In Guilbert, the Supreme Court of Ohio analyzed the constitutionality of a Torrens land registration system similar to the one still found in Guam, but lacking a personal notice requirement.Summary of this case from Taitano v. Calvo Fin. Corp
Decided June 22, 1897.
Registration of land titles in Ohio — "Torrens Law" — Invalidity of Act of April 27, 1896 — Constitutional law.
1. The remedy by due course of law guaranteed by section 16 of the Bill of Rights, extends to all the adversary rights of persons in property, and requires that before there is a judicial determination affecting such right process to obtain jurisdiction of the person claiming it shall be issued and served, except that the legislature may provide for a substituted or constructive service to be made when actual service is impracticable. The act of April 27, 1896, entitled "An act to provide for the registration of land titles in Ohio," etc., (92 O. L., 220), is repuguant to this section of the constitution.
2. Said act is repugnant to section 19 of the Bill of Rights, because it attempts to authorize the taking of private property for uses that are not public, and without compensation.
3. Said act is repugnant to section 1, of Art. 4, of the constitution, because it attempts to confer judicial power upon the county recorder.
The petition alleges that the defendants, who are state officers, are, by the act of April 27, 1896, entitled "An act to provide for the registration of land titles in the state of Ohio, and to simplify and facilitate the transfer of real estate" (92 Ohio Laws, pp. 210 to 262 inc.), charged with the duties of preparing a uniform system of blank books appropriate to carrying out the purposes of the act, and of furnishing such books to the probate judges and other officers in the several counties of the state and that they refuse to perform the same. It prays for a peremptory writ of mandamus commanding the performance of said duties.
The case is submitted on demurrer to the petition.
Edward H. Fitch and Guy Mallon, for plaintiff in error.
Brief of Edward H. Fitch.
Is the act of April 27, 1896, unconstitutional? With what provisions of the Constitution is it in conflict?
Article 1, section 19, declaras: "Private property shall ever be held inviolate, but subservient to the public welfare." This act, as we claim, does not interfere with any of the principles or rules of law, or with the powers of land owners, or their rights or liberties; but only with the machinery by which such rights and liberties may be acquired and protected and be made definite, certain and secure. 10 Ohio St. 473; 13 Ohio 118; 12 Ohio 366; 13 Ohio 113; 19 Ohio St. 484; 6 Ohio 358; 3 Ohio 140; 10 Ohio 305; 12 Ohio 386; 12 Ohio 364.
In this act notice is provided for, to all claimants, and a day in court is given to them. Sections 12 and 13; 17 Ohio St. 2; Cupp v. Commissioners, 19 Ohio St. 173.
Under this act a trial by jury is given in all cases where parties are entitled thereto. Sections 27, 33, 34, 35, 36.
It has been objected that the constitutionality of the act was in violation of article 2, section 16; that the bill contained more than one subject as expressed in its title. We submit that the title is unobjectionable. All one subject: Real Estate: "To provide for the registration of land titles in the state of Ohio, and to simplify and facilitate the transfer of real estate."
No law is revived or amended by it. Rairden v. Holden, Admr., 15 Ohio St. 209; 15 Ohio St. 573.
If not correct in this, and more than one subject is embraced in its title, still the act is not unconstitutional. Pim v. Nicholson, 6 Ohio St., 176.
This case was followed in 15 Ohio St. 573; 29 Ohio St. 116; 37 Ohio St. 494; 32 Ohio St. 463; Weil v. State, 46 Ohio St. 451; 3 Ohio St. 475.
Article 2, section 26: (What laws to have a uniform operation.)
The act is not in violation of that section. Heck v. The State, 44 Ohio St. 539; 15 Ohio St. 605; 52 Ohio St. 98; 53 Ohio St. 336; 2 Ohio St. 617; 34 Ohio St. 248; 42 Ohio St. 638.
Article 2, section 28. Retroactive laws.
The act is remedial, including the limitations therein. 15 Ohio St. 207; Lehmann v. McBride, 15 Ohio St. 573; 11 Ohio St. 542; 16 Ohio St. 11; 38 Ohio St. 48; 46 Ohio St. 450; 38 Ohio St. 447; 48 Ohio St., 106 and 89.
Article 4, section 1. (In whom judicial power vested.)
This act does not confer judicial powers on the recorder — ministerial only — See sections 41 to 71 inclusive. See section 52 as to lost certificate, and 66 as to power to administer oaths, issue subpoenas, etc. If any sections of the act in any degree confer judicial power upon the recorder, these are the ones. We claim they do not. No more powers are thereby conferred upon the recorders than required, to do their duty properly and perform the ministerial acts required of them. No more than has been the uninterrupted flow of legislative enactment since the formation of the state, to bestow power upon like officers. They have always by this court been held to be ministerial and not judicial.
See section 1019, Revised Statutes. Authority of auditor and deputies to administer oath, etc. Harmon v. Stockwell, 9 Ohio 93.
Section 1025. Here the auditor is required to act on proof. 22 Ohio St. 469. The language of the statute now is "shall make satisfactory-proof;" 30 Ohio St. 280; 44 Ohio St. 572, and sections 1026, 1038a, 1040, O. R. S.
As to recorder, see sections 1137 to 1162 inclusive.
As to county surveyor, see section 1169.
As to coroner, section 1221, may issue subpoenas, administer oaths, and examine witnesses.
As to clerk, section 1247. Also code in issuing writs, orders, injunction and other process.
As to inquisitors, section 1343a.
As to assessor, section 2738.
As to auditor also, section 2782, therein give power to issue compulsory process, etc. 114 U. S. 512; 106 U. S. 523; 55 Ohio St. 466; and sections 3938, 3939 and 3942, O. R. S.
These provisions have either been sustained by this court or have been acted upon unquestioned. They were all enacted for the same object and purpose that section 66, and the other sections in the "Torrens" act, were passed: As stated in said section 66, "For the purpose of carrying out the provisions of this act." To give the officers required to do certain ministerial acts the power to perform their duties, and to do the acts so adpertaining to their respective offices accurately, correctly and intelligently. No one ever supposed they conferred judicial powers, or were inhibited by the constitution.
Again full redress is afforded any party aggrieved by the action or non-action of the recorder. See section 69.
This court is bound to give such construction to the act as "will make the act consistent with itself and carry out the true purpose and intent of the law-makers." 48 Ohio St. 671.
Article 4, section 4. Their jurisdiction.
The jurisdiction of the courts of common pleas and of the judges thereof shall be fixed by law. Stevens v. The State, 3 Ohio St. 453.
Article 4, section 7. Probate courts.
Article 4, section 8. Their jurisdiction. "The probate court shall have jurisdiction in probate and testamentary matters, * * * administrators and guardians, and such other jurisdiction in any county or counties, as may be provided by law;" 4 Ohio St. 308; 6 Ohio St. 269; 16 Ohio St. 455.
Article 1, section 1. Right to freedom and protection of property.
Article 10, section 1. County and township officers.
Article 10, section 2. County officers when elected. The commission did not deem it desirable to create new offices and have officers elected to fill them; and in adapting the "Torrens system" to the laws of Ohio, added to the duties of existing officers and adopted to carry the act into effect, the machinery provided by existing statutes.
We have now referred to all the constitutional provisions touching the question, and can find none that have been violated, or with which this act is in conflict.
The general assembly in providing for a commission, and enacting the law, deemed the time had arrived when a better system should be provided for evidencing the transfer of titles to realty and for the registration thereof.
The necessity of the statute will not be inquired into. The necessity of their enactment, and the policy of their provisions, alike belong to the lawmaking power. Weil v. The State, 46 Ohio St. 456.
The entire details of the system that may be devised, and the public agencies that may be employed for administering it, and whether they shall be elected or appointed, is left by the constitution, to the wisdom of the legislature. The State ex rel v. Smith, 44 Ohio St., 372; 49 Ohio St. 459; State v. Hipp, 38 Ohio St. 219.
The act in question does not change or repealany existing statute. It attempts to adapt the principles of the Torrens system of registration of titles, to the laws of Ohio.
It leaves the old mode of recording deeds, in full force and effect; while it provides another mode of transfer of real estate and registration of the title thereto. It leaves it optional with the owners of fee simple estates to come under it, or to retain the old.
Assurance fund — provided for by sections 144-151.
It is not necessary to go into the details. If the party is living, he voluntarily makes the application, and pays the one-tenth of one per cent. It is uniform, fixed and equal. It is one-tenth of one per cent. on the value of the land as equalized and on the duplicate for taxation. It is paid voluntarily, and what right of a living applicant is effected by the statute? State ex rel v. Ferris, 53 Ohio St. 314; Patton v. Patton, 39 Ohio St. 597.
If then for the purpose of revenue, the legislature can pass an act taxing property received, surely the recipient can be required to submit to the expenditure of one-tenth of one per cent. of the appraised value of the land to be by him received, to protect himself against fraud or misrepresentation, and to secure an indefeasible title to his land. Under this act he will have either the indefeasible title, or a full compensation for any loss thereof.
From the time of the ordinance of 1787 to the present, land within the boundaries of Ohio, has been subject to registry laws, often changed, and rights seriously affected thereby.
