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Title Registration and Land Law Reform: A Reply

By Myres S. McDougal


Writing under the somewhat question-begging title of \u22The Resurrection of Title Registration\u22 in the April, 1940, issue of this Review, Professor Percy Bordwell, dean of American property law teachers, seeks to condemn, albeit in a half-hearted and ambiguous way, that method of keeping the public books about land which has popularly come to be known as the Torrens System. Largely an answer to certain uncompromising criticisms of Professor Richard B. Powell\u27s earlier condemnation of that system in his Registration of the Title to Land in the State of New York, Professor Bordwell\u27s article is so temperate in tone and so speciously reasonable, with its generous concessions, that a reader unfamiliar with the problem may miss its paradoxical quality and the utter inconclusiveness of its argument. The burden of Professor Bordwell\u27s complaint is several-fold. The advocates of title registration, he asserts, have \u22largely assumed its manifest superiority over prevalent systems of recording.\u22 To explain away the \u22outstanding fact\u22 of \u22the ineffectiveness,\u22 \u22the failure,\u22 of voluntary registration in this country and England they have \u22harped\u22 upon the \u22self-interest\u22 of solicitors and abstracters and title insurance companies and have adopted a \u22Satanic interpretation of history\u22 which \u22does not get us anywhere.\u22 Experience in the Anglo-American countries demonstrates that registration must be made compulsory to amount to anything. But why make it compulsory? \u22Why all this fuss about title registration?\u22 There has been \u22no such conspicuous failure\u22 of the recording system or of title insurance as to discredit either. Title registration cannot make land \u22liquid\u22 and \u22as easily transferable as a ship or a share of stock or an automobile\u22; such extravagant hopes are but a reflection of the fight for \u22free trade in land in England.\u22 \u22No millennium will be wrought by a register of title.\u22 Registration, being unsuitable for multiple interests, might, however—strange as it may seem—imperil our historic law of estates and future interests; the scrapping of such interests was a \u22by-product\u22 (also the \u22most outstanding feat\u22) of the struggle for registration in England. \u22The important thing to bear in mind is that the logic of registration of title is a revolution in our land law.\u22 Finally, we have one \u22system of public transfers\u22 already; why \u22supplant\u22 it with another which may raise constitutional and personnel difficulties and produce a lack of \u22coherence and uniformity\u22 in the common law \u22throughout the country\u22? The Torrens System is a \u22foreign\u22 system. \u22Regardless of the conclusiveness of the certificate, of the desirability of cutting off stale claims and of the modem tendency to look to the state,\u22 the case for it is not made out

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 1940
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