The following is a statement of some objections that have been made to the system in the United States: -

(a) There can be no true Torrens system in this country because any law making a registered title indefeasible violates the constitutional guarantee that no one shall be deprived of property without due process of law. Some person or persons, possibly infants, having rights in the property, may, through error or oversight, not be named in the action to register the title, and may not receive notice of it. It is asserted that the omnibus designation "all other persons, etc." does not remedy this, and that as to these persons there has not been due process of law. It must be remembered, however, that any one so injured will be compensated from the assurance fund, but it is true that as to their rights in the property itself, they are deprived of them. Some authorities assert that the question of constitutionality has been decided by the United States Supreme Court in American Land Co. vs. Zeiss, 219 U. S. 47.

(b) Under the provisions of the law the initial registration is by means of a judicial proceeding resulting in an order or judgment of a court, but the law permits the transfer of a registered title to be made by a registrar or other public official without notice to anyone. This is upon the assumption that the transfer is merely the performance of a ministerial act. The question has been raised whether such official not being clothed with any judicial authority is not in reality performing a judicial function in interpreting an instrument and passing upon its sufficiency. The registration of the title in the name of the new owner is conclusive and binding upon all the world. Of course, one would not be allowed to profit by his fraud, if a forgery or other fraud had been committed, but the registered title may again be transferred and one taking it in good faith would have an indefeasible title. In cases of this kind, again, injured parties must look to the assurance fund - they cannot recover their property.

(c) Property cannot be removed from the system, once the title has been registered. No matter what may be the desires of the owner, his property is in a particular class and must stay there forever. It prevents the sale and mortgaging of the property to those who will not deal with a registered title.

(d) Upon the death of an owner of registered property a petition must be made to the court for an order directing registration of the title in the heirs and devisees. This is a proceeding involving some legal expense and is in addition to the proceedings on the estate in the Surrogate's Court. Property not under the provisions of the registration act passes at death directly to the heirs and devisees. Under the Torrens law they do not get title until, as a result of the court's order, it is registered in their names. While additional expense for the new registration may be small, it is avoided when the title is insured by a title company instead of being registered. The title policy protects not only the insured, but also his heirs and devisees, and there is no expense except the initial premium. Registered property is, of course, like other property subject to the lien of decedent's debts.

(e) Title registration is neither easy nor speedy. It takes the form of an action at law. Not only is the title examined (in practically the same manner as a title company examination) but in addition legal proceedings must be conducted. There are the notices to be given, their publication, and posting on the land, in addition to the delays caused by the successive steps in the Court proceedings. After all, the registration is not complete and conclusive until a certain period has elapsed (30 days after final order in New York). Does this indicate that the system has both ease and speed? Surely not on the initial registration. The answer of course is that subsequent transfers can be accomplished in a simple manner and without delay. This may be true, but what owner wishes to undertake to have his title registered? If his title is marketable, he can sell it just as readily (perhaps more so) unregistered as registered. Registration would cost him something and would add nothing to the value of the property. If the title is bad, it cannot be registered. There may be a few questions as to title which could be remedied by an action under the Torrens law, but the same thing could be accomplished by an action under other provisions of the law.

(f) The initial registration is not cheap. There are the fees for the examination of the title to be paid. The expense of publication of the notice, filing fees and other incidental expenses, the contribution to the assurance fund, and then the services of one's own attorney to be paid for.

(g) In New York, the county is not in back of the assurance fund; that is to say recovery of compensation for damages is limited to the amount in the fund, although future contributions may pay the claim in full in time. There have been efforts made to amend the law so as to make the county liable for claims in full regardless of the amount in the assurance fund. The Attorney-General of the State rendered an opinion that such amendment would be unconstitutional, referring to the section of the State Constitution which prohibits any county, city, town or village incurring indebtedness except for county, city, town or village purposes. On the other hand, the Hon. Samuel Seabury, former Judge of the New York Court of Appeals, has rendered a contrary opinion. It is nevertheless an objection to the registration of a title, or of bringing land forever under the registration law, that those who may be deprived of rights in the land by error or omission or misconception may not be able to recover compensation except after an indefinite period. If the system once got under way and the assurance fund grew in size this objection would be minimized.

It is not pretended that the foregoing are all of the objections to the so-called Torrens system of land registration. Those given, however, indicate to some extent why the law in New York State has not been more successful. New York real estate owners and dealers are alive and receptive to good ideas, but they are not using the Torrens system. While there are defects in the old system of title examination and insurance it evidently possesses more attractions for New Yorkers than does the one advocated by Torrens law adherents. Perhaps this is partly due to the fact that title insurance has reached a higher development in New York than elsewhere and partly to the fact that a model Torrens law has not yet been enacted. The sentiment in favor of the Torrens system may increase and it is quite possible that the future will see it in general use throughout the country.