Take deeds, a grantee has had different times to record his deed, during which time, his rights were not affected. Now must record at once. This law provides for registered land. All rights depend upon registry and entry upon the register. The exact state of the title is constantly posted. No one led astray.
Take for instance, a judgment. The statute provides when it shall be a lien, that affects all land not registered.
This act says it shall be a lien upon all registered land, when the same is in the manner provided, noted on the register. The constitution does not inhibit that. There is no provision in that instrument requiring only one system of registration, nor any prohibiting two. In many instances rights may be regained and wrongs may be redressed by the different forms of action and remedies now provided by our statutes. Where part of a statute is unconstitutional. 3 Ohio St. 1; 5 Ohio St. 497; 17 Ohio St. 684; 23 Ohio St. 84; 31 Ohio St. 344; 37 Ohio St. 35; 39 Ohio St. 411; 47 Ohio St. 504; 103 U. S., 84;
Judicial powers "are those conferred on judges as courts in the hearing and determination of questions arising in litigation between parties in actions pending before them." 55 Ohio St. 466; State ex rel v. Hawkins, 44 Ohio St. 109.
The constitutional provision was intended to confine judicial action within those precise limits. To judges in the courts provided for in the constitution, and in those created by the legislature.
Never, that all the great number of administrative duties required of officers, involving an inquiry into the existence of facts, and the application to them of rules of law, to properly discharge those duties, should be inhibited. 18 Howard, U. S. 272; 21 Ohio St. 11; 32 Ohio St. 464.
A retrospective statute, remedial in nature, that is, giving a new remedy for the enforcement of an existing right, is not repugnant to the provision in our constitution inhibiting the passage of retroactive laws. 48 Ohio St. 89; Patton v. Patton, 39 Ohio St. 590; Weil v. State, 46 Ohio St. 450.
In the reply brief of E. H. Fitch, he makes the following citations in addition to those in his first brief. 103 U. S. 288; 23 Wall., 148; 6 Cranch, Vol. 2, p. 330; Golden v. Prince, 3 Wash. C. C. Rep. 313; 6 Peters, 135; 10 How. U. S., 395; 2 Wall. U. S. 210; 18 How. U. S. 497; 14 Peters 67; 94 U. S. 155; 20 Iowa 343; 95 U. S. 168; 95 U. S. 628; 4 Wheaton 122; 112 U. S. 526; Miles v. Caldwell, 2 Wall. 35; Blanchard v. Brown, 3 Wall. 245; Equator Company v. Hall, 106 U. S. 86; 92 U. S. 554; 4 Wheaton 244; 2 Peters U. S. 492; 4 Wheaton 235; 94 U. S. 541; 101 U. S. 22; 26 Ohio St. 306; 29 Ohio St. 19 and 439; 110 U. S. 606; 92 U. S. 92; 92 U. S. 480; 92 U. S. 183; 21 Wall. U. S., 557; Jackson v. Lamphire, 3 Peters 280; 95 U. S. 628; Hawkins v. Barney, 5 Peters 451; Christmas v. Russell, 5 Wall. 290; 108 U. S. 50; 102 U. S. 203; 39 Ohio St. 540; 18 Ohio St. 237; 31 Ohio St. 343; 108 U. S. 514; 2 Peters, 413; 4 Wheaton 316; 104; U. S. 668; 98 U. S. 470; 104 U. S. 672; 2 Peters 657; 6 Chrach 87; Florentine v. Barton, 2 Wall. 210; Southerland on Statutory Construction, sec. 431.
Brief of Guy Mallon in support of the constitutionality of the act.
Surely, the act can not be unconstitutional in its general intent, either of purpose or means. Should such defects be found, the law would not be declared unconstitutional, but only such provisions as are clearly unconstitutional would be rejected. Sedgwick Statutory Construction, 413; Adler v. Whitlock, 44 Ohio St. 539.
All of the constitutional objections that we have seen urged to the adoption by the states of the "Torrens" system may be summed up thus:
Title can not be settled indefeasibly by decree because no decree can be entered which may not be impeached for want of jurisdiction or defect of parties. There may be present interests in parties unknown, or contingent or executory interests in persons impossible of designation, or still unborn, and such rights can not be bound by decree.
Titles resting upon decrees in rem are unimpeachable. "Within the last few years statutes have been passed in many of the states which, in express terms, enable one in the possession of land, claiming ownership, to quiet his title as against all the world; parties known and unknown, in being and not in being. These statutes have uniformly been held to be constitutional, when they are so drawn that the decree may operate directly upon the land, or, in other words, when they authorize proceedings in rem. Arndt v. Gregg, 134 U.S. 316; United States v. Fox, 94 U.S. 315.
The spirit and intent of the act before the court are in entire harmony with the earlier statutes and decisions of this state. Lessee of Boswell et at. v. Sharp Leppelman, 15 Ohio St. 447; Dembitz on Land Titles, Chapter XIV; Perkins v. Wakeham, 86 Col. 580.
It is axiomatic that a judgment or decree in rem binds all the world. Dembitz on Land Titles, section 143, page 1062. In the notes to the Duchess of Kingston's case, as reported in Smith's Leading Cases, 9th edition, Vol. 3, page 2015, the nature and effect of a judgment in rem are explained. Van Fleet on Collateral Attack, 394.
Registration of title is a proceeding in rem. Whether or not the hearing, upon application for registration, as provided in the act before the court may be considered to be a proceeding in rem was not allowed by the legislature to remain a question, for it is, in ipsis verbis, enacted (section 81).
It is true that in Ohio we are more familiar with decrees in rem, in suits in admiralty, than in actions wherein the subject matter is land, but we shall show, presently, that the proceeding to register land under the act of April 27, 1896, must be held, under the authority of former Ohio decisions, to be a proceeding in rem, and in harmony with numerous previous enactments. Cupp v. Commissioners of Seneca County, 19 Ohio St., 173.
In Ohio statutes have been held to authorize proceedings in rem which have provided for the following purposes: (1) quieting title; (2) sale of decedents' lands to pay debts; (3) sales of land of infants and lunatics; (4) appropriation of property by right of eminent domain; (5) locating and establishing ditches and drains; (6) sale of land by state for taxes; (7) assessments, etc.
(1) Quieting title. Sullivan v. Weaver, 10 Ohio 275; Lamb v. Boyd, 4 C. C. 499; Van Fleet on Collateral Attack, 367; Gurnay v. Waldron, 137 Mass. 376; Perkins v. Wakeham, 86 Cal. 580; Gage v. Lightburn, 93 Ill. 248; McDuffee v. Linnott, 119 Ill. 449.
(II.) Sale of decedent's land. Robb v. Lessee of Irwin, 15 Ohio., 689 (action of ejectment) 1846; Benson v. Cilley, 8 Ohio St. 604; Ewing's Lessee v. Higby, 7 Ohio (pt. 1.) 198; Ewing v. Hollister, Ib. (pt. 2), 138; Lewis v. Lewis' Admin., 15 Ohio 715; Snevely v. Lowe, 18 Ohio 378; Sheldon's Lessee v. Newton, 3 Ohio St., 494; Cadwalader v. Evans, 1 Disney, 585; Callen v. Ellison, 13 Ohio St., 446. The action by an administrator to sell lands of a decedent for payment of debts is, in Ohio, no longer a proceeding in rem, having been given an adversary character, in personam, by act of April 15th, 1858. R. S., section 6142. Wood v. Butler, 23 Ohio St. 520; Grignon's Lessee v. Aster, 2 How. 319.
(III.) Sale of Ward's land. In Ohio also, in earlier years, the statutes governing the sale of land by guardians were the same as in the case of administrators. Lessee of Stall v. Macalester, 9 Ohio 19; Mauarr v. Parish, 26 Ohio St. 636; Arrowsmith v. Harmoning, 42 Ohio St. 254; 118 U. S. 194; Rever on Judicial Sales, section 322; Mohr v. Maniere, 101 U. S. 417; Dembitz on Land Titles, section 152.
IV. Appropriation of property. The act which appears to approach more closely to an invasion of the sacred rights of private property than any other is that granting municipalities the right of appropriation of property, through proceedings in the probate court. The portion of the act providing for notice is now found in section 2237 of the Revised Statutes.
This act provides for no service whatever, even by publication upon any party having an interest in the real estate, except the actual owner. Under this analogy, the act before the court need have provided for no notice whatever, because the owner must make the application, and consequently has notice. And yet section 2237 has been held to be constitutional at least twice. Harrison v. Village of Sabina, 1 C. C. 49; Railroad Co. v. Village of Belle Centre, 48 Ohio St. 273.
The act of 1839 providing for the appropriation of property for street purposes did not provide for service of summons or other form of notice to be given the property-owners, but provided only for a publication in a newspaper, and yet it was held constitutional and such notice held sufficient. McMicken v. City of Cincinnati, 4 Ohio St. 395.
V. Locating ditches. The various acts which have been passed for the locating, establishing, etc., of ditches in Ohio, which provided for no notice to nonresident owners, except by general publication of the location of the ditch and the intention to appropriate the necessary land, have been held constitutional. Miller Swan v. Graham Smith, 17 Ohio St. 1.
VI. Tax sales. It has never been doubted but that a state may forfeit land for the nonpayment of taxes upon notice to all the world by publication, or even without notice. Arndt v. Griggs, 134 U. S. 323; Dembitz on Land Titles, section 174.
