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The Torrens System: An Outline1
The Spread of the Torrens System
The Torrens system of registering land titles was conceived in South Australia in the mid-1850s under the leadership of (Sir) Robert Richard Torrens, a government official and member of the provincial Parliament. It was introduced by South Australia’s Real Property Act of 27 January 1858 and is now the predominant system of land titles registration in the Commonwealth of Nations. Once its success in South Australia was established, it was adopted quickly by all other Australian states (as they now are). Within four years Torrens statutes existed in all other Australian jurisdictions except Western Australia, where it was adopted in 1875. New Zealand, too, adopted the Torrens system in 1870 after the failure of an earlier reform of 1860 based on an English model.2
But before the Torrens system had spread to any of the other Australian colonies or to New Zealand, it was introduced in what would later be Canada, gaining a first foothold in early 1861 in far-off Vancouver Island, then one of the newest, smallest, and remotest outposts of the British Empire. The Torrens system has since grown slowly but surely in most provinces of Canada; it is now dominant in four provinces and is growing rapidly in a further three. Lawyers refer to the transfer of a legal institution such as the Torrens system from one legal order to another as a ‘reception.’ Canada received the Torrens system in a number of stages – there were multiple receptions of the Torrens system
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4 The Law of the Land
across Canada because the provinces have responsibility for this area of the law, and the various provinces that now have the Torrens system introduced it at different times and for slightly different reasons.
This book is the story of how the Torrens system was established in Canada by the late nineteenth century and was gradually received in many other parts of Canada. It is also the biography of a reform in Canadian private law. Canada was a crucial conquest for the Torrens system, not only in its own right but also because the system’s foothold there gave it international status, confirmed its suitability for use outside Australia, and provided it with a platform for further growth. After Canada it spread to some states of the United States and, in one form or another, to Commonwealth countries such as Papua New Guinea, Malaysia, Kenya, and Uganda.3 The Torrens system is reported to exist in countries as diverse as Tunisia, Ethiopia, Madagascar, and Iran.4 In 1996, Russia and the newly independent Ukraine were considering the adoption of a Torrens-based system for private land holdings.5 Although Torrens has never been wholly adopted in England, it has inspired notable modern reforms of English law, to the extent that some commentators consider it proper to refer to the current English system of land registration as a Torrens system.6
No doubt the Torrens system’s presence in Papua New Guinea, which is a former Australian colony, owes little or nothing to its existence in parts of Canada, but the same is not true of all the other countries mentioned. A Tunisian judge, when seeking information about the Torrens system in the mid-1880s, turned to the Canadian Department of Justice, because while filling in the time during a voyage by ship he had read about the system in a newspaper from Winnipeg and could furthermore write to Ottawa in French.7 Americans frequently and naturally turned to Canada for information about the Torrens system, as did legal officials in the Philippines, in which the Torrens system prevails today.8
In the United States, it must be said, the system has not been as successful as in most other places. Nine American states still have Torrens system statutes (although that does not necessarily mean that the Torrens system is the dominant system of land titles in those states).9 The relative failure of the Torrens system in most parts of the United States is not due to any intrinsic flaws in the system itself. Rather, it is due in the first place to a combination of vested interests – sometimes lawyers, but much more tenaciously the title insurance industry – that have a lot to lose from the Torrens system. These interests oppose its extension
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The Torrens System: An Outline 5
and have been accused of ‘systematic sabotage of the American Torrens system.’10 Other reasons include inadequate drafting of the legislation and poor maps; public ignorance of what the system means and how it works; constitutional problems related to the separation of powers that are unique to American law and require expensive, tedious judicial proceedings for essential steps in setting up the system; and finally, a lack of political will to overcome these hurdles.11
In the Australian states, in several provinces of Canada, and in many other places around the world, however, records of ownership of land are managed by means of the Torrens system. In many places it would be hard to conceive of any other system.
