ordinarily insured against fire, 
 the other not. ' The one may be moved 
 about from one jurisdiction to an- 
 other. The other is ordinarily im- 
 movable and imperishable. Many 
 other differences which I need not 
 enumerate suggest themselves. 
 
 It results therefore naturally that 
 contracts with reference to real estate 
 must be drawn with greater care, and 
 interpreted with greater precision 
 and deliberation than contracts with 
 reference to personal property. It is 
 not merely on account of the greater 
 value of real estate ordinarily that 
 this is true, but on account of the 
 greater length of time that a con- 
 tract with reference to real estate 
 may be of importance and the greater 
 number of people whose affairs it 
 may affect. 
 
 Clerical entries in books usually 
 constitute a sufficient memorandum of 
 dealings in personal property. A 
 more extended statement of the un- 
 derstanding or agreement than can be 
 made by a mere entry in a book is 
 necessary in real estate dealings, and 
 this statement must be drawn up 
 like all complex or important state- 
 ments, if proper care is exercised, by 
 some one of greater information 
 than that usually possessed by a 
 mere clerk. These propositions are 
 really axiomatic in character and 
 need only to be stated to be under- 
 stood and agreed upon. 
 
 It is not therefore the chief objec- 
 tion to the Torrens law that it is in 
 contravention of the constitution of 
 the United States or of any state, buf 
 that it is in contra\ention of common 
 sense, common prudence and com- 
 mon honesty. In other words, I 
 think I may safely say that in prac- 
 tice it will never become popular in 
 
 America to take any one’s property 
 “without due process of law,” or to 
 deny to any one the equal protection 
 of the laws, not so much because it is 
 contrary to the constitution of the 
 United States as because it does of- 
 fense to the American idea of fair 
 play, a.nd the right of all men to stand 
 upon an equality before the law. 
 
 Systems of Other Countries. 
 
 But perhaps it is said that the Tor- 
 rens law has been tried and found sat- 
 isfactory in England, Germany, Nor- 
 way and other European countries. 
 This until recently has been generally 
 claimed by the advocates of the law 
 to be a fact, and has been admitted by 
 some opponents of the law as perhaps 
 true. I have made a careful invest! 
 gation of this subject as far as the 
 available sources of information in re- 
 gard to it in this country at the pres- 
 ent time are concerned, and I find 
 that this claim is altogether un- 
 founded. The Torrens system proper 
 has never been successfully applied 
 in any but an insignificant way, as in 
 the United States, in any country out- 
 side of Australia, New Zealand, Fiji 
 and British New Guinea. A somewhat 
 similar scheme was enacted into law 
 in England during the parliamentary 
 career of Sir Robert Torrens but with- 
 out his assistance or advocacy, as I 
 have indicated, but the results were 
 so unsatisfactory that within a few 
 years it became in practice an ad- 
 mitted failure. Mr. Brickdale, the 
 official head of the system in England 
 was thereupon sent to Germany to 
 make an investigation of the system 
 of land titles in that country. He 
 made an extensive investigation and 
 a voluminous report upon the German 
 system of land titles and transfers 
 and about 1S97 a law was passed for 
 the county in which London is situ- 
 ated, based upon this report. That is 
 the law which is now in operation 
 there and under which transfers of 
 land are made. The German system 
 has also been investigated and many 
 
— 22 
 
 features of it adopted and applied by 
 Norway, Denmark, Switzerland and 
 other countries in Europe, in such sec- 
 tions of each of thstse countries to 
 which it was thought to be especially 
 applicable. 
 
 The German System. 
 
 What then is the German system? 
 
 It does not pretend to have anything 
 to do with indefeasible titles or offi- 
 cial guarantees or insurance of titles. 
 It cannot therefore provide for regis- 
 tration of title in any sense contem- 
 plated by the Torrens law. 
 
 It is generally called a system oi 
 Registration of Title, however, appar- 
 ently because the evidences of the 
 title are required to be brought into 
 court and juJicially passed upon. Ac- 
 curately speaking, however, this 
 makes it a judicial recording system 
 merely. 
 
 It is in fact, based upon an entirely 
 opposite principle to that supposed to 
 underlie the Torrens law not only 
 but was worked out altogether inde- 
 pendently of the Torrens law, and for 
 other reasons altogether than those 
 which prompted Sir Robert Torrens in 
 devising his scheme. It is the pro- 
 duct of the labors of German states 
 men and jurists through centuries of 
 time-:— a pure evolution and develop- 
 ment simply. 
 
 One of the most careful and exten- 
 sive, as well as recent investigation? 
 of this whole subject of land law re- 
 form to be found anywhere is that 
 contained in the reports of the special 
 committee on registration of land 
 titles, of the Pennsylvania Bar Asso- 
 ciation for the two years of 1904 
 and 1905. 
 
