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Registration of Title to Land: Understanding the Differences and Advantages, Study notes of Law

The concept of registration of title to land, its differences from ordinary deed registration and judicial declaration of title, and its advantages. The document also compares various systems of registration of title and their relation to other systems of conveyancing. It covers the territories where registration of title is in use, its growth, and the relation of registration and possession.

What you will learn

  • How does the relation of registration and possession differ among various registration of title systems?
  • What are the advantages of registration of title compared to other systems of conveyancing?
  • What are the main differences between registration of title and ordinary deed registration?

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REGISTRATION
OF
TITLE
TO
LAND
JAMES
EDWARD
HOGG
Lincoln's
Inn,
London
Registration
of
title
is
something more
than
what
is
ordinarily
meant
by
registration
or
recording-the
entry
in
a
public
office.
Both
in
the British
Empire
and
in
the
United
States
of America
-registration
of
title
is
regarded
as
a
system
of
conveyancing which
is
intended
to
supersede
the
ordinary
method
of
conveyance
by
execution
of
a
deed
only.
Herein registration
of
title
differs
from
ordinary
deed
regis-
tration,
for
in
the
latter
the
mere
act
of
recording
the
assurance
does
not
pass
the
property
but
only
makes
the grantee
more
secure.
It
also
differs
from the registration
of
a
mere
judicial
declaration
of
title,
for
the
latter
is
only
the
record
of
the fact
that
the
person
affected
has
a
good
title
to
his
land.
In
addition to being
thus
dis-
tinguished
from
deed
registration
and
judicial
declaration
of
title,
an
essential
feature
of
registration
of
title
as
generally
understood
is
that
the
complete
property
in
the
land
should
pass-and
pass
only-
on
registration
being
effected;
this
is
usually
referred
to
as
state
warranty
of
title.
The
typical
form
of
registration
of
title
is
to
be
found
in
the
Torrens
system,
though
there
are
other
systems
that
have
grown
up independently
of this,
and
of
the Torrens
system
itself
there
are
many
varieties,
both in
Australia-its
original
home-
and
in
territories
where
it
has
served as
a
model
for
local
systems.
How
does
registration
of
title stand
as
a
system
among
other
sys-
tems
of
conveyancing
and
registration?
What
are
the
important
points
on which
the
various
systems
of
registration
of
title
differ
among
themselves?
What
would be
an
ideal
system,
and
what
prospect
is
there
of
its
realization?
It is
proposed
to
give
some
answer
to
each
of
these
questions.
COMPARISON
WITH
OTHER
SYSTEMS
OF
CONVEYANCE
AND
REGISTRATION
There
seems
to
be only one
territory
(using
the
word
in
a
neutral
and
non-technical
sense)
in
the
whole
of
the
Anglo-American
world-
the
British Empire
and
the United
States-where
conveyancing
is
carried
on
without
the adjunct
of
some
kind of
registration.
'That
territory
is
England,
where
registration
is
only
in use in
certain
areas
and
as
regards
certain
classes
of
land.
The
experience
of
the
rest
of
the
Empire,
of
America,
and.indeed
of
the
rest
of
the
civ ilized
world,
is-judged
by
the
prevailing
practice-that
any
system
of
registration
is
better
than
none.
It
can
hardly
be contended
that
regis-
tration
of
title
is
inferior
to
a
system
of
conveyance
without registration.
The
registration
of
a
judicial
declaration
of
title
is
not
in
any
sense
[51]
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REGISTRATION OF TITLE TO LAND

JAMES EDWARD HOGG Lincoln's (^) Inn, London Registration of title is something more than what is (^) ordinarily meant by registration or recording-the entry (^) in a public office. Both in the British Empire and (^) in the United States of America -registration of title is regarded as a system of (^) conveyancing which is intended to supersede the ordinary method of conveyance by execution of a deed only. (^) Herein registration of title differs from ordinary deed regis- tration, for in the latter the mere act of recording the assurance (^) does not pass the property (^) but only makes the grantee more secure. It also differs (^) from the registration of a mere judicial declaration of title, for the latter is only the record (^) of the fact that the person affected has a good title to his land. (^) In addition to being thus dis- tinguished from deed registration and judicial (^) declaration of title, an essential (^) feature of registration of title as generally understood is that the complete property in the land should pass-and pass (^) only- on registration being effected; (^) this is usually referred to as state warranty of title. The typical (^) form of registration of title is to be found in the Torrens system, though there are other systems that have grown up independently of this, and of the (^) Torrens system itself there are many varieties, both in Australia-its original home- and in territories where it has served as a model for local systems. How does registration of title stand as a system (^) among other sys- tems (^) of conveyancing and registration? What are the important (^) points on which the various systems of registration of title differ among themselves? What would be an ideal system, (^) and what prospect is there of its realization? It is proposed to give some answer to each (^) of these questions.