VII. Assessments, etc. To levy an assessment upon real estate is undoubtedly "depriving a person of property." Assessments lie in rem. Sometimes such laws provide for notice to the resident property-owners; sometimes notice of the assessment is to be given to those in whose name the real estate is listed upon the tax duplicate; sometimes general notice by publication only is provided for. Caldwell v. Village of Carthage, 49 Ohio St., 334; Van Fleet on Collateral Attack, 369; Wood Pond v. Stanberry, 21 Ohio St. 142; Lowber's Lessee v. Beauchamp, 2 Harrington, 139.
Contingent interests. Persons unborn. It may be said that the notice and service required by sections 12, 13, 14 and 15 of the act before the court, while sufficient to bind all parties in being, having title or interest in the property at the time of the publication, can not preclude contingent interest thereafter accruing, or affect the rights of those therafter born.
We answer —
1st. It is the essence of a proceeding in rem that the decree binds all the world; those in being, both as to present and after-acquired interests, and those not in being, in whom if thereafter born, rights would otherwise have vested.
2d. The act interferes with no vested rights, but simply may nullify the effect of instruments, which might have created rights in the future had not the legislature enacted that a decree of a court could prevent the operation of such private arrangements.
And a purchaser, in good faith, need not inquire into the matter of notice. See explanation of the Settled Land act of England (1882) in Chap. XXII; Lewin on Trusts (pp. 550-564, 8th ed). See also Dembitz on Land Titles, section 156, for the statutes of the various states. Campell v. Watson, 8 Ohio 499.
We may learn with what great disfavor the common law regarded any complication of title, or interference with right of immediate transfer, from Lord Coke's forcible invective in the case of Mary Portington, 10 Coke, 35a; and in the noted Taltarums case, Co., Litt. 19b; Arndt v. Griggs, 134 U. S. 315.
The decree is in rem (section 81), but any person not having actual notice may assert his right by action against the land within five years from the entering of the decree (section 82), but the rights of bonafide purchasers shall not be disturbed (section 83).
The statutes therein quoted are to the same effect as sections 10, 12, 13, 14, 15, 81, 82 and 83, of the "Torrens" act, which in turn are but an adaptation of Revised Statutes of Ohio, sections 5048, par. 4. 5355 and 5356.
The five years "limitation." Section 83 is a mere corollary of section 81.
Such a decree could not be attacked collaterally, whether rights had intervened or not, in the absence of statutory enactment. Van Fleet on Collateral Attack, page 3, 223, 306, 390, 608, 625, 718, 814.
As to section 82, providing for a "limitation of five years" we should say, first, that there is no legislative impossibility in allowing certain persons to be excepted from the operation of a decree in rem for a short period, if such exceptions are deemed advisable, and, second, this five-year clause is not a statute of limitation. It is a right of review or of new trial. It is the right given in all proceedings in chancery, to a party, served by publication only, who has not had actual notice.
The same provision has always been in force in Ohio. It was contained in section 60 of the act of 1831. "Directing the mode of proceeding in chancery," and is to be found in the Revised Statutes, Title I, Div. 4 Ch. 6, which chapter is entitled "New trial, etc.," section 5355.
The only reference to the inviolability of private property contained in our Constitution is found in the Bill of Rights, section 19, article 1.
That the legislature has power to establish any reasonable statute of limitations is elementary, 13 Am. and Eng. Ency., 696, and such statute will be operative upon existing rights and contracts,' because, although it may alter rights and divest title, it does not impair the obligation of the contract. Stearnes v. Gittings, 23 Ill. 387; McDuffee v. Sin. nott, 119 Ill. 449; Terry v. Anderson, 95 U. S. 628.
This is particularly applicable to the "Torrens act," which deals primarily, not with property or rights in property, but merely with the manner of transferring property, and the forms through which rights in property may be conveyed; and the rules of evidence thereof.
This act is not nearly as dangerous to property rights as our recording acts. Lessee of Simeon Jennings v. Robert Wood, 20 Ohio 261.
The doctrine that a purchaser, "bona fide and without knowledge, and for a valuable consideration," can acquire a title to property absolutely indefeasible, by or through a judgment, has always been law in Ohio.
It is now embodied, practically in the language of sections 82 and 83 of the "Torrens" act, in our Code of Civil Procedure. Revised Statutes, sections 5355 and 5356.
These enactments have not only been held constitutional, uniformly, but also in the case of Chauncey v. Davenport, 16 Ohio St. 178, this honorable court takes occasion to commend the legislative policy in this regard. Railroad Co. v. Village of Belle Centre, 48 Ohio St. 273.
The insecurity of all land titles, because of the possibility of facts dehors the record, has led to the enactment of "statutes of repose," which go immeasurably farther towards offending against "due process of law" than the "Torrens act." Mass. Stat. Ch. 237; Delano v. Smith, 142 Mass. 490.
The most radical of all these enactments is, probably, that of Illinois, commonly called the "Burnt record act," which has been declared constitutional in all its provisions. Gage v. Caraher, 125 Ill. 447-452; Heacock v. Lubuke, 107 Ill. 396; Heacock v. Homer, 109 Ill. 245. Revised Statutes of Illinois, 1883, Hurd, Ch. 116, section 10.
The objection to the "Torrens act," is raised that it conflicts with our Constitution in section 26 of article 11.
We say not. While this court has held that municipalities cannot be made the subject of arbitrary classification, it has never held that property or the owners of property are not proper subjects of classification. Adler v. Whitbeck, 44 Ohio St. 539; State v. Nelson, 52 Ohio St. 88; State v. Ferris, 53 Ohio St. 314.
To call the Torrens system class legislation is to misconceive the scope of the act. It does not deal with substantive rights of property, but with rules of evidence and forms of remedy. It creates no new rights, transfers no titles; but it offers to all alike an opportunity of rendering conclusive, for all time, the evidence of existing rights.
Those who elect to take advantage of this act cannot be heard to complain. Section 80.
Third parties, not being in privity of interest, have no standing to object. The same is true of very many existing laws.
A man may elect whether he shall have his deed or mortgage recorded or not, and upon his decision will depend largely the way of proving his title, and even the assertion of his right.
R. A. Harrison, and J. K. Richards, for defendants.
An examination of the act shows that its cardinal objects are to create an additional system of land titles to a part of the lands in Ohio, and an additional mode of legal procedure for the determination of controverted titles to such lands, by effecting as to such lands, most radical changes in all the laws in force governing titles to lands in the state, and to do this without expressly repealing or suspending any existing laws. Almost every provision of existing laws for the conveyance, encumbrance, transfer, transmission, and partition of land in Ohio, will, under the operation of this act, become of no effect as to the lands, and the title to the lands, which may become subject to it by proceedings thereunder.
The holder of such certificate has, under the provisions of this act, a good title as against all the world, unless he has obtained it by fraud, or has received the same without paying value therefor, from one who has obtained it by fraud. And a bona fide purchaser for value without notice from one who has obtained a fraudulent registry of title is protected even as against the party defrauded.
After a title has been registered, no adverse title by possession can be acquired as against the registered owner, no matter how long the duration of such possession may be.
The registered owner has an absolute title, and in case of error in registration, his title is still secure, and the true owner is deprived of his land and is thrown upon the "indemnity fund" for compensation.
It is submitted that the act in question contravenes several provisions of the constitution of this state.
First — Because although it is "a law of a general nature," it has "not a uniform operation throughout the state;" in that (1) it provides for two essentially different, distinct and separate systems for the acquisition, conveyance, encumbering, transmission, and partition of lands in this state, and for the determination of the titles to lands therein, (2) it expressly denies the right of some persons who claim to be, and who are, the owners of indefeasible estates in fee simple in real estate situate in Ohio to institute proceedings under the act, whereas all other persons claiming to be the owners of such titles to land in Ohio are entitled to institute such proceedings; (3) it denies the right, given by the general law of the state, of any party against whom a judgment is rendered or a final order made by the circuit court to prosecute a petition in error to this court to reverse, vacate or modify the same. (The 3d specification is based not only on provision of the constitution of Ohio, but also upon a clause of the fourteenth amendment of the constitution of the United States.)
Second — Because it authorizes proceedings instituted and judgments rendered therein, to establish alleged titles of petitioners under it, and to extinguish the titles and claims to such lands of all other persons, without due course or process of law; in that (1) it dispenses with personal service of process or notice of the proceedings upon parties who are residents within the territorial limits of other counties of this state than the county in which the proceedings are instituted, and who are amenable to such process or notice; (2) it provides for binding and concluding the titles and claims of persons in private property without designating them by name as parties, although their names are known to the petitioners; (3) although the proceedings are inter partes, being either in personam, or partly, in personam and partly in rem, the act authorizes necessary parties thereto to be notified of the commencement thereof without designating their names, and merely by a notice addressed to "all whom it may concern," although their names are known to the petitioners, or they have the means of ascertaining them; (4) proceedings under it are extraordinary and without precedent in the legislative and judicial history of the state, and are not such as to afford the means of an investigation and proper determination of titles to land in this state, and will result in wrong and injustice to many citizens thereof.
Third — Because it confers judicial power upon county recorders of deeds.
