The Nature and Evolution of Title

by Glendon J. Buscher, Jr., Esq.

(Copyright March 4, 2003)

THE NATURE OF TITLE

Land has always been an important locus for the economic activity necessary for human life. Unlike the multiplicity of goods and services that such economic activity may produce, we cannot generally create large new quantities of land, and the ability of land to provide space for production is limited by its physical and locational properties. Unlike goods, which can be moved around to where they are needed, land is immovable and cannot be physically passed by hand. For that reason, early in human history, it became important to evidence to whom exploitation of certain portions of the surface of the earth is attributed and what are the limits of that portion of land through some sort of descriptional formula.

The earliest such evidentiary assertion probably took the form of a claim such as "My cave and 100 steps in every direction from its entrance," using completely physical and visual points of reference. At this point in history, however, the claim of ownership could only be asserted orally and could easily be invalidated by contrary oral assertions or by physical ouster. As the number of humans and their kinship and tribal groupings increased, it became clear that only some sort of political entity serving as a guarantor and enforcer of the rights could assure security of land use. The creation of a written record of land ownership and description would come to further aid in guaranteeing the assertion of use priority rights. Naturally, the patterns and traditions of land use arising among the parties constituting the various kinship or tribal groups called forth different relationships and different methods of policing those relationships, which further called forth the need to systematize policing activities into what we now call "Law". Over time the "Law" which developed to regulate and police land relationships has come to focus on classifying the persons and groups using land according to ownership categories and the land they are using according to parcel identifiers. The legally enforceable relationships between these ownership interests and these particular land parcels is called property.

Because any form of policing or regulation requires decisions about balancing the rights of one person or group against another, Law also involves a counterposing of rights versus duties. In the Anglo-American tradition we commonly think of land ownership as a virtually absolute right, proceeding from Blackstone's assertion that ownership is "an absolute right, inherent in every Englishman...which consists in the free use, enjoyment and disposal of his acquisitions, without any control or diminution, save only by the laws of the land." We tend to focus on the rights end of the equation and to de-emphasize the duties side, even though with tax, zoning, subdivision, environmental and other laws, our ownership is never quite as free and absolute as it seems.

"Title" to real estate is the assurance that the sum total of enforceable rights to the ownership and use of a particular parcel of land can be ascertained and guaranteed. If the various written land records were kept only by the concerned private individuals or entities, and if the laws governing land relationships were not published, ascertaining the state of ownership and property rights would be difficult, hard to enforce and subject to fraud. Investigation of the land records to ascertain the totality of property rights would necessarily involve the purchaser in an exhaustive scrutiny of all the relevant documents to ascertain who is the actual owner without certainty that there may not be another set of conflicting documents in some other hands. Private investigation of title was therefore greatly assisted when governments began to set up public places where parties might record documents and by the publication and codification of laws for defining how these documents operate to confer title. The existence of such a repository still required , however, an extensive search, analysis and interpretation of the myriad of documents and laws. The parties must also have created within or accompanying the document a writing, sketch or map defining the shape, size and location of the parcel of land owned.

Because the origin of titles in Massachusetts goes back to colonial times before the creation of the U.S. Government rectangular survey system, it was the common practice to describe the land by metes and bounds. This is a method of description accomplished by enclosing the parcel within bounds described in words according to courses and distances running between stated monuments, artificial or natural, at the corners or angles, or along stated abutting parcels. This has now increasingly been augmented by preparing maps and plats for adding a visual component to the description. However, the accuracy of the map/survey depends on the reliability of the monument given as the point of origin of the description and also upon the correctness of and correspondence to the written directional and bounding references enclosing the parcel. Often, however, the original described monument, whether in the form of stones, walls, trees, stakes and the like, may have been obliterated or destroyed with the passage of time, and a named abutting parcel may have changed shape or ownership.. The restoration of the monument or abutting parcel reference may require extensive survey or investigation of abutting titles and the jigsawing in of these abutters to establish the shape of the piece of the puzzle that is the parcel in question. Given the many problems of vague and now often outdated deed descriptions, even if owners can be ascertained, the exact bounds of the parcels may not always be recovered.

The private system of land investigation aided by the public recording of documents was the sole system in effect in Massachusetts until 1898 and made necessary just such a voluminous and painstaking search. Even if an owner was found in a deed, that person may have died, and so a search to ascertain heirs or devisees would have to be made by searching in the probate court, or the person may have married and changed name. Sometimes people would not record deeds, desiring to keep their transactions out of the limelight. In 1828 there was a fire in the Barnstable Registry of Deeds when many records were destroyed, not all of which were re-recorded or reconstructed. Often such a search revealed problems with ascertaining the state of the title that made purchasing a particular parcel of land financially and economically risky from a market point of view. Ultimately, resolution of the title might require recourse to resolution by a court decree. As it was not always convenient or economical to preclude these risks by recourse to Court, the private title investigation process was also eventually supplemented by using title insurance in land transactions to deal with the risk element.

