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California Legislative Counsel Bureau California. Secretary of State.

Amendments to the Constitution and proposed statutes : with arguments ... online

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same shall be subject to the terms and provisions of this act
and of the amendments and alterations thereof.

Sec. 45. No persm shall commence any action at law or in
equity for the recovery of land, or assert any interest or right
in, or lien or demand upon the same, or make entry thereon ad-
versely to the title or interest certified in the first certificate
iK'higing the land under the operation of this act after one year
following the first registration. It shall not be an exception to
this rule that the person entitled to bring the action or make the
entry is deceased, an hifant, lunatic, or is under any disability,
but action may be brought by such person by his next friend or
guardian or by the administrator or the executor of a deceased
person. It shall be the duty of the guardian, if there is any, to
bring action in the name of his ward whenever it is necessary to
preserve or enforce the ward's rights in registered land; pro-
vided, 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 of the pro-
ceedings to register such lands in time to appear and file his
objections or assert his claim. The provisions of this section
shall in no way effect or disturb the rights of any person in paid
land, acquired subsequent to the registration thereof, bona fide
and without knowledge and for a valuable consideration.

Sec. 46. In all estates of deceased persons the administrator
or executw may file a petition to the court in the probate pro-
ceedings, praying for the registration of all land belonging to
the estate in fee simple, setting forth the facts required to be
set forth by sections 5 and 6 of this act together with a
description of all the land of which the deceased died seized
which is sought to be registered.

The court, by reason of its general jurisdiction shall, in pro-
bate, have power and jurisdiction to do any and all things neces-
sary to determine the title to the land and all adverse interests
therein to the same extent as said court has in independent pro-
ceedings under this act. Upon the filing of such petition the
court must direct notice of the filing of said petition to issue as
provided by this act and the administrator or executor shall
publish and serve such notice upon all persons required by this
act to be served and in the manner therein specified.

Every decree of final or partial distribution of land sought to
be registered, whereto upon the hearing of such petition, after
said notice has been given, the court shall find the title to such
land to be such as to entitle it to be registered under this act.
may direct an such land to be registered In the name of the
distributee or distributees in fee simple, which decree shall be
authority to the registrar of the county hi which any such land
is situated to register the same and Issue his certificate of rerf*?-
tratlon to such distributee or astributees. If any land sonpht
to be registered to any proceeding under this act lies in any

Sixty-three



county other than the county in which said estate is being ad-
■talfltered, a certifled copy of said petition shall forthwith be
filed with the registrar of erery county in which any of such
land may be situated and such copy, when filed, shall be notice
of such application to all persons dealing with said land.

Sec 47. Any Instrument offered for filing with the registrar
of any county, seeking to affect registo^d land, must have
noted thereon a statement of the fact that the land sought to be
affected is registered land, with the name of the registered
owner and with the number or numbers of the certificate or cer-
tificates of the last registratim thereto. Otherwise none of
such instruments shall be filed, nor shall the same affect the
title of the or any part of the land sought to be affected, nor
will the same impart any notice thereof to the registered owner
•r to any person dealing with such land.

Sec. 48. A registered owner of land desiring to transfer his
A bole estate or Interest therein, or some distinct part or parcel
thereof, or some undivided inUnst therein, or to grant out of
his estate an estate for life, may execute to the intended trans-
feree a deed or instrummt of conveyance in any form authorized
by law for that purpose. And upon filing such deed or other
in.strument in the registrar's office, and surrendering to ttie regis-
trar the duplicate certificate of title, the transfer shall be com-
plete and the title so transferred shall vest in the transferee;
thtreupon, the registrar shall issue in duplicate and register, as
li> u'inbefore provided, a new certificate, codifying the title to
iht estate or intovst in the land desired to be ccmveyed to be
i<i the transferee, and shall note upon the original and duplicate
certificates the date of the transfer, the name of the transferee,
and the volume and folium in which the new certificate is regis-
tered, and shall stamp across the original and surrendered dupli-
cate certificate the word "canceled," in whole or in part, as the
case may be.