Fourth — Because the "assurance fund" feature authorizes the taking of private property for private purposes, without the owner's consent. Fifth — Because it impairs the obligation of contracts, contrary to a provision of the constitution of the state as well as a provision of the constitution of the United States.
The states are inhibited from depriving any person of property without "due process of law,"and from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States as to property. Constitution, amendment XIV, section 1. Murray's Lessee v. Hoboken Land Improvement Co., 18 How., 276. To the same effect, Allen v. Armstrong, 16 Iowa, 598; Ervine's Appeal, 16 Pa. St., 256. Whether a mode of procedure is due process depends not upon considerations of form, but upon the principles underlying the process. Administrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen. Cooley's Constitutional Limitations, 356. The states, therefore, may prescribe their own modes of proceeding and trial, provided these landmarks are not overridden. Hoke v. Henderson, 4 Dev. N. C., 15; Story Commentaries on the Constitution III, 661; 4 Hill (N. Y.,) 146; Pennoyer v. Neff, 95 U. S., 714; Constitution, Amendments, Art. V.; Hurtado v. California, 110 U. S., 516.
This constitutional guaranty is Section 7. Bill of Rights. This is the equivalent of the phrase "due process of law," or "the law of the land." Turnpike Company v. Parks et al., 50 Ohio St. 560; Alder v. Whitbeck, 44 Ohio St. 539.
The object of the guaranty was, in part at least, to interpose the judicial department of the government as a barrier against aggressions by any other department. Wynehamer v. The People, 13 N. Y., 378; Bouviers'sLaw Dic., 1; Bl. Com. 138; Webster's Dic.; Westervelt v. Gregg, 12 N. Y. 202; Taylor v. Porter, 4 Hill 140.
The truth is, the bills of rights in the American constitutions have not been drafted for the introduction of new law, but to secure old principles against abrogation or violation. They are conservatory instruments rather than reformatory. Weimer v. Bunbury, 30 Mich., 213; Hagar v. Reclamation District No. 108, 111 U. S. 701.
Jurisdiction of the res is obtained by seizure under process, whereby it is held to abide such orders as may be made by the court concerning the property seized. Cross v. Armstrong, 44 Ohio St. 623; Vandewater v. Mills, 19 How., 89.
All these proceedings are civil in their character, and the res must be proceeded against where the party defendant is out of the jurisdiction of the court, and the proceeding against the thing is known in law as a proceeding in rem or a proceeding quasi in rem.
There are certain conditions and means under and by which the res is brought under the control of the court:
1. The court must have jurisdiction over the subject matter, and actual dominion over the thing.
2. A petition or information must be filed in a court of competent jurisdiction asking the seizure of the thing, setting forth a right of action against the thing or the owner of the thing attached, and praying for judgment of condemnation or sale for the debt.
3. Notice must be given to the owner of the thing of its seizure, and the nature of the proceedings against it, or notice to the world, where the action is PURELY against the thing.
4. Opportunity for intervention and defense by the owner of the thing must be given. McVeigh v. The United States, 11 Wall. 267.
5. A judicial finding of the facts alleged in the information or petition and a judgment of condemnation or sequestration are necessary.
6. The conclusiveness of the decree rests upon the sufficiency of the notice and regularity of the proceedings.
7. Seizure of the property may be by process issued from the court or by its being placed in the custody of some officer of the court or by law under the control of the court.
8. Under the divisions named, where a title to a right in, or the determination of some right pertaining to, real property within the jurisdiction, the proceedings become lis pendens on the filing of the petition sometimes, and always on the filing of the petition and service of notice. It is said that this rule may sometimes operate with harshness, especially where the notice is constructive, as in many cases, but general convenience requires it. Murray v. Ballou, 1 Johns. Ch., 576.
Proceedings purely in rem are where the court in its plenary power of the law, based on legislative will and the authority of the goverment lays hold of and acts directly on the property itself and transfers its ownership to the purchaser by a title paramount to that of the owner, and without regard to the persons who are interested in it.
Sales by administrators may be purely in rem, or partly in rem and partly in personam. Vansycale v. Richardson, 13 Ill. 173; Shield v. Ashley, 16 Mo. 471; Miller v. Greenham, 11 Ohio St., 486; Day v. Micon, 18 Wall. 156; Cooper v. Reynolds, 10 Wall. 316; Davidson v. New Orleans, 96 U. S. 97; Brown v. Board of Levee Comrs. 50 Miss. 487.
It is necessary, in order to determine what kind of notice will constitute due course or process of law in any judicial proceeding affecting an individual's title to land, to ascertain what notice has always been required and deemed essentially necessary in actions or proceedings of that kind.
The general law of this state has always, in such cases, required actual notice by service of summons to all known persons who are directly interested residing within the State, and notice by publication to all who are unknown, or who conceal themselves to avoid service of summons, or who reside out of the state; and it has further provided that when notice is given in the latter mode a party against whom judgment or final order has been rendered, may at any time within five years after the date of the judgment or order, have the same opened and be let in to defend. 2 Chase's St., 786; Swan's St. of 1841, p. 701; Revised Statute section 5048 to 5053, inclusive, and section 5355. Cooley Con. Lim. (5th Ed.), 499.
It is submitted that the true rule, under the long established laws of this state as to the course of judicial process, is that laid down in Hamilton v. Brown, decided by the Supreme Court of the United States, March 2, 1896, 161 U. S., 256.
Proceedings under the act of 1831, to provide for the partition of real estate (Swan's Ohio Statutes of 1841, p. 612), were held to constitute proceedings in rem, or to be analogous to those in rem. Glover v. Ruffin, 6 Ohio 255; Pillsbury v. Doolan, 9 Ohio 117.
So, a proceeding by an administrator to sell lands to pay debts under the act of 1831, like the act of 1824, was held to be in rem. Adams v. Jeffries, 12 Ohio 253; Payne v. Moreland, 15 Ohio, 442; Sheldon v. Newton, 3 Ohio St., 500; Benson v. Selly; 8 Ohio St. 604.
Such proceedings are now adversary, and not in rem; so that the lien of a mortgagee not made a party is not affected; the liens are not transferred to the fund. Holloway v. Stewart, 19 Ohio St. 472. Probate judicial proceedings are not always in rem; if they are conducted contradictorily with persons after notice, the case is in personam.
The condemnation and appropriation by a county of land for drainage purposes, was held to be a proceeding in rem; the court holding that jurisdiction over the party is not necessary. Cupp v. Seneca County, 19 Ohio St. 173; Miller v. Graham, 17 Ohio St. 1.
Under the Guardians' act of 1824, it was held that if minor heirs were not named as defendants, but their appearance was entered by their guardian, they were bound by the sale, and the purchasers' title was not affected. Ewing v. Higby 7 Ohio, 1st pt., 198; Ewing v. Hollister, 7 Ohio, 2d pt., 138; Moore v. Starks, 1 Ohio St. 369; National Bank of New Lisbon v. L. S. M. S. R. R. Co. 21 Ohio St. 221; Cross v. Armstrong, 34 Ohio St. 623.
It is well settled by the course of decisions in Ohio, that the object of "water-craft law" was to provide a convenient and efficient remedy by subjecting the boat or vessel itself to seizure, and to avoid the difficulty of ascertaining and proceeding against the owners. Thompson v. Steamboat Julius D. Morton, 2 Ohio St. 27.
The following cases determined in courts of other states or federal courts may aid in the solution of the question in hand. Brown v. Board of Levee Com'rs, 50 Miss. 468; Shepherd v. Ware, 46 Minn. 174; Penneyer v. Neff, 95 U. S. 714; Hart v. Sansom, 110 U. S. 151; Langdell, Eq. Pl., 2d ed., sections 43, 184; Massie v. Watts, 6 Cranch, 148; Orton v. Smith, 18 How., 263; Vandever v. Freeman 20 Tex., 334; Felch v. Hooper, 119 Mass. 52; Ager v. Murray, 105 U. S. 126, 132; Arndt v. Griggs, 134 U. S. 316; Reimer v. McKay et al., 54 Fed. Rep. 432; Bennett v. Fenton et al., 41 Fed. Rep. 283; Harvey v. Tyler, 2 Wall., 328; Kelley v. State, 6 Ohio St. 269; U. S. v. Crinkshank, 92 U. S. 542; Missouri v. Lewis, 101 U. S. 22.
Article I., Section 16, of the constitution of the state, guarantees equality and certainty of remedies in the laws. Lewis v. Webb, 3 Greene, 336.
An act which is partial in its operation, if it be general in its nature, is void. Vanzant v. Waddell, 2 Yerger, 260; Bank v. Cooper, 2 Yerger, 599. Constitution, Art. 1, section 10, prohibits the states from passing any law impairing the obligation of contracts. Art. II, Section 8, of the constitution of Ohio, contains the same inhibition against the legislature.
This prohibition is aimed at the legislative power of the state, and not at the decisions of its courts or the acts of administrative or executive boards of officers. New Orleans Water Works Co. v. Louisianna Refining Co., 125 U. S. 118.
The impairing of the obligation must be made by a provision of the constitution of the state, or by some act passed by the legislature of the state, in order to warrant the intervention in behalf of the individual against the same. New Orleans Gas Co. v. Lowisianna Light Co., 115 U. S. 650.