COMPARISON WITH OTHER SYSTEMS OF CONVEYANCE (^) AND REGISTRATION There seems to be only one territory (using the word in a neutral and non-technical sense) in the whole of (^) the Anglo-American world- the British Empire and the United States-where (^) conveyancing is carried on without the adjunct of (^) some kind of registration. 'That territory is England, where registration is only (^) in use in certain areas and as regards certain classes of land. The experience of the rest of the Empire, of America, and.indeed (^) of the rest of the civilized world, is-judged by the (^) prevailing practice-that any system of registration is better than none. It can hardly be contended that regis- tration of title is inferior to a system of conveyance (^) without registration. The registration of a judicial declaration of title (^) is not in any sense [51]

YALE LAW JOURNAL

a system of^ conveyance,^ and,^ being^ merely^ a^ part^ of what^ is^ done by registration of title, cannot possibly be^ compared^ favorably with^ the latter. Instances of^ this^ kind^ of^ registration^ are^ afforded^ by^ the Canadian province of New^ Brunswick"^ and^ the^ British^ Crown^ colony of the Falkland^ Islands.^

2 Systems of deed registration^ stand^ on^ a^ different^ footing,^ and^ the two principal methods of^ conveying^ land^ are,^ in^ the^ Anglo-American world, conveyance by^ deed^ supplemented^ by^ registration,^ and^ con- veyance by registration^ of^ title.^ In^ the^ British^ Empire^ and^ in^ the United States, taken together and^ separately,^ the^ territories^ in^ which registration of deeds (as an^ adjunct^ to^ conveyance^ by^ deed)^ is^ the only system^ are^ far^ more^ numerous^ than^ those^ which^ have^ intro- duced a^ system^ of^ registration^ of^ title.^ Even^ in^ the^ latter a^ system^ of deed registration also prevails side^ by^ side^ with^ registration^ of^ title, except in the case of^ a^ small^ minority.^ It^ is^ believed^ that^ the^ excep- tions-at all^ events^ in^ the British^ Empire-are^ seven only,^ and^ that only in Saskatchewan,^ Alberta, the^ Canadian^ Northwest^ Territories, the Australian Territory^ of^ Papua,^ and^ the^ protectorates^ of^ the^ Fed- erated Malay^ States,^ Uganda and^ Sudan,^ is^ there registration^ of^ title without any separate^ system^ of^ deed^ registration.^ The^ British^ Empire consists of about eighty-five territorial units^ with^ distinct^ legislative or administrative functions, and only in thirty-one^ of^ these^ is^ there^ a system of registration of title. In^ the^ United^ States^ and^ dependen- cies-more than fifty territorial units-there^ appear^ to^ be only^ sixteen instances of^ registration^ of^ title^ having^ been^ adopted.^8 Thus, roughly one-third^ of^ the^ Anglo-American^ world^ favors registration of^ title,^ and two-thirds^ favor^ conveyance^ by^ deed^ with deed registration.^ Registration^ of^ title^ is^ making^ its^ way,^ but not^ as rapidly as its supporters would wish. A comparison of^ the^ progress made in long-settled countries like England and^ the^ older^ colonies, and in new and more recently settled countries^ like^ Australia^ and Canada (in its western portions), seems to give a^ clue^ to the^ difficulty. Registration of^ title^ makes^ least^ progress and^ is^ least^ popular^ where land is for the most part^ in^ private^ ownership.^ It^ makes^ the^ best progress and is most popular where^ there^ are large^ areas^ of^ public land available for sale to private persons. Where the^ land^ is^ in private ownership the^ title^ of^ the^ owner^ must^ be^ investigated^ as^ a condition of the land being placed on^ the register^ at^ all,^ and^ this investigation necessarily involves expense and delay^ in^ varying^ degrees. Where the land is purchased from the State the^ Crown^ grant^ or^ patent at once confers a good title and no expense in investigating^ a^ chain 'Land Titles Act, 1914, ,4^ Geo.^ V.^ ch.^ 22. (^2) Titles to Land Ordinance, i9o4 (No. 6). " (1917) 17 Jotm. CoMP. LEG. 281, reprinting note from^ (917)^7 COLUMBIA L. REV. 354.

