distinction between the law governing sales of real and personal property.—the main distinction between the law governing real and personal property is the increased formality necessary in transactions governing real estate. contracts for the sale of real estate must be in writing and actual conveyances of an interest in land must not only be in writing, but, except where seals have been abolished by statute, must be executed under seal. in order to make the transaction valid against third persons, record in the registry of deeds in the county where the land is situated is also requisite. unless a contract for the sale of real estate is recorded, a subsequent conveyance to a purchaser, for value and without notice, will destroy the right of the buyer under the first contract to get the land, though he will still have an action for damages against the seller. so, in many jurisdictions, creditors of the man contracting to sell may by attaching the land as the seller's property satisfy their claims from it to the detriment of the buyer's right. therefore, an actual conveyance of real estate must be recorded in order to protect the grantee. as a pre-requisite for record it is generally required that contracts and deeds of real estate shall be acknowledged before a notary public or other official authorized by law.[pg 299]

duties of buyer and seller under contract to convey real estate.—the primary duty of the seller in a contract to convey real estate is to transfer a good title. it is important for the buyer to determine before the time for performance whether the seller's title is good in order to determine whether he himself will accept the deed and pay the price. accordingly, the buyer has the title examined by search in the registry of deeds. if the search discloses that the seller's title is defective the buyer does not on that account necessarily have a right to rescind the contract. the defect of title may be removed before the time of performance, and if the nature of the defect is such that this is possible, the buyer can only give notice of the defect and request its removal. if the title of the seller is so defective that it cannot be cured, or if the seller manifests by his conduct an intent to repudiate the contract, as by selling the land to another, the buyer need not wait for the time for performance, but may at once give notice that he rescinds the contract. unless the seller has expressly contracted to convey by warranty deed, his obligation is generally satisfied by a quit claim deed. it is well, therefore, for a purchaser, when he contracts to purchase a piece of real property, to insert in the contract a clause to the effect that the seller agrees to convey by a sufficient warranty deed. the seller is also bound not to commit waste on the premises between the time of the contract and the time of performance. the rule in regard to accidental injury is stated hereafter, but as to intentional[pg 300] or negligent injury of the premises, the law is clear that such an injury is a breach of duty by the seller. the buyer's duty is to pay the price according to the terms of the contract. the obligations of the seller to convey, and of the buyer to buy, are concurrent, unless the contract expressly provides the contrary; that is, the buyer in order to acquire a right against the seller must tender payment, as he demands a deed; and the seller in order to acquire a right against the buyer must tender a proper deed when demanding payment. the obligation of either party to tender may, however, be excused by circumstances showing that tender would be useless. thus, if the buyer is insolvent, the seller need not tender a deed, and if the buyer has repudiated the contract or committed waste to a material extent, or conveyed the premises to a third person, the buyer need not tender payment, in order to acquire a right of action. but if there is any doubt at all, the purchaser or the seller, as the case may be, should make a tender, so as to preserve his legal rights.

dower and curtesy.—by the common law a wife on her marriage acquired a right in her husband's land, which, though not vesting until his death, encumbered the title immediately. on his death she became entitled to a life estate in a one-third interest of all the lands of which he had been possessed since the date of their marriage. accordingly, where the common law rule of dower still prevails, a husband cannot give an unencumbered title to real estate unless his wife joins in the conveyance.[pg 301] similarly a husband was entitled at common law to a life interest in the lands of his deceased wife if they had had a child born alive. this was called the estate by curtesy. its extent, it will be observed, is not the same as that of dower. the husband's life interest extended to all the lands of the wife, but on the other hand, it did not arise at all unless there was a child born alive; whereas the wife's dower right arose immediately on marriage. the rules of dower and curtesy have been changed by statute to a greater or less extent in most states, but it is still almost universally important that a wife should join in her husband's conveyance of real estate, and that a husband should join in a wife's conveyance of her real estate.

default in performance.—the law regards more leniently a default in time in carrying out contracts for the sale of real estate than it does a similar default in the sale of personal property. in sales of personal property, especially if it is of a character which rapidly fluctuates in value, time is said to be "of the essence;" that is, the failure of either party to perform at or about the agreed day is fatal to his rights to enforce the contract; but in the case of real estate it is generally held that time is not of the essence of the contract unless it is either expressly so provided in the contract, or the circumstances of the case are such as to show that time was a matter of vital importance.

