Ashton-Jenkins Co. v. Bramel

• Decision Date: 27 July 1920
• Docket Number: 3493
• Citation: 192 P. 375,56 Utah 587
• Court: Utah Supreme Court
• Parties: ASHTON-JENKINS CO. v. BRAMEL, Judge

192 P. 375

56 Utah 587

ASHTON-JENKINS CO. v. BRAMEL, Judge

No. 3493

Supreme Court of Utah

July 27, 1920

Mandamus by the Ashton-Jenkins Company against Wm. H. Bramel as judge of the district court of Salt Lake county.

PEREMPTORY WRIT GRANTED.

Moyle &amp Ray, of Salt Lake City, for plaintiff.

D. A. Skeen, Asst. Co. Atty., of Salt Lake City, for defendant.

THURMAN J. CORFMAN, C. J., and WEBER and GIDEON, JJ., FRICK, J., concurring.

OPINION

THURMAN, J.

This is an application for a writ of mandate to compel the defendant, as judge of the district court of Salt Lake county, to direct the clerk of said court, as registrar, to issue to plaintiff a certificate of title under the provisions of the "Uniform Land Registration Act," commonly called the "Torrens Law."

Defendant demurs to the complaint on the grounds that the act in question is obnoxious to the provisions of both the federal and state Constitutions, which prohibit the taking of property without due process of law, and also violates other provisions of the state Constitution in that it attempts to confer judicial authority upon the county clerks who are ex officio registrars of title.

Comp. Laws Utah 1917, sections 4920 to 5008, inclusive, contain the provisions of the act, and the following provisions are deemed material to the questions here presented. The substance only will be stated:

(1) Exclusive original jurisdiction is conferred on the district courts of the state, with plenary powers, both in law and equity, in all matters pertaining to registration. (2) The proceeding is in rem, and a jury may be had by any interested party on demand. (3) Rehearing and appeal are allowed as in other cases. (4) County clerks shall be ex officio registrars of title, whose duties shall be performed under the direction of the court, and who shall perform such other duties as the court may prescribe. (5) The court shall appoint one or more attorneys at law to be examiners of title, prescribe their duties, and require them to report their findings of fact to the court. (6) Suits shall be brought by petition to the court, showing that petitioner is the owner of the land or has the power to dispose of it. (7) Infants and other persons under disability may sue or defend by guardian or trustee, and corporations by an officer duly authorized; nonresident petitioners shall appoint a resident agent upon whom process and notice may be served. (8) Except as otherwise provided in the act, the suit shall be subject to the general rules of pleading and practice in such courts. (9) The petition must be signed and sworn to by the petitioner. (10) The petition must show the description of the land, with the improvements thereon, when, how, and from whom acquired, whether or not it is occupied, an enumeration of all liens, interests, and claims, adverse or otherwise, and the full names and addresses if known, of all persons interested by marriage or otherwise, including adjoining owners and occupants. The petition shall also be accompanied by a plan made in accordance with the rules of the court. (11) Notice of lis pendens shall be filed with the petition. (12) Upon filing the petition the court must refer it to one of the examiners; the report of the examiner shall include an abstract of title and all other evidence that can be obtained by the examiner, also full extracts from the records, with names and addresses, as far as ascertained, of all persons interested in the land as well as adjoining owners and occupants showing their several interests, and indicating upon whom and in what manner process shall be served or notice given in accordance with the provisions of the act. (13) Notice to all persons named in the report, and "to all whom it may concern," shall be published and posted in the county where the land lies in the same manner and to the same effect as an order of publication in other proceedings in rem. (14) A copy of the order of publication shall be mailed by registered letter, demanding a return, to every interested party named in the petition or in the report of the examiner whose address is given or known. (15) An attested copy of the order must be posted in a conspicuous place on each parcel of the land, and the sheriff is required to go upon the land and ascertain and report to the court the names and addresses of any persons actually occupying the premises under claim of title. (16) If public rights or interests are involved, the order of publication must be personally served upon the proper attorney of the state, county, or city. (17) The court may cause other or further notice to be given in such manner and to such person as it may deem proper. (18) Such personal service as is required in equitable actions shall also be made upon residents of the state not under disability who are made known to the court before final decree and can be reached by its process, unless such service be waived by appearance or otherwise. (19) The notices, except the last referred to above, shall be in lieu of personal service and binding on all the world. (20) Certificates of the registrar and sheriff, or their deputies, showing due execution of the order of publication and the mailing and posting of copies thereof, as required in the act, shall be filed in the cause and be conclusive proof of service. (21) After the expiration of at least fifteen days from the publication and posting of the order of publication the cause shall be set down for hearing; thereupon the court shall appoint a competent attorney at law, of the county in which the land lies, as guardian ad litem for all persons under disability, not in being, unascertained, unknown, or out of the state who may have, or appear to have, an interest in, or claim against, the land. (22) Any person having an interest in or claim against, the land, whether named in the petition and order of publication or not, may appear and file an answer at any time before final decree unless such person has been served personally with notice. The answer shall be under oath. (23) After the expiration of fifteen days from the publication and posting of the order of publication the court may proceed to take such action as may be proper upon the report of the examiner, and all other evidence before it with reference to the rights of all persons appearing to have any interest in, or claim against, the land, and may refer the cause again for further proof. (24) If the court after final hearing is of opinion that the petitioner has title proper for registration, a decree of confirmation and registration shall be entered, and such decree so entered shall bind the land and quiet the title thereto except as provided in the act; it shall be forever binding and conclusive upon all persons, resident and nonresident, including the state, whether mentioned by name in the order of publication or included under the general description "to all whom it may concern"; it shall not be attacked or opened or set aside by reason of the absence, infancy, or other disability on any person affected thereby, nor by any proceeding at law or in equity for rehearing or reversing judgments or decrees except as provided by the act.

