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are insisting that each abstracter in the state, in order to do business, must furnish a bond, which is supposed to protect the purchaser of an abstract from any loss he may suffer.

"Right here let me say that the work of the abstracter is in every sense and purpose like that of the certified accountant. His accuracy depends upon keenness of vision, carefulness in comparison, and brain work. Is there a state in these United States which requires the accountant to furnish a bond to protect those from whom he obtains employment? Not one. Yet we hear of no losses, nor, indeed, do we learn that the abstracter is guilty of any amount of sins of omission or commission for which he is liable. But in Texas, as in all other states, advocates of the Torrens system really do not know what they want. They think they want something. They are willing to make a trade with anybody at any time in order to put their theory into law. How easy it would be then to offer as an amendment to the long, cumbersome law which they offer one or all of these features:

"Require a submission to a vote of each county before the act shall apply. Have this voted upon at a regular election following the passage of the bill. This makes it a local option proposition.

"Then, again, I think this amendment would be fair to the abstracter and acceptable to the Torrens advocate. Make it read:

No certificate of title shall in any case be issued until an abstract of title shall have been filed with the application for registration. Such abstract to be the work of a competent local abstracter who owns and conducts an abstract plant, if such there be, in the county in which registration is sought. Otherwise by an examiner to be appointed by the court. The fees for such abstract to be such as are reasonable and generally charged for like work. These fees to be charged as part of the cost of registration against the estate.

"If each piece of property throughout the various states were to be placed under the Torrens system by initial registration it would mean more to the abstracters of the country than they have ever dreamed of making in a lifetime. In the state of Tennessee, the total expense for the making of abstracts to property there owned would be $24,600,000 in the rough. In the state of Texas, where large tracts are owned, it would cost $97,000,000 for abstracting. In Oklahoma approximately $15,000,000. But why continue?

"There are many objections to the passage of the Torrens law which every property owner ought to understand. It is not practical to successfully graft a system upon any country with a written con

stitution, providing for due process of law, and which safeguards the rights of life and property as does the Fourteenth Amendment.

"By the way, I had occasion recently to make a study of the whole question in order to submit it to the American Bankers' Association, and herewith are my findings:

1. The passage of a Torrens law would create a dual system of evidencing land titles.

It is not debatable, that two systems of evidencing land titles in active operation are desirable. Such a condition would be worse than having two telephone systems in the same town.

2. It attempts to give the registrar arbitrary power to determine and conclude the property rights of individuals without notice to them, and without judicial inquiry.

3. It requires proceedings in court to obtain initial registration and a succession of court proceedings to keep the title clear. Such proceedings are expensive and frequently prolonged.

4. It expressly provides that infants, lunatics and persons under any disability are concluded. Such persons have heretofore been the special objects of legislative and judicial protection.

5. The Statute of Limitations-one of the best laws on the Statute Book -is expressly repealed so far as registered titles are concerned.

6. It attempts to invest the registrar with power, without notice, to construe and determine all "trusts," "conditions" and "encumbrances" contained in any deed.

These are powers "of a highly judicial nature" which should "be exercised only by courts after due notice."

7 Anyone may assert a claim to registered land by affidavit which shall be filed and noted on the register.

This seems a very easy way to put a cloud on a title.

8. There can be no difference in legal effect in court proceedings instituted under a Torrens law from court proceedings instituted under any other law. In all cases it is essential to the validity of the decree that the proceedings should be regular with all necessary parties properly before the court.

Therefore, it would be just as necessary to examine the court proceedings instituted under a Torrens law as those instituted under any other law to ascertain whether such proceedings are regular, and how and to what extent the title to any real estate involved is affected or established thereby.

"I shall probably have something further to suggest to you in the near future," said Mr. Holmes, “and through you to the whole abstracting fraternity. As I may be too busy to look you up, I will send my conclusions to the Editor of THE LAWYER AND BANKER, with a request that he give them publicity."

Cannot Impose On The Dead

Supreme Court of Illinois Declares Torrens Amendment of 1910 Arbitrary, Offensive and Unconstitutional.