 After a cereful enumeration of some 
 of the numerous constitutional and 
 other objections to the Torrens law 
 which have not yet been passed upon 
 by the courts but which this commit- 
 tee thinks will yet be found valid the 
 report continues as follows: 
 
 “Having the greatest doubts as t^ 
 
 the constitutionality of the laws which 
 have introduced the Australian oi 
 Torrens system of land law into sev- 
 eral of the United States, for the rea- 
 sons above set forth, this committee 
 would advise against its adoption in 
 Pennsylvania.” 
 
 “In striking contrast with the crude- 
 ness and injustice of the Torrens 
 scheme ‘is the land law of Germany. 
 This system had its origin in the 
 middle ages, and has grown gradually 
 with the increase in land values, the 
 development of civilization and the 
 growth of the empire. . . . It is 
 
 the result of the labors of the greatest 
 statesmen and most accomplished 
 jurists in Europe and is well worth 
 the most careful study and atten- 
 tion.” 
 
 “The foundation of the system is a 
 public survey of each judicial district; 
 a set of maps or plans showing as 
 matter of public record each lot of 
 land separately owned, numbered 
 and referring to an index showing the 
 names and address of the persons in 
 possession and assessed for taxation 
 as owners of the same. This record is 
 called the Cadaster.” 
 
 “The next step is to establish a 
 court, of which the Cadaster is a rec- 
 ord, for the special purpose of record- 
 ing by regular judicial process, the 
 title of each land owner, who being 
 registered in the Cadaster, produces 
 his muniments of title and proves 
 his possession accordingly, and is 
 thereupon decreed to be the owner; 
 and a separate record of tide is en- 
 tered as to each lot of ground.” 
 
 “This recording of the title does 
 not, however, have any curative effect 
 on any flaw in it; does not bar any 
 adverse claimant, or insure the owner, 
 or any claimant from loss, or create 
 any governmental liability to insure 
 or compensate any person whatever. 
 The title after being recorded is the 
 same as it was before; but from the 
 time that the title is recorded, all ad- 
 verse claims against the registered 
 
— 23 — 
 
 owner, and all transfers of his owner 
 ship, all liens against the lands and 
 assignment and satisfaction of them, 
 must be regularly petitioned for iu 
 the land-court and entered by judicial 
 order on the proper record of title, 
 and until this is done, is conclusively 
 presumed to be waived, and is abso 
 lutely void.” 
 
 Our Own System and German System 
 Compared. 
 
 It appears from this as well as from 
 many other sources of information to 
 which I have gone, that the German 
 system of land titles is rather a gov- 
 ernmental elaboration and improve- 
 ment, upon our own, than a system 
 having any relationship whatever to 
 the Australian Torrens law in any of 
 its nine forms. 
 
 The foundation of it, it will be ob- 
 served, is a set of carefully drawn 
 maps or plats founded upon a com- 
 plete public survey of each entire 
 judicial district in which the bound- 
 aries of each tract are of course all 
 carefully measured and shown. In 
 other words, all lands are required to 
 be platted at the public expense as 
 we require only lands in cities and 
 villages to be surveyed and platted at 
 private expense. 
 
 Secondly, these tracts of land are 
 all separately numbered as we require 
 city and village lots and blocks to be 
 numbered, and in addition there must 
 appear upon these maps or plats a ref- 
 erence to an index in which is kept 
 the names and addresses of the suc- 
 cessive persons in possession of each 
 tract, as well as those assessed for 
 taxation as owners of the same. This 
 index will readily be seen by abstract- 
 ers to be merely an unusually full and 
 complete abstract or tract index, 
 kept not merely for the benefit of the 
 private owners of land but primarily 
 for the use and benefit of the govern- 
 ment. These books constitute in 
 fact a complete public abstract of each 
 separate tract of land, judicially kept 
 
 up Or rather continued to date, con- 
 stantly at public’ expense and not sl 
 mere index of any kind at all. Tnis 
 record, called the Cadaster, merely 
 supplies the information at the public 
 expense which in this country is ob- 
 tained from the surveyor and ab- 
 stracter at private expense. 
 
 Third, the decree of the court in 
 vvhich this Cadaster is used to estab- 
 lish the title of land, corresponds, 
 raiher to our decree quieting title and 
 not to a decree registering title un- 
 der the Torrens law. It is not in- 
 tended, it will be observed, either to 
 give any indefeasible" title nor to in- 
 demnify, insure or compensate any 
 one from any loss on account of any 
 defect in his title. In this respect, it 
 is not quite so good as our decree- 
 quieting title, since where the court 
 has jurisdiction and the proceedings 
 are properly conducted, many if not 
 all defects are absolutely cured by the 
 latter proceeding. 
 