destruction of premises.—where personal property, which the owner has contracted to sell, is destroyed, the loss is the seller's provided the[pg 302] title is still in him, and the buyer has committed no default; but in most jurisdictions, if real estate is similarly destroyed, the buyer must nevertheless pay the price. in the absence of special provisions in a contract of sale, if a house on the premises sold has burned between the time of the contract and the time for its performance, without fault of the seller, the seller can compel the buyer to accept a deed of the land without the house and pay the full price. this rule has been much criticized, and it is not universally in force; for example, it is not the law of massachusetts. in some other states the loss will not fall upon the buyer unless possession of the premises has been delivered to him under the contract, but in new york, and probably a majority of the states, even though the seller still has possession, as well as title, the risk of accidental loss rests upon the buyer. where risk of destruction of the premises is thrown on the buyer, immediately after he has made a contract to purchase, it is of obvious importance that he should immediately insure the premises. the insurance of the seller, unless transferred to the buyer at that time with the company's assent, will not protect the buyer. insurance is a contract of personal indemnity, and the seller's insurance only protects the seller's interest. the result is that if the premises are destroyed, the insurance company will not be obliged to pay the seller his insurance, since the seller, under the contract of sale, can recover from the buyer; and even if the insurance were paid to the seller, the buyer could not claim the benefit of it.[pg 303]

specific performance.—in addition to the ordinary remedy for a breach of contract, namely an action at law for damages, another remedy, that of specific performance, is permitted in the case of contracts for the sale of land; that is, the court will actually compel one who has contracted to sell land to make a conveyance thereof on receiving the agreed price, and will similarly compel one who has contracted to buy to pay the agreed price on receiving a deed of the premises. specific performance of such contracts is granted on the theory that money damages are an inadequate remedy, and that the nature of the situation is such that it is possible to compel the actual performance of the contract. in contracts for the sale of personal property, damages are generally considered adequate, but contracts for the sale of a painting or a race-horse would be specifically enforced. sometimes the seller is unable fully to perform his agreed contract. he may not be able to give a title free from encumbrances, or he may have committed waste on the premises. in such a case, though the buyer need not carry out the contract unless he wishes, he can if he chooses get a conveyance decreed to him and an allowance deducted from the price commensurate to the injury caused by the encumbrance or waste. specific performance will be granted not only against the seller, but if the seller in violation of his contract has conveyed the land to a third person who had notice of the contract or who did not give value in exchange for the land, the court will compel the grantee of the premises to convey them to[pg 304] the person who had the original contract to buy. if, however, one who has agreed to sell the premises actually sells and conveys them to another who is a purchaser for value without notice of the prior contract, such a purchaser gets an indefeasible title, and the person having the prior contract to buy must resort, for his only relief, to an action for damages against the seller. for this reason it is important to record a contract to buy or sell. this record operates as notice to all the world, and no purchaser subsequent to the record will have the rights of a purchaser for value without notice.

vendor's lien.—in some states a seller of land who has not been paid the price is entitled to what is called a vendor's lien on the land. this enables him to compel a sale of the property to satisfy his claim for the purchase money unless the land has been conveyed, before proceedings are brought to enforce the lien, to a purchaser for value without notice that the original vendor is still unpaid. in many states, however, the seller has no vendor's lien and must take a mortgage back for any unpaid portion of the purchase price if he desires security for its payment.

definition of mortgage.—a mortgage is a transfer of property to a creditor to secure a debt. unless there is a debt there can be no mortgage, and the original idea of a mortgage, still preserved in the forms of conveyance in many states, is that the mortgagor or debtor transfers the title to the mortgagee or creditor. in popular understanding the[pg 305] mortgagor owns the mortgaged premises but the mortgagee will take or sell them if the debt is in default. the theory of the common law, however, was that the mortgagee became the owner of the premises as soon as the mortgage was made, but that the mortgagor was entitled to re-acquire the ownership by payment of the debt at maturity. indeed, early mortgages were often made by two separate instruments: (1) an absolute deed of conveyance to the mortgagee, and (2) an instrument called a defeasance which provided that on payment of the amount of the debt, on a given day, the property should revest in the mortgagor.