We shall see that unlike in Australia, where the large degree of uniformity among the colonies led to a rapid adoption of the Torrens system for essentially the same reasons everywhere, the great variety among the Canadian provinces has produced a far more complicated story, or rather series of stories. Thus the simplified version of the Torrens system introduced in Vancouver Island in 1861, and which carried British Columbia into Confederation in 1871, has only a minimal historical connection with the second wave of adoption of the Torrens system to its east and north in Ontario, the prairie provinces, and the Territories. And although those three sets of jurisdictions adopted the Torrens system at about the same time, and as a result of the lobbying efforts of the same group of lawyers and moneylenders, Ontario went its own way, both drafting its statute on a different model and refusing to make the Torrens system compulsory except in its northwestern extremities. Finally, the most recent wave of adoption of the Torrens system in Canada, in Nova Scotia and New Brunswick, was an outcome of very different pressures again: the computer age.
The adoption of the Torrens system remains only partial across Canada, with three provinces – Quebec, Prince Edward Island, and Newfoundland and Labrador – still untouched by it. The project of mass conversion of old system titles is still underway in three others – Ontario, Nova Scotia, and New Brunswick.
The Need for Reform
To appreciate why the Torrens system has been widely copied, one must describe the system it replaced in both Canada and Australia – and indeed in most countries that inherited the English common law. Under that law, land was sold by deed, a solemn form of contract that
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6 The Law of the Land
was entered into between the seller and the buyer. The deed was not valid unless the seller had the right to sell the land, and the seller could have this right only if the person who sold the land to him had the right to sell it. That right was proved by showing the same thing in relation to that earlier transaction; namely, that the previous seller had had the right to sell the land to the buyer at that time, who had now become the seller to the latest buyer – and so on, back into the mists of time. At common law the process of backward investigation could not cease until either one reached the first sale of the land by the Crown to its first owner or until the longest possible period under the statute of limitations was exhausted and any undiscovered claims were extinguished by the lapse of time. In most jurisdictions nowadays, a statute specifies the precise period of backward search required: in Ontario since 1929, for example, it has usually been forty years.12
Proving the existence of each seller’s right to sell for the requisite period of time was known as establishing the ‘chain of title.’ This system was accurately described by Torrens as a system of dependent titles; that is, a system in which everyone’s title to land depended on the validity of the title of all the people who had sold it beforehand.13 The documents that proved the earlier sales and thus established each seller’s right to sell were the deeds of sale, which were agreements made between the buyer and the seller as parties to the sale. The deeds were, as a rule, in private hands, normally with the current owner or the owner’s bank.
The process of establishing the chain of title could be quite expensive, as the seller and buyer each had to employ a lawyer to examine the earlier deeds and to make sure that each prior seller of the land had had a complete right to sell it.14 It was an extraordinarily rudimentary system
– not much different in practice and not at all different in general principle from that prevailing in ancient Athens over two millennia beforehand.15 It caused a number of grave difficulties. If documents were lost, problems arose in proving an owner’s title. Flaws in earlier titles were carried on down the line even if later purchasers knew nothing of them. And because the documents were in private hands, the potential for fraud and forgery was great. In the nineteenth century, reform of the law in this field was one of the burning issues in all countries that had inherited the English common law. The difficulty was to find a workable replacement.
