Download - History, Force & Effect of Land Patent

8/11/2019 History, Force & Effect of Land Patent

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Memorandum of Law

History, Force & Effect of the Land Patent

Section I

Allodial v. Feudal itles

In America today there is a phenomenon that has not been experienced since the mid-1930's.That phenomenon is the sharply rising number of foreclosures both in the rural sector and in thecities. This phenomenon is occurring because of the debtor!s inability to pay the interest andprinciple on a rising debt load that is expanding across the country. As a defense the land patent

and the "ongressional intent that accompanies the patent is presented here. In order to properlye#aluate the land patent in any gi#en situation it is necessary to understand $hat it is $hy it $ascreated and $hat existed before the land patent% particularly in common-la$ &ngland. Theseuestions must be ans$ered in order to understand the association bet$een the go#ernment theland and the people.

(irst) *hat existed before land patents+ It is imperati#e to understand $hy the land patent

$as created therefore a study of the &nglish land titles in use prior to the land patent process is

#ital. This method allo$s us to fully understand the present system $e ha#e of land o$nership.

In &ngland at least until the mid-1,00's1 property $as exclusi#ely o$ned by the ing. Inarbitrary governments; the title is held by and springs from the supreme head--be he theemperor, King, potentate; or by whatever name he is known.2 The ing $as the true andabsolute o$ner. e alone could ta/e or grant land from people in his ingdom $ho had eitherlost or gained his fa#or. The authority to ta/e the land may ha#e reuired a ustifiable reason but#erification of facts $as often subecti#e and less than stringent.3 The beneficiary of such a giftmay ha#e $ondered if the same fate a$aited him if e#er he fell into disfa#or $ith the ing.

The ing's gifts $ere called fiefs. A fief 2also /no$n as a feud is described as an estate inland held of a superior on ondition of rendering him servies.! It is also described as aninheritable right to the use and oupation of lands, held on ondition of rendering servies to

the lord or proprietor, who himself retains the ownership in the lands. " The people had landthey occupied de#ised inherited alienated or disposed of as they sa$ fit so long as theyremained in fa#or $ith the ing.4 This holding of lands under another $as called a tenure. Theperson granting the lands 2the ing $as called the lord paramount. The person recei#ing thelands $as called the #assal. Tenure $asn!t limited to the lord paramount and his #assals. *ithinthe rules of feudal la$ a #assal $as allo$ed to part out his feud to his o$n #assals. *hen a#assal created sub-#assals in this $ay he became the mesne lord bet$een his #assals and hismesne lord or lord paramount. Those $ho held directly to the ing $ere called his 'tenants-in-chief'.56 These po$erful tenants-in-chief granted smaller parcels of land to sub-feudatories to be


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held of themsel#es.9 The si7e of the gift of the land could #ary from a fe$ acres to thousands ofacres depending on the po$er and prestige of the lord. 10The fiefs $ere built in the same manneras a pyramid. The ing the true o$ner of the land $as at the top. (rom the bottom up thereexisted a system of small to medium-si7ed to large to larger-si7ed estates. 8ersons directlybeneath a larger estate o$ed homage to the lord of that estate as $ell as to the ing. 11At the

lo$est le#el of this pyramid1

existed the serfs also /no$n as #illeins. This class of people hadno rights. They $ere recogni7ed as nothing more than real property. 13This system of hierarchicalland holdings reuired an elaborate system of payment. These fiefs of the land might berecompensed in any number of $ays including goods actual money or labor.

:ne of the more common types of fiefs $as the crops fief.1 ;nder this type of fief a certainportion of the grain har#ested each year $ould immediately be turned o#er to the lord abo#e thatparticular fief. Then the shares for the lo$er lords and serfs of the fief $ould be distributed. Amore interesting type of fief for purposes of this memorandum $as the money fief. In mostcases the source of money $as not specified and the payment $as simply made from the fief-holder's treasury. In some cases the fief might instead consist of fixed re#enue to be paid from a

definite source in annual payments in order for the tenant o$ner of the fief to be able to remainon the property.1. In modern &nglish tenures the term !fee"signifies an inheritable estate beingthe highest and most extensi#e interest the common man or noble other than the ing couldha#e in the feudal system.1, !Fee sim#le"is described as the largest form of inheritance.14 #simple is added, for that it is desendible to his heirs generally, that is, simply, without restraint

to the heirs of his body, or the like,#$% en $hen the $ord !a$solute"$as attached to theterm =fee simple> it merely denoted that the entire estate could be assigned or passed to heirs.Thus the term =fee sim#le a$solute"in common-la$ &ngland denotes the most and best title aperson could ha#e as lon% as the in% allowed him to retain #ossession of 'own( the land. Ithas been commented that the basis of &nglish land la$ is the o$nership of all realty by theso#ereign.119. This is in contradiction to the term 5allodium5 $hich is defined as a man's o$nland $hich he possesses in his o$n right $ithout o$ing any rent or ser#ice to any superior.0