The term "contract" is held to mean a legal and binding agreement in respect to property, either expressed or implied, executory or executed, between private parties, or between the state and a private party; or a grant from one party to another; or a grant, charter, or franchise from a state to a private party or parties.
The term "obligation" is held to mean the existing body of law, defining, regulating, securing and giving sanction to the contract. Bronson v. Kinzie, 1 Howard, 311; McCracken v. Hayward, 2 Howard, 608. In fact, we may say that the, chief element in the obligation is the existing remedy provided by law for its enforcement. Walker v. Whitehead, 10 Wallace, 314; Tennessee v. Sneed, 96 U. S. 69; Edward v. Kearzay, 96 U. S. 595; Louisianna v. New Orleans, 102 U. S., 203. Any distinction, therefore, between the obligation and the remedy, in this connection, is unsound. Nelson v. St. Martin's Parish, 111 U. S. 716; Green v. Biddle, 8 Wheaton.
The state may not pass an insolvent law which shall apply to past contracts. Sturgis v. Crowning shield, 4 Wheaton, 122. It may not suspend the remedy as to past contracts. Cooley, Con. Lim., 357. It may not so shorten the period of a statute of limitations as not to leave a reasonable time for the commencement of a suit. Hawkins v. Barney, 5 Peters, 457; Sohn v. Waterson, 17 Wallace, 596; Terry v. Anderson, 95 U. S., 628.
The act is invalid, because it vests judicial power in the county recorder, in violation of article 4, section 1, and the sections conferring this power cannot be rejected without impairing the integrity of the law.
The modes of reviewing the action of the recorder while exercising judicial power, are provided in sections 69 and 132. Section 69 virtually provides for a proceeding in error after the method sought to be pursued in Musser, Auditor v. Adair, 55 Ohio St. 466. Section 132 provides for an appeal from the findings of the recorder in certain cases to the probate or common pleas court, a mode of review unsuccessfully attempted in the Logan Branch Bank case, 1 Ohio St. 433.
These two sections admit that the recorder exercises judicial power by providing a method of reviewing his findings and correcting his mistakes by an appeal to a court. The ordinary rule is that the action of a ministerial officer, vested with discretionary powers, will not be interfered with or controlled by a court, in the absence of bad faith, fraud or gross abuse of discretion. State ex rel. Insurance Company v. Moore, 42 Ohio St. 103; State ex rel. v. Hawkins, 44 Ohio St. 98; Decamp v. Archibald, 50 Ohio St. 618.
The assurance feature of this law is in contravention of Article I., section 19, which declares "private property shall ever be held inviolate, but subservient to the public welfare." McCoy v. Grandy, 3 Ohio St. 463.
What right has the state of Ohio to go into the insurance business? What power has the state to take the property of A., not for public purposes, but to make good the loss of B. who has been deprived of his land by the fraud. It has no more power to insure land owners against loss by fraud or mistake in registration, than it has to insure the owners of houses against loss by fire or citizens against loss by theft or burglary. But after all the purpose of insurance is private, not public. The state does its full part when it supervises such business. Private property should be held inviolate. There is no place for socialism or communism under our constitution. Reeves v. Treasurer, 8 Ohio St. 346: Coal Co. v. Rosser, 53 Ohio St. 23.
SHAUCK, J. It is admitted that the alleged dutyis charged upon the defendants by the terms of the act cited. Whether the act is constitutional is the only question raised by the demurrer.
A complete analysis of the one hundred and sixty-eight sections of the act would not be practicable. Present purposes will be best subserved by the briefest statement of its provisions, which will bring into view those whose validity is denied upon constitutional grounds. It provides for what is usually called the Torrens system of land titles, with some modification. It requires assignees and trustees for the benefit of creditors to take such steps as will bring the lands in their hands within its operation. It authorizes other trustees and executors and all other persons claiming to be the owners of land to take such steps. It provides that all lands once brought within its operation shall so remain. In its general scope it provides that as to all lands within its operation the registration of title shall be substituted for the system of registering deeds heretofore in operation in the state, and that every registered title shall at once become indefeasible in the hands of the purchaser for value from the registered owner. The proceedings by which such registration is to be accomplished, and all claims of interest in the lands adverse to the registered owner cut off, are the subject of the earlier sections of the act.
The application must be made in writing filed with the probate judge or the clerk of the court of common pleas in the county where the land is situated. The substance of the application is prescribed as follows:
Section 7. Every application must contain an accurate description of the land, the amount, nature and kind of every incumbrance; the full name and post-office address of the persons owning the land adjoining the land sought to be registered; if occupied, the full name and post-office address of the occupant; the kind of estate he holds and when it will terminate, and all easements and inferior estates to the fee simple, either in law or equity, of every kind, must be clearly stated, with the full names and post-office addresses of the persons holding such estates. The application shall contain such further statements as is (are) required by this act, or may be required by the court in which the application is filed, for the purpose of carrying out the provisions of this act.
Forms of application are prescribed by the act.
The provisions as to notice are as follows:
Section 12. Immediately on the filing of such application, the court shall cause the applicant to give notice by publication in some newspaper of general circulation in said county, for the period of four consecutive weeks, inserted once a week, to all whom it may concern.
Section 13. The notice required by section 12, shall be in substantially the following form:
To whom it may concern: — You are hereby notified that ___of ___, in the county of___ and state of Ohio, did, on the___ day of___, A. D. 189 ___file with the______ court of said county, his application to register his title in and to the following described lands (here briefly describe the same, giving township, lot, etc., in substance as in application), and that______ be certified as the registered owner thereof. And that on the ___day of___, A. D. 189___, at___ o'clock, ___m., at the said court, in the ___of___, in said county, said application will be heard, and order taken in respect thereto, as asked in said application.
You are hereby further notified that if you have or claim any estate or interest in, or any lien upon said lands, or know of any reasons why such lands should not be registered, or wish to file objections thereto, you are required to then and there appear and assert your claim, and file your objections to the registry of said land, or the said lands will be ordered registered and brought under the provisions of the act of the general assembly of Ohio, passed the ___day of______ A. D. 189___, and thereafter dealt with under said act as registered land and you will thereafter forever be debarred and stopped from setting up any claim thereto, or therein except under the provisions of said act.
Section 14. Immediately on the first publication of said notice, the publisher shall file with the court as many copies of the notice as the court may require for service, and said court shall cause the applicant, or some other competent person, to serve each person named in said application, resident of the county, with a copy of said notice. And persons named in said application, residents without the county, must be served by sending a copy of said notice to their address by mail. Proof of service shall be made by the sworn affidavit of the person making the same, and filed with the court; such proof must show that such service was made personally or by mail, at least twenty-one (21) days before the day so fixed for the hearing of the application.
Referees may be appointed to determine questions arising on applications. Surveys and abstract may be required, and the "court may establish rules for procuring correct abstracts from responsible parties."
The duties of the court and the requirements of persons notified are prescribed in sections 23 and 33, as follows:
Section 23. Upon the hearing of an application to register land, the court or referee shall carefully examine the same, together with all records, papers and surveys pertaining to the title of said applicant, as required by this act, and if the statements therein are found by the court to be true, and that the applicant is the owner thereof, and has the fee simple title to the land therein described, and that all of the provisions of this act have been complied with and that the applicant is entitled under this act, to have the title of said land registered, the court shall order that said lands be registerd and brought under the provisions of this act, and thereafter dealt with as registered land.
Section 33. Every person notified, either personally, or by application of the notice required by section 12 of this act, of a filing of an application to register lands, who has or claims to have any estate right, title or interest in, or lien upon the land in the application described, or any part thereof, adverse to the applicant, and that is not fully admitted in the application, shall on or before the day set for the hearing of the application, set forth in writing, their respective claims, giving the nature and particulars thereof. Such written statement shall be signed, sworn to, and filed in the court, on or before the day last aforesaid.
Sections 34 and 35 prescribe the procedure if an adverse claimant appears, and the right to take an appeal or prosecute error is prescribed as follows:
Section 36. The party or parties aggrieved by the finding, judgment, order or decree of the court, provided in sections 34 and 35, and 68 and 69, may appeal, or prosecute error, direct either from the court of common pleas, or probate court, in such manner as is provided by law, to the circuit court, which court shall have final jurisdiction in such cases, and no petition in error therefrom shall be allowed to be filed or prosecuted.
The orders of the court made upon the application are to be entered upon the land registration docket, and it "shall be conclusive evidence in all courts of the state, of the facts therein stated, except as otherwise provided in this act." The order with all papers, etc., is then to be transmitted to the recorder by whom the land is registered upon "the register of land titles."
The general results of registration are defined in the following sections:
Section 72. The registered owner of any estate, or interest, in land brought under this act, shall, except in case of fraud to which he is a party, or of the person through whom he claims, without valuable consideration paid in good faith, hold the same subject only to such estate, mortgages, liens, charges and interests, as may be noted on the last register of title in the recorder's office, and free from all others, except:
First — Any subsisting lease, or agreement for a lease, for a period not exceeding three years, where there is an actual occupation of the land under the lease. The term lease shall include a verbal letting.
Second — All public highways shall be deemed to be excluded from the certificate.
Third — Any tax or special assessments for which the sale of the land has not been had at the date of the certificate of title.
Fourth — Such rights of action as are followed by this act.
