Iowa State Bar Association.

Annual proceedings, Volumes 16-20 online

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injured. The Courts had decided that the street railway com-
pany could not be held for the injury which befell him while
walking the streets in what Mulvaney calls ''a glorious shtate of
shplendor" and that the former employer could not be held be-
cause the relation had been rightfully terminated prior to the
injury. Such a result, which left the claimant with no job and
no compensation — with nothing, in fact, but the bad taste left
over from his celebration — seemed to the commissioner mere
legalism. It prevented the benevolent commission from making
some one pay for the accident.

Next a social worker came upon the stand. She too could
relate a case of legalism. A man in whose family she was inter-
ested, had read an advertisement to the effect that work might be
had at a certain factory. While he was on his way there in
search of a job, he was run over by a fire engine and was killed.
It seems the Court had held that no relation of employment had

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jet arisen, and on this technicality, the product of a merely legal
view of the matter, the manufacturing company was not required
to compensate the family. If, she said, the law is to be adminis-
tered on such a narrow basis, the beneficent purposes of the act
will be defeated.

Very likely for a season the mere legalism that seeks to put
some principle behind a series of decisions, that decides cases by
the head rather than by the heart, is out of date. There is noth-
ing new in such movements away from law. Legal history is
full of them. In the end men come back to law, and the sole
effect is to make the law more liberal.

In my native State some years ago there was a populist legis-
lature. Few of the statesmen who sat therein had had any ex-
perience of such affairs and sometimes their proceedings resulted
more in diversion than in law-making. On one occasion an hon-
orable member arose and caught the speaker's eye. He pointed
to the desk in front of him and said: ''Mr. Speaker, I rise to a
point of order. There is no ink in the bottles." The speaker
looked at him dazedly for a moment, when he rose once more and
said: "Mr. Speaker, I rise to another point of order. There is
ink in the bottles, but it 's froze. ' '

There are times when the good ink of law and of legal principle
becomes "froze" and some hot water has to be poured in from
without to thaw it.

In the sixteenth and seventeenth centuries this hot water was
poured in by the Chancellor. In one case in the former century,
the Chancellor had before him an executor who had taken advan-
tage of his legal title to waste the goods of the estate. He said :
"I know well that the law of this Court is none other than the
law of €k>d. And the law of God is that an executor shall not
waste the goods. And if he do and make not amends, U sera
damne in helL" That Chancellor had no use for legalism. But
out of such things arose our great system of equity. In like man-
ner we may believe that out of the present chaos of commissions
and of executive justice a branch of the law will grow up which
will be as much a part of the common law as our Anglo-American

The common law has more to fear from what is going on in the


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house of its friends. I confess none of the things of which I have
spoken trouble me as much, when I think of the future of the law,
as does a sort of legal particularism that has waxed very strong
in this country in the last generation. I refer to the feeling that
the common law, instead of being a law of the world, a universal
system of the English-speaking peoples, is something that can be
settled for itself within the narrow limits of some particular
jurisdiction ; the notion tiiat there is something sacrosanct about
the local case law and the peculiar local rules which it has devel-
oped, and that it is a merit for each tribunal to construct its own
body of doctrine, based on the examination of its own precedents
and to shut its eyes except in unusual cases to what is going on
in the great world of Anglo-American Courts. I need name no
names. You will recall at once more than one great State of the
Union whose Judges seem to be proud of established anomalies
because they are local products and so far from seeking to
restrain or abate them appear to take pleasure in giving them
effect and even developing their logical consequences as if they
were a precious local possession. We must not forget that the
common law is the experience of English-speaking peoples in ad-
ministering justice. We are not to say, *'the principles of the
law of Iowa are the common law." Rather we should say, "the
principles which have grown out of the juridical and judicial
experience of our race are the common law and these principles
are the law of Iowa."

Hence to preserve our common law, to make it for the future
the living instrument of justice which it has been in the past, we
must treat it as American Judges of the first half of the last
century treated it, in the classical period of American law, when
they put it beside the law of Rome as a law of the world. When
developed and administered in this fashion, our law merits the
encomium of one of the masters of legal science — ^''So venerable,
so majestic is this living temple of justice, this immemorial and
yet freshly-growing fabric of our common law, that the least of us
is proud who may point to so much as one stone thereof and say,
*the work of my hands is there.' "

The Toastmasteb: It is still early in the evening, and hav-
ing obtained consent of Mr. C. C. Clark of the Burlington Bar,
I will ask him to address us on this occasion :

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May it please the Court: Oentlemen of the Jury. You were
doubtless surprised to find when the end of the ofScial list
of toasts was reached, that after all the real end was not in sight.
You were, however, not more surprised than I was late this
afternoon. A friend said **Mr. Dawley wants to see you.'' With
a light heart and unaccusing conscience I sought the gentleman
and was dumbfounded to learn that a short talk would be in
order at the banquet then some one and a half hours off but was
comforted by the assurance that I needn't talk long, ''perhaps
three minutes will be enough."