YALE LAW JOURNAL

law.9 It is unnecessary to^ dwell^ on^ this^ here.^ The^ points^ to^ be^ now noticed are common to the whole aggregate of Anglo-American systems. Perhaps the most important point (as being one of^ far-reaching juridical principle) on which registration of title systems differ^ inter^ se is the^ question^ of^ the^ relation^ of^ registration^ and^ possession.^10 Some registration statutes are silent on this question altogether; judicial decision is in favor of the right to acquire title by possession subse- quent to initial registration."^1 As to whether initial registration puts an end to all rights that may be acquired by virtue of antecedent possession, judicial^ opinion in^ America^ seems^ to^ be^ against^ this^ view,'^ 2 though perhaps it would meet with^ more^ favor^ in^ British^ courts.^ In some systems the statutes expressly^ make^ the^ registered^ title^ good against all possession, and to^ this^ extreme type^ belong^ New^ South Wales, Ceylon,' 3 many American States,'^4 and^ (as^ to^ fully^ warranted title) Ontario and^ Nova^ Scotia.'^5 To the^ other^ extreme^ belong Vic- toria, Western^ Australia,^ Fiji,^ Federated^ Malay^ States,^ Sudan,^ Lee- ward Islands, where all rights arising under possession may be enforced against the^ registered^ title.:'^ England,^ Ireland,^ Jamaica,^ South Australia, Tasmania, New Zealand, Manitoba, British Columbia, Saskatchewan, occupy^ a^ middle^ position,^ and^ rights under^ possession can only^ be^ enforced^ in^ certain^ circumstances^ against^ the^ registered title.' 7 In South Australia, New Zealand, Manitoba, British^ Columbia

'See Report on Torrens System to 24th Annual Conference on Uniform State Laws (I914). "0 This is the subject of an article^ by^ the^ writer^ in^ (I914)^15 JOUR.^ ComP.^ LEG. 83, where twenty-seven systems are^ dealt with.^ The^ Saskatchewan^ statute has since been amended. 'Belize Estate Co. v. Quilter (P. C.) [1897]^ A.^ C.^ 367;^ Harris^ v.^ Keith^ (IglI, Alberta) i6 West. L. Rep. 433. 'State v. Westfall (19o2) 85 Minn. 437, 89 Am. .St.^ Rep.^ 57I,^^89 N.^ W.^ 175; People v. Simon (x898) 176 Ill. 165, 68 Am.^ St.^ Rep.^ I75,^52 N.^ E.^ 91O. ' New South^ Wales:^ Real^ Property^ Act,^ 19oo^ (No.^ 25)^ sec.^ 45;^ Ceylon: Land Registration Ordinance, 19o7^ (No.^ 3)^ sec.^ 59,^ as^ to^ which^ see^ (1914)^15 Joua. Comp. LEG.^ 85. " Draft of Uniform Land Registration Act (1914) sec. 46;^ Niblack,^ op. Cit. 190. 5Ontario: Land Titles Act, R. S. 0. 1914, ch. 126, sec. 29; Nova Scotia: Land Titles Act, 1903-4, ch. 47, sec. 42. "Victoria: Transfer of Land Act, 1915 (No. 274o) secs.^ 72,^ 87;^ Western Australia: Transfer of Land Act, 1893 (No. 4) secs. 68, 222;^ Fiji:^ Real Property Ordinance 1876 (I9O6, No. 7)^ sec.^ I4;^ Federated^ Malay^ States: Registration of Titles Enactment, 1911 (No. I3) sec. 8; Sudan:^ Title^ of^ Lands Ordinance, 1899 (No. 2) sec. I4; Leeward Islands: Title by Registration^ Act, I886 (No. I, 1914 Rev.)^ sec.^ 34. 11 England: Land Transfer Act, 1897,^ ch.^ 65,^ sec.^ 12;^ Ireland:^ Local Regis- tration of Title (Ireland) Act, i8gi, ch. 66, sec. 52;^ Jamaica:^ Registration of Titles Law 1888 (No.^ 21)^ sec.^ 55;^ South^ Australia:^ Real^ Property^ Act,^ I (No. 386) secs.^^69 (6),^ 251;^ Tasmania:^ Real^ Property^ Act,^1862 (No.^ x6)^ sec.

