The Chief Justice and Justices Harlan, Brewer and Peckham are here distinguished from their brethren by a truer appreciation of the everlasting duty of the Republic -throughout its dominions exemplifying that faith in its principles which shall promote unity and strength at home, and make it respected, imitated and feared abroad.

The united opinion of these judges, so strongly held, so calmly expounded, should yet prevail against the discordant arguments of the majority of the Court, who, at present, are too plainly disturbed by the Philippine adventure to exercise that serene judgment which supports the monuments of law.

*

"It must be remembered," says Chief Justice Fuller, at the close of his opinion in the Downes case, "that, as "Marshall and Story declared, the Constitution was framed "for ages to come, and that the sagacious men who framed "it were well aware that a mighty future waited on their "work. * * They may not indeed have deliberately "considered a triumphal progress of the nation, as such, "around the earth, but, as Marshall wrote: It is not enough "to say that this particular case was not in the mind of "the convention when the article was framed, nor of the American people, when it was adopted. It is necessary "to go farther, and to say that, had this particular case "been suggested, the language would have been so varied "as to exclude it, or it would have been made a special exception.' This cannot be said, and, on the contrary, "in order to the successful extension of our institutions, "the reasonable presumption is that the limitations on the "exertion of arbitrary power would have been made more " rigorous."

66 6

CARMAN F. RANDOLPH.

EXAMINATION OF TITLE TO LAND.

IN N England there are no lands not held strictly under "tenure," nor any proprietor, as the term is understood by us, except the monarch. In our own land we have adopted the same idea to the extent of holding all title to be derived through grant from the Crown or from chartered royal governments, prior to the Revolution, and later from the Federal or local governments, but the tenure here, particularly since the imposition of succession taxes, is, technically, free and common socage in great part, though ownership is allodial, and to all intents and purposes absolute, and the liability to escheat still exists.

Estates tail and primogeniture have been, as such, very generally expressly abolished-in many States they have never existed-and the period of limitations somewhat modified; distinctions and invalidities in future estates, arising from the form of the instrument creating them or from the artificial relation of some prior or future estate, have been abolished where such estates are not in contravention of the one test rule governing a suspension of the power of alienation; and the highly artificial legal fictions constituting the English uses and trusts have been pared down (so far as the courts would allow) to a very simple system of legally enforceable beneficial interests, governed by the laws of their creation, equally regulating the legal estates of which they had formerly been but the shadows.

But tenancy, joint, and by the curtesy, dower, lease, mortgage, and other rights and incidents of ownership of land are retained; and the forms of devolution of title by descent, devise, voluntary conveyance and involuntary conveyance (by fiction of law), are still the same, with some modifications owing to the peculiarities of local law.

Freedom of alienation has always existed in this country, and simple forms of conveyance have been usual.

The common English form of conveyance, by lease and release, devised to avoid enrolment or the ancient livery 3 Kent's Com., 377, 378.

of seisin, though practicable, has never been popular here; and there has prevailed a form of deed in the nature of bargain and sale, with various additions in the nature of assurance, for a long time increasing in verbiage and volume, but later, by statutory enactment, as in the State of New York, much curtailed.

The registry or recording acts as they are generally known, have greatly varied if not diminished the labor of title examination, and but for their perhaps too great extension by the courts (as in the case of assignments of mortgage, which were not originally intended to come within the now extended scope of their operation) have proved perhaps the greatest practical innovation in the law of realty as derived from the mother country.

As respects competency to take and convey title changes have not been great, other than in regard to femes coverts, who have been generally, in the modern term, emancipated from their much deprecated classification with infants, lunatics, traitors, felons and the like, and in the cases of aliens and corporations, who-the one at first through a courtesy of nations, later through the growing brotherhood in rights of man; the other through considerations of business convenience-have almost if not quite acquired all the rights of the native-born individual.