Sec 49. When only a part of the land described in a certifi-
cate is transferred, a new certificate shall be issued to the
grantee for the part transferred to him and another one shall be
issued to the grantor for the part remaining in him; iN^ded,
however, that if the land consists of a tract divided into sub-
divisions designated by numbers or letters on a plat of said
subdivision, filed with the recorder, duly verified as required by
law, on which plat so filed the measurements of all boundaries
of each subdivision appear, the registrar may, upon request of
the grantor, mske a new certificate to the grantee of one or
more of sudi subdivisions and instead of issuing a new certificate
for the remaindo* to the grantor, may enter uq^on the original
certificate and upon the owner's duplicate, a memorandum of
such transfer, in red ink, s^ttii^ forth the fact that the par-
ticular subdivision, describii^ it by numbers or letters as the
same is described in said plat, has been granted and that such
certificate is cancelled as to such subdivision. Every certificate
with such memorandum endorsed thereon shall be as effectual for
the purpose of showing the grantor's title to the remainder of
the land not conveyed as if the old certificate had been can-
celled and a new one for the remainder issued; such process
may be repeated as long as there is convenient space uprai the
original certificate and the owner's duplicate thereof for making
such memoranda of transfers of subdivisions.

Sec. 50. The registrar shall mark as filed every deed, mort-
gage, lease, and other instrument which may be filed in bis
office, in the order of its receipt, and shaU note thereon at the
date of filing the minute, hour, day, and year it is received.
When the date of filing any instrument is required to be entered
upon the register, it ahsJl be the same as that indorsed up(Hi
such instrument.

Sec. 51. All instruments, notices, and papers required or
permitted by this act to be filed in the office of the registrar,
shall be retained and kept in such office, and shall not be taken
therefrom except by a subpoena duces tecum issued to and served
upon the registrar by a court of record. But the registrar,
on demand, the proper fee being tendered therefor, shall de-
liver to any person a copy or copies of such an instrument, with
all memoranda, memorials, and indorsements thereon, duly cer-
tified under his hand and seal of office. The registrar shall,
however, upon all such copies, indorse thereon in writing across
the face thereof, in red ink, "copy, no rights conveyed hereby."

Sec. 52. Every copy of original instruments so certifled as
provided for in the last preceding section, shall be received in
all cases in place of the original, and as evidence have the same
force and effect as the origtoal instrument

Sec 63. Like forms of deeds, mortgages, leases, and other
Sixty-four



instruments as are no« or may hereafter be suflScient in law
for the purpose intended, may be used in dealing with regis-
ttfed land and any estate or into^ therein. Sudi Instrumoit
shaU give the number ff the certificate of title of the land de-
scribed therein. But an Indorsement, duly acknowledged, upoa
the duplicate certifieat« of title, substantially in the foUowlDS
form, viz. : "I, , grant to the real pnpetij de-
scribed in this certificate. Witness hand and

seal this - — • — day of , ," shall be

sufficient to transfer the property in said certificate described.

Sec. 54. Every deed or other voluntary instrument which is
presented for registration including the endorsement of a cer-
tificate of title, shaU contain or have oidorsed upon it the full
name, residence and postoffice address of the grantee or other
person who acquires or claims an interest under sudi instrument.
Any change in the residence or postoffice address of such person
shall be endorsed by the registrar upon the original instrument,
upon receiving a written statement of sudi diange, duly acknowl-
edged. Notices and processes issued in relation to registered
land after original re^stration, may be served upon any person
in interest by mailing them to the address so (j^ven, and shall
be binding, whether he resides vrithin or without the state. The
certificate of the clerk that he has served such notice shall be
conclusive proof of such service; but the court may, in any case,
order Afferent or further service, by publication or otherwise.