modern american mortgages.—at the present day in many jurisdictions a mortgage still remains, both in the form of the instrument and in the legal conception of the rights of the parties fundamentally, the same as under the early doctrines just outlined. in other jurisdictions, of which new york may be taken as a typical state, the theory is no longer that the mortgagee has title to the property, but that he has only a lien on it, which he may enforce if the debt is not paid. the difference in actual results under the two theories, however, is less than might be supposed. where the mortgagee is still regarded as having the title, his power to make use of that title is limited so that he can only make use of it for the purpose of securing payment of what is due him. on the other hand where the mortgagee is regarded as having only a lien, the lien is a legal right against the real estate which enables the creditor to[pg 306] enforce his claim against it in practically the same way which he would do were he the owner of the real estate.

covenants and stipulations.—a mortgage of real estate ordinarily contains the same covenants of warranty as a warranty deed of real estate. where a mortgage still has its common law effect of transferring title to the mortgagee, it is essential that the mortgage should contain a provision that until default the mortgagor shall be entitled to the possession of the premises. covenants in regard to the payment of taxes by the mortgagor and the keeping of the premises insured for a certain amount, are usual and important provisions. there is also commonly contained in a mortgage a power of sale; that is an authority or agency given to the mortgagee to sell the premises free of the mortgagor's right of redemption in case default of payment is made, or in case such default continues for a certain specified time. in all states printed forms of mortgages are ordinarily used. these forms are prepared with care to suit the requirements of local law; and if you are sure that the printed form is prepared and sold for use in the state where the mortgaged land is situated, you may feel satisfied that the terms of the instrument are suitable to protect the rights of both parties.

execution and record of mortgage.—a mortgage of real estate must everywhere be executed with the same formality that is necessary for an ordinary deed of conveyance. different forms are in use in different states, and it is always desirable[pg 307] to use the form of mortgage customary in the state where the land lies. it is important to ascertain whether a seal is necessary in that state, and the instrument must ordinarily be acknowledged before a notary public having a seal, or before a commissioner of deeds for the state in which the land lies. there is in every state a recording act by virtue of which unrecorded mortgages are made invalid against subsequent purchasers and sometimes against attaching creditors. though an unrecorded mortgage is, as between the parties, as effective as if recorded, it is of vital importance promptly to record every mortgage in the registry of deeds in the county where the land lies.

special cases.—where a mortgage is executed by an agent or by a corporation, it is essential that the agent or corporate officer have authority to act. in the case of a corporation it is necessary both that the corporation have power to make the mortgage in question and also that the particular officer or officers who attempt to exercise the power are authorized so to do. the principles here involved, however, are not different from those generally governing the acts of agents and corporations. the same may be said in regard to mortgages by husband or wife, by a partnership, or by trustees. in the case of mortgages executed by any such person it is necessary to take special precautions. a mortgage by husband or wife should generally be also executed by the other. a mortgage by a partnership should be executed in the same form in which the title is held by the partnership,[pg 308] and if the title is held by less than all the partners, it is desirable that the other partners should express their assent to the transaction either in the mortgage itself, or in a separate instrument executed with the same formality.

interest in property.—any kind of interest in real estate may be mortgaged and mortgages of property, not yet acquired by the mortgagor, have generally been held to attach to the property when acquired by the mortgagor, and then to give the mortgagee as full a right as if the mortgagor had owned the premises at the time he purported to mortgage them.

other particulars.—the description of land in a mortgage should have the same exactness as is necessary in a deed. unlike deeds, mortgages ordinarily state their consideration and must of course state the indebtedness which they are given to secure. a mortgage may be given to secure a past debt if the mortgagor, when he makes the mortgage, is solvent. if he is then insolvent, to give such a mortgage would be a preference, which is an act of bankruptcy, and subject the mortgagor to possible bankruptcy proceedings. if the mortgagee in such a case had reasonable cause to believe that the mortgagor was insolvent, the mortgage could also be set aside by a trustee in bankruptcy.