When we had our local bar meeting some two weeks ago the
president impressed it upon us that the members of the State
Association were reasonable gentlemen and therefore whatever
they asked for we should grant. So of course I succumbed to the
persuasive talk of Mr. Dawley who must be a power before a jury
unless perchance what a gold brick artist once told me is true,
that lawyers are easy. Now if I hadn't gone on that boat ride
I might have escaped but being pretty thoroughly Presbyterian-
ized from having sung in a church of that denomination in my
impressionable youth, I can now clearly see it was foreordained
whether '*from the foundation of the world" we won't hazard a
guess. I had signs enough to have scared off a reasonably pru-
dent man. The new moon had appeared over my left shoulder and
hurrying to the boat a black cat ran across my path, a cross-eyed
woman looked my way and at the gang plank I stumbled, but
blind to signs or, as I now clearly see, doomed in spite of them,
I rushed on fate in the person of Mr. Dawley. Hinc Ulae

Mr. Dunn said tonight that he had spent two years, two
happy years in Iowa. If he had lived in Burlington he would not
have had to qualify by the word happy, for all years spent here
bear that brand. So far as our city and citizens are concerned,
I can but voice the universal expression that we are mighty glad
to see you here. We believe in ourselves, that we have an abiding
place and abiders unsurpassed anywhere, which may sound
strong but 'tis easy proven. It isn't often, however, that we have

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a bunch of visitors who have made so favorable an impression
as you have and we sincerely trust that you like us so well that
you will come again and stay longer. Our doors will have no
bolts and the lock will be taken off the refrigerator.

We do feel a little chagrined, however, at the accident which
befell Judge Weaver this afternoon when the boom of the gang
plank broke and struck him but we are very happy it was not
more serious. It occasioned regret and we could not feel sor-
rier had it happened to one of our own. There was a time a good
many years ago when perhaps an accident to the Supreme Court
would not have been viewed with alarm, Those were the palmy
days of first enforcement of the prohibition law when that Court
with sickening regularity was grinding out decisions which as
regularly knocked out of commission businesses which had been
running so long that they believed the statutes of repose certain-
ly applied to them. But that is all past and gone, we have ac-
commodated ourselves to the new order of things, are running
strictly on the moon schedule and being perfectly normal and
sanely progressive, view the accident with keenest regret. But
this fall when the people have spoken and Judge Weaver has
been declared his own successor we beg him to remember that he
was in Burlington when the boom first struck him.

Father Martin, an Indiana priest, tells of having a parish
where the church is at the edge of a ball field and where the boys
sometimes forget their religious duties far enough to engage in
a game Sunday mornings. A few weeks ago the Father was
bringing to a climax a carefully prepared sermon and in per-
fervid tones exclaimed *'My hearers, what shall we do to be
saved!" A loud voice from the field yelled, "Slide, damn you,
slide." My three minutes, Mr. Toastmaster, have I'm sure fully
expired and with your kind permission I'll ''slide."

The Toastmaster : In conclusion, on behalf of the Program
Committee, as well as the members present, I wish to thank all
of those who contributed to our entertainment and instruction
this evening.

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Pbidat Pobenoon Session

9:30 O'CLOCK, A. M.

The President: The meeting will please be in order. The
first matter in order is the unfinished work of the Committee on
the Torrens Land Title System, by Mr. 0. P. Myers.

Mb. Myebs: I desire, in the first place, to say that this report
is signed by all of the committee. Senator Clarkson being on that
committee, concurs in all of it, except one clause, in regard to
chattel mortgages, and that he does not object to, except that he
said he wished to consider it further. With that exception the
entire report is concurred in by the entire committee.


To the Iowa State Bar Association:

Your committee to investigate the Torrens or other land title
system, respectfully reports as follows :

Some of the main evils in our present recording land system
that many are trying to remedy, are the following:

a. The great expense of abstracts of title — ^with eonstant future increase.
Continuing examinations over all the past with continuing expense. Un-
official examinations and quieting title suits that need to be reexamined with
everjr transfer.

b. The present liability of abstracters does not run with the land; but is
good only to the one employing them. Many abstracters have uncertain
financial standing. Old abstracts are no protection to new buyers.

c Our forms for conveyances are too long, with so many useless parts,
and requiring so many expensive books.

d. We have only a Name-Index in the recording office, while a Section-
Index would be an abstract in itself and a strong corrective.

e. Heirship and land-titles in estates are now uncertain and left without
definite decree.

f . There is no definite state supervision or limitations as to conveyancers,
surveyors, recorders, and abstracters.

g. There are too many places for liens, taxes, and assessments.


