Page:Harvard Law Review Volume 4.djvu/296

280 28o HARVARD LAW REVIEW. LAND TRANSFER REFORM. SUGGESTIONS AS TO THE QUESTION OF CONSTITUTIONALITY. 'T^HE question of a simpler system of land transfer is attract- -*- ing a good deal of attention. Experience seems to have demonstrated the practicability of such a system. The question which rises first in the mind of an American lawyer with reference to any new mode of dealing with land titles is that of constitution- ality, — a question which may not have had to be considered in other countries. The essential features of the system which prevails in some English colonies appear to be, first, a conclusive recognition of title in a given person at a given date ; second, transfer thereafter, not by deed, but by a surrender of certificate and the issue of a new certificate conclusively defining the title of the new taker. I. The initial registration of a title, or the conclusive establish- ment of a starting-point. An official certificate of title, to be of final authority, must cut off all possible adverse claims. Under our system of constitu- tional limitations, possible adverse rights in land could not be cut off by a mere certificate of a public examiner. A special statute of limitations might be passed, limiting claims adverse to a certificated title to perhaps one or two years. Such a statute, under familiar principles, could be made to apply to existing claims. Another course would be to have the initial registration rest upon judicial proceedings. Action to establish a title conclusively in a certain person against all possible adverse claimants, known or unknown, is no novelty in our States. The principle of it is recognized in most, if not in all, of them. It is recognized in Massachusetts, for instance, in the conclusive probate of wills (Mass. Stat. 1889, c. 435), upon general notice by advertisement to all persons con- cerned, and more particularly in the proceedings to adjudicate upon the validity of mortgages of over twenty years' standing (Mass. Stat. 1882, c. 237) ; in proceedings to determine the valid- ity and effect of conditions and restrictions of more than thirty