In addition to these problems, the courts of equity developed a further hurdle, the doctrine of notice. This doctrine meant that many
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The Torrens System: An Outline 7
claims on land falling short of full ownership, such as mortgages, trusts, or leases, could be created without noting them on the deeds and then affect a new owner’s title, even if he knew nothing of them. Notice of such an interest was said to be enough to bind the new owner to respect it, and ‘notice’ was said to exist not only when the owner knew of an interest in land, but should have known of it. With the benefit of hindsight it is always easy to declare that a purchaser has been lax in not checking just a bit more and that if that had been done, an interest would have been revealed which thus now affects the new owner’s title because of ‘notice.’16
These problems were felt particularly acutely in South Australia, which is one major reason why the Torrens system was developed there. The Wakefield system of colonization on which South Australia had been founded proposed as its basic idea that advance sales of land would be used to create a fund to pay the costs of setting up the colony.17 People buying land in this way received ‘land orders,’ which could be sold and resold on the private market. The intention of the founding theorists was that the purchasers of land would use it themselves. Soon, however, speculation in land was rife, with properties being carved up and constantly bought and resold. This meant that the system of dependent titles quickly became as difficult to administer as in England, since it was necessary to trace each transaction and prove that it was not affected by some defect that would invalidate all later transactions. In fact, establishing the chain of title became more difficult over time, because people left South Australia as well as emigrating to it; and when they left they might take documents with them, or their absence might make it impossible to sue them if they had not transmitted a good title, or even find them to prove that they had.
Additional difficulties in determining ownership of land were created by South Australia’s unreliable survey maps and other slack practices.
One amateur vendor [of subdivided land] sold his township from a map that showed north pointing due south ... The township of Walkerville, purchased by Governor Hindmarsh and his wife, was sold to a surveyor who subdivided it into acre allotments, one of which had three owners before passing to two illiterate labourers as part payment for the sinking of a well. Before leaving Adelaide they sold the acre for £20 to a clerk fresh from England, giving him a verbal account of the earlier transactions and a receipt adorned with crosses and the undecipherable signature of a
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witness. On the strength of this title the clerk contrived to raise a loan ...
One agreement was for land ‘about seventy paces from the N.W. corner of the Sheoak Log Hotel’ (since burnt down); another, ‘adjoining the lot late in the possession of William Smith’ (since departed for the Californian diggings).18
The same problems existed, as we shall see, in Canada, particularly in the prairie provinces, in which land booms could suddenly occur in new areas in which legal and surveying services were difficult to obtain, so that many amateur transactions in land occurred.
Such inexact practices would be unsatisfactory anywhere, but they could affect the principal asset of many people in places like South Australia and much of Canada, where land ownership was within the reach of many members of society rather than being confined to the well-off, who could take the occasional loss and afford the occasional lawsuit.19 Furthermore, expense and difficulty in acquiring and transferring land made people more reluctant to engage in such transactions, which hindered settlement of newly opened-up areas and also – a crucial point in the spread of the Torrens system within Canada – made moneylenders reluctant to lend cheaply against land to finance improvements of land.20 It was therefore in the interests of many ordinary people to have a better, more certain, and more efficient system.
Various remedies designed to fix the problems were tried before the Torrens system. The registration-of-deeds system was the commonest. It required all deeds and some other documents affecting title to land to be registered by a government official. If they were not, the statute made them ineffective against anyone who bought the land later on. Such statutes were introduced throughout Canada, as well as in Australia.21 They came in a variety of forms. Some required registration in order for any interest in land to trump a later registered interest (the ‘race’ system), while others merely provided a register as one means of giving adequate notice of an earlier interest to would-be buyers or mortgagors (the ‘notice’ system) and thus ensuring, through the rules of the general law, that it bound anyone with a later interest. The commonest was the ‘race-notice’ system, which required both the absence of prior notice of a competing interest and registration before any such interest. Land in Ontario, for example, that is not yet under the Torrens system is subject to the race-notice system of deeds registration.22
However, all registration-of-deeds systems, of whatever subspecies, were different from the Torrens system in a crucial respect: registration
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The Torrens System: An Outline 9
of deeds made it easier to find the deeds, but it did not confer any additional validity on them. Registration did not make the title valid or cure the defect if a deed was invalid because it was forged, for example, or signed by someone without a right to sell. Even if no such sharp practice had occurred, there was the possibility of an overriding interest such as a mortgage over the land, or adverse possession (the ability of people to acquire the ownership of land by simply using it for a long period without any legal right but as if they had one).23 Registration of the deed of sale did not necessarily prevent such an interest from affecting the new owner’s title or even from rendering it completely worthless.
