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ago one of our now ever memorable American statesmen: "Mr. President, where are we at?"
So numerous have become the links in the chain of title to some real estate which the owner and seller is required to have abstracted in order to dispose of the same, that the question is frequently presented to his mind whether it is nobler to continue to be a freeholder and bear the ills of a taxpayer, in defraying the expense of a large force of men to record in the auditor's office these numerous instruments affecting these valuable lots, or to pay to an abstractor one-half of the purchase price thereof for an abstract of title?
By reason of these objections and difficulties surrounding any system of registration of the nature prevailing in this country, one of the all absorbing questions which is now engaging the profound attention of the people of several of the states, and I think I can safely add will, in the near future, be presented for solution in all of the states, is: What system will completely and radically remedy the defects and objections to our present registration laws?
I will not undertake to suggest a remedial system, for the reason that I do not consider that this question is involved in the discussion of the subject assigned to me; and furthermore, I would prefer to leave a discussion of that question to abler and more experienced members of this Association.
What is usually known as the "Torrens system" of conveyancing and recording land titles is rapidly coming into use. It first had its origin in Australia, and is also in use in British Columbia.
In an able address, attention was favorably directed to this "Torrens system" at the last session of this Association by our former president. Some system, containing at least the salient features of the "Torrens system," should, as soon as practicable, be adopted in this state. The present system and laws relating to recording land titles should no longer be permitted to remain in force than the needed change can be effected.
I realize, however, the tortoise like speed generally accompanying all changes and reforms so radical in their nature as would be wrought by a change from our present system and laws to the Torrens or some other allied system. It is much easier to patch up our present system and laws from time to time, even though,
when the patching process is ended, it should look like Joseph's coat, than to adopt a new though much better system.
Assuming, then, that our present system is to remain and abide with us awhile longer, I beg to submit to this Association some suggestions simply by way of amendment to our present laws.
One of the first questions which naturally presents itself is: What instruments should be required to be recorded? Inasmuch as the legislature of this state within the last several years has enlarged the number of recordable instruments so as to include conditional contracts of sale of personal property and declarations of community and homestead rights, I think we now have a fairly complete system of legislation in this state in this particular, when considered in connection with the laws enacted during territorial days. Since, however, the manifestly correct holding of our supreme court, that assignments of mortgages are not, under our laws, recordable, a law providing for the recording of such assignments and giving to the same the force and effect of notice, when so recorded, should be enacted as soon as possible.
In this connection I desire, also, to call attention to another matter. In taking the position which I do, I am well aware that the opposite of my contention is not devoid of substantial merit. I assume it to be, however, a legal postulate that the objects and purposes of any system of registry laws is to give notice to third parties of the right and title of persons who claim to be the owners of property or to have some interest therein, and any law which requires that at least constructive notice shall be given of such ownership or interest more nearly approaches a consummation of the beneficent objects and purposes underlying the registry laws. The matter to which I have just alluded is this: I understand it to be the law of this state, as held by both our state and territorial supreme court, and which decisions are in harmony with the rule generally prevailing in this country and England, in the absence of statutory provisions modifying or governing such rule, that possession is equivalent to actual or constructive notice. Able courts and jurists have held to this doctrine in construing the registry laws of the different states, and such holdings there is no doubt were and are correct as a matter of statutory construction. So that I am not to be understood as criticising in the least the correctness
of this rule, as a matter of statutory construction. I believe, however, that a law should be passed requiring the possessor of real estate, when holding the same under certain conditions, to prepare and have recorded in the auditor's office a declaration or notice of his possession and claim to entitle such possessor to any rights whatever by reason of such possession.
The rule that possession is equivalent to actual and constructive notice and dispenses with either is, as applied to certain kinds of possession and of a certain species and kind of property, a wholesome and just rule; but as applied to other kinds of possession and property is unjust, disastrous and oppressive.
The reason for the rule that possession is equivalent to notice, viz., that every person is presumed to know who is in possession of his property and the nature of such possession, while seemingly sound and just in the abstract, fails in its splendor when tested in the concrete.