Provisions of the act subsequent to the decree will not be referred to unless the same are deemed material in the course of this opinion.

The questions presented by the demurrer, as far as the act in question is concerned, have never before been called to the attention of the court, but similar statutes in other states have been the subject of judicial investigation many times during the last quarter of a century. It cannot be said that the case is one of first impression. The statutes of the several states which have adopted the principle of the Torrens land law are strikingly similar. They all have a common purpose. As stated in 3 Devlin, Real Estate (3d Ed.) section 1439, "The object is to secure the evidence of title exclusively by a certificate issuing from public authority"; or, as stated by the court in State ex rel. Douglas v. Westfall, a Minnesota case, 85 Minn. at page 439, 89 N.W. at page 175, 57 L.R.A. at page 299 (89 Am. St. Rep. 571), "The basic principle of this system is the registration of the title of land, instead of registering, as the old system requires, the evidence of such title." A more terse statement, and one perhaps equally clear, is that contained in defendant's brief. "Its essential point is an official guarantee of title." Under the old system a deed absolute on its face is only one link in the chain of evidence by which the holder must establish his title. Under the Torrens system and statutes modeled thereon the registered certificate is conclusive evidence of the holder's title. It imports the sanctity of a final adjudication by a court of competent jurisdiction. That is the ultimate purpose of the statutes. It is not our purpose, however, to attempt either a critical or historical review of the Torrens system. A very illuminating discussion in that regard is found in chapter 40, Devlin, Real Estate, supra, to which the reader's attention is invited.

The only question to be determined is the constitutionality of the law. The defendant's argument is exceedingly brief. The exact point of his objection as to the question of due process is not clearly defined. He calls our attention to the case of State v. Guilbert, 56 Ohio St. 575 47 N.E. 551, 38 L.R.A. 519, 60 Am. St. Rep. 756, and says the reasoning of that case aptly applies to the point raised in the case at bar. Defendant quotes at great length from the opinion mentioned, from which we conclude that he adopts not only the conclusions, but also the reasons, given by the court. The court in that case held the Ohio Torrens Act (Act April 27, 1896; 92 Ohio Laws, p....