Page:Harvard Law Review Volume 12.djvu/51

31 THE ELEMENT OF CHANCE IN LAND TITLE. 3 1 to be exhaustive, look into the question of such statutes in the State granting the divorce, and into the record of the divorce suit. (9) Constitutional law receives very little attention in the exam- ination of titles. Objection to a title based upon constitutional grounds would, unless supported by a decision precisely in point, ordinarily be viewed as fine-spun ; and a conveyancer who should profess to have made a careful study of State and Federal consti- tutional law with a view to titles, and should be in the habit of dis- cussing the constitutionality of State statutes, or a possible limita- tion of their operation by reason of the Federal Constitution, would, unless of unusual force, lose credit for good judgment, though his learning might be sound, and the questions sensible and important There was, it is true, a long period in the history of this country when, owing to the comparative simplicity of the questions com- monly in dispute in land-title and the common-law character of those questions, to the absence of the great variety of modern statutes providing for the extinguishment of defects in title, and owing, further, to the lack of the provision which came into force with the Fourteenth Amendment, constitutional difficulties could* perhaps, be said, as a class, to be mere bugaboos ; and at that time a conveyancer known to be apprehensive of constitutional difficul- ties might be viewed with a critical eye. To-day, however, we are in a new era of land-title. In the older of the thickly-settled com- munities the writ of entry is obsolete, and disputed questions of title, in so far as they are questions of law, frequently turn,, not upon common law principles or upon statutes confessedly dealing only with matters of State cognizance, but upon principles of general equity jurisprudence, as declared or as enlarged by statute ; upon the competency of State statutes to bind persons not in being, or not ascertainable, non-residents, and the like. Notwithstanding this change, there still remains a good deal of the old half-disguised contempt for constitutional law in respect of the daily handling of real estate titles. A striking illustration of this is afforded by the fact that the two enactments which have been made in this country approximating to the Torrens legislation, were both unconstitutional. The legislation of most of our States abounds in modern statutes aimed at the clearing of titles from apparent adverse interests vested, if they exist, in persons outside the jurisdiction, or not as yet in being, or not ascertainable; and titles are being passed every day upon the faith of such statutes. It is competent to our