Fifth — Liens, claims or rights arising or existing under the laws of the United States, which the statutes of Ohio cannot require to appear of record upon the register.
Section 73. Except as herein otherwise provided, no person taking a transfer of registered land, or any estate or interest therein, or of any charge upon the same, from the registered owner, shall be held to inquire into the circumstances under which, or the consideration for which such owner, or any previous registered owner, was registered, or be affected with notice, actual or constructive, of any unregistered trust, lien, claim, demand or interest in the land.
Section 74. In the case of fraud, any person defrauded shall have all rights and remedies that he would have had if the land were not under the provisions of this act provided that nothing contained in this section shall affect the title of a registered owner who has taken bona fide for valuable consideration, or of any person bona fide claiming through or under him.
Section 75. If a deed or instrument is registered which is forged, or executed by a person under legal disability, such registration shall be void, provided that the title of a registered owner who has taken bona fide for a valuable consideration, shall not be affected by reason that he claims title through some one, the registration of whose right or interest was void, as provided in this section.
Section 76. No unregistered estate, interest, power, right, claim, contract, or trust, shall prevail against the title of a registered owner taking bona fide for valuable consideration, or of any person bona fide claiming through or under him.
Section 77. Knowledge of the existence of any unregistered estate, interest, power, right, claim, contract, or trust, shall not be evidence of want of bona fides so as to affect the title of any registered owner.
Section 78. After the land has been registered, no title thereto adverse, or in derogation of the title of the registered owner, shall be acquired by any length of possession. Nor shall any interest in registered land be acquired except in accordance with the provisions of this act. No land once brought under and made subject to the provisions of this act, shall ever be withdrawn therefrom.
Section 79. The register of title of any land, and the certificate of title, and duly certified copies thereof, shall, except as herein otherwise provided, be received in all courts as evidence of the facts, therein stated, and, except where attacked for fraud, as in this act provided, as conclusive evidence that the person named therein as owner, is entitled to the land for the estate or interest therein specified.
Section 80. All dealings with land or any estate or interest therein, after the same has been brought under this act, and all liens, encumbrances and charges upon the same, subsequent to the first registration thereof, shall be deemed to be subject to the terms of this act, and to such amendments and alterations as may hereafter be made; and whenever a memorial has been entered as permitted by this act, the recorder shall carry the same forward upon the register, and all certificates of title, until the same is cancelled upon the register, as authorized by this act. The bringing of land under this act shall imply an agreement, which shall run with the land, that the same shall be subject to the terms of that act, and all amendments and alterations thereof.
Section 81. The decree of the court ordering registration, shall be in the nature of a decree in rem and shall be final and conclusive as against the right of every and all persons, known and unknown, to assert any estate, interest, claim, lien, or demand, of any nature or kind whatever, against the land so ordered registered, except as provided in this act.
Section 82. Any person not having actual notice of the proceedings to register land as provided in this act, may at any time within five years from the date of the entering of the decree of registration, but not thereafter, bring an action in the court where such decree was entered, to establish his right, claim or demand against such land. Provided, however, before such action shall proceed, it must be made to appear to the court that the person bringing such action, or those under whom he claims, had no actual notice thereof in time to appear and file his objections, or assert his claim. Section 83. The action provided for in the last preceding section, shall in no way affect or disturb the rights of any person in said land, acquired subsequent to the registration thereof, bona fide and without knowledge, and for a valuable consideration.
The lands of a deceased owner, whether testate or intestate, shall pass to his personal representatives, "and the same shall be administered in like manner as personal property." Sections 91 and 104, inclusive, contain other provisions with reference to transmission and administration. Sections 105 and 111, inclusive, provide for mortgages, leases and incumbrances on registered lands, and sections 112 to 123 inclusive, regulate judgment and other statutory liens, partition and judicial sales and prescribe the duties of receivers and master commissioners.
Section 124 is as follows: "Assignees, or trustees for the benefit of creditors, and commissioners of insolvent debtors, holding title to unregistered land from the assignor, shall make application as provided under this act to bring such land upon the register of title."
The act in terms confers upon the recorder, authority with respect to the discharge of mortgage and other liens and the correction of errors, and provides for appeals from his decision regarding such errors as follows:
Section 125. When any registered mortgage, encumbrance, or charge is satisfied in whole or in part, it shall be the duty of the mortgagee, encumbrancee, assignee, or other person authorized by law to discharge the same, to forthwith file with the recorder a certificate of satisfaction, in whole or in part, as the case may be, executed according to law, and the recorder shall enter such satisfaction upon the register. In the case of failure of the mortgagee, or other person, to certify such satisfaction, then the mortgagor, or other person entitled to such discharge, may ask proof of the same before the recorder; notice thereof, either actual or constructive having been given to the person holding the security, and upon the recorder being satisfied that such mortgage or other charge has been satisfied, as claimed, he shall enter such satisfaction on the register, and endorse the same upon the certificate of title.
Section 128. When any lien shall cease to be operative in law, by reason of limitation of time, proof of the same may be made, on proper application being filed with the recorder, and the persons shown to be interested notified of such application in the manner provided by this act. If the recorder shall be satisfied that the lien is without force in law, by reason of lapse of time, he shall enter such discharge upon the register, and the same shall be prima facie evidence thereof.
Section 131. Whenever it appears that there is an error or omission in any certificate or memorandum or memorial, or that any memorandum or memorial has been made, entered and endorsed, or certificate entered or issued by mistake, the recorder may, on his own motion, or upon the application of any person interested, summon all persons registered as interested in the lands to which such certificate, memorandum or memorial has been made relates, to appear at an appointed time, and produce their certificates of (or) registered instruments, and if at the appointed time the recorder shall find such error or omission or mistake to exist and that no rights of bona fide purchasers or lien holders for value, have intervened whereby his or their estate or interest shall be impaired by the correction of such error, omission or mistake, he shall, if no appeal is taken as provided in the next section, correct such error or mistake, or supply the omission, and may direct the cancellation of any certificate or registered instrument or any memorandum or memorial entered upon the registration book, or endorsed upon the registered instrument or certificate, by mistake.
Section 132. Any person aggrieved by the finding of the recorder for or against the existence of such error, omission or mistake, may appeal from the decision of the recorder to the court of common pleas or probate court, on giving bond to the acceptance of the recorder as provided by law in other cases for appeal, within ten days of the date of such finding, and the recorder shall make out and deliver to the clerk of the court of common pleas or probate court, immediately a transcript of his proceedings in such matter, and shall make a notation of such appeal upon the register of title. When such appeal is determined, the court shall forthwith cause a certified copy of such judgment or decree to be filed with the recorder, and the judgment of the court shall be final and conclusive.
The material provisions of the act concerning the Assurance Fund are:
Section 144. Upon the first bringing of land under the operation of this act as hereinbefore provided, and upon the issuance of a certificate of title pursuant to section (142) one hundred and forty-two, shall be paid to the recorder one-tenth of one per cent. of the value of such land as appraised for taxation, for the purpose of an assurance fund under this act. All sums of money so received as provided in this section, shall be paid on the first Monday of each and every month to the county treasurer of his county.
Section 145 prescribes how the fund shall be invested.
Section 146. Any person deprived of land or of any estates or interest therein in consequence of fraud, or misrepresentation in bringing such land under the operation of this act, having had no notice of the proceedings, or by the registration of any other person as owner of such lands, estate or interest, or in consequence of any error, omission, mistake or misdescription in any certificate of title, or in any entry or memorandum in the register of titles, or by being omitted in proof of heirship or certificate thereof as provided in section (98) ninety-eight of this act may, at any time within four years from the date of the discovery of such fraud, error, omission, mistake or misdescription, bring an action in any court of competent jurisdiction for the recovery of the damages so by him sustained, against the person or persons committing such fraud, or responsible for such error, omission, mistake, or misdescription in any certificate of title, or in any entry or memorandum on the register of title. In any such action the county treasurer must be made a defendant, and all persons against whom the plaintiff claims the right to pursue for damages must be made defendant to the action. And if this be not done, such persons shall thereby be discharged from liability for damages in the premises.
Section 147. If such action be for the recovery of loss or damage only through an omission, mistake, or misfeasance of the recorder or any deputy or clerk of the recorder in the performance of their respective duties under the provisions of this act, the recorder alone need be made defendant with the county treasurer; but if such action be brought for loss or damage arising from the fraud or wrongful act of some person or persons other than the recorder, his deputies or clerks, then such action shall be brought against only the county treasurer, and such person or persons aforesaid. In any such action the defendant or defendants, other than the county treasurer, shall be primarily liable when recovery is had, and final judgment shall not be entered against the county treasurer, until execution against the other defendants shall be returned unsatisfied in whole or in part, and the officer returning the execution shall certify that the amount still due on the execution cannot be collected except by a resort to the assurance fund. Th court being satisfied of the truth of such return, made upon proper showing, shall order the amount of the execution and costs, or such part as shall remain unpaid, to be paid by the county treasurer out of the assurance fund. It shall be the duty of the prosecuting attorney of the county, or the county solicitor if there be one, to appear and defend all suits that may affect such assurance fund.