 Fourth, all transfers, claims and 
 liens after the title is recorded, in this 
 way, must be passed upon by the court,, 
 before obtaining any validity or be- 
 ing entered upon the record. Under 
 our system such claims can appear 
 upon the records in the various 
 offices in which they belong, but do 
 not become an actual encumbrance 
 upon the land if objected to, until 
 passed upon by the proper court. It 
 clearly appears from all this that the- 
 German system is not only a much 
 more elaborate and complete system 
 than our own, but naturally at the 
 same time a much more expensive 
 system both to inaugurate and to 
 keep up. rt was not instituted by the 
 government of Germany, however, for 
 the purpose of providing a cheaper and 
 quicker method of making land trans- 
 fers but for the purpose of enabling 
 the government to procure more ac- 
 curate information for the assessment 
 and taxation of property, and conse- 
 quently its burden is a public one. 
 like its purpose. Incidentally, it 
 
— 24 — 
 
 subserves many other public and pri- 
 vate purposes but this is the main 
 reason for it. Think, however, of the 
 enormous cost of the inauguration of 
 this system in a single county in thif 
 state, and of keeping it up as well. 
 It would be a splendid thing, if it 
 were not for the expense, but what 
 would our friends whose chief griev- 
 ance against our present sytsern is 
 its cost, say about the cost of this 
 system? Of course, the oflEicial fees of 
 this German system paid by private 
 parties at the time' of each transac- 
 tion under it are slight, just as the 
 fees in probate proceedings in this 
 state are slight, because the officials 
 get good salaries from the govern- 
 ment for their work, and are not de- 
 pendent upon those fees at all. 
 
 In Germany, as in most of the old 
 -countries, the boundaries generally 
 speaking of each little farm continue" 
 the same for long periods. They are 
 in that respect somewhat like our 
 city lots, held largely as platted, but 
 to keep track in this way of the 
 boundaries of all our lands in this 
 country would necessitate the employ- 
 ment of a large corps of surveyors and 
 draftsmen in each county to be con- 
 stantly kept at work. We are contin- 
 ually adding to and subtracting from 
 the size of our farms and other un- 
 platted tracts especially and at the 
 same time of course changing bound- 
 ary lines. Very little of our farm 
 lands in this country, it is well known, 
 is so valuable or so carefully culti- 
 vated as in Germany. 
 
 It is unnecessary to enumerate far- 
 ther I think, the reasons why this pa- 
 ternal system of land titles as a whole 
 would not be acceptable to the people 
 of this country, and not in any way 
 suited to their present needs. It is 
 in exact consonance with the German 
 form of government which we all 
 know, whatever its virtues, is in all 
 things distinctly paternal and imperi- 
 alistic. In old countries having the 
 
 same or nearly the same form of gov- 
 ernment as Germany, and with the 
 same class of highly cultivated and 
 seldom transferred small farms as in 
 Germany, it can readily be seen that 
 the same system might be found 
 satisfactory and transplantable. In 
 this country, however, while it is an 
 excellent system to study, it would 
 be as utterly impossible to transplant 
 or put it into successful operation, 
 as it would be to make one of the 
 Kaiser’s sons, Roosevelt’s successor 
 in the white house. The emperor’s 
 son no doubt might do a great many 
 good and wise things for us, but the 
 trouble with us about even such im- 
 perial conduct, I think he would 
 speedily find is, that we prefer in all 
 things to work out our own salvation, 
 and so would be found equally opposed 
 to good and bad things at his hands, 
 particularly if we, and not he, paid the 
 bill. 
 
 Th0 True Way to Simplify Our 
 Land Titles and Improve Our 
 Land Taxing System. 
 
 What then can be done to simplify 
 land titles in this country? 
 
 The answer to this question, the 
 only sensible and satisfactory answer 
 to it is that arrived at by the city of 
 New York. Several commissions have 
 been appointed by the legislature of 
 the state of New York to investigate 
 this whole subject, and make a re- 
 port. The city of New York was es- 
 pecially and vitally interested in se- 
 curing the reform of the present sys- 
 tem, or a complete change to another 
 system which ever promised the most 
 substantial advantages. 
 
 The Conclusion Reached by the City 
 and State of New York. 
 
 It was finally decided by the City of 
 New York that by improvement of the 
 present system, with which we are 
 
— 25 
 
 familiar and which is the outgrowth 
 of our institutions, our customs and 
 our spirit, and not in its abandonment 
 could anything be accomplished. 
 
