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owners of realty. We are endeavoring to fix a system for the registration of land titles that will establish all titles. The question I wanted to get some information about was this, as to the method of procedure for the purpose of determining title. Whether it be by the trial of an ejectment case, or whether it be before a commission, or whether it may be before a special tribunal to be created, the determination of the title is the issue involved; and in such determination questions of fact and questions of law have to be passed on by some tribunal to be provided. Now the matter of providing a tribunal or court for the determination of these titles is going to be difficult legislation; therefore I would like for the Chairman to give us his views and tell us how this question of title is to be heard and determined. In some States the method seems to have been to determine the questions of fact and of law according to the English Chancery Practice, making an issue of fact and submitting it to a jury for determination, and then certifying the questions of law and submitting them to some judicial tribunal. The difficulty in my mind is this and I am trying to deal with this question from the standpoint of a lawyer who tries titles to land—you have difficult complications of law and of fact. How can these complications be satisfactorily determined under the proposed system? It would aid us very much in the work of the Association and before the committee and the Legislature if Mr. Dessau will inform us how these questions are determined.
There is one other question that I would like some information upon, and that is this: We understand, of course, that a man has title to the land upon which he has lived and which he has openly occupied for twenty years, and of course we understand that with color of title and seven years' possession a man may acquire a good title. Do I understand the Chairman to recommend that title by these methods be destroyed ? It is an important question; an important issue. Speaking for myself, I say no. I say that all things that go to make a perfect title should not be interfered with. Of course I understand that seven years' adverse possession with color of title would be destroyed by this legislation, because there could be no color of title after the title by this registration act had been fixed and determined. On these two points I would thank the Chairman to give us a little further information.
Mr. Dessau: I feel like I owe the Association an apology, having trespassed upon their time and attention and compelled them to submit to a report which was so lengthy, and it is with some trepidation that I venture to add anything further, but in view of the very polite and courteous suggestion from my distinguished friend from Savannah I shall do so. In the five States which have adopted this system, as well as in the other States which have the system under consideration, there is a most patent degree of uniformity. There is a court raised by every act of the General Assembly upon this question; a court devoted to this particular business known as the “Court of Land Registration,"—in some States the “Court of Registration of Land Titles.” That court, like all other courts of record, for it is a court of record, has a system of pleading. That system of pleading is projected upon lines which are consistent with the jurisdiction invested in the court. In some courts of land registration the judge or judges have power under proper rules to pass upon disputed questions of fact. In other of the systems the court makes a note of the question in dispute and that is referred to the superior court of the county in which the land lies. The gentleman will recognize at once that in the adoption of a system of this sort there must be perforce a great degree of uniformity. There are some differences in minor details owing to the fact that there are inherent differences, minor differences, in some States from others. So much as to the court.
: Now as to title by possession, or by prescription, and title by color of title. I did not mean to say in that report, and if I did say it, I wish now to consider it as withdrawn, that no title can be considered under this system based upon possession or color of title. The present law that obtains as to the existence and establishment of a title by adverse possession, by prescription and by color of title, would obtain in determining any title offered for registration. I trust that I make myself clear. But after that title is registered, then title by prescription, by adverse possession or by color of title can never prevail against that registered title. I trust that I make myself clear on that point. I think I said that in my report. I hope there will be no misunderstanding on that point because it is a very essential point. In all systems prevailing in the five States I referred to, in Great Britain, in Canada, British Columbia, and in some other British possessions in America and Australia, as against the registered title nothing can prevail. The registration of the title is under the law a determination up to the time of the registration of that title and of whatever claims or liens there may be against that land. After the registration, subsequent liens against the land, the disposition of the land by devise, the passing of the land by inheritance under the laws of distribution, the creation of trusts upon the land, and all matters arising ex post facto relative to the land are noted upon the register.
Mr. Meldrim: Will you allow me to ask you a question ?
Mr. Meldrim: We are all in harmony on that point. What I had in my mind was this. We will assume that the court has found in favor of the petition and set up by decree the title to a certain described tract of land. A portion of that land the petitioner has actual possession of to-day and the court finds the entire tract belongs to the petitioner. The petitioner in whose favor that decree is rendered takes no action at all to remove a party in possession of part of it, and that party who is in possession remains twenty, thirty or forty years, can he or those claiming under him acquire title by that possession ?
Mr. Dessau: As against the registered title ?
Mr. Dessau: Not according to the decisions in the cases I have read. His title is disposed of upon the registration of the title. To cite an instance, if the Association will permit me to answer Brother Meldrim's suggestion, John Doe applies for the registration of “Black Acre.” It is voluntary, because under the system as it obtains in the State of Illinois, for example, and I take the State of Illinois because that is a State where compulsory registration of land does not obtain, it is optional with the owner to register his land. John Doe applies for registration of "Black Acre.” He proceeds to the office of the judge of the court of land registration, the registrar, and files with his petition a description of the land and his muniments of title, all of his muniments of title. Now, in this examination of that title, the judge refers the case to the examiner of titles, one of whom is situated in every county. That examiner discovers that Richard Roe is in possession of the land, whereupon a summons is issued to Richard Roe and he is notified that on a given day, at a given hour, at the county courthouse in the county of Cook, his title to that land, or his interest in it, will be passed upon. He is made a party defendant in that suit. On that day if he appears to contest it his interest in the land is set out. If it is a question of law the court will undertake to dispose of it. If it is question of fact it is referred by the court to a given day on which a jury can pass on it. In some systems it is referred to the superior court
and a jury in that court passes upon it. If in the course of the investigation it is found that Richard Roe's claim is good, a note to that effect is put upon the certificate of registration. If it is found that Richard Roe has no interest in that land, the whole title is noted on the register as the property of John Doe. Richard Roe may be in actual possession but he may not have a deed, and in determining the question of registration he could present his interest and his adverse possession would be considered
Mr. Sweat: The gentlemen have spoken of the importance of this question throughout the entire State. It is a question of special importance, of very great vital interest to my section in South Georgia. We all understand that as a rule evidence of title in this State consists of a grant from the State and a chain of deeds down to the present owner. We have in addition to that, and to that reference has been made, what is known as title by prescription, and we have two classes of that; twenty years' actual possession and seven years' possession under color of title. Now, in addition to these, I know it is found throughout my section, and perhaps it prevails to a greater or less extent in other portions of Georgia, we have a great many forged titles to the same piece of property. It so happens, therefore, Mr. President, that to many lots of land in South Georgia there are different chains of title and claims of title. The result is that titles to land in our section are very much unsettled and the values are very much injured by that fact. If we could have the question of title to land absolutely settled, as I understand that it would be by this Torrens System, then it would be of great benefit to our section, and to every other section of the State similarly situated. It would enhance the value of land. We have a largely undeveloped section that is being very rapidly settled up now, and if the question of title to land was