In common-la$ &ngland practically e#erybody $ho $as allo$ed to retain land had the typeof fee simple absolute often used or defined by courts. This fee simple grants the occupier asmuch of a title as the 5so#ereign5 allo$s at that time. The term has become synonymous $iththe supposed o$nership of land under the feudal system of &ngland at common la$. The originaland true meaning of the $ord 5fee5 is the same as fief or feud. =(ee> is the operati#e $ord here.=(ee simple absolute> dealt $ith the entire fief) its de#isability alienability and inherit-ability.1.If a fee simple absolute in common-la$ &ngland $as synonymous $ith only as much title as theing allo$ed his barons to possess then $hat did the ing ha#e by $ay of a title+

he in% of En%land held ownershi# of land under a different title and with far %reater#owers than any of hissu$)ects. The people of &ngland held fee simple titles to their land butthe in%actually o$ned all the land in &ngland through his allodial title. Though all the land$as in the feudal system none of the fee simple titles $ere of eual $eight and dignity $ith theing's allodial title. The title to the land al$ays remained in fa#or of the ing.It is relati#elyeasy to deduce that allodial lands and titles are the hi%hest form of lands and titles *nown tocommon-la$. An estate of inheritance $ithout condition belonging to the o$ner and alienable

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by him transmissible to his heirs absolutely and simply is an absolute estate in perpetuity andthe largest possible estate a man can ha#e being in fact allodial in its nature.35The originalmeaning of a perpetuity is an inalienable indestructible interest.> The ing had such aninalienable indestructible title to nearly all the land in &ngland. ?uring the classical feudalisticperiod of common-la$ &ngland the ing ans$ered to no one concerning the land. Allodial title

allo$ed the ing of &ngland to run and control the entire country in the form of one large estatebelonging to the "ro$n. could di#isealienate or pass by inheritance the estates of land 2manors or fiefs%

4. this fee simple absolute in feudal &ngland not being the full title did not protect the

5o$ner5 if the ing found fault $ith the 5o$ner55. the 5o$ner5 had to pay a type of homage to the ing or a higher baron each year todischarge the obligation of his fief

6. this homage of his fief could ta/e the form of a re#enue or tax an amount of grain laboror a set and permanent amount of money and

7. as long as the 5o$ner5 of the fief in fee simple absolute paid homage to theso#ereign,then the 5o$ner5 could remain on the property $ith full rights to sell di#iseor pass it by inheritance as if the property $as really his.

Section II

Land -wnershi# in America oday)

he American Feudalistic Society

The pri#ate o$nership of land in America is one of those rights people ha#e proclaimed to beessential in maintaining this republic. The necessary uestion $hen discussing this topic is)oes ownershi# of land in America today reflect a true and com#lete ownershi# of land

underan allodial conce#t, or is it somethin% much different/ In other $ords are $e li#ing inan actual allodial freehold or are $e li#ing in an updated #ersion of feudalistic common-la$+The ans$er is crucial in determining $hat rights $e ha#e in the protection of our realty againstimproper sei7ures and encumbrances by our go#ernment and creditors. The ans$er appears to be

extremely clear $hen mortgage or tax payments aren!t paid. If these payments are missed $efall into disfa#or $ith our go#ernmental agencies or creditors. Through court proceedings ornon-udicial foreclosure these creditors or go#ernmental agencies ta/e our land as a penalty.;nderstand this) if you fail to perform as your creditors or go#ernment demands your land maybe forfeited. *hen you understand exactly $hat type of land-o$nership system controls yourlife you should recogni7e the inherent unustness of such constitutional #iolations.

he American+$ased system of land ownershi# today consists of three *ey

re0uirements


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1. the $arranty deedor some other type of deed purporting to con#ey o$nership ofland

2. title a$stractsto chronologically follo$ the de#elopment of these different types ofdeeds to a piece of property and

3. title insuranceto protect the o$nership of that land.