In earlier days when the examination of titles first began to develop as a work of professional requirement in England, and to involve the employment of solicitors, and careful investigation of the various documents, possessions, claims and charges on which the title was founded or by which it might be effected or encumbered, one of the first acts of the examining solicitor was to call upon the solicitors of the vendor for an abstract of title, and also a statement of any documents affecting the title or any adverse claims or encumbrances with respect to the same, within their knowledge. Thus early was the attempt made to enforce what is known to us as the doctrine of representation; and, by a further extension of such inquiries to those supposed to have some adverse claim of title or encumbrance, the doctrine of estoppel was inaugurated. This doctrine was apparently extended to the point of binding even infants and femes coverts; but probably not to the ex

tent of establishing an equitable system of transfer of title by these persons, who were expressly excluded from the rights of transfer. The theory was, however, carried so far as to preclude in some cases a mortgagee who, aware of the prospective purchase, stood by and gave no notice of his claim, from ever afterward enforcing it against the vendee. He was conclusively presumed to stand in the light of an accomplice in a fraud.

Further inquiries conducted upon the property itself, and with all persons found in occupancy were also customary. For judgments, decrees and the like, search was made in the places of registration provided in the courts for their docketing when intended to affect land, and in the court rolls, when the property was copy-hold.

It was sometimes considered proper to search, as at the Registry of Westminster, for lis pendens, and also for proceedings in bankruptcy and insolvency, annuities, and, in cases where the estate had been entailed or had belonged to married women, for enrolled deeds and acknowledg

ments.

Beyond these few simple precautions, coupled with the necessity of requiring production and delivery in the original of the various title deeds, but little was required as compared with the intricate system of title examination which has sprung up in America, where almost every property is always for sale, and the visitor greets his host with "What will you take?" and the customary reply is "What will you give?"

The end and aim towards which the examiner's whole effort tends is to satisfy his own judgment upon the ultimate question of the sufficiency of the title offered-its "marketability," as the set phrase seems to be.

It is generally conceded as an abstract proposition that, in the absence of express conditions of waiver or exception by contract, the purchaser is entitled to a good and marketable title. This is reasonable and logical as a primary proposition, for no man can be supposed willing to have agreed to take anything else, unless upon concessions necessarily in mind and which would naturally be expressed in the written agreement of purchase.

When we approach, however, the definition of market

ability upon which so much depends, we meet with conflicting theories and decisions, as staggering to the mind as the sayings of a number of men all bent upon accord in a common object can well be. "The title should be such," says one, "that if he wish to sell he may be reasonably sure that no flaw or doubt will arise to disturb its market value," "or mortgageable to a person of reasonable prudence," says another; again, "not to take a title when there is a defect in the record title, which can be cured only by a resort to parol evidence; " or, " depending on a disputed question of fact or a doubtful question of law; "2 and, "the burden of proof is on the vendor to show that the statute of limitations has cut off claims." All these are broad enough to let out almost any purchaser on any title. On the other hand it is said that "a pending action does not of itself make the vendor's title defective * * * and the burden rests upon the vendee to prove the alleged cause of action; "4 "if the defect or doubt * * pends upon some extrinsic fact not discovered by the record, he must prove this fact to justify a refusal to accept the title; "5"there is no inflexible rule that a vendor must furnish a perfect record or paper title; " "the burden of proof is on the purchaser to show that the title is defective:"7 "the mere fact that sufficient time has not elapsed under the statute to protect * * * is held insufficient to justify rejection."

*

de

From all these varying and often conflicting decisions as to marketability and as to the burden of proof, we are obliged to try to ascertain some reconciling principle; otherwise we shall be driven back almost upon a mere toss of chance, or the woman's reason, that the title is bad or good "because it is."

1 Hatt v. Hagaman, 12 Misc., 171, citing Schriver v. Schriver, 86 N. Y., 575, et al.

2 Fleming v. Burnham, 100 N. Y., 10.

3 Moore v. Williams, 115 N. Y., 586.

4 Simon v. Vanderveer, 84 Hun, 452; this case was reversed later (155

N. Y., 377), but for the time being was supposed to be law.

5 Greenblatt v. Hermann, 144 N. Y., 13.

6 Hillreigel v. Manning, 97 N. Y., 56.

7 Moser v. Cochrane, 12 Daly, 292, aff'd, 107 N. Y., 35; Cambreling v. Purton, 125 N. Y., 610.