REGISTRATION OF TITLE TO LAND

(as to fully warranted title), and Saskatchewan, the registered title is (as in New South Wales, etc.) good against (^) all possession, but with an express exception in favor (^) of rights of persons in possession at the time of initial registration. Another important difference is the effect (^) and operation of regis- tration, both initial and of subsequent transactions. (^) In the majority of the systems initial registration confers a complete title (^) good against the world, subject to certain exceptions. But (^) in a few of the British systems-England, Ontario, (^) British Columbia, Nova Scotia, Leeward Islands-provision (^) is made for registration of a title that is not fully warranted.' (^) It seems to be owing to this statutory permission to register with merely (^) prima facie title that a further difference exists between the system in England and all (^) other systems. It has been laid down in England (though (^) not yet by the final decision of the House of Lords) (^) that, notwithstanding the existence of the new registered estate in fee (^) simple, the old "legal estate" in fee simple remains in existence.' 9 Whether (^) this view will be taken in Ontario (where the registration (^) statute is modelled on the English statutes) remains to be seen. But in New South Wales-and" other statutes would seem to bear a similar interpretation-it has (^) been expressly decided that no interest (^) carrying the incidents of the legal estate passes without registration. 20 Most statutes indeed (^) enact generally that no interest in the land passes until registration, (^) whilst some expressly provide that unregistered instruments operate as (^) contracts only. (^21) In America it has been laid down that "the act of registra- tration is (^) the operative act to convey title," 22 and this is assumed by the framers of the (^) Draft Uniform Act to be the sense in many Ameri- can state statutes, for one (^) clause provides that "registration shall be the only operative act to transfer or affect the title to registered land."2 3

135; New Zealand: Land Transfer (^) Act, 1915 (No. 35) secs. 6o, 72; Manitoba: Real Property Act, R. S. M. I913, ch. (^) 171, secs. 82, 83; British Columbia: Land Registry Act, (^) R. S. B. C. I9ii, ch. z27, sec. 22; Saskatchewan: Land Titles Act, (^1917) (Sess. 2, ch. i8) sec. 6I. "]England: Land Transfer Act, (^) 1875, ch. 87, secs. 5, 8; Ontario: Land Titles Act, R. S. 0. 1914, ch. 126, secs. 6, i2; (^) British Columbia: Land Registry Act, R. S. B. C. I9i, ch. i27, (^) secs. 14, 23; Nova Scotia: Land Titles Act, I9o3-4, ch. 47, secs. (^) 8, 38; Leeward Islands: Title by Registration Act, I886 (No. i, (^1914) 1 Rev.) sec. 126. Capital and Counties (^) Bank v. Rhodes (C. A.) [i9o3] i Ch. 631. "Macindoe v. Wehrle (1913, (^) N. S. W.) 13 S. R. 500; Davis v. McConochie (915, N. S. (^) W.) i5S. R. 510. 'Nova Scotia: Land (^) Titles Act, sec. 44; Leeward Islands: Title by Registra- tion Act, i886, sec. 6. Tyler v. Judges of Court of (^) Registration (igoo) 175 Mass. 71, 80; 55 N. E. 812. ' Draft Uniform Act, sec. 47.

REGISTRATION OF TITLE TO LAND

THE (^) IDEAL SYSTEM AND ITS POSSIBLE REALIZATION The object of (^) registration of title being to enable transactions with land to be carried out easily and cheaply, the ideal (^) system will be that by which (^) these objects are best attained, at the same time (^) retain- ing all advantages belonging to other (^) systems of conveyancing and conforming to the general (^) policy of jurisprudence as regards owner- ship of land. There are two (^) things to be considered: how to bring land on to the register, and what (^) rights to confer on owners of interests (^) in it when it is once on the register. The (^) first of these questions is much the (^) more difficult of the two. It is clear that the disadvantage of the (^) initial application as now conducted will for a long time operate against (^) land being registered voluntarily. (^) If any approach to the universal adoption (^) of registration of title is to be made, some means must be found (^) to induce owners of land already in private ownership (^) to place their land on the register. In other words, (^) some form of compulsion must be used which (^) will not be burdensome (^) to the individual owner. It is suggested that (^) a prac- ticable scheme could (^) be worked out by adopting the principle (^) now adopted in the case of (^) land compulsorily purchased or "resumed" for public purposes (^) or such undertakings as railways. On (^) a con- tract for sale being entered into, the purchaser would pay into the land registry or other public office his (^) purchase money and an assessed sum for costs, (^) and would then be let into possession and registered as owner. The vendor would be required to have his title investigated by the land registry or other public authority (^) and would receive the purchase money on showing a (^) good title. Stripped of details the essence of the (^) scheme would be that the purchaser would 'receive the property at once on payment of the price, and the vendor's interest would (^) become a claim for compensation, to be liquidated (^) immediately the claim-4. (^) e., the right to the purchase money-was proved. (^) By this means the (^) purchaser would be subjected to no more expense (^) or delay (^) than if he were buying land already registered, (^) and could at once have all the advantages of a registered (^) owner. The vendor, on (^) the other hand, would be in precisely the same (^) position as at

