Response or Comment
Title Registration and Land Law Reform: A Reply, 8 University of Chicago Law Review 63 (1940)
Writing under the somewhat question-begging title of "The Resurrection of Title Registration" 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's earlier condemnation of that system in his Registration of the Title to Land in the State of New York, Professor Bordwell's 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's complaint is several-fold. The advocates of title registration, he asserts, have "largely assumed its manifest superiority over prevalent systems of recording." To explain away the "outstanding fact" of "the ineffectiveness," "the failure," of voluntary registration in this country and England they have "harped" upon the "self-interest" of solicitors and abstracters and title insurance companies and have adopted a "Satanic interpretation of history" which "does not get us anywhere." Experience in the Anglo-American countries demonstrates that registration must be made compulsory to amount to anything. But why make it compulsory? "Why all this fuss about title registration?" There has been "no such conspicuous failure" of the recording system or of title insurance as to discredit either. Title registration cannot make land "liquid" and "as easily transferable as a ship or a share of stock or an automobile"; such extravagant hopes are but a reflection of the fight for "free trade in land in England." "No millennium will be wrought by a register of title." 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 "by-product" (also the "most outstanding feat") of the struggle for registration in England. "The important thing to bear in mind is that the logic of registration of title is a revolution in our land law." Finally, we have one "system of public transfers" already; why "supplant" it with another which may raise constitutional and personnel difficulties and produce a lack of "coherence and uniformity" in the common law "throughout the country"? The Torrens System is a "foreign" system. "Regardless of the conclusiveness of the certificate, of the desirability of cutting off stale claims and of the modem tendency to look to the state," the case for it is not made out.
Date of Authorship for this Version
McDougal, Myres S., "Title Registration and Land Law Reform: A Reply" (1940). Faculty Scholarship Series. Paper 2492.