These three ingredients must $or/ together to ensure a systematic and orderly con#eyance of apiece of property. @one of these three by itself completely con#ey possession of the land fromone person to another. At least t$o of the three are al$ays deemed necessary to adeuatelysatisfy the legal system4 that the title to the property had been placed in the hands of thepurchaser. :ften all three are necessary to properly pass the o$nership of the land to thepurchaser. ut does the absolute title 2and therefore the true o$nership of the land really passfrom the seller to purchaser $ith the use of any combination of these instruments+ @one of thethree by itself passes the absolute or allodial title to the land the system of land o$nershipAmerica originally operated under. en combined all three can not con#ey this absolute typeof o$nership. *hat is the function of these three instruments that are used in land con#eyancesand $hat type of title is con#eyed by the three+ The abstract only traces the title and the title

insurance only insures the title. Therefore the most im#ortant %rou# to e1amine is the deedsthat #ur#ortedly convey the fee 'ownershi#( from seller to #urchaser.

These deeds may include any of the follo$ing) warranty deed, 0uit+claim deed, sheriff2sdeed, trustee3s deed, )udicialdeed, ta1 deed, will or any other instrument that #ur#ortedlyconveys the title. All of these documents state that it con#eys the o$nership to the land. Eachof these, however, is actually a color of title.6

A color of title is that which in a##earance is title, $ut which in reality is not title. 9Infact any instrument may constitute color of title $hen it purports to con#ey the title of the landas $ell the land itself although it is #oid as a muniment of title. 30The Bupreme "ourt ofCissouri has stated)

&that 'w(hen we say a person has a olor of title, whatever may be the meaning of thephrase, we e)press the idea, at least, that some at has been previously done,..., by whih

some title, good or bad, to a parel of land of definite e)tent had been onveyed to him.&31In other $ords a color of title is an appearance or apparent title an 5image5 of the true title.*hen coupled $ith possession the phrase 5color of5 purports to con#ey the o$nership of theland to the purchaser. o$e#er this does not say that the color of title is the actual and true titleitself. @or does it say that the color of title itself actually con#eys o$nership. In fact theclaimant or holder of a color of title is not e#en reuired to trace the title through the chain do$nto his instrument.3Dather it may be said that a color of title is prima facie e#idence ofo$nership of and rights to possession of land until such time as that presumption of o$nership isdispro#ed by a better title or the actual title itself. If such cannot be pro#en to the contrary theno$nership of the land is assumed to ha#e passed to occupier of the land. To further strengthen acolor of title-holder's position courts ha#e held that the good faith of the holder to a color of titleis presumed in the absence of e#idence to the contrary. 33

*ith such /no$ledge of $hat a color of title is it is interesting to note $hat constitutescolors of title. The follo$ing statements are dra$n from $ell-established legal decisions)

A warranty deedis li/e any other deed of con#eyance.3

A warranty deed or deed of conveyanceis a color of title.3


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A deed that #ur#orts to convey interestin the land is a color of title.

A deed which on its face #ur#orts to convey a title constitutes a claim and color of title. 3,

A 0uit+claimdeed is a color of title. 34

4uit+claim deedscan pass the title as effecti#ely as a $arrant $ith full co#enants36

Sheriff3s deedsalso are colors of title. 39

A )udicial deedis color of title. 0

A ta1 deedis only color of title.1

A sim#le ta1 deedby itself is only a color of title. (ee simple can only be acuired though

ad#erse possession #ia payment of taxes% claim and color of title plus se#en years ofpayment of taxes. Thus any tax deed $hich purports on its face to con#ey title is a goodcolor of title.

A willpasses only a color of title. A $ill can pass only so much as the testator o$ns though it may attempt to

pass more.3

A trustee3s deed or a mort%a%e and strict foreclosureare color of title.

Any document definin% the e1tent of a disseisor3s claim or #ur#orted claim


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documents and facts that appear in the title abstract of the property. Bince it is entirelypossible other facts and documents exist outside the title abstract the abstract by itself doesnot guarantee actual title.

