Page:Harvard Law Review Volume 12.djvu/45

25 THE ELEMENT OF CHANCE IN LAND TITLE. 2$ The difference in practice, in respect of these two classes of property, rests partly upon mere tradition and habit, capable of no justification by argument ; partly upon a long experience of the substantial safety of proceeding, in respect of the one class, with- out examination into title, and of need, or, at least, convenience, of examination into title, in respect of the other class. In respect of land, and chattels real, the practice of formal examination is, perhaps, as much a matter of habit and tradition as of intelligent precaution ; for, in those communities where it is customary to deal in real estate with little or no examination into title, there is no greater sense of insecurity, and probably no greater percentage of actual loss, than in communities where there is a detailed and formal examination. In communities of the latter class the chief practical importance of examination to a given pur- chaser is, perhaps, the protection that it affords, not so much against loss, but against criticism by subsequent purchasers. The writer does not wish to criticise the custom of dealing in land with little or no examination of title; on the contrary his observation has led him to the opinion that in the communities where that custom is generally followed, it works very well, and that under the system of land title now prevailing in this country, the defects most likely to involve loss are those which would not be disclosed by formal examination. He recognizes, however, the fact that it is in only a limited class of communities that the simple custom prevails, and that in even those communities it is liable at any time to be brought to an end, by rise in value of the land, or the introduction of a new class of purchasers. He recognizes, therefore, the practice of formal and detailed examination as the prevailing American practice, and he desires here to treat the question how far that practice, as it exists, is complete and syste- matic, and to what extent it eliminates the element of chance. The characteristic feature of most dealings in chattels personal, and of such dealings in land as are had without formal examination, is the taking of chances. Elaborate examination proceeds upon the theory that, unless in simple communities and in unimportant instances, chances should not be taken. There is an implied asser- tion, on the part of conveyancers, or at least a general belief of clients, that the present stricter form of examination substantially covers the field of possible defects, or at least all such features of title as can be inquired into. Perhaps it is not too much to say that the very existence of the practice of elaborate examination 4