 Mr. Dwight H. Olmstead, a member 
 of the commission, whose views were 
 finally adopted by the legislature and 
 are today in practical operation in the 
 city of New York, in his book en- 
 titled “Reform in Land Transfers” 
 fully discusses all the various sugges- 
 tions that the committee considered 
 and on page 39 summarizes the con- 
 clusions reached as follows: 
 
 “Lastly, it is the best opinion of the 
 modern experts, that the use of the 
 Torrens system in its chief features 
 of formulary law, official control, 
 judicial determination of titles on ' 
 preliminary examinations with guar- 
 antee are fallacies; and that its adop- 
 tion will prove to be only the substi- 
 tution of a complex and unwieldy sys- 
 tem for the simpler method of oui 
 present system which is made com- 
 plex and burdensome by the unneces- 
 sary provisions of existing laws which 
 can be readily modified or changed. 
 In short, that there is but one way to 
 obtain a serviceable system of land 
 transfer with registration in this 
 country, and that is by improving the 
 present system, and it is believed that 
 by such improvement with the light 
 which has of late years been thrown 
 upon the subject, the transfers of 
 land can be made as quick, inexpen- 
 sive and safe as is the transfer of 
 registered corporate stocks and 
 United States registered bonds, with- 
 out the addition of the guarantee 
 plan — and this is sufficient for all 
 practical purposes.” 
 
 On page 19 of the same book, Mr. 
 Olmstead says: 
 
 “The unsettled legal questions con- 
 nected with such Torrens acts as 
 have been passed in the United States 
 are many and serious. But could such 
 questions be settled favorably to the 
 adoption of the system, its complex- 
 
 ity,' and illy adapted provisions to the 
 main purpose in view — namely, that of 
 simplicity and convenience, would 
 preclude its general use.” 
 
 Some Suggested Improvements. 
 
 What are the specific improvements 
 which can be made in our present 
 system? These are numerous and in 
 endeavoring to make them we may 
 study with great advantage every gen- 
 eral system of titles in the world 
 including the Torrens system not only 
 but the special national forms of each 
 as well. We will profit most from the 
 study of the German and French 
 forms of our own system, however, I 
 believe. It is an absolute prerequi- 
 site, however, that we begin by cut- 
 ting out this foolish agitation for a 
 foreign system. This agitation has 
 for 15 years simply stopped the wheels 
 of progress, and accomplished nothing. 
 
 Our statute of limitations in refer- 
 ence to lands might be greatly short- 
 ened, and especially with reference 
 to minors, incompetents and other per- 
 sons under disabilities. A limitation 
 of only one or two years as provided 
 in most of the Torrens acts is I be- 
 lieve, too short, but the limitations 
 under our present statute is I believe 
 undoubtedly too long, especially when 
 the claim to the land is based on a 
 judgment or decree. 
 
 The proceedings to quiet title, to 
 foreclose mortgages, to partition 
 lands, to sell lands by guardians and 
 administrators can be and should all 
 be greatly simplified. The use of 
 short forms of deeds, mortgages and 
 other instruments of conveyance 
 should be required. Notice of all 
 liens existing aginst said land in any 
 office in the county should be required 
 to be filed in the register of deeds 
 office, as suggested by the practice un- 
 der both the German and the Torrens 
 system. 
 
— 26 — 
 
 Some Testing and Supervision of Con 
 veyancers Necessary. 
 
 Most of the defects in titles, how- 
 vever, and consequent trouble about 
 them, are caused by tne lack of knowl- 
 edge or carelessness on the part of 
 those employed to execute con- 
 veyances. There should be, I believe, 
 some examination and supervision of 
 notaries public and otner officials 
 permitted to execute conveyances or 
 other instruments pertaining to land. 
 'The notary in France is a much more 
 important functionary than in this 
 country. His attestation there is 
 «aid to “legalize” the instrument, not 
 merely acknowledge it. I think in this 
 respect we might follow the example 
 of France so far at least as requiring 
 our notaries, not only to present sat- 
 isfactory evidence that they have the 
 necessary knowledge to properly dis- 
 charge their duties, before granting 
 them commissions, but also to require 
 them to exercise this knowledge or be 
 •compelled to relinquish these com- 
 missions. 
 
 They should be required for in- 
 -stance to observe whether the de- 
 scription contained in the instrument 
 is reasonably definite and certain be- 
 fore permitting the instrument to be 
 •executed. This is equally important 
 from a public as well as from a pri- 
 vate stand point. On page nine of the 
 “Instructions to Assessors and Board 
 •of Reviews” by the Wisconsin Tax 
 Commission for 190G, it is noted that 
 all descriptions of land “which fail to 
 indicate definitely and with certainty 
 the particular parcel to be described 
 will render the assessment of such 
 parcel illegal and the taxes based 
 Ihereon will be non-enforcible.” As 
 examples of such indefiniteness in de- 
 scription attention is called by the 
 Commission to such expressions as 
 •"‘north part,” “east part” or merely 
 •“part,” or even “remaining part” of 
 •some designated lot or 40 acre tract. 
 
 all of which are mentioned as quite 
 common descriptions to be found in 
 tax rolls. 
 
 Equally indefinite and worse de- 
 scriptions all abstracters know, are 
 frequently to be found in deeds and 
 mortgages, carefully sealed anfi ac- 
 knowledged by duly commissioned 
 notaries, and likewise fully extended 
 upon the records in the register of 
 aeeds office. 
 