It is in recognition of the concrete injustice of this rule that has given origin to numerous modern statutes requiring notice to be given of certain rights and interests in land by recording notice thereof in the proper office- for instance, the written declaration of a homestead right, recently enacted in this state and requiring the same to be recorded, notwithstanding such homestead may be actually occupied for homestead purposes. The tendency of modern legislation has been and is to require record notice to be given of certain rights and interests in both real and personal property.
I believe the rule should be extended so as to dispense with such presumption of notice in case of occupancy and possession of at least certain kinds of real estate. I believe a law should be passed dispensing with such presumption in a case where A owns a piece of land which it is not necessary, in the nature of things, that he should constantly guard and examine for any purpose except that of ascertaining if some one, who has not the shadow of a right or title thereto so far as disclosed by the records, has taken possession thereof, and that, to entitle such a possessor to the benefit of such a possession, he should be inconvenienced at least to the extent of giving and having recorded in the proper office a caveat giving notice of such possession. It would be better if he should be required to specify, at least in a general way, the nature of his right to such possession.
But, if it is thought best to relieve such possessor of the last mentioned unpleasant duty, it will not be requiring more of him to give and pay the expense of recording at least a bald notice of his pedal possession than is required of him who also claims to be the true and lawful owner to record his muniments of title. Particularly do I think such a law will be a small measure of justice to an innocent and bona fide purchaser. Such a purchaser may be remote from the situs of the property, or he may not care to actually examine the same. He relies upon the muniments of title as the same appear of record in the proper office. Why should not notice of other rights be placed of record among the same archives? If such a law would have the effect of defeating the rights of such occupant or possessor, the latter has at least the consolation of knowing that, unlike his adversary, there are no links in his chain of title to be broken. I not only think that a law should be passed requiring record notice to be given in cases above mentioned, but that it should be a just and not unreasonable provision to require such recorded notice to be given in all cases where such possession and occupancy is had without any right or title thereto being evidenced by any written and recorded instrument, when adverse rights are attempted to be acquired and obtained by reason of such occupancy. Such, I understand, is the legal effect of the laws of some other countries governing the matter of the registration of title to realty, and I do not know of any reason why a law of the nature above mentioned could not be engrafted upon our present system of registry laws without otherwise effecting a radical and fundamental change.
Another question which arises in connection with record notice, is where such record notices should be kept? In view of the constantly increasing number of instruments affecting real estate, any plan which centralizes the locality or office of recording such instruments is of great value, for the principal reason, among others, of convenience in the examination of the records. It is extremely inconvenient in an examination of the records affecting realty to find no record in the auditor's office of a patent to land, thus necessitating a resort to the records of the United States land office. I think a law should be passed requiring patents to be recorded in the auditor's office, and a compliance with such requirement could
be enforced by proper provisions governing the failure to record the same.
I have never been able to understand the reasons which induced the passage by the legislature in 1893 of the act making certain judgments liens upon the real estate of the debtor from the date of entry thereof, thereby repealing the former law requiring an abstract of such judgments to be filed and recorded in the auditor's office. I think this was a change for the worse.
By this change not only has an inconvenience been produced by requiring resort to the records of two different offices instead of one, two different sets of index books and records instead of one, but for other obvi
Another question which is suggested in connection with record notice is what length of time, if any, should be allowed for filing recordable instruments for record after execution of the same, in the particular of making the same constructive notice with the right of priority given thereto previous to their having been filed for record. The time given within which to record such instruments in the different states which fix a limit of time, varies from five days in Oregon to one year in Georgia, unless the laws in these two states have been repealed in the last several years. At least two-thirds of the states have wisely failed to fix a limit of time. The early law of the Territory of Washington, passed in 1854, which gave to unrecorded deeds such priority for six months, was not permitted to long remain in force before it met the fate of similar laws in other states, and now, under the laws of our state, this feature of constructive notice is given to no conveyance or instruments, affecting either real or personal property, prior to the same having been filed for record, except bills of sale of personalty, as to which ten days was given when the property is left in the possession of the vendor.
I believe that a law which gives to a party the same rights under an unrecorded instrument for a given number of days as is given. to a recorded title, is fraught with more evil than good. It enables designing persons to perpetrate fraud upon innocent purchasers and opens the door to all kinds of collusion, and the same reasons which have induced the different states to repeal all laws of this character, should cause a repeal of this law.