This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In order that land may be registered under the statute, and the initial certificate of title obtained, the following mode of procedure is usually prescribed: The person or persons claiming the ownership of the land in fee simple file an application, addressed to the court having jurisdiction under the statute, describing the land, setting forth any estates, interests, or liens outstanding in other persons, so far as known to the petitioner, the name of the occupant, and the names of owners of adjoining land. Upon the filing of the application it is referred to one or more official examiners of title, who, after making a proper examination, report to the court. Any persons who appear to be interested in the land are made parties, and the statute provides for the sending of notices to such, persons, and also for the publication of a notice in a newspaper for a prescribed period. If the examiner approves the title, and no adverse claims are presented, or if those presented do not appear meritorious, the court confirms the applicant's title, and directs the person having charge of the registration office, known usually as the registrar, to issue to the applicant a certificate'of title. This certificate states that the applicant has
1. After Sir Robert Torrens, of South Australia, who first introduced it into use among English speaking people. A simi3 R. P. - 1
(2273) lar system had been in vogue in some parts of Germany for many years.
2. There is a great deal of literature on the subject, largely in the form of articles in legal periodicals, discussing the merits of the system. The best detailed treatment of the subject is that by James Edward Hogg, Esq., under the title "The Autralian Torrens System." The most satisfactory American treatise which has come to the writer's notice is, "An Analysis of the Torrens System" by William C. Niblack, Esq., of the Chicago Bar. See for references to the specific statutes, editorial note, 17 Columbia Law Rev.
: a fee-simple title (or otherwise, as the case may be), and also there are noted on the certificate any outstanding interests, trusts, or incumbrances in other persons which are recognized by the decree of the court. This certificate is made out in duplicate, one copy being issued to the applicant and one copy being retained in the registration office, where it is inserted in a book called the "register" or "registration book."
No person other than the owner in fee simple can, under most of the acts adopted in this country, obtain the registration of the title, but the existence of lesser es-states in other persons does not affect such owner's right to registration, the rights of the owners of lesser estates being protected by statements upon the certificate issued to the owner in fee simple.
The proceeding by which the title is registered is by the terms of the statute, absolutely conclusive upon all persons, either immediately upon the rendition of the decree, or within a short period thereafter. The proceeding is thus in effect one to quiet title. The constitutionality of such legislation, in so far as it makes the decree binding upon persons interested in the land, who receive notice of the proceeding merely by publication, has been vigorously questioned, on the ground that it deprives such persons of property without due process of law; but it has been upheld in several states.3 The United States supreme court has refused to assume jurisdiction to determine the question until a case is presented by one who has actually been deprived of property by means of such legislation,4 but in view of decisions by that court upon analogous questions,5 there appears little reason to doubt that it would uphold the validity of the legislation in this regard.
3. Robinson v. Kerrigan, 151 Cal. 40, 121 Am. St. Rep. 90, 90 Pac. 129; People v. Criss-man, 41 Colo. 450, 92 Pac. 949; State v. Westfall, 85 Minn. 437, 57 L. R. A. 297, 89 Am. St. Rep. 571, 89 N. W. 175; People v. Simon, 176 111. 165, 44 L. R. A. 801, 68 Am. St. Rep. 175, 52 N. E. 910; Tyler v. Judges of Court of Registration, 175 Mass. 71, 51 L. R. A. 433, 55 N. E. 812.
4. Tyler v. Judges of Court of Registration, 179 U. S. 405, 45 L. Ed. 252.
5. American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82; Twining v. New Jersey, 211 U. 'S. 78, 53 L. Ed. 97.