One of the most pernicious features of the Land Title Registration bill which has been so highly commended by leading lawyers, members of the Commission on Uniform State Laws, has been declared offensive, repugnant to the Constitution of the State and the United States, by the Supreme Court of Illinois, in a decision handed down December 18, 1918, in the two cases of Anderson et al v. Shepard, and Mason v. Loranger, which were merged for the purpose of consideration and decision.

It is surprising that no word of objection as to the constitutionality of the clause in question came from any of the legal lights which so largely composed the Commission referred to. We can only account for it upon the theory that Mr. Eugene C. Massie of Richmond, Virginia, succeeded in thoroughly hypnotizing the members in his presentation of a uniform title law.

It is gratifying to note that the Supreme Court of Illinois has so nearly voiced the opinion of The Editor of this magazine as to the legal status of the Torrens act. On March 15, 1917 was filed with the Virginia Code Revision Committee a construction of the various section of the Torrens Act approved February 24, 1916; this brief was prepared by the Editor of THE LAWYER AND BANKER and submitted as showing the revolutionary character, the un-American and impractical sections of the act referred to.

Speaking in regard to that section of the law which was very similar to the amendment adopted in Illinois in November 1910, was said:

"What right has a legislative body to enact a law requiring that the real estate of a deceased shall be registered as to the heirs at law, before they can acquire their property interests. An administrator has no power to arbitrarily act against the express intent and desire of those inheriting. Such an act would discriminate between different people, acquiring title by descent or devise, and would be an offensive and arbitrary violation of the constitution."

Mr. Justice Cartwright voicing the opinion of the court in Anderson et al v. Shepard, which opinion is given below in full, took occasion to use language very similar to that employed by The Editor, in his discussion of the constitutionality of the amended act of 1910 requiring all executors and administrators to have registered the titles to all non registered estates and interests in land, etc.

"But this act does not prescribe the terms upon which property may be acquired by descent or devise, and, if it did, the act would still be invalid because it discriminates between different persons acquiring title by

descent or devise, and imposes the burden only in cases where there is administration.

"The act is in violation of rights secured to the citizen by section 2. of Article 2. of the Constitution, which provides that no person shall be deprived of life, liberty or property without due process of law."

A careful reading of the case which follows, will show that the Supreme Court in substance and effect held that the amendment was arbitrary and offensive and in violation of the rights assured to a citizen under the constitutional provision treating without due process of law. It held in effect, that an administrator or executor in no sense has possession of the realty of an estate for which he officiates; that such real estate descends directly to the heirs, who alone hold title in their own right. Therefore it is impossible for such officers of the court to register lands of which they are not even indirectly custodians. The decision of the court in brief is: That a man who has gone through life presumably in the full enjoyment of his faculties and who finds no reason for the registration of his real estate under the Torrens act, shall not be imposed upon indirectly through his heirs, after death, by the requirement that the estate which he leaves shall be subjected to the imposition of an offensive and arbitrary requirement, which he did not believe in during his natural life.

The Supreme Court of Illinois have stated good law based upon equity and common sense. The decision announced as we take it, it a deathblow to one of the most important requirements which forms a part of the vicious Torrens act or Land Registration Title scheme wherever it has been passed. The decision in full is as follows:

Appeal from Circuit Court, Cook County; Frederick A. Smith, Judge.

Bill by William L. Anderson and another against Katherine H. Shepard, administratrix, and proceeding by Shelby L. Mason, administrator, to have registered the title to real estate against Louis Loranger. Decree for the defendant in the first action, and decree for plaintiff in the second action, and the defeated party in each action appealed. Detree in the first cause reversed and remanded, with directions; and the decree in the second cause reversed.