equity of redemption.—by the terms of the mortgage the mortgagor's right is ordinarily made dependent on payment of the debt on a fixed day, or of installments on fixed days. a day thus fixed in the[pg 309] mortgage is sometimes called the "law day." according to the terms of the instrument the only way in which the mortgagor can be revested with title to the property is by complying with the express terms of the mortgage and paying the debt on the law day. the result of this provision, if enforced, would be that if the debt is not paid exactly when it is due, the mortgagee remains the absolute owner of the mortgaged premises. courts of equity, however, long ago limited the mortgagee's right, holding that the real object of the transaction is to secure a debt, and that if the mortgagee obtains his debt and interest he ought to be satisfied. accordingly if the mortgagor was in default in the payment of the debt, he was allowed to redeem the property by payment of the debt and interest until the time of tender. if the mortgagee refused to accept his debt and interest, the mortgagor could bring a suit in equity to redeem the property and the court would order the reconveyance to him of the property on payment of the debt. because of this right on the part of the mortgagor, his interest in the property came to be called an equity of redemption, and it is often so called at the present day. the position taken by courts of equity, permitting redemption, might work a hardship on the mortgagee because he could never feel sure of his title to the property, however long the debt might remain unpaid. this difficulty was met by allowing the mortgagee to bring a suit to foreclose the debtor's right of redemption. we speak of foreclosing a mortgage, but, strictly, it is the debtor's right to redeem which is[pg 310] foreclosed. when such a suit of foreclosure was brought equity would fix a time within which the debtor might redeem the premises by paying the debt and interest, and then the decree provided that if the debtor failed to pay within the named period, his right of redemption should be forever foreclosed. at the present time there are in practically all jurisdictions statutory rules, in regard to the foreclosure of mortgages, which we shall presently describe, but it is important to remember the fundamental nature of the mortgage transaction, and the original remedies of redemption and foreclosure.

a reconveyance is not necessary on payment of the mortgage.—if a mortgage is regarded as a mere lien to secure a debt, it is obvious that a payment of the debt discharges the lien, and the title already vested in the mortgagor becomes free from any incumbrance. on the theory of the common law, though the title passed to the mortgagee, it was subject to a condition subsequent which would revest the title in the mortgagor if payment of the debt was made at maturity. by mere operation of law, therefore, payment of the mortgage when due revested title in the mortgagor without reconveyance. after a default, however, a subsequent payment is not strictly a performance of the condition upon which the mortgaged deed provided that title should revest. accordingly a reconveyance was necessary in such a case at common law, but at the present day it is generally not requisite even in case of payment after default.[pg 311]

the mortgagor is liable as a debtor.—the mortgagor is bound as a debtor ordinarily by a bond or promissory note in which he expressly agrees to pay the amount of his debt. it is perfectly possible that the debt secured by the mortgage should not be represented by such an instrument, but should rest merely in oral agreement or should be contained in a covenant in the mortgage deed itself, but it is usual and desirable to have a separate obligation. the fact that the debtor has given the mortgage does not in any way limit the rights of the mortgagee as an ordinary creditor. he may sue on the mortgage debt when it is due, in the same manner as if there were no mortgage. it is his option whether he will foreclose the mortgage, as a means of collecting his claim, or whether he will get judgment on the debt, and seek to collect that judgment in the same way that an ordinary judgment creditor would. this rule is changed by statute in california, and one or two other states, where by statute the mortgagee is required to realize from the mortgaged property what he can before seeking a personal judgment against the mortgagor. in many jurisdictions the creditor may, in a single proceeding, obtain foreclosure of the mortgagor's rights by sale of the property, and a personal judgment against the mortgagor for any deficiency which the proceeds of the property may leave. this is called a deficiency judgment.

rights of mortgagor and mortgagee in mortgaged land.—even though the mortgagor is regarded by the law as having no[pg 312] longer the legal title to the premises, but only an equity of redemption, his interest is regarded as real estate and descends on his death according to the laws governing real estate. the mortgagee's interest, on the other hand, is regarded as personal property since the debt which the mortgagee is intended to secure is personal property, and even a legal title to the real estate held by the mortgagee is held merely for security, and is an incident to the debt. so the mortgagor's interest in mortgaged property is subject to be seized on execution by his creditors while the mortgagee's interest can not be so seized. the mortgagee's creditors must reach his interest by means appropriate to realize upon the debt, not upon the land. the mortgagor's interest being regarded as real estate will give rise to the same estates of dower in favor of the wife of the deceased mortgagor or curtesy in favor of the husband of a deceased mortgagor, as are allowed by the law in the case of real estate generally. the mortgagor may, while in possession, deal with the property in any way in which an owner may, except that he will not be permitted to imperil the mortgagee's security by any kind of waste. the mortgagor may, subject to the mortgage, lease, sell or devise it. he may collect the rents and profits and use them as his so long as he is in possession. where, however, the mortgagee is regarded as having the legal title to the premises, he may eject the mortgagor at any time from possession, even though the mortgage is not due, unless prohibited by statute or by the express terms of the mortgage deed. in[pg 313] fact he usually is so prohibited. even when not so prohibited, it is not always well for a mortgagee to take possession because, if he does so, he is bound to account not only for all profits actually received from the premises, but also for all that might have been received. he becomes liable for any waste of the premises or any failure to deal with them in a reasonably prudent manner.