By 1898, this problem of searching titles, particularly as to the many unoccupied and hitherto derelict parcels still remaining in the state, had become great. As an alternative to this private system, the General Court elected to implement a system whereby the Commonwealth itself, through the court system, declares and guarantees the state of ownership of particular parcels, any interests existing in them and keeps an authoritative map of these lands. This system is called registration of title or more exactly, the Torrens System of Registration.

THE STAGES IN THE EVOLUTION OF TITLE IN MASSACHUSETTS

As pointed out earlier, the first assertion of ownership in human history must have arisen by raw possession and occupation. As soon as there were enough people to give rise to conflicting claims and as soon as those claims began to threaten public peace by touching off measures of coercion, self-help and self-defense, there began to be a need for control of land disputes and issues of ownership by entities removed from the individuals involved. At early stages of history this took the form of kinship groups, clan groups, tribal groups, and ultimately kings, emperors, etc. While rights of previous use and occupation were recognized, the decisions of these leaders came to be the ultimate guarantee of enforceability of ownership, i.e., title. Title is merely the sanctioning by some entity of power of the legality and enforceability of a claim of ownership and of the priority of right of multiple ownership in land.

If this origin of land ownership is correct, then originally the rights of this leadership group would seem to have extended, as to already occupied land, only to settling disputes or to some early analog of eminent domain whereby the land was taken or confiscated for the needs of the leadership group. In this sense we may say that there was always a sort of vestigial private property in land as to some parcels. As to unoccupied lands, however, lands not yet appropriated one way or the other, the leadership group usually asserted a kind of group ownership over these parcels with the right under stated conditions to assign parts of it to individuals or groups. In the clan, tribe and early kingship situations these unapportioned lands were considered the collective ownership of the clan, tribe or kingdom and administered by the leadership. This might be analogized to the land known as folcland (folk land) in Anglo-Saxon England. Gradually, the clan, tribe and kingship leaders began to give out portions of the folcland to various notables either in reward for service or in the expectation of service and these allotments were memorialized by writing entered into a book of such grants. For this reason it came to be called bocland (bookland). At first there was always more folcland than bocland, but eventually wars and conflicts and increasing disputes over land and control of economic activity led not only to more and more grants of bocland to parties who could be depended on to support leadership power, but there even began to be grants of title over already occupied lands with the goal of channeling the economic produce of these lands into leadership coffers.

With the coming of William the Conqueror this system reached its height in England. The lands of all the Anglo-Saxon notables who failed to support him were confiscated and all the land in England redistributed to supporters of William on conditions of service of one kind or another, whether of military, economic or monetary nature. Thus was born the English feudal title system. As a concomitant of this system, as evidenced by the Domesday Book, it was obligatory that every parcel of land, whether owned by the king or other notables should always have an identifiable owner from whom could be demanded the services. Since the notables owned vast parcels, within which were many different levels of use, occupation and rights therein, there arose a complex system of common law "estates" defining the nature, description and priority of rights in land, all, however, subject to the paramount position of the immediate supporters of the crown and their heirs. Thus, although individuals still used and occupied land and considered themselves the owners, title actually came to be more and more abstractly removed from them upwards toward the political, social and economic elite with the Crown at the top. Their rights of title were protected by originating out of grants from the crown and were enforced and protected by the first of the legal methods for enforcing and clarifying title, i.e the writs of right, of nouvel disseissin and the later writ of trespass. For these writs, which are in fact the basis of most of what has now evolved into our legal system, we are most in debt to King Henry II and Henry III. By the time of the American Revolution and particularly since Magna Carta, more and more of the services flowing to the crown from the ownership of lands had come to be commuted into fiscal and monetary services, so that land ownership, although still within the feudal pyramid, had become more and more commercialized and tied to economic considerations.

With the rise of the Pilgrim and Puritan dissidents in England and their removal to America, the tradition of government control over the initiation of land ownership continued within the legal framework of English common law, but the center of gravity as to title to lands shifted down the social scale back towards the level of the occupiers and those who were the producers of wealth from the land..

The earliest English settlers had ownership de facto by occupation and purchase, but true title originated from the royal charters granted by the Crown. For the Plymouth Colony governmental matters began with the Mayflower Compact on November 11, 1620 followed by a royal charter in 1620, and in 1628 a charter was granted to the Massachusetts Bay Company. The 1628 charter was withdrawn in 1684 upon the commencement of the authoritarian rule of Governor William Andros, but a new charter was granted in 1691, two years after the accession to the throne of William and Mary.