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Your committee further reports that the Torrens System of
Land Titles was first formulated into law about 1857 by Sir
Robert Torrens in Australia. It is in partial-optional use in
several English Colonies including Canada; but its study in
foreign countries would serve little purpose, because of the many
different, constitutional questions arising in the United States.
During the last fifteen to twenty years much attention has been
given to modified forms of it in several of our States. Such
modified forms of this Torrens system are now in partial and
optional use in Massachusetts, Illinois, Minnesota, Oregon, New
York, Colorado, and North Carolina. Ohio has passed the law
to take effect this July 1st. Under most of these statutes, the
law is optional, and comparatively little land is brought under it.
Much opposition is made by abstracters and title guaranty com-
panies. While there are somewhat conflicting reports, the law
appears to be making progress in Massachusetts, Oregon, Illinois,
and Minnesota. The Supreme Courts of Massachusetts, Illinois,
Colorado, and Minnesota have upheld the constitutionality of
their respective Torrens statutes as to the original or initial
registration therein ; but certain questions as to subsequent trans-
fers have not been fully passed upon. The basic principle of this
Torrens System is the securing and registration of a conclusive
and indefeasible certificate of title. In Massachusetts, a special
Land Court was established; but in the other States the usual
lower Courts of record are used. This is not the place for de-
tails, which differ very much in the said several States. In a
general way, the proceedings are as follows: An application is
made by the owner to the Court; title is examined by an of&cial
examiner; due notice given; trial had, decree, and certificate
registered with right of appeal; certificate prima facie within
certain time, and thereafter conclusive as to all matters therein ;
subsequent transfers are effected by bringing new deed and old
certificate to registrar, who cancels the old and issues new cer-
tificate. Guaranty fund to indemnify losses.

There appears to be a determined effort in many States to do
away with the useless and increasing burden and expense of long
abstracts and their frequent, costly, and inconclusive exam-

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Your committee would therefore recommend the following :

a. That abstracters should be bonded, and that their liability should ran
ivith the land; that compulsory short forms of conveyances should be re-
qniredy and that chattel mortgages and transient forms should be filed and
not recorded. And that recorders should keep Section-Indexes as weU as
Name- Indexes.

b. That there should be some proper and efficient State supervision and
examination of conveyancers, surveyors, abstracters and recorders; and there
should be one place and one place only for all liens, transfers, and assess-
ments of every nature, and that place should be the recorder's office. That
photographic recording and copying in all county offices should be carefully

e. That there should be an official quieting title suit provided, with small
but ^eient cost as may be, wherein the final decree, on due notice, and
after due process and reasonable time limitations, shall ber absolute, con-
clusive and indefeasible; and back of which decree no examination or ab-
stract need go as the statute should provide such decree to have the force
of a new State patent and be taken as a marketable title. And estates
should be required to do this to absolutely determine the heirs and shares
and succession.

d. That, because under the holdings of the several Supreme Courts of
the said States, and the Supreme Court of the United States, such decree
would bind the world, and conforms closely to the initial or original regis-
tration of the said modified Torrens statutes, your committee would recom-
mend the thorough examination of the initial-registration part of such Tor-
rens statutes as a suitable basis for such quieting title suit. And —

e. That inasmuch as our investigation has necessarily been limited, and
inasmuch as this entire subject of the Torrens Land Title System embraces
matters of extraordinary importance to every citizen, and in order that any
measure that may hereafter be adopted shall be based upon fullest informa-
tion that may be had with reference to the best forms of such statutes and
upon the experience of other States in the application of the system, your
committee would finally recommend that this Association urge upon the at-
tention of our next General Assembly the appointment of a Commission to
fully investigate the entire subject here reported upon and formulate such
bill with reference thereto as such Commission may deem advisable.

Respectfully submitted,

0. P. Myers, Chairman,
John T. CLABssoNy
C. H. Van Law,
U. G. Whitney,
Chas. E. Scholz,


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I move the adoption of the report, and the final recommenda-
tion of the committee.

The motion to adopt was duly seconded and carried.

The PREsmENT: Is the Committee on Legal Education and
Admission to the Bar ready to report!



Justice Soott M. Ladd: The Committee on Legal Education
and Admission to the Bar have three recommendations to make.
The first is this:

Be it Beaolved, hj the State Bar ABSoeiation of Iowa, that the Law
Schools of this State should provide a course of instruction on the subjects
of Federal Practice and Procedure and Jurisdiction of the Federal Courts
and that applicants for admission to the Bar of this State be examined upon
these subjects.

The second recommendation is this :

That the statute be so amended that a person admitted to the Bar in other
States maj be admitted to the Bar in this State on motion only upon a
showing that he has engaged in the practice of law at least three years in
such other State, and that his application, accompanied by a satisfactory
showing thereof, and of good character, accompanied with a certificate as to
such facts, of the Judge of the nisi prius Court of the county wherein the
applicant has practiced, be filed with the Attorney General of the State at
least sixty days before motion for admission is presented to the Court.