The registration-of-deeds system, in short, ‘was no “hospital”: it could not be used to elevate “bad” titles to “good” ones; rather it was directed at saving good titles.’24 Registration merely prevented deeds that were already valid before registration from being set aside by later valid transactions. It stopped things from getting any worse, but did not make anything more valid or certain than it would have been without the system. So buyers who accepted invalid deeds still found that they did not have any title, or not a complete one, to the land that they thought they had bought. Registration of the deed was of no use to them if the deed was wholly or partially invalid from the start. Nor was registration under this system enough to permit lenders to grant loans at the cheapest rate, the rate applicable when they were sure that the person to whom they were lending was actually the owner of the land and that there was no risk that they would lose their security. So the whole chain-of-title process had to continue under the registration-of- deeds system.
The Torrens System
The fundamental reform introduced by the Torrens system was that the legal ownership of land could no longer be changed by private agreements between buyers and sellers, but only by the act of registration on a public register. The title of a registered owner thus became independent of the previous owners’ titles: under the Torrens system, registration itself confers a good title. Simply being registered as the owner cures any defects that would otherwise exist in the title. All that one has to do as a buyer of Torrens system land, therefore, is to check that the person selling the land is the person named in the public register as the owner of it, and get on the register after the sale. There is no need to check whether that seller bought it from someone else who was the
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10 The Law of the Land
‘true’ owner of the land, for as long as a buyer does those things the buyer can be quite sure of obtaining a good title upon registration.
This basic principle was expressed in section 31 of the world’s first Torrens statute, South Australia’s Real Property Act [1858]. It stated that interests in land would henceforth be transferred ‘so soon as the Regis- trar-General shall have entered the particulars thereof in the book of registry.’ To emphasize the fundamental change wrought by the system, section 37 of the Act repeated that ‘upon such entry [of a transfer in the register] being made by the Registrar-General, the land ... shall pass to and vest in the purchaser.’ Section 33 of the Act supplemented this principle by specifying that what appeared on the register was to be conclusive evidence of all the interests that existed in the land concerned.
Here, then, is the important change expressed in statutory language: once a change of ownership has been registered in the public register book, the fact of being registered as the owner – not the previous agreements between buyer and seller – is itself the source of the new owner’s good title to the land. So the Torrens register is a ‘hospital.’ It does make things better, cure invalidities, and make people’s titles certain. It does this, once registration has occurred, by taking away the need to show from then on that the registered owner’s title originated in the seller’s right to sell the land. The Torrens system therefore means the end of the need to look backwards for possible flaws.
Under the Torrens system any agreements and deeds entered into by the parties themselves remain private arrangements, enforceable only between the parties themselves, until the ownership is legally transferred by an entry in the register book. That entry, independently of the validity of the private agreements, is from then on the sole and independent source of the owner’s title. The responsibility for keeping a record of the ownership of land and for ensuring that the ownership of land is changed effectively is transferred from private to public hands.
As is always the case in the law, a fundamentally sound principle, as the Torrens principle is, cannot be applied without any reservation. There have to be exceptions for what section 33 of the Act of 1858 called ‘the case of fraud and error,’ or more accurately, fraud (including outright forgery) or error. If anyone were able to forge a transfer of land and have it registered, and could then claim a good title based on the fact that his name appeared in the register book, anyone could easily profit by forging a transfer. The person who really needs protection in such a situation is not the fraudster but anyone who may buy the land
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The Torrens System: An Outline 11
from the fraudster in good faith – believing that the fraudster, who is registered as the owner of the land, is a legitimate seller. Accordingly, section 94 of the original South Australian Act allowed the title registered by the fraudster to be cancelled up until the time that he sold the land to someone acting in good faith, but also said that a buyer, if acting in good faith, obtained the ownership of the land despite earlier fraud.
