Article by:
John V. Orth*

39 Campbell L. Rev. 271 (2017)

INTRODUCTION

Throughout the long history of the common law, lawyers have labored to provide secure titles to land.  In the earliest days, conveyancers used livery of seisin—transfer of title by the ceremonial delivery of a piece of turf cut from the land—to ensure public recognition of a change of ownership.2  When deeds replaced livery as the means of conveyance, transfer out of the public view became possible, leading to uncertainties about the state of any given title. 3  A brilliant conveyancer in the seventeenth century invented warranty deeds, including covenants for title, and thus created a new standard practice in the real estate business.4 Beginning in the last quarter of the nineteenth century, promoters organized title insurance companies, offering additional security.5  But in both cases the remedy for loss of title is damages—against the covenantor or against the insurer—not possession of the land.6  To assist in securing the right to possess, which is what good title confers, state legislatures created a system for the public recording of deeds, beginning with pioneering statutes in  pre-Revolutionary Massachusetts.7 Recording, which provided the opportunity to examine the evidence of title, coupled with legal protection of good faith purchasers against unrecorded deeds,8 marked a major advance.  Later, marketable title acts limited the necessary scope of the title search.9 The recent computerization of land records now makes searches much easier. 10 Finally, statutes of limitation barring untimely claims created the possibility of “limitation titles”11—titles not derived from prior owners but giving possessors original titles enforceable at law.12

This congeries of devices came together to provide a workable albeit cumbersome system.  Beginning in the mid-nineteenth century in the then recently settled British colony of South Australia, where “land speculation” had led to “muddled titles,”13 a new system developed that radically simplified the process for securing titles.  Sir Robert Torrens created a new system of registered titles within the Real Property Act of 1858.14  Apparently inspired by the straightforward process of documenting ownership in the shipping industry,15 Torrens title is a government-certified title document for real property that supplants the traditional deed.16  The official certificate of title resides in the registry and lists the exact state of the title, including any liens or encumbrances; the owner receives a duplicate certificate.17  Spreading rapidly throughout Australia and other British colonies and today ubiquitous in the common law world, the Torrens system eventually reached the United States.18

A darling of American law reformers in the late nineteenth and early twentieth centuries, legislation first authorized Torrens titles in Illinois in 1895.19  By 1917, eighteen more states made Torrens available.20  So familiar was the system to the general public that the Progressive novelist Sinclair Lewis could casually refer to it in his 1922 best seller, Babbitt.21But, by then, enthusiasm for the system had already begun to fade.  No more states joined the list of adoptees.22

In 1931 Professor Frederick C. McCall surveyed the American experience with the Torrens system over its first thirty-five years.23  Based on information he gathered in the late 1920s from “practicing attorneys, judges, law professors, and registration officials in the various states,”24 Professor McCall concluded that with few exceptions—notably Massachusetts and Minnesota25—legal practitioners rarely used Torrens titles.  In fact, in several jurisdictions, he said “the law appears to have been still-born.”26  Although the National Conference of Commissioners on Uniform State Laws adopted a Uniform Land Registration Act in 1916,27 it came too late, and the Commissioners withdrew it as “obsolete” in 1934.28  Not only did the surge of American adoptions cease, but over the decades since McCall wrote, almost half of the original adopting states repealed the system.29  Even Illinois, once the pioneer, prohibited new registrations of Torrens titles as of January 1, 1992.30

      

 

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