Sec 55. A deed, mortgage, lease, or other instrument pur-
porting to convey, transfer, mortgage, lease, charge, or otherwise
deal with registered land, or any estate or interest therein, or
charge upon the same, other than a will or a lease not exceed-
ing one year where the land is in the actual possession of the
lessee or his assigns, shall take effect only by way of contract
between the parties thereto, and as authority to the registrar to
register the transfer, mortgage, lease, charge, or other dealing
upon compliance vrith the terms of this act On the filing of
such instrument, the land, estate, interest, or charge shall be-
come transferred, mortgaged, leased, charged, or dealt with ac-
cording to the purport and terms of the deed, mortgage, lease,
or other instrument The registrar shall inunediately, upon tlie
filing of such instrument, stamp or write upon the orig^ and
duplicate certificates of title the word "transferred," "mort-
gaged," "leased," or otherwise, as the case may require, witii
the date of filing such Instrument and sign such endorsement

Sec. 56. No transfer of title to land or any estate or inter-
est therein shall be registered if the last original certificate
shows that the land in such certificate described, or any part
thereof, has been sold for any tax or assessment, unless sodi
transfer is intended to be subject to such tax sale, in whidi case
it shall be so stated in the certificate issued upon such transfer
and no transfer of any homestead which has not been thereto-
fore released or extinguished of record shall be made unless
both spouses join therein.

Sec. 57. Community property registered under this act as
such cannot be transferred, mortgaged, encumbered or otherwise
disposed of by the registered owner thereof without the written
consent of both spouses.

Sec. 58. The transferee shall furnish the registrar with an
affidavit stating whether the transferee (except when the latter
Is a corporation, executor, administrator, or assignee) is mar-
ried or not married, and if married, the name of the husband
or wife, and whether or not the property is community property,
and the fact shall be recorded on the certificate of title by the
registrar before the transfer is made on the register. If the
transferee be an executor or administrator, the certificate shall
give the name of the deceased testator or intestate, and if tbe
transferee be an assignee or trustee, the name of the insohrent
(M* bankrupt.

Sec. 59. Every mortgage, lease, contract to sell, or other
instrument intended to create a lien, incumbrance, or charge
upon registered land, or any interest therebi, shall be a charge
thereon immediately upon registration thereof.

Sec 60. On the fllbig of an instrument intended to create
a charge in the registrar's office and upon the production of
the duplicate certificate of title, whenever it appears from the
original certificate of title that the person intending to create
the charge has the title and right to create such charge and tbe
po^on in whose favor the same is sought to be created is en-
titled by the terms of this act to have the same registered, tbe
registrar shall enter up<m the (»iginal and duplicate certlAeates
a memorial of the purport thereof, and the date of filing tbe
instrument with a reference thereto by its file number, wfalcb



iiDorlal shall be signed by the registrar. Ihe registrar shall
M) note upon the instrument on flle the number of the certifl-
te of title where the mem(»*ial is entered. No new certificate
title shall be entered and no memorandum shall be made upon
f certificate of title by the registrar in pursuance of any
ed or other voluntary instrument, unless the owner's duplicate
lificate of title is presented with such Instrument, except in
ses expressly provided for in this act, or upon the order of
i court, for cause shown, and whenever such order is made, a
norial thn^of shall be ent^^d upon the new certificate of
le aod (m the owner's duplicate, l^e productim of the
ner's duplicate certificate, whenever a voluntary instrument Is
sented for registration, shall be conclusive authority from the
^stered owner to the registrar to issue a new certificate or to
Jr a memorial in accwdance with such instrument and the
r certificate or the memorial shall be binding upon the reg-
ered ovmer and upon all persons claiming undw liim in favor
every pvdiaser for value in good faiUi.
Sec. 61. When any mortgage, lease, or other instrument
>ating or dealii^ witii a charge upon registered land, (n* any
tate or interest therein, is in duplicate, triplicate, or more
rts, (ffily one of the parts need be filed and kept in the reg-
rar's office; but the registrar shall note upon the register
lether the same is in duplicate, triplicate, or as the case may
, and shall also mark upon the others "mortgagee's dupli-
te," "lessor's duplicate," "lessee's duplicate," or as the case
ly be, and note upon the same the date of filing and the
Irane and folium of the register where the memorial is entered,
id deliver them to the parties entitled thereto.
Sec. 62. When an instrument is not executed in a sufficient
mbtt of parts for the convenience of the parties, the regis-
V may make and deliver to each of the parties entitled there-
I certified copies of the instrument filed in his office, with the
idorsements thereon, marking the same "mortgagee's certified
opy," "lessor's certified copy," or as the case may be, and
lall note upon the .register the fact of issuing such copies.
ucb certified copies shall have the same force and effect and
i treated as duplicates.