According to the theory of these charters, the original source of title to land in New England was in the English crown by right of discovery and occupation. The king was the owner of the land and had the sole original power of disposition of it. This right of disposition included the right to delegate governmental powers to his grantees, including the right of legislation. From the Crown land titles passed to the several colonial governments through grants made in the form of these royal charters. With the relocation of the Massachusetts Bay Company to New England pursuant to the original charter, and continuing with the granting of the subsequent charter of 1691, the legislative right devolved to the General Court as an autonomous colonial government. It was understood, however, that the title granted from the Crown was subject to "the right of occupancy of the Indian." The General Court assumed a right of superintendency over native titles. This meant that theoretically a grant of land in Massachusetts included the duty and right to undertake to extinguish the title of the Native Americans. In the seventeenth century there were many deeds acquired from the Native Americans to fulfill this clearance of title, although in later years the practice died out. Given that the Native American theory of land was based principally on tribal and group ownership and on a sense of shared common use of land, it is not clear that they had the same sense that the title was being "cleared".

Several of the earliest towns to be settled, such as Salem, Boston, Cambridge, Watertown, Dorchester, Roxbury and Weymouth, were founded by the raw act of settlement, and, prior to the establishment of an organized colonial government, technically had no legal title to their lands. As soon as the General Court was organized it began to pass various enactments having the effect of recognizing these towns and asserting their authority to superintend them and to supervise the creation of all future towns. In 1634 a township act was passed asserting the right of the General Court to alone dispose of land or confirm title thereto. Since the number of early settler/occupiers were not many and the length or their occupation not long, by far the largest number of colonists acquired their land by direct grant from the colonial government or its subdivisions.

New transfers of title thereafter had to be initiated by grants from the General Court. Grants could be made to individuals as a reward for services, as a grant in lieu of pensions or for encouragement of some activity or enterprise, but these consisted by and large of small tracts of land. The majority of grants were made to groups or communities for the purpose of the formation of new plantations and townships. The General Court maintained a careful superintendency over these grants, whose primary goal was the occupation and settlement of the granted lands. There were usually conditions attached to the grants to ensure settlement. At first the grants were made without expectation of direct profit to the public public domain. In the 18^th century the grants were made to promote more commercial goals, but even then the selling of public lands was not seen as necessarily a profit-making source for the public treasury. Despite the underlying feudal origin of land titles in New England, grants from the General Court were made as though free from all feudal tenure and control, except by legislation and common law. The grantees of these township and plantation grants became known as the proprietors. The grants were at first described by very general bounds and usually contained several miles square, but eventually rules were adopted requiring more specific survey before a record of the transfer of title was created and the grant made. Since much of the state was then inadequately mapped, and since surveying methods were then less scientific, boundary disputes became very common in the colonial period.

These grants gave to the proprietors both necessary ownership and local government powers. This meant that the next stage in the evolution of title was grants from the town proprietors.

Originally, there was no difference the town and the proprietors, so that a grant from the town was a grant from the proprietors. But as the towns grew and persons who were not among the original grantees of the township came to live in the town, a difference arose between those having the right to vote as to town administration and business affairs and those who had ownership rights in the town lands. Gradually a separation occurred and the proprietors claimed the exclusive right to convey the land belonging to the original grantees. With their organization as an independent body, they rather than the town members, exercised jurisdiction over the common and undivided lands in any township. In 1682, the colonial government of Plymouth Colony enacted that the proprietors of a given town should meet when necessary and that what they lawfully enacted at that meeting would be valid and binding. A similar act incorporating the town proprietors was enacted in the Massachusetts Bay Colony in 1694. In 1713, the1694 act was supplemented by a law entitled "An Act Directing how Meetings of Proprietors of Lands lying in Common may be called." Many of the post 1713 proprietors' grants or setoffs were in fact nunc pro tunc ratifications of earlier grants confirming not just their origin in town setoffs of land, but as true conveyances of title from the legal owners thereof. It was from the setoffs of the proprietors as owners that the formerly somewhat quasi-public ownership of land in Massachusetts was transformed into the now prevalent title to private property. Unfortunately, many of even the most carefully surveyed and documented of the large historical setoffs, most of which were rectilinear in configuration, were quickly parceled off into smaller pieces, which, if not soon occupied or cultivated, eventually became the subject of much rapid, speculative and not always recorded transfer and exchange, making the recovery of these pieces from a title search point of view now quite difficult.

Since approximately 1636, a public place of registry for recording and researching the transfer of these parcels of private property has been available in Massachusetts and of course, since 1898 the Land Court and the Torrens system has been available as an alternate source for registering and certifying land titles. The story of the Land Court and its activity is recounted in A BRIEF HISTORY OF THE LAND COURT as revised, on this same website.

For a more detailed discussion of the role of grants from the General Court, from the townships and from the Proprietors reference is made to the publication The Town Proprietors of the New England Colonies, by Roy H. Akagi, University of Pennsylvania Press, 1924, from which publication much of this history of title in Massachusetts has been derived.