The danger of fraud still exists under the Torrens system, of course; its principle of the centrality of the register eliminates many of the uncertainties associated with the old system, but it does not eliminate the potential for deliberate sabotage. In such cases, as often in the law, there is the potential for conflicts to arise between innocent victims of fraud and the equally innocent person who receives an interest in the property concerned after the fraud is perpetrated and who is relying in good faith on a transaction that is shown on the register and is not known to be fraudulent.
In Australia, opportunistic cases of forgery and fraud have certainly occurred, but they have mostly been few and far between and have not posed any serious threat to the integrity of the Torrens register. In Ontario, however, a recent rash of cases of real estate fraud has caused some public concern. In the well-publicized case of Lawrence v. Maple Trust,25 for example, a fraudster registered a transfer of Susan Lawrence’s Toronto property to himself and then took out a mortgage with the Maple Trust. Clearly the fraudulent transfer can be eliminated from the register and Susan Lawrence restored as the rightful owner according to the register, but if the Maple Trust cannot recover its money from the fraudster (the usual case), can it rely on the fact that it has registered its mortgage and recover its money from the registered owner of the property?
Both the Ontario Legislative Assembly and the Court of Appeal in the Lawrence case have decided to prefer the interests of victims of the fraud, like Susan Lawrence, over those of the recipient of an interest from the fraudster, such as the Maple Trust.26 This decision is based on the grounds that the recipient of an interest from the fraudster has the better opportunity to avoid incurring a loss, because that person or institution as a rule deals with the fraudster and can investigate the proposed transaction, whereas the victim of the fraud almost always cannot. The principle of reliability of the register is restored to full force, however, if the person who dealt with the fraudster passes on the interest to yet another person who did not deal with the fraudster. That
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person is entitled to rely on the validity of the register, which now includes his or her own interest.
In Australia the opposite solution to that recently adopted in Ontario is currently the law, so that an interest in land need only be registered innocently in order to be valid, even if the registrant is actually dealing with a fraudster. This solution, however, is to be attributed rather more to the views of the courts than to the wording of the statutes, which sometimes distinctly suggest that the solution just adopted in Ontario is the correct one.27 I suspect, too, that if there were ever an outbreak of real estate fraud, as happened recently in Ontario, public pressure would lead to the same outcome in Australia.
However the details are organized, under the Torrens system the principle is that the register book is, subject to limited exceptions, the independent source of an owner’s title to land. This has been memorably subdivided by an English commentator into two sub-principles, the ‘mirror principle’ and the ‘curtain principle.’28 The mirror principle means that the register book kept under the Torrens system should be an accurate reflection of the state of title to the land. It should show not only who the owner is, but whether he has mortgaged the land, leased it, or in any other way done something that restricts his rights as the owner. This principle means the abolition of the general law’s doctrine of notice, because if something is not on the register then people are entitled to ignore it.
The mirror principle is the principle to which section 33 of the original Real Property Act, with its emphasis on the conclusive nature of the register book, gave effect. But again, it is not practicable for this principle to be applied without any exceptions at all. For example, it is usual for Torrens statutes to contain an exception to the mirror principle stating that people who have short-term leases over land and are actually in occupation of it do not have to register their leases for them to be valid. This is because first, registering a short-term lease would be unnecessarily complicated and expensive; and second, people intending to buy land should detect someone other than the owner who is actually occupying it and make further enquiries. Standard-form contracts for the sale of land also regularly require the seller to declare whether any third party is in occupation of it.29
Equally, mortgages may be created off the register in many versions of the Torrens system by leaving a copy of the owner’s copy of the certificate of title with the lender.30 The idea is that people who wish to buy land should notice if the owner’s copy of the certificate of title can-
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The Torrens System: An Outline 13
not be produced by the owner, and that should lead them to enquire whether someone else has it, perhaps because that other person has an interest in the land such as a mortgage. Another common and rather obvious exception is that government taxes against land do not have to be listed on the register in order to be enforceable against Torrens land. This makes sense, because everyone knows that such taxes exist, and it is a small burden to require people to check with the government before buying land to ensure that there are no unexpected unpaid taxes on it.
