Fiflis, Ted J.

English

Yale Law School Legal Scholarship Repository

]REVIEWS
liberty, rather than wealth.2 The Girard College 25 case would be a good
starter. Persons interested in civil rights and disappointed with the present
pace of desegregation might be surprised at how well the institution of property
can be utilized to augment as well as to diminish human dignity. In any case,
Zechariah Chafee, Jr. was right when he described property as "the hardest of
the first-year subjects. '26 It is a subject that is patiently waiting a renaissance
and we should be grateful to Professors Cribbet, Fritz, and Johnson for their
commitment.
J. ALLEN SMITHt
THE IMPROVEMENT OF CONVEYANCING BY LEGISLATION. By Lewis M. Simes,
assisted by Clarence B. Taylor. Ann Arbor: University of Michigan Law
School, 1960. Pp. xxv, 421. $5.00.
THE legal profession has often been accused of being successful in thwarting
progress. Charles Dickens' ridicule of the practices of lawyers is considered
justifiable by many even today. No matter how hard we try to ignore the
charges, upon occasion we detect what seems to be a slight degree of earnest-
ness in the spoofing of our less well-bred clients or acquaintances.
Reasonably enough, many of the criticisms of the bar's practices derive from
the layman's observance of the impracticalities connected with real estate trans-
actions.' Among other things, the layman is here exposed to the title search.
Depending on the jurisdiction, he may learn that a proper conveyance of real
estate may require checking tens of documents in as many as ten or twenty
different sets of public records, that on the next sale or security transaction a
nearly duplicate search is required, and that despite the most careful search,
the record title holder may not be able to uphold his title against another. An
even more unfortunate impression on the layman is made by the bill for "clos-
ing costs" which is often five per cent of the value of the real estate and may
be as much as ten per cent. Is it not a little surprising that we have escaped a
revolution in which laymen demand the same ease and safety in transferring
24. In Professor Philbrick's great article, supra note 15, he argues for the separation
of the concepts of property and liberty so that each can be developed by a "socially re-
sponsive policy." Id. at 732. Assuming the distinction between property and liberty can and
should be made, we should ponder the propriety of treating them differently in accordance
with a double standard. See Judge Learned Hand's discussion in Stone, Conception of
the Judicial Function, 46 COLUm. L. REv. 696, 698 (1946).
25. A private charitable educational institution, bequeathed in trust to the city of
Philadelphia, prohibited by the terms of its creation the admission of Negro children. Al-
though the restriction was the private wish of the benefactor, when administered by the
city, it violated the 14th amendment.
26. Chafee, Edward Henry Warren, 58 H.Aiv. L. REv. 1109, 1113 (1945).
tDean, University of Toledo Law School
1. For an enlightening one-page description of the layman's eye view of a real estate
closing, see Atkinson, The Other Side of the Coin, Title News, April 1959, p. 20.
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title to real property that is characteristic of transferring title to personal
property ?2
Professor Lewis M. Simes (in cooperation with Mr. Clarence B. Taylor),
in his workmanlike book entitled The Improvement of Conveyancing by Legis-
lation, has done a small bit in recommending modes of alleviating these prob-
lems. The work consists of a discussion of conveyancing problems and pro-
posed model acts to solve or minimize them. It is the first result of a program
of study for the improvement of conveyancing sponsored by the University of
Michigan Law School and the Section of Real Property, Probate and Trust
Law of the American Bar Association.
The book is divided into two parts-a section dealing with "Major
Remedies" and a treatment of "Specific Problems and Their Solution." In
Part I are set forth a marketable title act, a curative act, an act concerning
evidentiary effect of the record and a model real property limitations act. Part
II consists of thirty recommended statutes dealing with such specific problems
as delivery, corporate conveyances, tax titles, and the like. Four appendices
contain valuable articles on the constitutionality of some of the recommended
acts, and on marketable title legislation, statutes of limitations, and "hazards
in conveyancing practice."