Section 148. Nothing in this act contained shall be so construed as to leave subject to action for recovery of damages, as aforesaid, any bona fide purhaser, mortgagee, or other holder of a lien, charge or interest, for a valuable consideration, on land brought under this act, on the plea that his vendor, mortgagor, or person creating such lien, charge or interest, may have been registered as proprietor through fraud, error or omission; or may have derived from or through a person registered as owner through fraud, error or omission.
Section 149. In case the person primarily liable as provided in section 150, and against whom such action of damages is directed to be brought, as aforesaid, shall be dead or cannot be found in this state, then, in such case, it shall be lawful to bring such action for damages against the county treasurer of the county in which the land may be situated, as defendant, for the purpose of recovering the amount of said damages and costs against the assurance fund. In such case, if final judgment be recovered, the comity treasurer, upon the receipt of a certificate of the court, before which said action was tried, shall pay the amount of such damages and costs as may be awarded, and charge the same to the account of the assurance fund. All actions involving the assurance fund, shall be brought in the county where the land is situated.
Section 150. Whenever any money has been paid by any county treasurer out of the county assurance fund, as in this act provided, the county treasurer of such county may bring an action and institute proceedings in any court of competent jurisdiction against the person or persons primarily liable for such damages and costs, to reimburse such assurance fund; or should such person or persons be dead, such treasurer may proceed against his or their estates. It shall be his duty to bring such action or institute proceedings in every case where there may be a reasonable probability of reimbursing such assurance fund in whole or in part.
Section 151 limits the action authorized by sections 146 and 147 to ten years.
Whatever may be thought of the burdens of fees and costs which the act lays upon the estates of deceased persons and insolvents, or of its probable effect to disturb titles that are now well settled, it must be deemed a valid enactment unless, in some of its substantial provisions, it transcends the limitations which the constitution has placed upon the exercise of legislative power, or invades some guaranty which it has erected to the ownership and enjoyment of property.
Counsel for the defendants deny the validity of the act upon the following grounds: Because it provides for cutting off vested interests in property without due course of law in violation of section sixteen of the Bill of Rights; because it provides for the taking of private property for private purposes without the owner's consent in violation of section nineteen of the Bill of Rights; because it provides for the exercise of judicial power by the recorder in violation of section one of article IV of the constitution which vests all such power in the courts of the state; because, being a law of a general nature and not having a uniform operation throughout the state, it violates section twenty-six of article II of the constitution; and because it impairs the obligation of contracts in violation of section twenty-eight of article II of the constitution of the state and section ten of article I of the constitution of the United States.
The constitutional guaranty invoked by the first objection is of a remedy per legem terrae as it was expressed in Magna Charta, or according to the law of the land, or by due process of law, or by due course of law as it is expressed in equivalent phrases in the several constitutions of the American States. It is no longer questioned that the guaranty operates as a limitation upon both judicial and legislative authority. In Norman v. Heist, 5 W. S., 171 Chief Justice Gibson concisely declared its purpose to be "to exclude arbitrary power from every branch of the government." Cooley's Const. Lim. 432. The precise objection urged against the act in this regard is that it provides for the divesting of rights in property by the proceeding to register without the issuance and service of summons according to the law of the land. The act does not require a petition or bill such as is appropriate in suits between adversary parties, nor does it require or contemplate that a summons or equivalent preliminary process shall issue from the court advising those who claim interest in the land to be registered that their alleged interests are to be the subject of adjudication in the proceeding. Both by the terms of the act and by the form which it prescribes, the only notice required is to be given by the applicant. In the notice so required to be given no one claiming an interest adverse to that of the applicant is to be named, although the names, places of residence and alleged interests of all who may claim adversely, are known. The terms of the act require that the court shall cause the applicant, or some other competent person, to serve each person named in the application, resident of the county, with a copy of the printed notice. All persons named in the application, resident without the county though within the state, shall be served be sending copies of such notice to their addresses by mail. Only those who are named in the application are required to be served even in this manner. Reference to section seven, providing what the application shall contain, and to its form as prescribed in section eight, shows that the persons to be thus named and served are the owners of the land adjoining that sought to be registered, the occupant of the land to be registered, if it is occupied, and the holders of easements and estates inferior to the fee simple. One known to claim the title in fee simple adversely to the applicant need not be named in the application, nor receive a copy of the notice, though his place of residence may be within the county and known. As to him the only requirement is that he may have a chance to see a notice signed by the applicant, addressed "To whom it may concern," containing a brief description of the land to be registered, and published in any newspaper of general circulation within the county. That this is sufficient notice to those who are interested in the adjoining property is not denied.
Is it such notice as the law of the land requires to be given to persons claiming interests in property of the pendency of a judicial proceeding, in which such interests are to be the subject of adjudication and in which, unless they appear, a decree will be entered precluding their further assertion? It is said that it is, because the proceeding to register land under the act is in rem. Whether it is in rem or in personam is determined by its nature and purpose. To say that the legislature may prescribe such notice as is appropriate to proceedings in rem, and thus invest the proceeding with that character, is to affirm its power to annul the constitutional requirement. In this aspect of the case, and considering the effect of registration upon interests adverse to those of the applicant, the proceeding to register does not, in any substantial respect, differ from a suit quiatimet to settle title. It bears the least possible analogy to a proceeding in rem. The res is not taken into the possession of an officer of the court. No charge or lien is asserted against it.
It is not to be sold with a view to the distribution of its proceeds, and it partakes, therefore, less of the nature of a proceeding in rem than does the foreclosure of a mortgage. The land is not a thing of shifting situs like a ship, against which obligations may accrue today in one jurisdiction and tomorrow in another. The status of the land is not changed by registration. The substantial thing determined by registration is that the person who makes the application has a right of property in the land to the exclusion of all other persons. The judicial force of the proceeding is wholly expended in a conclusive determination of the rights of persons in the land. Except when the land is occupied by one who claims adversely to the application, the questions determined in registration are such as both before and since the adoption of the constitution have been determined by courts of equity; and their decrees much more distinctly than the judgments of courts of law operate upon persons.
To authorize a court to determine the adverse claims of parties touching their right in things, judicial process is indispensable. Judicial process in its largest sense, comprehends all the acts of the court from the begining of the proceeding to its end. In a narrower sense it is 'the means of compelling a defendant to appear in court, after suing out the original writ, in civil and after indictment, in criminal cases." (Bouvier). In every sense it is the act of the court. This act does not comtemplate process. The notice which it prescribes is the notice of the law of admiralty. The process required by law of the land is the process of the common law.
In Webster v. Reid, 11 How., 437, the court considered the validity of a judgment rendered in proceedings under an act which attempted to authorize the quieting of titles in suits against defendants to be designated as "Owners of the half breed lands lying in Lee county," and notice to be given by publication. Justice Mc Lean, in the opinion said "These suits were not proceedings in rem against the land, but in personam against the owners of it. Whether they all resided within the territory or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property has not been attached. In this case there was no personal notice, nor attachment or other proceeding against the land, until after the judgments. The judgments are therefore nullities." Brown et al. v. The Board of Lease Commissioners, 50 Miss., 471.
That the legislature may provide for a substituted service of judicial process, when it is required by necessity, is not doubted. If, in a suit to adjudicate the rights of persons in property within the state, a defendant resides without the state, such necessity is apparent, for the process of the state has no efficacy beyond its borders. Other cases of necessity are recognized.
The principle is that the state may provide for the adjudication of all adversary rights of persons in property within its borders, and to the end that such jurisdiction may be complete the legislature may provide a substituted service of process for cases in which actual service cannot be made.
In such case nothing more is required by the law of the land than that the substituted service shall be such as, in the exercise of legislative discretion, shall be found most apt to accomplish the purposes of actual service. Shepherd v. Ware et al., 46 Minn. 174. Surely, these views will surprise no one who is familiar with the legislative history of the state.
Section fifty-five of the civil code enacted in 1853 is now in force as section 5035 of the Revised Statutes. It provides "A civil action must be commenced by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon." The subsequent sections of the chapter relate to the service of the summons so required to be issued. Their provisions for a substituted or constructive service relate wholly to cases in which actual service is impracticable. In these respects the provisions of the code continue the former practice pursued since the organization of the state. We know of no instance prior to the passage of this act in which there was a departure from the views clearly stated by Judge Cooley (Const. Lim., 6th Ed. 452): "In judicial investigations the law of the land requires an opportunity for a trial; and there can be no trial if only one party is suffered to produce his proofs. The most formal conveyance may be a fraud or a forgery, public officers may connive with rogues to rob the citizen of his property; witnesses may testify or officers certify falsely, and records may be collusively manufactured for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law."
If it is borne in mind that the questions here considered concern the adversary rights of persons in property, it will sufficiently distinguish the cases which involve the police power, or the right of eminent domain or the right of taxation.
Perhaps a more extended consideration than was necessary has been given to this particular question, since the provisions of the act and the briefs suggest the consciousness of those who framed it and those who defend it, that it does not meet the constitutional requirement as to due process of law. In one of the briefs submitted for the plaintiff it is said: "The act contemplates no adjudication as to the title. The applicant cannot be adjudged to have a good title as against B or C, or unknown parties in which a right of ownership appears. If there is any adverse interests, or the possibility of conflicting rights, he is relegated to other courts and other proceedings to try such issues. The court considers only the status of the res. If the applicant is not found to be the undisputed owner of the property in fee simple, his title is not registered."