Sec. 63. The holder of any charge upon registered land*
isirlng to transfer the same or any part thereof, may execute
n assignment of the whole or any part thereof. The assign-
lent of a part only must state whether the part transferred is
) be given priority, to be deferred, or to rank equally, with
K remaining part. Upon such assignment being filed in the
IBce of the registrar, and the production of the duplicate or
stifled copy of the instrument creating the charge held by the
fiignor, the registrar shall enter in the register opposite the
lurge a memorial of such transfer, and how it ranks, with a
iference to the assignment by its file number; he shall also
ote upon the instrument on file in his office intended to be
^"Dsferred, and upon the duplicate or certified copy thereof
reduced, the volume and folium where the memorial is en-
«d, with the date of the entry. The transferee shall be en-
itled to have a certified copy of the instrument of transfer,
ith the indwsement tho-eon, and in case of the transfer of
»e entire charge, the duplicate or certified copy of the instru-
«»t creattag the charge.

Sec. 64. A release, discharge, or surrender of a charge, or
^y part thereof, or of any part of the land charged, may be
lected in the same way as above provided in the case of a
fansfer. In case only a part of the charge or of the land is
itended to be released, discharged, or surrendered, the entry
^ be made accordingly; but when the whole is released, dls-
''srged, Gt surrendered at the same or several times, the reg-
'trar shall stamp across the instrument on flle, and the memo-
W thereof, and the duplicate or certified copy produced, the
wd "canceled."

Sec. 65. AH chaises upon registered land, or any estate or
iterest in the same, may be enforced as now or hereafter al-
wed by law, and all laws vrtth reference to the foreclosure
Dd release or satisfaction of mortgages shall apply to mort-
>ges upon registered land, or any estate or Interest therein,
wept as herein otherwise provided, and except that until no-
jce of the pendency of any suit to enforce or foreclose such
"2rge is filed in the registrar's office, and a memorial thereof
ntered on the register, the pendency of such suit shall not be
wtice to the registrar, or any person dealing with the land.

Sw. 66. Before any person can convey, charge, or other-
^ deal with registered land, w any estate or interest therein,
* attorney in fact for another, the deed or instrument em-



powering him so to act shall be lUed with the reglstnr, and t
memorial thereof entered upon the original duplicate certlil-
cates. If the attorney shall so desire, the registrar shall de-
liver to him a certified copy of the power of attorney, with the
indorsements thereon. Revocation of a power may be reg-
istered in like manner.

Sec. 67. Whenever a deed or other instrument is filed in
the registrar's office for the purpose of effecting a transfer of,
or diarge upon, reglst^^d lands, or any estate or interest there-
in, and it appears from such Instrument that the transfer or
diarge is to be in trust, at upon any condition or limitation
therein expressed, the registrar shall note in the cotlflcate,
and the duplicate thereof, or memorial, the words "in trust,"
or "upon condition," or "with limitations,"^ as the case may
be, but no entry need be made of the particulars of any such
trust, conditions, or limitations.

Sec. 68. The trustee or transferee in any such instrument
named, if the instrument contains the words "with power of
sale," shall have power to deal with t£e land as the owner
thereof; and a bona fide purchaser, mortgagee, or lessee is not
bound to Inquire into or determine whether or not the acts of
such trustee are in accwdance vfiih the terms and conditions
of the trust When such power is conferred, the registrar
shall note upon the certificate and duplicate thereof the words
"with power of sale."

Sec. 69. If, however, such instrument does not contain the
words "with power of sale," such trustee shall have no power
to sell or otherwise deal with the land without an order of
court so to do, duly given and made, a certified copy of which
said order shall be filed with the registrar, and a memorial
thereof entered upon the certificate of title, which shall be
conclusive evidence as against all persons that the authority
of such trustee was duly exercised in accordance with the true
intent and meaning of the trust, condition, or limitation.

Sec. 70. A trustee under any will admitted to probate,
unless such power shall have been expressly vrithheld by the
terms of such will, shall have power to deal with any registered
land held by him in trust as fully in every respect as if such
lands belonged to him individually.