*hat each of these legal statements in the #arious factual situations says is that the color of title

is ne#er described as the absolute or actual title. Dather each says that it is one of the types iftitles necessary to con#ey o$nership or apparent o$nership

;nder the color of title system used most often in this country today no individual o#eratin%under thisty#e of title system has the a$solute or allodial title. All that is really necessary toha#e a #alid title is to ha#e a relati#ely clean abstract $ith a recogni7able color of title 2themar/etable title $ithin the chain of title. After a number of years contingencies ine#itably ariseand title disputes $ill occur. It becomes difficult if not impossible to e#er properly guarantee anabsolute title. This is not necessarily the fault of the seller. It is the fault of the legal and realestate systems for allo$ing such a diluted form of title to control an area $here it is imperati#e toha#e the absolute title. To correct this problem it is important to return to those documents that

the early leaders of the nation created to ensure property rights for the so#ereign freeholdersremained inalienable. This correction must be t$ofold) restricting or perhaps eliminating theuse of mar/etable titles andreturning to allodial 2absolute titles.

;se of the color of title system for the con#eyance of land has also caused problems in the areaof terminology. ;se of terms such as =mar/etability> =sale-ability> and =merchantability> areconfusing enough. ?etermining $hether a title is =complete> =perfect> =good> and =clear> or$hether it is = bad> =defecti#e> =imperfect> and =doubtful>% is e#en more difficult. There is anob#ious possibility of destroying a chain of title because of the difficulty of recogni7ing $hat isacceptable to a reasonable purchaser. 5hat do the courts say a$out !com#lete", !#erfect",!%ood", and !clear" titles/

A com#lete titlemeans that a person has the possession right of possession and the right of

property.


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The $ords =good title> and =clear title> ust li/e the $ords =complete title> and =perfecttitle> actually describe nothing more than a mar/etable title or merchantable title. As statedabo#e each can be 2and almost al$ays is a color of title rather than a true allodial title. @one ofthese types of title purports to be the absolute or allodial title. ,,@one of these types of title e#enclaims to be a fee simple absolute.,4 Bince these types of titles are almost al$ays represented by

a color of title none of these types of titles represents that it passes the actual 2allodial title.&ach type states that it passes a title good enough to a#oid the necessity of litigation to determine$ho actually has the title.

If litigation to determine $ho actually holds a title is necessary then the title has crossed theboundaries of usefulness and entered a different category of title descriptions and names. Thisne$ category consists of titles $hich are =bad> =defecti#e> =imperfect> or =doubtful>. 5hatare ! $ad", !defective", !im#erfect" or !dou$tful" titles/

A $ad titlecon#eys no property to the purchaser of the estates.,6

A title is defective$hen the party claiming to o$n the land has not the $hole title but

some other person has title to a part or portion of it. Buch a title is the same as no title

$hatsoe#er.,9

An im#erfect title is one $here something remains to be done by the granting po$er to

pass the title to the land.40

Adou$tful titleis also one $hich con#eys no property to the purchaser of the estate. 41

ery title is described as dou$tful$hich in#ites or exposes the party holding it to

litigation.4

&ach of these types of titles describes exactly the same idea in many different $ays. ecauseof some problem defect or uestion% no title exists. ecause no title exists none can becon#eyed. Eet in all of these situations some type of color of title $as used as the operati#einstrument. *hat ma/es one color of title complete good or clear in one situation and in

another situation the same type of color of title could be described as bad defecti#e imperfect ordoubtful+ The belief of others in the community 2$hether or not properly ustified that the titleis a good one $hich they $ould be $illing to purchase is $hat ma/es an other$ise doubtfultitle into a good title.43The methods presently used to determine $hether a title or color of title isgood enough not to be doubtful are the other t$o-thirds of the three possible reuirements forthe con#eyance of a good or complete 2mar/etable title.

The t$o methods of properly ensuring that a title is a good or complete title are title abstracts2the complete documentary e#idence of title and title insurance. The legal title to land,based ona color of title is made up of a series of documents78 and certain facts, not e#idenced bydocuments. Together these sho$ that the claimant is a person to $hom the la$ gi#es the estate

2the title. These documentary e#idences are represented by the land patent and the colors oftitle.4


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an abstract to determine the status of the operable title and determine $hether that title is good ordoubtful.46 If the title is deemed good after this lengthy process then the property may betransferred $ithout doing anything more since it is assumed that the seller $as the o$ner of theproperty. This is not to say that the seller is the paramount or absolute o$ner. It doesn!t e#enguarantee that he is the o$ner of the land against any ad#erse claimants. It could be said that the

title-holder has a good title due to the lenient attitude of udicial authorities to$ard maintaining astable and uniform system of land o$nership.