This view of the act is opposed to its provisions and obvious import. In the prescribed notice "to whom it may concern" is the authorized declaration that those thus notified "will be thereafter forever debarred from setting up any claim etc." Not recurring to other provisions of the act which provide for the indefeasibility of the registered title, section seventy-four makes it indefeasible in one who has purchased for a valuable consideration from one who has procured registration by fraud. Section seventy-five imparts the same character to the title of such a purchaser from one who has secured registration by forgery of a deed of the real owner; and section seventysix provides that "no unregistered estate shall avail against the title of a registered owner taking bona fide, etc." How is it to be known that the applicant is the "undisputed owner" until adversary parties are served with process and afforded an opportunity to say for themselves whether they dispute the claim of the plaintiff or applicant? However effective the separation of disputants may be in the prevention of street broils, in the judicial determination of their disputes, the law of the land requires that they be brought together.
The provisions of the act with respect to an "Assurance Fund" attract attention in this connection. Those for whose indemnity this fund is raised are described in section 146: "Any person deprived of land or of any estates or interest therein in consequence of fraud, or misrepresentation in bringing such land under the operation of this act, having had no notice of the proceedings, or by the registration of any other person as owner of such lands, estate or interest, or in consequence of any error, omission, mistake or misdescription in any certificate of title, or in any entry or memorandum in the register of titles, or by being omitted in proof of heirship or certificate thereof as provided in section (98) ninety-eight of this act may," resort to the fund within the time and in the manner specified. It is not likely that the legislature has thought itself authorized to provide for making whole those who have been defeated in judicial proceedings of an adversary character, involving only private rights, and conducted according to the law of the land. The terms of these sections of the act show that the fund is to be raised to indemnify those whose lands have been wrongfully wrested from them under the earlier provisions of the act, and without due process of law. When the provisions of the constitution are applied to this penitential scheme it at once becomes apparent that it is both inadequate and forbidden. Section nineteen of the Bill of Rights ordains: "Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads which shall be open to the public without charge, a compensation shall be made to the owner in money, and in all other cases, where private property shall be taken for a public use, a compensation therefor shall first be made in money or first secured by a deposit of money." This act is said to be a rebuke to those who have inherited from feudal times the conceit that property in lands is especially sacred. That property in lands has been more secure than property in chattels has resulted necessarily from the fact that they are not the subject of conflagrations or larceny. Some contribution to the equality of insecurity of property of the two classes may be found in those provisions of the act which look to the administration and distribution of the lands of deceased persons as though they were chattels. But property in all of its subjects is equally sacred under the protection of this section of the Bill of Rights. To permit its abrogation would equally expose all descriptions of property to spoliation. The section is an inviolable assurance to all owners of lands and chattels that unless they are required for a public use, they may retain them in specie, placing upon them any estimate that may be suggested by judgment, sentiment or caprice; and it is not within the combined authority of the departments of the government of the state to say that the estimate is too high. This section of the Bill of Rights was so construed by this court in McCoy v. Grandy, 3 Ohio St., 463, upon reasoning that has ever since been deemed entirely satisfactory.
In another aspect this scheme is violative of the same section of the Bill of Rights. If the use were public the section would require an assured compensation to the owner of the property taken in every event, and, unless in a public exigency or for the construction or repair of free roads, it would require such compensation to be first made. In this act there is no provision for compensation to be first made. The owner's recourse is to a subsequent action to be instituted by himself and subject to a limitation. Nor is there any provision for an assured compensation at any time. The owners resort is to an assurance fund which we are told, has been estimated to be sufficient to indemnify those who would be wrongfully deprived of their lands under the provisions of the act. It can scarcely need comment to show that this is not a compliance with the constitutional requirement.
In yet another aspect the scheme is violative of the same section of the bill of rights.
Whether the assurance fund would be adequate or inadequate, it is, in part at least, to be derived from forbidden forces. The real estate in the hands of an assignee for the benefit of creditors belongs to the assignor and his creditors. These lands, by the terms of the act, are subjected to a charge or contribution payable through the recorder to the treasurer of the county. That is, to the extent of such assessments, this property is to be taken by public authority and without the consent of the owners. For what public purpose? Primarily the purpose is to indemnify private persons whose lands have been wrongfully taken from them under the provisions of the act. If the act were otherwise constitutional, the ultimate benefit would accrue to those who, as the result of registration which gives conclusive effect to mistake, fraud or forgery, have acquired lands which belong to others.
That this is in no sense a public purpose seems clear. Considering the purposes for which government is instituted and the high conception of individual right which prevailed at the time of the adoption of the constitution, it would be strange if authority had been conferred upon the state to carry on the business of an insurer of private titles. No such authority is implied in any of the terms of the constitution. It is not implied in any of the enumerated purposes for which government is formed. It is entirely foreign to those purposes. The legislature may, by law authorize the organization of corporations for the purpose of carrying on the business of insurance, but this grant of power is rather an implied negation of its authority to conduct such business itself.
The functions of the state are governmental only. Its powers are embraced within the three familiar divisions of legislative, judicial and executive. He who affirms the existence of the power in question must be able to find it embraced in one of these divisions. And since the insuring of titles does not essentially differ from any other insurance, nor indeed from any other business or occupation, he must find authority in whose exercise the state may become the competitor of the citizen in every vocation.
It is further urged that the act is void because it attempts to confer judicial power on the recorder. Counsel agree that power of that character cannot be conferred upon a ministerial officer, but in support of the act it is urged that the powers indicated are ministerial and not judicial.
The principal powers conferred are to take proof after notice to the holder that a mortgage has been discharged and after a hearing to enter a discharge upon the register; to make an entry that a lien has become inoperative in law by reason of limitation of time when application has been made therefor, the person interested notified and he is satisfied that such is the fact, to correct memorials made or issued by mistake, if the rights of a bona fide purchaser or lien holder for value have not intervened.
It is true that the power to ascertain and decide is not necessarily a judicial power, and it is frequently exercised by ministerial officers and legislative bodies. Whether the power to hear and determine is judicial depends upon the nature of the subject of the inquiry, the parties to be affected and the effect of the determination. While it is not supposed that any definition of judicial power, sufficient for all conceivable cases, has ever been attempted, it is clear that "to adjudicate upon and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department." Cooley Const. Lim., 109. Recurring to the duties of the recorder under the act, he is not merely to enter the evidence furnished by the agreement of the parties that a lien has been discharged, or that it has become void by the lapse of time, or that a mistake has intervened touching their rights; but he is to apply the rules of evidence to the ascertainment of disputed facts, to apply the rules of law concerning payment, to interpret and apply the statute of limitations as it may affect the enforcement of liens including such questions of disability as may arise, to decide the questions of fact and law that may arise in determining whether mistakes have intervened and who are bona fide purchasers; and then to make an entry which is to have the same effect in concluding the rights of the adversary parties as would a decree in equity. That these are judicial powers is entirely clear. They seem to have been so regarded by the general assembly, for there is a provision for appeal from the decisions of the recorder. This is not supposed to include all the judicial powers which the act assumes to confer on the recorder, but it is sufficient for present purposes.
Nor is this objection to the act avoided by the provisions which contemplate a review of or appeal from the action of the recorder. It would, perhaps, be found upon a careful consideration of his powers, that they are not all embraced within the provisions for review or appeal. But the assumption that they are so embraced would not validate the act in this respect. The recorder as a ministerial officer is incompetent to receive a grant of judicial power from the legislature. His acts in the attempted exercise of such powers are necessarily nullities. They cannot be effective to impose any obligation or burden upon a citizen, or to deprive him of any right. The act plainly contemplates that the person against whom the recorder decides in the exercise of any of the powers sought to be conferred must either submit to the adverse decision or take upon himself the burden of an appeal. In view of the constitutional provision on the subject, he cannot be forced to this alternative.
If these are judicial powers, it is admitted that they cannot be vested in the recorder. If they are not judicial, the provisions for an appeal are void since, as was said by this court in Logan Branch Bank ex parte, 1 Ohio St., 432, "we have no idea of an appeal, except from one court to another."
An examination of People ex rel., Kern v. Chase, 46 N. E. Reporter, 454, will show that in some of its aspects the act under consideration, though differing from the act passed by the legislature of Illinois to accomplish the same purpose, is within the principles upon which that act was held void.
The views expressed touching the guaranties of the Bill of Rights are in accord with those of eminent lawyers who have considered methods for simplifying the records of titles and diminishing the labors of searching them. The general system in the contemplation of this act has been thought impracticable because questions of vested rights must remain open for want of due process. There have, accordingly, been recommended legislative enactments to shorten and simplify conveyances, to remove disabilities, to shorten the limitations of actions, to provide for general indexes for townships and wards or other small districts so as to restrict the area of search; and other like remedies operating prospectively, and having due regard to vested rights.
However the general system proposed by this act may have operated where no system of registration previously existed and the conserving influences of constitutions are not enjoyed, it seems, in its prominent features, to be inapplicable where consitutional provisions, paramount to legislative enactments, protect vested rights and restrict the state to the exercise of functions that are governmental in their nature.
No discussion of the wisdom of the act would be appropriate here nor do we deem it necessary to consider other questions affecting its validity. Such questions are presented, but those decided seem sufficient to dispose of the subject.