The multitude of recommended statutes are proposed to perform what
Simes considers to be the two basic objectives of conveyancing reform: (1)
minimizing the risk of defects in titles, and (2) lightening the title examiner's
load. (p. xxi). But the amazing thing about his approach is that he almost
invariably stops short of clearing up the problem completely. And at times
he makes compromises in the solution of the first problem in order to solve
the second.3 These stop-gap measures leave us with the same cumbersome
conveyancing system, despite the many recommended changes.
2. Potter, Report on University of Michigan-American Bar Association Research
Project, Title News, Jan. 1960, pp. 137-38, contains an interesting statement on the subject
by a vice president of a title insurance company:
The situation appears to have worsened to the point where sober, responsible and
competent observers have expressed the fear that the increased dissatisfaction with
our conveyancing system will, unless checked, bring about ultimately a breakdown
of present procedures and a revolutionary change therein. If this change takes place,
it will have a serious effect on the welfare of the public and the economic position of
the bar. It is my impression that the revolutionary change referred to is not to
embrace title insurance as a cure-all. The revolutionary change referred to is some
sort of government controlled modified Torrens System which would affect the
economic position of persons other than the practicing attorney.
See Comment, 48 YALE L.J. 1238 (1939), discussing the usefulness of the automobile regis-
tration statutes as examples for model land title registration statutes.
3. For example, in discussing the proposed legislation for the name variances problem
at page 67 it is admitted that objective number one is sacrificed, apparently to achieve
objective number two.
And even though a prima facie case of identity is made by recitals, affidavits, or
presumptions, this case is rebuttable. But the risk that there will be no identity in
the cases stated is slight and can well be borne by the purchaser of the land. The
1410 [Vol. 70:1404
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The more obvious criticisms of the proposed "Major Remedies" are listed
in the 1960 report of the American Bar Association Committee on Acceptable
Titles to Real Property. In the Committee's view marketable title legislation
still leaves a lengthy record to be examined, while curative acts are generally
of an excessively specific and restricted character and require the passage of
a substantial time interval between the occurrence of the defect and its statu-
tory correction. Statutes of limitations have three weaknesses-uncertainty of
term due to extensions of time for disabilities, uncertainty of the fact of ad-
verse possession, and the failure to bar future interests. The presumption rules
are also of too specific and restricted a character. Finally, title standards can-
not cure defects; they merely exculpate title examiners from charges of neg-
ligence. 4
Perhaps the fault for these defects in the proposed legislation must be laid
to the basic self-imposed limitation of the study that reform be kept within
the confines of the recording system.5 Whether this limitation is the result of
a discretion which was the better part of valor, or reflects the interests of the
project's supporters,0 it is not at all in keeping with the disinterestedness
which is fundamental to intellectual achievement.
Simes states that the recording system is probably the only conveyancing
system which would be deemed acceptable in most of the states.7 He never
alludes in this book to what is commonly known as the Torrens system of title
registration.8 Should not a truly unbiased study of conveyancing have included
problem is to find some device, by means of statute or title standards, to reach that
result. (Footnote omitted.)
4. Am. BAR Ass'x SEcTION OF REAL PROPERTY, PROBATE AND TRUST LAW, REAL PROP.
Div., REPORT OF THE ComrrTE ON AccEPTABrE TiTES TO REAL PROPERTY 33-34 (1960).
5. P. xvi.
6. The American Title Association, composed of title insurance companies and ab-
stractors, and various title insurance companies contributed to the financing of the project.
(p. xii). However, I was told by a member of the ABA committee that they contributed
an aggregate of only about $5,000.
Further evidence of this compromising of principles appears in the Foreword written
by Professor Paul Basye where he expressed concern not only for those legitimately in-
terested but also for many of the parasites of the recording system:
The Model Legislation for the Improvement of Conveyancing has been presented
with all conscious effort to consider the viewpoint and problem of every person, group,
and agency involved in real estate transactions: seller and buyer, owner and financ-
ing agency, title searcher and examiner, appraiser and title insurer, and the public.
