Correspondence law, which is sufficient as it stands, but
protection from meddlesome interlopers
383
additional amendments along the lines suggested in its report.
dent's The wonder statement was which made by excites Mr. Henry our correspon~ C. White
who seek to emasculate or discredit the law from ulterior motives. GILBERT RAY HAWES.
20Br0ad'way, New York. June 2, 1911. The discussion of the New York Torrens law has shown the existence of some conflict of views, but with entire respect for Mr. Hawes' sincerity, we have no hesitancy in asserting that the weight of opinion is in favor of amending the statute for the fuller protection of rights of property. By resolution of the New York State Bar Association, the sub-committee headed by‘Mr.
Charles A. Boston was instructed to consider amendments to add to the efliciency of the Tor rens statute. This able committee unanimously urged the importance of securing amendments to guard against the danger of fraudulent or in competent examinations of title and of inade quate notice to interested parties. Most of the work of this committee was done by its chairman, who gave the subject a great deal of time and study without thought of personal reward, and his statement in the New York Law Journal of May 20 is to be accepted unreservedly: "We have not sought to conciliate or promote any particular interest. We have gladly availed ourselves of all reasonable and sensible sugges tions, from whatever source emanating, which were founded upon experience and good judg ment." The New York Law Journal, whose learned opinions are always entitled to respect, said editorially, May 11, in reviewing the proposed amendments: —
"It is a matter of much public concern that ‘Torrens’ systems be perfected as far as possible to the end that substantial property rights be not cut off unfairly or without due notice of proceedings. . . . An inspection of the legisla tive bills leads us to believe that their adoption would not only add to the efliciency of the New York ‘Torrens’ statute, but also diminish the opportunity for its perversion into an instrument of depriving real owners of substantial interests in property." Moreover, it seems proper to say that the State Bar Association heartily supports the position taken by its sub-committee, judging from the fact that the committee was continued with power to recommend to the Legislature
of New York, and will be found on page 328 of the current volume of the state bar association's Proceedings: — [“I tell you, gentlemen, I believe, after a very careful study, that the law is one of the most dangerous now on our statute books. If you say I am prejudiced I will say yes, I am preju diced against a law so doubtful that two years‘ close study only shows a beginning of its dangers. “Here is a result which can actually practically happen. A man may own a piece of vacant property, which he will naturally unfrequently visit. He goes to Europe for six months, and upon his return, he finds that some one has put a deed on record, registered the title, conveyed to a purported bona fide purchaser, and the title has passed out of the real owner without any recourse whatever to any fund or aga nst any body. That is a result that actually can happen under the law.
"With the disposition of the courts to pass applications thus practically ex parte, and with the statute declaring that the statements con tained in the abstract and the certificate must be taken and construed as statements of fact unless therein otherwise expressly declared, although every conveyancer and every tyro at the law knows that the statements of an abstract and certificate are generally conclusions of law, or at the most are mixed statements of fact and law, this law constitutes a serious menace." We agree with Mr. Hawes that the decision of the Supreme Court in American Land Company vs. Zeiss need not decrease public confidence. The only feature of that decision that can have led to any misgivings is the finding that reason able constructive notice to absentees and un known claimants is not repugnant to the "due process of law" clause of the Constitution. But strictly speaking, it was not a typical Torrens law that was upheld by the Supreme Court, but a statute passed after the San Francisco earth quake to meet an extraordinary public necessity. The New York statute, therefore, would not necessarily be upheld in its present form by the reasoning of this decision as to what con stitutes reasonable constructive notice. It is not only to strengthen the Torrens system in
New York. but to guard against the possible unconstitutionality of the law, that either the pending amendments or others of similar purport
seem advisable. —-Ed.]