CARTWRIGHT. J. Section 7 of an act entitled "An act to amend section seven (7) and eighteen (18) of an act entitled, "An act concerning land titles," approved and in force May 1, 1897" contains the following provisions:

"It shall be the duty of all executors and administrators, appointed after the adoption of this act and trustees holding title or power of sale under wills admitted to probate after that date, to apply within six months after their appointment, to have reigstered the titles to all nonregistered estates and interests in land (situated in any county in which this act at the time is in force), which the several decedents they represent might have registered in their lifetime in their own right. Such application shall set forth the names and addresses of the persons entitled to the estate or interest sought to be registered, and any such person, not joining in the application, shall be made a defendant. The court, in its final decree, in addition to what is provided in the subsequent sections

as

of this act, shall determine the several titles and interests of the persons claiming under the decedent, and declare the same, and decree in whom registration shall be made. Land so registered shall be subject to be sold for the debts of the estate of the decedent,, now provided by law: Provided, that the court of probate jurisdiction of the county in which the land is situated, in cases where registration may appear to be a hardship, may, by an order entered of record, excuse such application for registration as to the whole or any part of the land." Laws of 1903, p. 121.

The act was only to be in force when adopted at an election, and after an abortive attempt to submit it for adoption in Cook county (Harvey v. Cook County, 221 Ill. 76, 77 N. E. 424) it was finally adopted at an election in November, 1910. The question to be decided is whether the provisions in question violate rights guaranteed by the Constitution, and that question arose in two cases under the following facts:

on

William Louis Shepard, the owner of lot 3 in block 3 in E. M. Condit's subdivision in section 29, town 38, range 14, died intestate on April 16, 1914, leaving Eleanor B. Shepard, his widow, and Katherine H. Shepard, George P. Shepard, and William L. Shepard, his heirs at law. Katherine H. Shepard was appointed administratrix of his estate. The widow and all the heirs November 20, 1917, conveyed the lot to William L. Anderson and Olga E. Anderson as joint tenants. On February 28, 1918, Katherine H. Shepard, as administratrix, applied to the probate court of Cook county for an order excusing her from registering title to the real estate, but the probate court denied her petition. William L. Anderson and Olga E. Anderson, owners of the property by the conveyance from the heirs at law, objected to the registration of their title by the administratrix on the ground that the provisions of the amendatory act were unconstitutional. The administratrix was proceeding to have the title registered when William L. Anderson and Olga E. Anderson filed their bill in the circuit court of Cook county to restrain the administratrix from proceeding to register the title. The administratrix demurred to the bill and the demurrer was sustained and the bill was dismissed.

Margaret Loranger, the owner of lots 8, 9, 10, and 11 in block 25 in Keeney's subdivision in Chicago Heights, died on February 19, 1916, leaving Louis Loranger, her husband, surviving her. On April 2, 1916, letters of administration were granted to Charles T. Mason, and he filed his petition in the probate court to be excused from making application to register the title to the lots and his petition was dismissed. He died before the estate was settled, and letters of administration de bonis non were granted to Shelby L. Mason on January 18, 1917. On October 16, 1917, Shelby L. Mason, as administrator de bonis non, filed his application in the circuit court to have registered the title to the real estate, and made Louis Loranger, the surviving husband, and the unknown heirs at law, if any, of Margaret Loranger, defendants. Louis Loranger answered, assailing the constitutionality of the provision in question, and alleged that he was sole heir at law of the deceased and objected to having his title registered. The court found that Louis Loranger was the sole owner in fee simple of the real estate and directed the title to be registered in his name, subject to certain charges and claims specified in the decree. Appeals were taken in each of the two cases and were consolidated in this court. The state's attorney of Cook county asked and obtained leave to intervene in the Loranger case as a representative of the public interest and of Joseph F. Haas, registrar of titles.

[1-5] That section 7 as amended is arbitrary, offensive, and against common right cannot be doubted, and it invades rights guaranteed by the Constitution. On the death of an owner of real estate, the title vests at once in his heirs at law under the statue of descent, and, in case administration is granted, the personal estate vests in the executor or administrator upon the granting of letters testamentary or of administration. An executor has no estate in or power over the real estate of the testator by virtue of the law and has only such estate or power as is granted by the will. An administrator takes no title to real estate, either legal or

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