Though reconciling the viewpoints of all interests is not always possible, and never
easy, much has been accomplished in this direction by keeping the main objective of
expediting title searches and appraisals clearly in mind. (p. xii).
7. P. xvi.
8. In the Foreword by Professor Basye the sole reference to title registration appears.
He says, "A system of land registration in every state seems obviously unacceptable in
this country." (p. xi). A passage by Professor Simes at page xvi was thought to be a
veiled admission that the registration system is superior to the recording system, but
Professor Simes has explained in correspondence that this passage has reference to some
early statutes such as N.C. LAWS, c. 7 (1821) ; N.C. LAws, c. 38 (1773) ; N.C. REV. STAT.
c. 37, § 1 (1837).
19611 1411
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consideration of the title registration system? Why not study this system to
determine whether its defects could be removed? Why start at the bottom of
the progress ladder when we may start near the top?
Professor Simes indicates more by his actions than by his words that he is
well aware that title registration is the more beneficial system. In his statement
of the basic guide to accomplishing the objectives of conveyancing reform, he
states that "emphasis should be upon making the record as important and all
inclusive as possible" ;9 under the title registration system, the record owner
takes priority over all claimants, including, in many jurisdictions, possessors
of the land. In stating five propositions, apparently considered as more detailed
guides to title legislation reform, Simes makes it apparent that three of his
suggestions for reform have as their ideal the registration system-an ideal
which he has no intention of attaining. The three propositions are these:
(a) The record should include, as nearly as possible, all the facts required
to determine the state of the title. This means that there should be some
method by which facts of death, birth, marriage, happening of con-
ditions, and many other matters of significance, can be placed on the
record.
(b) So far as practicable, the record should be self-proving. Recitals should
be evidence of the truth of the statements contained therein. Recorded
instruments should be presumed to be duly executed by competent per-
sons.
(c) The length of the record required for a marketable title should be
shortened. This is one of the primary objectives attained by marketable
title legislation."0
Under the registration system these three requirements are successfully met:
almost all facts required to determine the state of the title appear in the record;
the record is conclusive as to all matters stated therein; and the length of the
record is minimal-theoretically only one document need be examined.
Professor Simes thus approaches the registration system but never quite
attains it. This new type of brinkmanship appears throughout the book. One
familiar with the registration of title system cannot avoid the impression that
Professor Simes' ideas are generally modifications of devices utilized in that
system. As additional examples, he makes a recommendation that the record-
ing officers be directed and authorized to refuse to record documents not meet-
ing certain standards ;"1 he recommends a statute raising a presumption of
delivery of recorded documents, conclusive after five years,12 and of capacity
of parties ;18 and he proposes that in some areas tract indices be used.'
4
9. P. xvi.
10. P. xvii.
11. Pp. xix, 73.
12. P. 63.
13. P. 30.
14. Pp. 87-88. But at page 88, it is stated:
If satisfactory unofficial indices are available, and if the purchaser has the benefit of
1412 [Vol. 70:1404
REVIEWS
Another major defect in this work is that it proposes, instead of a single
statute, a host of statutes. Many of these must face constitutional tests. States
enacting these statutes piecemeal will in all likelihood leave undone parts of
even this limited reform. Modifications of some of the acts will undoubtedly
be made; where two or more of the acts tie into each other, a change of one
may not be accompanied by a change of the other, thereby making for incon-
sistencies and possible confusion. More important, perhaps, such a morass of
statutes cannot be understood by laymen or by non-specialist lawyers. Valuable
rights may be lost solely because of this complexity.
In addition, at page 404 Simes lists the items which he had included in a
questionnaire sent to lawyers in Alabama, Colorado, Florida, Iowa, Minnesota
and South Dakota. These lawyers were asked to-check items on the list which
constituted "the most serious consequence of any inadequacies which may exist
in our system of title security and title assurance methods." Answers were
received from 214 lawyers. The items and number of times checked were as
follows:
(a) Owner's loss of property due to outstanding interest or claim. [8]
(b) Purchaser's subjection to lien, encumbrance, or claim. [41]
(c) Owner's difficulty in selling property, the title to which is sound, but
defective of record or otherwise unacceptable. [122]
(d) Loss of time in consummating transactions.
