File No. 895.52/3.
The records of title now on file in the office of our consul general at
Seoul will be treated as prima facie evidence of good title in the
claimant. As they were obtained for the most part ex parte it would be
hardly fair to ask this Government, acting in an administrative way,
judicially to pass upon the validity of the claimants’ rights. The
latter will therefore find it necessary, as against another American or
other person, to defend his title, having in advance the advantage of a
prima facie title. The advice of the minister to have these titles
passed upon now, and thereby to be made conclusive, should in my opinion
be followed, and I will so advise Mr. Scidmore, consul general, upon
receiving from the Department authority to do so.
[Inclosure.]
The American
Ambassador to the Minister for
Foreign Affairs.
American Embassy,
Tokyo, February 2,
1911.
No. 526.]Your Excellency: Referring to Mr.
Schuyler’s note to you No. 515 of December 15 last, with regard to
investigations of land titles in Korea, I do not recall that any
reply has been received, but the matter has been informally
discussed between your excellency and myself within the past few
days.
Your excellency will have observed from Mr. Schuyler’s note that a
large number of American citizens have heretofore filed with the
American consulate general at Seoul certain evidences of title to
different parcels of land, and these records, being accessible to
all concerned, constitute, I suppose, for the most part the
muniments of title of the parties in interest.
As a result of our conversation it was understood that these records
should in all courts and places be treated as prima facie evidence
of title. May I ask that your excellency will state in reply whether
or not I have a correct understanding of our informal agreement.
I avail, etc.,
[Subinclosure.]
The Minister for Foreign
Affairs to the American
Ambassador.
[Translation.]
Department of Foreign Affairs,
Tokyo, February 4, 1911.
No. 5.]Mr. Ambassador: I have the honor to
acknowledge receipt of the note of December 15 last addressed to me
by Mr. Schuyler, then chargé d’affaires of the United States, on the
subject of the law relating to the investigation of land in
Chosen.
The Government General of Chosen, to which I referred Mr. Schuyler’s
communication under acknowledgment, now inform me that, in full
appreciation of the friendly sentiment expressed in that note, they
have submitted the question in all its phases to a careful
examination. They desire in the first place to explain that the law
in question is intended to set at rest all apprehensions and
misgivings which rightful owners of land in Chosen naturally feel in
the enjoyment of such property, considering the dubiousness and
confusion which actually exist there in the system of land tenure.
The formalities complied with under the Korean ordinance of 1906
relating to the certification of land and buildings are not
sufficiently effective to realize the desired end. While such
certification is sufficiently conclusive as between the parties to
the agreement which it attests, it has been held at the courts of
law to be unavailable as against bona fide third parties, who may
therefore come forward at any moment with claims on the certified
land, wholly or partially denying the effects of the certification.
To prevent purchasers or mortgagees of land against those unexpected
claims, and to afford them suitable guarantees for the future, it
has been found essential to institute a thorough investigation of
all lands in Chosen, in spite of considerable expenses and labor for
the Government General which the undertaking naturally involves. In
consequence of such investigation the ownership and boundary of each
lot will be confirmed and established beyond all controversy.
It is pointed out in Mr. Schuyler’s note that the measures
contemplated by the Government General of Chosen entirely ignore the
fact that the American consulate general at Seoul keeps in its
archives accurate records of the purchase of lands by American
citizens. I am assured by the Government General that such consular
records, far from being ignored, will be taken as establishing prima
facie presumption in favor of those who are therein duly recorded.
It would, however, seem impracticable that they should be regarded
as conclusive to the exclusion of all claims which the subjects or
citizens of other nationalities may advance upon the production of
cogent evidence in regard to the items contained in those records.
In case such claims are advanced, and if all attempts of the
authorities concerned to reach a friendly adjustment between the
parties in interest fall through, it will be the duty of the
president of the land investigation board to decide the questions at
issue, upon an exhaustive examination of the case, it being
understood that the consular records will be presumed to be valid
unless rebutted. If either party is not satisfied with the decision
of the president of the land investigation board, it is open to him
to take appeal to the high commission of land investigation,
presided over by the governor general and composed of judges and
high officials. It will thus be observed that due weight will be
attached to the consular records in question, and that the new law
is designed to assure and safeguard, instead of interfering with,
the rights of landowners in Chosen.
I am further Informed by the Government General that in regard to
lands duly recorded in the American consular archives, the
production of certified copies of such records will be held a valid
application for investigation provided for in Article V of the law.
Those certified copies shall be tendered either to the competent
officials dispatched to the spot or to the central office of the
land investigation board at Seoul. As regards the period within
which such procedure should be taken, due notice will be given to
holders of lots concerned or their agents.
Concerning Article VI, the owners of lots recorded in the consular
archives will not be called upon to be present at the spot of the
actual investigation, except when it is found impossible to identify
the location of the lots thus recorded. In any case, however, it
would be advisable for them to appear spontaneously either in person
or by agents, as such attendance will facilitate them in the defense
of their undoubted rights.
[Page 335]
It has already been remarked that the provisions of Articles VII and
VIII, to which reference is made in Mr. Schuyler’s note, in regard
to decisions of the president of the land-investigation board, and
to appeals to the high commission, do not imply any undue
interference with the rights of landowners. On the contrary, those
provisions are believed, in the actual state of things in the new
territory, to secure the most satisfactory and efficient working of
the investigation, while insuring protection of the property rights
legally acquired in Chosen.
As regards the observations made by the American chargé d’affaires in
reference to Article XII concerning the penalty for nonconformity
with the requirements prescribed in Articles V and VI, the
qualifications of the terms of Article XII by the words “without
proper reasons” would be sufficiently assuring to persons who, on
account of some justifiable grounds, may be prevented from complying
with the provisions of the law. Besides, in view of the liberal
treatment to be accorded, as above stated, to the holders of lots
recorded in the consular archives, in respect of the requirements
under Articles V and VI, it is expected that the application of
penalty to those holders will be practically out of the
question.
Having regard to the foregoing considerations the Imperial Government
are unable to find anything in the measures thus contemplated by the
Government General of Chosen which would unjustly cause
inconvenience or hardship to American landowners, and they
confidently hope that in the light of the above explanations your
excellency may be persuaded of the advisability for American
citizens of prompt compliance with the law in question for the
lasting security of their rights as well as for the common weal of
all those who are legally interested in landed property in
Chosen.
I avail, etc.,