Less common and more controversial exceptions are those for easements (rights to use land for a specified, limited purpose vested in someone other than the owner of the land concerned) and adverse possession. A crucial decision in the design of any version of the Torrens system is how many and what sort of exceptions to have, and the different models applying in various provinces, states, and countries differ on this point, as is only to be expected.
A further difficult distinction is that between proceeding with registration, knowing that it will destroy an earlier interest of which one has notice but which is not on the register, and fraud, which is an exception to the principles safeguarding registrants in the manner earlier explained. A number of cases in both Australia and Canada have attempted to trace this difficult line.31 But once the exceptions are out of the way, the basic principles must be that the register book should mirror the state of title to the land and that people are entitled to rely on it as a result.
The curtain principle marks a further, even more important departure from the old system: it states that a person wanting to buy land should not be concerned about transactions preceding those on the register nor (subject to the sorts of exceptions just mentioned) need to enquire whether there is anything not on the register. A person wanting to buy land (or otherwise deal with land, for example, by lending money to the registered owner on the security of a mortgage granted by the registered owner) is entitled to draw a metaphorical curtain in front of everything that is not on the register book and to regard the register as the sole source of information about the land in question. Under the old system, that would have been fatal if there lay hidden, in deeds ten or fifteen years old, some defect in the seller’s title which would, so to speak, infect any potential buyer. Under the Torrens system the onus is on people with interests in land to get onto the register – and so any interests not on the register and not the subject of an exception, such as
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14 The Law of the Land
that for short-term leases, can be ignored because they are behind the curtain. That is why mere notice is not sufficient to bind someone who does register.
A further innovation – the ‘insurance principle’ – was contained in the original South Australian Act and copied by most Canadian Torrens systems in order to protect those who lost their land through the registration of incorrect details on the register, whether by fraudsters or by accident. A small tax – in South Australia it was originally one farthing in the pound, about 0.104 per cent – on the value of land is levied when it is brought under the system established by the Act and paid into an assurance fund. Under sections 35 and 96 of the Real Property Act, this fund was to be used to compensate people who had lost their land through fraud or error. Nowadays this would include people such as victims of frauds like that perpetrated in Susan Lawrence’s case, but there is generally a requirement that the person claiming such an indemnity (the Maple Trust as mortgagee in cases such as the Lawrence one) must have exercised due diligence.32 Otherwise the assurance fund would be used as a substitute for proper care by people or lenders entering into transactions. Obviously that does not apply to people such as Susan Lawrence, who have no idea that their houses had been the subject of a fraudulent transaction. As it turned out, Susan Lawrence herself did not need the assurance fund, because her home was restored to her and the fraudulent mortgage cancelled. But if some further transaction had been registered to an innocent person who did not even deal with the fraudster, and that transaction had to be upheld as valid, swift access to the assurance fund would have been needed.
Thus, the Act of 1858 established not only a state-run register of titles, but also a state guarantee that landowners would not be deprived of their land without compensation because of the operation of the system. From the point of view of the landowner joining the Torrens system as it began its operations in 1858, the fund provided some assurance that nothing could be lost by joining the system. From the point of view of the state, having to pay compensation in the case of fraud or error created an incentive to run the system with care so that frauds were detected and errors avoided.
The possibility of claiming on the assurance fund still exists in South Australia, but under the current statute no further taxes to supplement it have been levied since 1988. That demonstrates how infrequently this form of insurance has been needed.33 This too has been a common
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The Torrens System: An Outline 15
experience in Torrens jurisdictions, including the Canadian provinces: their assurance funds have frequently amassed far more money than is ever needed, and indeed some Canadian provinces that have adopted the Torrens system more recently, such as Nova Scotia and New Brunswick, have decided to dispense with the idea completely.