(e) Owner's difficulty in encumbering sound but imperfect or unacceptable
title. [72]
(f) Inordinate expense of title transactions.
(g) Possibility of fraud or deception in title transactions. [271
Items (d) and (f), concerned with time delay and expense in conveyancing,
would seem to be the two biggest problems of conveyancing. Yet, we are not
supplied with the opinions of one group of lawyers on these very vital matters
even though the figures were apparently collected.
Adding up these criticisms, one must conclude that the entire study was
encased in the strait-jacket of the author's unwillingness to oppose the title
insurance and title abstracting industries.15
them, there is no point in duplicating indices already existing. To establish official
tract indices is, in effect, to socialize one aspect of the abstract business.
Apparently, Professor Simes is unaware that the failure to establish tract indices under
the early recording acts, in effect, caused commercialization of one aspect of the govern-
ment's business. It would seem that if anything is proper for governmental regulation, it is
the system of protecting land titles.
Professor Simes' stronger objection to tract indices is that "the scope of notice of re-
corded instruments has been unduly extended, so that real estate may be less readily market-
able." (p. 87). This is a strange argument. The necessary implication seems to be that the
recording acts present an opportunity for cutting off many recorded matters because it is
impossible to find them, and that this is desirable 1
15. I wish to make it clear that I do not mean to convey the impression that this
desire is for some selfish purpose or is illegitimate in any other respect. Rather, it is clear
to me that Professor Simes feels that no other course of action has hope of success; that
19611 1413
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There is little doubt that the registration acts presently in force in the United
States are, at best, doomed to be used for a small percentage of all land titles.
Despite the ardent praise of many writers,16 practitioners have found initial
registration to be too expensive and too time-consuming. And so, although it
is admittedly a more desirable system once instituted,17 in its present stage of
development it is unacceptable in the United States. The real problem is, can
we obtain the obvious benefits of title registration and do away with or mini-
mize its disadvantages, or must we settle for the recording system? If history
is any indication, the answer is that a registration system of some sort will be
the ultimate system used.' 8
TED J. FIFLISt
the facts of life are such that conveyancing reform without the support of the title insur-
ance industry is impossible and the title insurance industry cannot exist under, and there-
fore will not support, a title registration system.
This is a defensible view but it appears to be a premature surrender. Would it not be
better for the tired warrior to retire quietly rather than to demoralize his vigorous replace-
ments by taking it upon himself to wave the truce flag?
16. Two of the less inhibited articles were written a generation ago: McDougal &
Brabner-Smith, Land Title Transfer: A Regression, 48 YALE L.J. 1125 (1939); Fairchild
& Springer, A Criticism of Professor Richard R. Powell's Book Entitled Registration of
Title to Land in the State of New York, 24 CORNELL L.Q. 557 (1939).
17. AM. BAR Ass'N SECTION OF REAL PROPERTY, PROBATE AND TRUsT LAW, REAL
PROP. Div., REPORT OF THE COMMITTEE ON ACCEPTABLE TITLES TO REAL PROPERTY 33
(1960), in discussing various systems of title protection states:
Obviously, the most effective of these is the Torrens system. It affords both greater
title security and ease of transfer than can be obtained by any improvements in a
system based on recordation.
18. DowsoN & SaEPPARD, LA r REGISTRATION 46 (2d ed. London, 1956), which con-
tains an historical study of land records systems, states that the evolution of land records
may be described as falling into three main periods: "(i) A very elementary procedure in
which the contracting parties appeared before a public or quasi-public authority who made
in his books a short note of the substance and effect of each transaction, (ii) when trans-
actions were embodied in written instruments and recorded by copy (transcription) or
memorial (inscription) in a public register, and (iii) the establishment of registration of
title to land."
tMember, Illinois Bar.
1414 [Vol. 70:1404


Simes: The Improvement of Conveyancing by Legislation

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