I would say, in this connection, that is the rule in all but a
very few States in the Union.

The third recommendation is as follows :

The committee recommends that the rules goveming admission to the Bar
be so amended that candidates who pursue their studies in the office of an
attorney or a Judge, will be required to register with the Attorney General
at the beginning of their x)eriod of study, and to submit at that time their
proofs of preliminary education; and that where an examination is necessary
to establish such preliminary education, such examination be given at the
next regular meeting of the Examiners after the candidate files his registra-
tion. Suitable provision might be made for nunc pro tune registration in
exceptional cases, to prevent unreasonable hardship. The candidate should
state at the time of registration in what office and under whose direction he
intends to study, and upon changing thereafter to the office of any other
attorney or Judge, should be required to give to the Attorney General
prompt notice of such change.

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There are several reasons for these recommendations, and the
matter is so fully stated in the propositions that I shall not dis-
cuss them at this time. To get them before the Association, I
moTc you, Mr. President, that these recommendations be adopted.

Mb. M. F. Healy : I desire to move, that the first recommenda-
tion requiring Law Schools to give instruction in Federal Prac-
tice, be laid upon the table.

I do not think, with all the troubles now incident to a young
lawyer, that he should be required before admission into the
Justice Court to earn a living, to become familiar with a prac-
tice which takes long years to master. I speak from experi-
ence, and the memory of a long nine months it took me, in which
I earned fifty cents, to get into the Justice Court.

Mb. a. T. Wallace : I move you that the report be separated
and each resolution be acted upon separately.

The PBEsn>£NT : I think the motion to lay on the table the first
recommendation is the first in order.

Justice Ladd: The recommendation concerning which this
motion is made, was presented by Mr. Sargent, who was unable
to remain here. I think I can state briefly the reason. Often an
attorney shortly after he is admitted to the Bar has very im-
portant matters to present. It was thought by the committee
that he ought to know something about the jurisdiction of the
Federal Courts, and also of the State Courts, so that he could
best determine what might be most desirable for the protection
of the interests of his client. I think every practitioner under-
stands there are some advantages to be had by some trials in the
Federal Court, and others in the State Courts. Every man who
is admitted to the Bar ought to have some education on this sub-
ject so as to fairly determine for his client what forum he will
choose in the litigation in his charge.

Mb. W. M. Waleeb : I ask a question of privilege. Does the
motion to lay on the table carry with it the entire report!

The Pbestoent : We discuss that separately.

Senatob C. G. Saundebs : It seems to me it would be a mistake
to lay this recommendation on the table or defeat it. At the time

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my brother entered upon the practice, I take it, we did not have
the present bankruptcy system. We all know the first class of
law business the young lawyer pursues is that of collections, and
the young attorney is very apt to find within a few months after
he enters upon the practice, in some of his collections, he has pro-
ceedings in bankruptcy to deal with, which takes him at once
into the Federal Court. Of course, I do not understand this
recommendation to mean, that he is to devote his career of three
years to the Federal practice. I think the student would be very
much benefited by a three or six months course in Federal Pro-
cedure. I think it would be a great mistake to lay this recom-
mendation upon the table, because I think every young man
should know something about the Federal practice.

ATTORNEY-GENEBAii Geobge Cosson: I feel I ought to say
something about this question. I will give you a little illustration
of what happened at the last examination. I will not tell which
school the law student came from. In the oral examination I
asked one of the brightest students in the class in what method
he would attack the constitutionality of a question. He said he
would go into the District Court of the State. I asked him if
there was any other method open, if he was relying on the Fed-
eral Constitution. He said he didn't know, but he thought, per-
haps the Supreme Court would have jurisdiction. Then I asked
him if he would file a petition with the Clerk of the Supreme
Court of the United States, and he said that is what he would do.

The Federal Government under the commerce clause has just
as much police power on almost all forms of trouble as the State
government and the attorney should be able to determine where
to file his petition.

We are not here asking for six months or three months of
study of these questions. The student ought to have at least
some elements of the Federal Procedure. In giving examinations
from year to year, every member of that board has at least felt
that the student should have some of the elements of the Federal
Practice, leaving it to the Legislature how long the course of
study should be.

Senator C. H. Van Law : It has been suggested that under the

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extension of the interstate commerce law the attorney should
know whether or not the Federal Court has jurisdiction or the
justice of the peace, in every little twenty-five dollar claim that
comes to his ofSce. I think, in our fifty-cent practice, it stands
us in hand to know something about the exceptions and limita-
tions of the Federal jurisdiction.

Mb. Healy: As I understood the recommendation, it was

Online LibraryIowa State Bar AssociationAnnual proceedings, Volumes 16-20 → online text (page 14 of 56)