 For instance, a large number of lots 
 in one village in this county, which 
 was not originally platted, has for a 
 common starting point of several long 
 and frequently confused and incorrect 
 metes and bounds descriptions “the 
 place where the blacksmith shop now 
 stands.” This shop it seems was 
 moved several times while in exist- 
 ence, but about twenty years ago dis- 
 appeared altogether. These descript- 
 tions, however, continue to be accep- 
 ed and even in some instances ludi- 
 crously improved upon in indefinite- 
 ness, as in one deed which I noticed 
 not long ago of one of these lots, the 
 word “shop” was omitted from the cus- 
 tomary phrase, thus making the start- 
 ing point of a long description “the 
 place where the blacksmith now 
 stands.” 
 
 Mistakes Not Confined to Obscure 
 Officials. 
 
 These errors are not confined to in- 
 struments acknowledged by obscure 
 notaries or country Justices of the 
 peace as sometimes supposed. Such 
 descriptions are not infrequently to be 
 found in instruments executed by very 
 prominent and able lawyers who 
 merely sign their names to the ac- 
 knowledgment without ever looking 
 over the instrument at all, or if they 
 do notice that the description is indefi- 
 nite or incorrect prefer not to take t^'^ 
 time or go to the trouble to get a cor- 
 rect description. For instance, a short 
 time ago a deed came to my attention 
 acknowledged by an eminent lawyer 
 
— 27 — 
 
 of this city in which one of the desig- 
 nated corners of a rather valuable 
 lake shore tract, was given as the 
 point where this lawyer and another 
 individual — a prominent financier of 
 this city — stood on the 2nd day of 
 June, 1902. 
 
 Another eminent lawyer of this city 
 some time ago acknowledged a $5,000 
 mortgage, which is of record in this 
 county, on a lot which was described 
 simply as lot 8 in University Addition. 
 Nothing further was stated except that 
 it appeared by the printed form that 
 the property was situated in this 
 county and state. Now it happens 
 that plats of two different university 
 additions are on record in the of- 
 hce of register of deeds here. One 
 of these additions is located in the 
 city of Madison, the other in the vil- 
 lage of Mazomanie, and it further hap- 
 pens that there is a lot 8 in every 
 block of each or these two additions. 
 
 Of course these lawyers were not to 
 blame if merely called upon to ac- 
 knowledge these instruments, and not 
 employed to examine them. Even 
 where employed to draw instruments, 
 clients are seldom willing to pay for 
 the time and trouble frequently neces- 
 sary to get a correct description, and 
 lawyers, and especially very busy ones, 
 cannot be expected to go further than 
 required by law, when their client 
 may be unwilling to pay them for their 
 work, and perhaps do not understand 
 the necessity of it. 
 
 If, however, the law required every 
 notary or other conveyancer to exam- 
 ine and approve, or “legalize” as it is 
 said in France, every instrument be- 
 fore signing his name to the acknowl- 
 edgment, we would not see one flaw 
 in the execution of instruments, I be- 
 lieve, to 100 such defects that are 
 found at present. 
 
 Governor Hanley of Indiana, I no- 
 tice by the papers a few days ago, 
 commissioned a girl 14 years of age 
 as a notary public in one county in 
 
 Indiana. It seems that the statutes in 
 that state make no age requirement in 
 reference to the appointment of no- 
 taries public. There was no alterna- 
 tive therefore for him probably but to 
 appoint her. 
 
 For all practical purposes as the 
 law now stands, however, it seems to 
 me we might just as well have all 
 children notaries in every state in the 
 Union. About the only requirement of 
 any importance which the law at 
 present makes at the hands of any 
 person taking an acknowledgment is 
 that he identify the parties, and this 
 is usually done in the most perfunc- 
 tory manner, it at all. 
 
 Supervision and Control of Public 
 Platting. 
 
 There should also be some supervi- 
 sion and control of the plats permittee' 
 to go upon the public record and fur- 
 ther provision made for much more 
 work of this kind. There are, for in- 
 stance in this county as well as in 
 many others I have no doubt, a number 
 of plats recorded to which no ex- 
 planatory notes are attached. Some 
 other plats that have come to be of 
 great importance have no satisfactory 
 notes, and others again are defective 
 in many other important respects. 
 Among the most fruitful sources of er- 
 ror and confusion, although by no 
 means all such sources with reference 
 to plats we find is the giving of the 
 same or similar name to several dis- 
 tinct plats. There are two plats on 
 record in this county of distinct tracts 
 of land but of exactly the same name. 
 A printed abstract of one of these 
 plats was made and a number of cop- 
 ies distributed. Some time ago one of 
 these printed abstracts was brought to 
 our office for continuation as the ab- 
 stract of the corresponding lot in the 
 other tract. It had been examined 
 and approved two or three times, it 
 seems, as an abstract of such lot. 
 The surveyor and not the examiner, of 
 
— 28 — 
 
 course, was mainly to blame for this 
 unpardonable error. 
 