present, i. e., he would have to show title in the usual way. The land

would not be subjected to the double ownership (^) of vendor and pur- chaser (^) for a protracted period as is often the case at present. (^) Volun- tary application (^) without sale could be encouraged by a scheme (^) under which, upon a substantial sum (^) being deposited by the owner, he could at once be placed on the register in (^) the same manner as a purchaser, the deposit being returned (^) when the title had been investigated and found in order. Under the scheme (^) suggested every title would be registered as fully warranted. It should also be carefully provided that the regis- tered estate took the place for all purposes of (^) the old technical legal

YALE LAW JOURNAL

estate; if necessary-any outstanding^ legal^ estate^ should^ be^ destroyed or vested in some^ public^ official,^ appropriate^ statutory^ provision^ being made for this. The less difficult question has^ reference^ to^ rights^ of^ owners when once the land is registered. This^ involves no^ new^ scheme,^ but^ merely the selection of the best among^ alternative^ provisions.^ The^ subject of possession and registration^ and^ their^ interrelation^ is^ typical.^ The most reasonable plan^ would^ seem^ to^ be^ that^ initial^ registration^ should wipe out all rights of^ every^ kind,^ complete^ and^ inchoate,^ but that rights under limitation or^ prescription^ statutes^ should^ be^ acquirable by length of^ possession subsequently^ to^ initial^ registration, as^ in^ the case of unregistered land.^ The^ use of^ statutory^ forms^ of^ conveyance, etc., appears to have great advantages, and^ this^ has^ already^ been referred to. The form to^ be^ taken^ by^ the^ provisions^ for^ state indemnity has also been^ referred^ to^ and^ also^ the^ operation^ of regis- tration. On the question of^ forgery,^ there^ seems^ no^ reason^ to^ treat forgery (considered as^ an^ invalidity^ of^ title)^ on^ any^ special^ ground; to make a registration invalid^ because^ effected^ on^ the^ faith^ of^ a^ forged instrument is really to^ lay^ more^ stress^ on^ the^ execution^ of^ the^ instru- ment than is warranted^ by^ the^ principles^ that^ underlie^ the^ theory^ of registration of title. The possibility^ of^ the^ scheme above^ suggested^ being^ carried out,. particularly as^ regards^ initial^ registration,^ depends^ largely^ on^ the manner in which^ the^ details^ are^ worked out.^ It^ also^ depends^ on^ the provisions, when embodied in a statute,^ being^ sufficiently^ adaptable^ to find favor^ in^ territories^ differing^ widely^ in^ local^ conditions.^ A^ well considered scheme which worked successfully^ when^ put^ to^ the^ test would probably be adopted in other^ territories.^ Uniformity^ in^ legis- lation within^ the^ British^ Empire^ is^ as^ desirable^ as^ it^ is^ in^ the United States. Reform in the matter of transactions^ with^ land^ is^ of much^ more than merely juridical interest. The^ present^ system^ of^ conveyance^ by deed, involving repeated investigation of^ the^ back^ title,^ is^ economically wasteful. After all, the amount of^ time, money,^ and^ intelligence^ in the world is a fixed quantity, and^ the^ more^ there^ is^ consumed^ in unnecessary work the^ less^ there^ is^ available^ for^ necessary^ work. Efforts to simplify and cheapen land transactions in^ the^ British Empire and the United States of America are^ not^ mere'Diogenean tub-rolling, but should, if well directed,^ be^ a^ real^ help^ to^ the^ Anglo-American Justinian of the future--when he arrives. [The attention of the learned reader^ is^ also called^ to^ an^ article^ by^ Niblack, Pivotal Points in^ the^ Torrens^ System^ (1915)^^24 YALE^ LAv^ JoIJRNAL,^ 274.-ED.]