sale by mortgagee or mortgagor of real estate.—either the mortgagee or the mortgagor may assign his interest. the mortgagee in assigning his interest is in legal contemplation doing two things: (1) assigning the debt; (2) assigning the title or lien which he holds on the mortgagor's real estate as security for the debt. as to the assignment of the debt, the matter is governed by the same principles as govern the assignment of choses in action generally. that is, if the mortgaged debt is represented by a negotiable instrument, the instrument may be negotiated to the purchaser in the ordinary way, and with the ordinary effects of such instruments. if the mortgaged debt is not represented by a negotiable instrument, the assignment of the debt is an assignment of a chose in action. where the common law view of mortgage still prevails, that the mortgagee has the legal title, he can only transfer it to an assignee by a deed executed with the same formalities necessary for the transfers of real estate. as, however, the law recognizes that it is the debt which is the essential feature of the relation between mortgagor and mortgagee, and that the mortgaged[pg 314] estate is held merely as security for a debt, a valid assignment of the debt is held to make the assignee equitably entitled to the mortgaged property as security. and, in effect, one who obtains the mortgage debt will secure the benefit of the mortgaged property even though the local law regards a mortgagee as having the legal title. where the mortgagee is regarded as having merely a lien, the assignment of the debt involves a transfer of the lien.

incidents to mortgage.—if the mortgagor wishes to convey his interest, he transfers the estate by deed exactly as if it were unmortgaged, except that the conveyance is stated to be subject to a specified mortgage, and it is sometimes added "which the grantee assumes and agrees to pay." it is desirable for the seller that the grantee shall assume and agree to pay the mortgage while it is desirable for the buyer that he shall buy the premises merely subject to the mortgage without assuming it. the difference between the two transactions is this: in either event the grantee receives the premises burdened by a mortgage, the amount of which will be deducted from the consideration paid as the agreed value of the premises. in either event, if the debt is unpaid, the mortgagee will foreclose and the grantee will lose the premises. in order to save the premises, the grantee will have to pay the mortgage.

assumption of mortgage.—the distinction is only seriously important when the mortgaged premises are worth less than the amount of the mortgage. in that event the mortgagee will be entitled[pg 315] to a deficiency judgment against the mortgagor. the mortgagor was the original debtor and cannot escape from his obligation to the mortgagee without the latter's assent. if the mortgagor is forced to pay, he cannot recover the amount from his grantee unless the latter assumed and agreed to pay the mortgage. if, however, the grantee did make such assumption, he will ultimately have to pay the deficiency. if the mortgagee, without foreclosing the property, should sue the mortgagor directly on the debt, the latter would be compelled to pay. even if the sale to the mortgagor's grantee had been made merely subject to the mortgage, the mortgagor on paying the debt would be subrogated to the mortgage and would himself be enabled to foreclose the property. but if the property failed to realize enough to reimburse him for the payment of the debt, he would lose this deficiency unless the grantee had assumed and agreed to pay the mortgage. whether the mortgagee may sue directly a grantee of mortgaged premises who has assumed and agreed to pay the mortgage, is a question which has been much litigated; but it is now held almost everywhere that the mortgagee may do so. sometimes a succession of grantees, each in turn on buying the premises, assumes and agrees to pay a certain mortgage. the mortgagee, in such a case, is generally allowed to recover from any one of these grantees so far as is necessary to satisfy his claim; but the ultimate liability will rest upon the last purchaser who has assumed the debt. as against a grantee who has not assumed the debt, the mortgagee has no rights.[pg 316] he can deprive such a purchaser of his land, so far as is necessary to collect the debt, but he cannot hold him personally liable.