 Most frequently, however, the 
 names are merely so similar that 
 many people do not notice the differ 
 ence and in writing descriptions put in 
 one name when another is meant, as 
 when there are two or more subdivi- 
 sions platted by the same man and all 
 bearing his name and distinguished 
 only as first, second, third, etc. The de- 
 scription in such cases is likely to con- 
 tain only the general name. Confu- 
 sion in this respect could of course be 
 avoided by numbering the blocks in 
 all such plats consecutively as if there 
 was but one plat, but this is seldom 
 done. The blocks are generally num- 
 bered separately in each plat from one 
 up to only the number in each sepa 
 rate plat. 
 
 Only Complete General Survey and 
 
 Plat Can Clear Some Descriptions. 
 
 Undoubtedly, however, the worst 
 difficulty with which assessors, ab- 
 stracters and others have to deal is 
 that to be found in the descriptions 
 usually given the tracts in the unplat- 
 ted parts of cities and villages, and 
 also the lands immediately surround- 
 ing cities and villages. All of these 
 lands are usually valuable and much 
 cut up, as you are well aware. The de- 
 scriptions or that which is supposed to 
 be such in the instruments conveying 
 lands in such places frequently consti- 
 tute a kind of endless chain by contin- 
 ual reference from one instrument to 
 another for the exact description. If 
 a starting point is finally found it 
 will probably be located with refer- 
 ence to some structure, or other tem- 
 porary land mark, not noted on any 
 recorded plat, even if not moved or 
 gone out of existence altogether. 
 
 To illustrate: — In this county a 
 number of lots in one unplatted vil- 
 lage are described with reference to a 
 poiht on the highway designated as 
 “near store now owned by A. B. L.” 
 
 Neither this store nor this man can 
 now be located, even if it were possi- 
 ble to determine the distance and di- 
 rection considered “near.” A number 
 of tracts in and about another village 
 are all described with reference to a 
 point “on the line between Jesse S. 
 and Duty J. G. on the West of J. N 
 W.’s house lot.” In still another the 
 descriptions begin “in the center of 
 the highway leading from R. T. to S 
 J. P.’s in the town of O. at a point 8 
 chains and 15 links Southeast from 
 point from where road from A. K. to 
 S. S. crosses first mentioned road.” 
 I give only the initials of the full 
 names in these descriptions. 
 
 Bill Nye’s Style of Land Description 
 
 These descriptions remind me of the 
 way in which Bill Nye located, for the 
 benefit of certain trustful investors, the 
 points where an alleged ore deposit 
 was located in a western county: 
 
 “It cropped out,” he said, “apparently 
 a little Southeast of a point where the 
 arc of the orbit of Venus bisects the 
 milky way, and ran due Bast 80 
 chains, three links and a swivel, 
 thence South fifteen paces and a half 
 to a blue spot in the sky, thence pro- 
 ceeding West eighty chains, three 
 links of sausage and a half to a fixer 
 star, thence North across the lead to 
 the place of beginning.” 
 
 In all such localities as these to 
 which I have referred I believe, a gen- 
 eral survey and platting should be re- 
 quired to be made, and put upon record 
 for the information alike of tax offi 
 cials and private parties. Sections 
 1047 (a) and 1048 (b), statutes 1898, 
 provide for a survey and platting at the 
 public expense of such lands by the 
 direction of the common council, if 
 within the limits of an incorporated 
 city, and by direction of the county 
 clerk if not within such limits, after 
 due notice to the owners to make and 
 record the particular plat in question. 
 The tax commission in their ilistruc- 
 
29 
 
 tions for this year direct city asses- 
 sors to proceed to take such steps as 
 may be necessary to put the proper 
 proceedings in motion to have this 
 work done. 
 
 Should Not Be Left to Local Officers. 
 
 The doing of this work, however, 
 should not be left to the option of the 
 local officials such as assessors, com- 
 mon councils and county clerks, but 
 should receive the careful attention 
 and be under the supervision and con- 
 trol of some better informed official, 
 less susceptible to local influence in 
 reaching a conclusion as to how and 
 when it should be done, than such 
 officials generally are found to be. 
 
 Supervision of Register of Deeds’ 
 Offices. 
 
 There should be also greater uni- 
 formity and progressiveness than at 
 present obtains in the methods and 
 bookkeeping in our registers of deeds 
 offices generally throughout the state. 
 This can only be secured by proper 
 supervision and testing of the qualifi- 
 cations of these officials and their dep- 
 uties. 
 