The assurance fund was nevertheless quite important in early South Australia because under the original Torrens model, joining the Torrens system was a voluntary process for all land first sold by the Crown before July 1858; that is, for all land that the Crown had sold in the first twenty-one years of settlement in South Australia. Most Canadian Torrens systems copied this feature, too; some went even further, so that in most of Ontario and on Vancouver Island bringing land under the Torrens system was not compulsory even for land granted by the Crown after the Torrens statute came into existence.34 In Manitoba, as we shall see, one of the chief disputes about the shape of the system was whether it was to be compulsory or not for newly granted land.
Under either arrangement there was a substantial number of landowners under the old system who had to take the initiative and apply to receive a Torrens title instead of an old system title. Some guarantee had to be held out to such people to persuade them to join the new system. This was particularly so in the early years, before the Torrens system had proved itself reliable by experience.
In all versions of the Torrens system, joining the system voluntarily involves proving one’s title to the land to be valid under the old system for one final time, so that all existing claims are unearthed and an opportunity is given to all claimants to put forward their case. If the land has recently been granted by the Crown to the applicant this is unlikely to be difficult, but if the land has been in private hands for some time it can be harder because one has to establish one’s chain of title. Torrens put great effort into designing this part of his system, because one of the main complaints about the old system was the expense and delay required to demonstrate one’s title. Under the old system this had to be done repeatedly, because it was necessary to prove the chain of title every time an interest in land was to change hands. Joining the Torrens system would require this process to be gone through one last time, but it was still essential to find a proper balance between thoroughly safeguarding the interests of existing owners on the one hand, and offering speed, economy, and attractiveness to would-be holders of Torrens titles on the other. If the system were
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16 The Law of the Land
insufficiently thorough, loss might be caused unfairly. If the system were too slow or expensive, people would have little incentive to apply for a Torrens title at all, and the system would not grow as rapidly as it was hoped it would.
Torrens’s solution was to establish two Lands Titles Commissioners, positions modelled loosely on the highly successful Commissioners for Sale of Incumbered Estates in Ireland created by a U.K. statute of 1849.35 Torrens’s commissioners were to sit with the registrar general as a three-man tribunal for deciding upon applications under the Act. Section 10 of the Act of 1858 expressly prohibited them from being legal practitioners, although they were to be assisted by two solicitors. The reason for this prohibition was clearly revealed in Australian debates on the spread of the Torrens system: the public believed that lawyers were either unduly cautious, not allowing ancient and probably hypothetical doubts about titles to rest in peace, or positively malicious, seeking to destroy the Torrens system for their own narrow self-inter- ested purposes.36 The commissioners and the registrar general were therefore to judge the state of the title not by the petty and pedantic standards of lawyers, but by common-sense standards, ignoring the sorts of theoretical possibilities and unrealistic doubts that lawyers would take into account when giving unnecessarily equivocal opinions. In order to ensure as far as possible that claims to land were unearthed before a Torrens title was granted, a system of advertising applications was set out in the 1858 Act, and if anyone objected to a proposal to grant an interest the claim was to be referred to the Supreme Court for a decision.
This was certainly an inventive and unorthodox solution, and in each society that adopted the Torrens system there remained the issue of how to deal with land already in private ownership when the system was introduced. An objection frequently urged to the South Australian solution was that it involved a breach of the principle of separation of powers: non-lawyers were adjudicating upon legal rights.37 Mr Justice Benjamin Boothby of the Supreme Court of South Australia in particular had harsh words to say about this solution and for a time effectively read it out of the Act by reading in a right in the Supreme Court to review the commissioners’ decisions, even years after they were made.38 However, there was far less substance to objections on the grounds of the separation of powers than there appears to be at first sight. Non-lawyers often adjudicate on legal rights for administrative purposes, and Torrens provided for disputes to be
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The Torrens System: An Outline 17
referred to a court, merely requiring that the disputes should be referred when the clear Torrens title was sought and not saved up for later. Torrens’s solution certainly worked well in South Australia and under his leadership as registrar general, but as we shall see it was not the solution adopted in all of Canada.
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