foreclosure of real estate mortgages.—according to the original theory of the law, the mortgagee became the absolute owner of the mortgaged premises by the failure of the mortgagor to pay the debt when due, and by the foreclosure or termination of the mortgagor's right of redemption. foreclosure of this character is still possible in a few states, but in most states it has been wholly abolished, and everywhere the ordinary method of foreclosure is by sale of the mortgaged property. frequently the sale is made by virtue of an authority or power of sale given in the mortgage itself, but sometimes it is made under authority of a decree of court in foreclosure proceedings. where a mortgage contains a power to the mortgagee to sell on default of the mortgagor, he is acting not simply on his own behalf but as agent for the mortgagor in transferring title to the property. the proceeds will be applied first to the payment of the debt with interest and the expenses of the sale. any surplus will be held by the mortgagee in trust for the mortgagor and must be paid over to the latter. the situation is entirely analogous to that created by a collateral note where stock or other personal property is transferred as collateral to secure a debt. the statutes of all states contain regulations in regard to the foreclosure of mortgages, which must be observed. they are aimed generally to protect the mortgagor from forfeiture of[pg 317] his property to any greater extent than is necessary to insure the payment of the mortgage debt. in any case of foreclosure the local statute and practice must be consulted.

deeds of trust.—in some states what are called deeds of trust have been largely substituted for mortgages. the temptation to make such a substitution is greatest in jurisdictions which refuse to recognize the mortgagee as the legal owner of the premises. if the law denies the mortgagee this recognition, he can, by insisting, as a condition of his loan, that the premises shall be conveyed to a third person as trustee, achieve the result that the mortgagor at least is no longer the legal owner of the premises. essentially the situation is the same under a deed of trust as under a common law mortgage. in both cases the legal title is held merely to secure the debt, and the court will secure to the debtor all the value of the property which can be realized from its sale over and above the amount of the debt. if the debt is paid of course the debtor is entitled to the return of the security whether it is real estate or personalty, and whether held directly by the creditor or by a third person as trustee.

the torrens law.—the torrens system of registration of land titles received its name from sir robert torrens who drew the first torrens law enacted in south australia in 1858. the practice of searching titles has gone through this development. in country districts the person purchasing real estate frequently accepted the grantor's deed without any[pg 318] search of the title. of course, if there were judgments against the grantor, or other claims against the real property, the purchaser or the grantee takes the property subject to these claims. ordinarily, however, the careful purchaser employs a lawyer to make a search of the title before he accepts it and pays the purchase price. in new york city to-day, and in some of the other large cities of the country, most of the title searching has passed out of the hands of the lawyers into the hands of the title companies. the title company makes the search now, the same as the lawyer formerly did, with an added advantage. suppose i am to buy blackacre, and employ attorney blackstone to search the title. he reports it as being free and clear. i take possession and pay the purchase price. six months later the wife of the grantor appears on the scene. when the grantor conveyed, he stated in the deed that he was single. the wife establishes the validity of her marriage, and her husband's, my grantor's, death. she is, of course, entitled to dower. i am obliged to make some kind of settlement with her, and there is no way, probably, by which i can hold my lawyer for failing to find that the grantor was married, when he made the search for me. if the title to my property had been searched for me by a title company, it would have issued a title insurance policy in my name which would have protected me, in this instance, and i would have been reimbursed by the title company for the loss which i sustained in having to pay the dower claim of my grantor's wife.[pg 319]

economy of title searches.—economically, the title company is a big step in advance of the former practice of having lawyers make a search. the title company can do it much cheaper. if blackacre was sold, when lawyers alone were making searches, probably a different lawyer would be employed at each sale, and he would make a search back to the earliest deed. after a title company has made its search, the result is in its records and the next time it is on the same piece of property, the search would simply be what is called a continuation, which would carry the search from the last time the company was on the title down to the present time. this enables the title company to make its fee more reasonable than the lawyer, and we can now secure a title company's search and insurance policy frequently for less than formerly was paid to the lawyer for the search alone.

escheat.—however, the policies issued by the title companies are not absolutely satisfactory, and the next, and perhaps final, step is for the state to come in and guarantee the title. this is perfectly logical. the ownership of all land is in the state, theoretically, the same as under the english common law. the king, in those days, owned all the land. this is more than theory, even to-day. if a man dies, leaving no heirs and no will, his real property escheats to the state, this being based simply on the theory that the property goes back to its original owner, the state. if this is true, why should not the state insure the title? this is the theory of the torrens' system.[pg 320]

effect of torrens law.—the first torrens law, enacted in this country, was in illinois, and similar acts have been passed in a number of the states, including new york. when such laws are on the statute books, generally the business of a title company will be legislated out of existence. for that reason, opposition to the passage of such laws has developed in some states. perhaps the next fifty years may see them generally adopted throughout the country.