Sec. 71. The distribution, transfer, leashig, mortgaging, or
other change in the status of the title of registered land that
is within the jurisdiction of any court by reason of the pen-
dency of probate. Insolvency, or equity proceedings, shall be
made under the same conditions and limitations as now or
hereafter provided by the law of this state.

Sec. 72. The court in its order or decree making such dis-
tribution, transfer, leasing, mortgaging, or other change in the
status of the title of registered land, shall direct the registrar
to issue a certificate of title, or to note a memorial of the
transaction, as the case may require, in accordance with such
order or decree.

Sec. 73. The executor, administrator, assignee, receiver,
or other person acting under the direction of said court, shall
file wiUj the registrar a certified copy of such order or decree,
also the deed, lease, mortgage, or oUier instrument executed
in accordance with such order or decree, and also a certified
copy of the order or decree confirming such sale, lease, meat-
gage, or other transaction, when such confirmation is required
by law.

Sec. 74. Executors, administrators, trustees in bankruptcy,
and assignees in insolvency shall have no power of sale of lands
registered in Uieir names as such, without an order of court
obtained for that purpose. Before any certificate can be is-
sued to the purchaser, such sales shall be reported for con-
firmation to the court under whose authority such executor,
administrator, or assignee is acting, and if confirmed a duly
certified copy of the order of confirmation shall be filed in the
office of the registrar, and a memorial thereof entered upon
the certificate of title. Upon the filing of the certified copy
of such order of confirmation and the entry of such memorial,
the registrar shall issue a certificate to the purchaser at such
sale, which certificate, in addition to the usual contents there-
of, shall refer to the said order of confirmation. Such order
of confirmation shall be conclusive evidence that the sale was
in all respects conducted in accordance with law, and the pur-
chaser shall not be bound to inquire into the regularity of the
proceeding, or power to make such sale.

Sec. 75. If a testator, by his will, has provided that the
execute thereof shall have a power of sale of real estate, the
..gitized by C Sixty-flve



court shall direct the registrar to regiiter the words "with
power of sale," in respect of the land of the deceased, and
such executor shall have power to sell such land without an
order of court so to do, but such sales must be conflrmed by
the court in the manner now or hereafter provided by the law
of this state, and a duly certified copy of the order of such
confirmation shall be filed with the registrar before any cer-
tificate of title can be issued to the purdiaser of ^uch land.

Sec 76. Thereupon the registrar shall Issue the certificate
of title, or note the memorial, as the case may require; and
such certificate of title or memorial noted shall be conclusive
evidence in favor of all persons thereafter depending thereon.

Sec. 77. A purchaser of registered land sold for any tax
or assessment, shall, within five days after such purchase, file
in the office of the registrar a written notice of such purchase.
And thereupon the registrar shall enter a memorial thereof
upon the certificate of title, and shall mail to each person
named in the certificate, and in the memorials thereon, a copy
of said notice, a su£9cient number of said copies to be fur-
nished to the registrar by said purchaser at the time of filing
said notice. In case the state or a municipal corporation be-
comes the purchaser of land sold for any tax or assessment,
the tax collector or other officer attending to such purchase,
shall, withhi five days thereafter, file with the registrar a notice
to that effect. And thereupon the registrar shall enter a me-
morial thereof upon the register, and shall mail notices to
interested parties, as in the case of an individual purchaser.
Unless such notice is filed as herein provided, the land shall be
forever released from the effect of such sale, and no deed shall
be issued In pursuance thereof.

Sec 78. A tax deed of registered land, or of any estate
or hiterest therein. Issued in pursuance of any sale for a tax
or assessment made after the taking effect of this act, may
be presented by the holder thereof to the registrar, who shall
thereupon enter upon the resi:ter a meraoilal of such deed; but
such deed, unless the same shall have been issued to the state,
shall have only the effect of an agreement for the transfer of



Online LibraryCalifornia Legislative Counsel Bureau California. Secretary of StateAmendments to the Constitution and proposed statutes : with arguments ... → online text (page 21 of 36)