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Subject Area: Law
Topic: The American Revolution and Constitution

§ 137.: Regulation of the right of alienation.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 137.

Regulation of the right of alienation.—

It can hardly be questioned that the government, in making sale of public lands, may provide that the interest which is thus granted shall not be assigned. For land being the absolute property of the State, any condition may be imposed in the original grant of it, that the welfare of the community may seem to require. If effective measures for the prevention of the concentration of lands in the hands of a few are considered essential to the prosperity of the State, the government may lawfully impose an absolute prohibition against alienation, for the purpose of attaining that end.

But in no State is there any law depriving the owner of lands of the right of alienation (except that in some of the States, statutes have been enacted which declare estates for years of short duration, and tenancies from year to year, to be alienable without the consent of the landlord); nor did the common law at any time prohibit alienation altogether. Under the feudal system, absolute alienation, of a kind which would shift to the shoulders of the alienee the burden of performing the duties which the feudal tenure imposed upon the tenant, was prohibited; but it was always possible to sublet the land to another, while the original tenant remained liable to the lord for the rendition of the services due to him.1 On the contrary, the history of the law of real property reveals a constant struggle on the part of the common classes, to remove all restrictions upon the alienation of lands. The statute quia emplores,2 declared void all conditions which absolutely prohibited the alienation of estates in fee, permitting grantors to impose limitations upon the power of alienation in the grant of any estate less than a fee. So, also, when the courts, by judicial legislation, developed the law of uses and executory devises, the rule against perpetuity was adopted, which prohibited the suspension of alienation by the creation of contingent estates, beyond a life or lives in being, and twenty-one years thereafter.1 The same limitation rests in effect upon the creation of contingent remainders.2 A constant change of ownership, or the possibility of such a change, has always been considered salutary to the public welfare.

Inasmuch, therefore, as the private property in land, already acquired, has been procured subject to no condition against alienation, the right of alienation is as much a vested right as the right of possession or the right of enjoyment; and a law which materially diminishes this right of alienation, without having for its object the prevention of injuries to others, or which takes away the right altogether, is an unconstitutional interference with vested rights. That the right of free alienation is a vested right, which cannot be modified or taken away by subsequent legislation, while the land remains in the possession of the present landholders, cannot be questioned; and it is equally certain that the government may, in its future grant of the public lands to private individuals, absolutely prohibit the alienation of these lands without the consent of the State: but it is exceedingly doubtful, whether it is constitutional or unconstitutional to apply the statutory prohibition to lands, already the property of private persons, after they have been sold to others, subject to the statutory restriction upon alienation. There is certainly no interference with any vested right of the subsequent purchaser, but there may be some ground for the claim that the operation of the statute would diminish materially the chances of sale and consequently would infringe upon the vested right of alienation of the present owners, in a manner not permitted under constitutional limitations. But this position does not seem to be tenable. While the vested right of alienation cannot by subsequent legislation be taken away altogether, an indirect restriction upon the right, resulting from the denial of the right of alienation to subsequent purchasers and the consequent diminution of sales, would not be properly considered a deprivation of a vested right. It is no more so than the effect of a statute, which prohibited the purchase by one person of more than a specified quantity of land. In both cases, the exercise of police power is reasonable, and the indirect burden imposed upon present owners is but what may be expected from the exercise of the ordinary police power of the State.

While the vested right of alienation cannot be taken away altogether, its exercise may be subjected to reasonable regulations, which are designed to prevent the practice of fraud, and to facilitate the investigation of titles. The statutory regulation of conveyancing is in some of the States very extensive, providing for almost every contingency; while in others the legislation has been limited. But in all the States it will be found to be necessary, in order to effect a valid transfer, to comply with certain statutory requirements. It is not necessary to speak of them in detail. They all have the same general object in view, and their constitutionality has never been and cannot be questioned. These requirements do not deprive the land owner of his right of alienation. They only regulate his exercise of the right, with reasonable objects in view. But it is hardly necessary to state that such statutory regulations can only have a lawful application to future conveyances. Laws for the conveyance of estates are unconstitutional, as far as they affect conveyances already made.1

The various and, in this country, universal registration laws, which require a deed to be recorded in the public record books of the county, in which the land lies, are apt illustrations of the power of the State to regulate, while they cannot take away, the right to transfer the title to lands. So far as I know, the power of the State to require registration of a deed of conveyance, in order that it be valid and operative against subsequent purchasers, has never been questioned.

The so-called Torrens registration law has been declared to be unconstitutional by the courts of Illinois and Ohio; the Illinois statute being objectionable because the law provided for the determination by the registrar of the disputed claims of title; and this feature of the law was alone held to be unconstitutional, because it involved an unwarrantable encroachment by an administrative officer upon the power of the judiciary.2

When the original Illinois act was declared unconstitutional, for the reason just stated, the act was amended by the legislature so as to provide for initial proceedings in chancery; and left it optional with each county to determine whether it should adopt the new system of registration. Cook County, in which the city of Chicago is situated, adopted it, and the Supreme Court of Illinois declared the act, as amended, to be constitutional.3 In Ohio, the Torrens system was adopted, making the initial proceeding for settling disputed claims of title an action in personam, without providing for personal service, for which reason the act was declared to be unconstitutional.4 Massachusetts adopted the system next; and, to avoid the constitutional requirement of personal service upon all parties claimant, the statute provided for an action in rem before a Court of Registration which was specially created to entertain such suits. The act has been recently sustained in an able opinion by Chief Justice Holmes.1

A Michigan statute requires, as a condition precedent to the registration of a deed, that the party offering it must present along with it a certificate from the auditor-general or county treasurer, declaring that the taxes for the five preceding years have been paid, and setting forth all tax liens and titles which may be held against the land conveyed. The constitutionality of the statute was attacked unsuccessfully.2

[1]Tiedeman on Real Prop., §§ 21, 23.

[2]18 Edw. I.

[1]Tiedeman on Real Prop., § 544; 2 Washb. on Real Prop., 580.

[2]Tiedeman on Real Prop., § 417; 2 Washb. on Real Prop. 701, 702.

[1]Greenough v. Greenough, 11 Pa. St. 489; Reiser v. Tell Association, 39 Pa. St. 137; James v. Rowland, 42 Md. 462.

[2]People v. Chase, 165 Ill. 527.

[3]People v. Simon, 176 Ill. 165.

[4]State v. Guilbert, 56 Ohio St. 575.

[1]Tyler v. Court of Registration (Mass. 1900), 55 N. E. 812.

[2]Van Husen v. Heames, 96 Mich. 504.