 A most extraordinary advance in 
 office methods, books and appliances 
 for every purpose has been made in 
 the last five years. This advance has 
 been so great as to practically revolu- 
 tionize as well as greatly facilitate the 
 work in banks, and all other up tc 
 date private business offices. All 
 this advance, however, has made prac- 
 tically no impression whatever in the 
 offices of registers of deeds through- 
 out the state. The registers of deeds 
 of course are not personally to blame 
 for this. They do not usually claim to 
 have any special knowledge along 
 this line. They have very little free- 
 dom in making any change and no en- 
 couragement, or expert assistance or 
 advice in attempting to keep pace 
 with modern office methods and ideas. 
 As a result they are everywhere many 
 
 years behind the 'times in this respect. 
 In this fact is to be found the expla- 
 nation largely of the increasing num- 
 ber of complaints against the system 
 in the older and larger counties. It is 
 the administration of the system that 
 is principally to blame in this respect 
 as in most others rather than the sys- 
 tem itself. 
 
 Supervision and Control of Abstract 
 Work and Offices. 
 
 Lastly, I believe there should be 
 some general supervision and control 
 by regular examinations or otherwise 
 of all abstract offices, books, workers 
 and methods throughout the state to 
 the end that only goo:l abstracts at 
 reasonable prices should be permitted 
 to be furnished the public. This su- 
 pervision and examination should ex- 
 tend not only to private abstract offi- 
 ces but to all abstract books and work 
 done by registers of deeds, or other 
 officials, contractors or employees in 
 such offices. There is at present be- 
 ing made an expenditure of about $70,- 
 000.00 in one county in this state for 
 a set of abstract books without any ex- 
 pert testing of the work, or employees 
 of the contractor engaged in getting 
 up these books, althougn I am in- 
 formed the money is being paid out 
 regularly to this contractor and his 
 employees as the work proceeds. Per- 
 haps similar conditions exist in other 
 counties. These are some of the 
 things which it seems to me should re- 
 ceive attention. No doubt there are 
 others of equal importance. 
 
 System Requires Head. 
 
 The first and most important step 
 that should be taken, however, and in 
 fact must be taken in order to make 
 our so called Land Title System a 
 system at all, is to provide for it an 
 administrative head. This head should 
 not be, however, a court, either state 
 or local, as provided under the Massa- 
 chusetts and most other Torrens laws 
 
but an administrativt; officer or com- 
 mission, such as the bank examiner, 
 the superintendent of education, or the 
 tax commission. The supervision 
 and control to which I ha\e referred 
 as desirable should be lodged with 
 this new department. It is too largf 
 a task requiring too much special 
 knowledge, study and attention, tc 
 tack on to any existing department of 
 our state government. 
 
 Importance of Unity. 
 
 In this way, and this way only, can 
 that unity which is absolutely essen- 
 tial to steady progress and harmoni- 
 ous work be secured. As an instance 
 of the importance of this unity in the 
 further development of our system, at- 
 tention may be called to the import- 
 ant work being done, and the large ex- 
 penditure made, and that must here- 
 after at frequent intervals again be 
 made, to secure a just and 
 and proper assessment of the physi- 
 cal and other property of the rail- 
 roads in this state. Some two or three 
 years ago about $30,000.00 was ex- 
 pended under the direction of Profes- 
 sor Taylor of the University in this 
 work. Most of the money was spent, 
 I believe, in abstracting from the pub- 
 lic records in the various counties of 
 the state through which railroads 
 run, the consideration paid for the 
 land conveyed, and other data given in 
 deeds conveying lands abutting upon 
 railroad rights of way. The work of 
 abstracting these deeds was done by 
 students sent out over the state from 
 this city. It is estimated by the offi- 
 cials at present having charge of this 
 work, that it must be done over again 
 regularly at intervals of about five 
 years. A much larger sum was spent 
 by the railroads, I am informed, in do 
 ing the same work independently, for 
 its own information, for the purpose 
 of meeting the arguments and expert? 
 of the state. 
 
 An investigation of the same kind is 
 now going forward under the direction 
 of Professor Adams of the University 
 with 27 assistants, 1 am informed in 
 the field. This investigation is made 
 for the purpose of comparing the ac- 
 tual or selling value and the assessed 
 value of real estate generally through- 
 out the state. I have inquired of Pro- 
 fessor Adams but he was unable to 
 inform me as to what the probable 
 cost of it would be, and it is not yet 
 nearly completed. He has been at 
 work, however, for about three years 
 he informed me. So that in view of 
 the much greater scope of this, as 
 compared with the other investigation 
 relative to railroad property it can 
 reasonably be presumed that it will 
 cost several times as much. 
 
 Larger Task Remaining. 
 
 This is all statistical work, to be 
 used as a basis in making comparisons 
 of assessments and valuations of the 
 different kinds of property in the 
 state, and also comparisons of valua- 
 tions and assessments of property 
 generally, in different sections of the 
 state. It does not begin to compare 
 in importance or extent, with the 
 much more serious task of fixing 
 boundaries and obtaining acreage of 
 real estate tracts generally through 
 out the state, for the purpose of mak- 
 ing a complete, accurate, just and le- 
 gal valuation for assessment for taxes 
 of all lands in the state. 
 
 This very large undertaking we 
 must necessarily sooner or later 
 systematically enter upon and com 
 plete. Valuation depends on acreage, 
 it need not be argued, and acreage 
 cannot be determined until boimdarie? 
 are clearly fixed, it is equally certain. 
 These boundaries can be ascertained 
 only by complete surveys in many lo- 
 calities such as I nave indicated. 
 These surveys and fixing of boundaries 
 are as imperatively necessary for pri- 
 vate as for public purposes. 
 
— 31 — 
 
 Good descriptions are the absolute 
 pre-requisite to the successful opera- 
 tion of any system of land transfers. 
 With good descriptions in all our in- 
 struments of conveyance nine-tenths 
 of the troubles complained of at pres- 
 ent would disappear. No mere sys- 
 tem can supply those who use it, 
 with either brains or prudence or in- 
 dustry, tne qualities from which good 
 land descriptions, as well as all good 
 results in real estate dealings are 
 evolved. The basis of all true valua- 
 tion and assessments, as well as the 
 foundation of all systems of land 
 transfers are correct descriptions. 
 This is the key to the success not 
 only of all land title systems, but of 
 all land taxing systems as well. 
 
 The task of getting these every 
 where in the state is a large one, but 
 it must be completed before true val- 
 uations can be 0 ..^ coined, or misunder- 
 standings and consequent trouble and 
 litigation about lands cease to occur. 
 
 The Abstracter’s Part of this Import- 
 ant Work. 
 
 So far as obtaining data from deed 
 or other records for this or any other 
 purpose this work could be much more 
 cheaply, quickly and reliably done by 
 abstracters in each county in charge 
 of properly equipped abstract offices, 
 than in any other way, it must be of 
 course well known to every one. So 
 long, however, as the state has no 
 supervision or control over the meth- 
 ods or workers in these offices, it is 
 not surprising that a much larger ex- 
 pense than v/ould otherwise be neces- 
 sary, has been incurred by the state 
 in order to secure this information at 
 first hand, through its own searchers 
 and examiners of deed records. Even 
 though such searchers are slow and 
 untrained, and without the necessary 
 indexes in any county probably of the 
 state to do the v/ork quickly and ac- 
 curately, it is preferred ny the state 
 to do it in this way, nevertheless. 
 
 than through abstract offices over 
 which it has no supervision. 
 
 If unity, however, in the work of our 
 system, is secured by the establish- 
 ment of a commission or department 
 to supervise and administer it, with 
 even very limited powers at first, un- 
 doubtedly very great progress, as 
 well as a very great saving will soon, 
 be apparent, I think it is easily dem- 
 onstrable, in respect both to public- 
 and private expenditures. The whole- 
 subject can be carefully studied and 
 constant improvement made. Other- 
 wise constant duplication of all kindff 
 of work and expenditure will continue 
 to occur. Constant conflict, too, will 
 arise in the working out of each new 
 1 problem. In addition to the saving 
 that would result from this unity and 
 which would in itself, I think, many 
 times exceed the cost of the most 
 complete supervision, there would 
 also be an enormous economy on ac- 
 count of the litigation avoided by rea- 
 son of the defects in title prevented, 
 to say nothing of the great- resultant 
 cheapening of the price of abstracts 
 and examinations, by reason of the 
 lessened labor and responsibility oc- 
 casioned by these improvements. 
 
 Final American System of Land Titles. 
 
 In this wmy the final American sys- 
 tem of land titles will be evolved, and 
 this final system, like every other 
 fully developed American product, it 
 is no exaggeration to say, will un- 
 doubtedly be the best in the world. 
 It must be so, because it will be a 
 composite of all the good points of all 
 the other land title systems in exist- 
 ence, just as the ultimate American 
 will be a composite, and therefore a 
 more perfect individual, representing 
 in his make up the good qualities of 
 the typical men of every great nation- 
 ality in the world. 
 
 Conclusion. 
 
 In conclusion I wish to call your at- 
 tention to the chief merit of the pres- 
 
ent recording system — the great merit 
 that makes it even as it stands with 
 all its imperfection, far better than 
 any other. This supreme merit is the 
 facility with which it lends itself to 
 e>ery kind of practical improvement 
 just as fast as the people desire to 
 make it, exactly as the supreme merit 
 perhaps of our national and state 
 form of goveinment as well as our 
 
 American institutions and spirit gen- 
 erally, is to be found, upon the other 
 hand, in the insuperable obstacles 
 which they present to the introduction 
 of foolish and impracticable innova- 
 tions, such as that embodied in the 
 Torrens system of land transfers as a 
 whole, or any other entire body of for- 
 eign and unfamiliar law.