9ut what is the #ur#ose and %oal of a title a$stract/ An abstract that has been properlybrought up states that it is presumed the seller is the o$ner of the land% thereby ma/ing the titlemar/etable and guaranteeing that he has a good title to sell. This is all an abstract can legallydo. It is not the title itself and it does not state the o$ner has an absolute title. Therefore theabstract can not guarantee that the o$ner actually holds the title. All of this rhetoric is necessaryif the title is good. If there is some uestion concerning the title 2yet not ma/ing it defecti#ethen the o$ner must turn to the last of the three alternati#es to help pass a good title titleinsurance7:

itle insuranceis issued by title insurance companies to insure the #alidity of the title againstany defects against any encumbrances affecting the designated property and to protect thepurchaser against any losses he sustains from the subseuent determination that his title isactually unmar/etable60Title insurance extends to any defects of title.61It protects against theexistence of any encumbrances pro#ided only that any udgments ad#erse to the title shall bepronounced by a court of competent urisdiction. 6It is not e#en necessary that a defect actuallyexist $hen the insurance policy $as issued. It is simply necessary that there exists at the time ofissuance of the policy an inchoate or potential defect $hich is rendered operati#e and substantialby some subseuent e#ent. Bince all an =o$ner> normally has is a color of title the longer atitle tra#erses history 2the older it is the greater the possibility that the title $ill becomedefecti#e. The greater the need for insurance simply to /eep the title mar/etable the easier it isto determine that the title possessed is not the true paramount and absolute title. itle insurance%uarantees that a title is mar*eta$le, not a$solutely free from dou$t. If a person had theparamount 2allodial title there $ould be no need for title insurance though an abstract might beuseful for record-/eeping and historical purposes. itle insurance and a$stract record+*ee#in% are useful #rimarily $ecause of e1tensive reliance on colors of title as the o#erative

title for a #iece of #ro#erty. This supplies the necessary information concerning colors oftitle title abstracts and title insurance. his does not descri$e the relationshi# $etween thelandowner and the %overnment. As $as stated in the instruction in feudal &ngland the inghas the po$er right and authority to ta/e a person's land a$ay from him if and $hen the ingfelt it necessary. The uestion is $hether most of the American system of land o$nership andtitles is in reality nothing more than a feudal system of land o$nership.

Fand o$nership in America presently is based on the use of color of title. Though people

belie#e they are the complete and total o$ners of their property under a color of title system this

is far from the truth. *hen people say they o$n their land they =o$n> it exactly to the extent

that the &nglish barons o$ned their land in common-la$ &ngland. They =o$n> their land so

long as some 5so#ereign5 2the go#ernment or a creditor allo$s them to o$n their land. In the

beginning of this memorandum it $as stated that the ing could ta/e the land from one baron


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These allodial lands $ere most commonly con#eyed by a $riting or charter called a land-boc or

land-allodial charter. (or safe/eeping bet$een con#eyances this document $as generally

deposited in a nearby monastery. 66:ne portion of &ngland the "ounty of ent $as allo$ed to

retain the allodial form of land o$nership $hile the rest of &ngland become feudal. 69 @eedless

to say the rest of &ngland $as not happy $ith this fa#oritism sho$n to the "ounty of ent.

*hen *illiam I established feudalism in &ngland to maintain control o#er his barons it created

a great deal of animosity o#er the next centuries.90

(inally as a result of such dictatorial control some < barons oined forces to exert pressure

on the ruling monarch ing Hohn. Their obecti#e $as to secure rights for themsel#es abo#e

those of common men. The result of this pressure at Dunnymede became /no$n as the Cagna

"arta. &nglish common la$ is based on a series of udicial decisions and royal decrees

interpreting and follo$ing the Cagna "arta. *hile the Cagna "arta protected only the basic

rights of the nobility it had the effect of gi#ing all people more freedom and po$er and slo$ly

eroding the ing!s po$er.

Among the rights the nobles secured $as a particular section dealing $ith o$nership of theland. *hile they still recogni7ed the ing as the lord paramount the barons $anted some of therights their ancestors had prior to A.?. 10,,.91The barons $anted se#eral rights and po$ers o#erthe land as the #isible o$ners that had not existed in &ngland for 1


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The American colonists ho$e#er soon adopted many of the same land concepts used in theold $orld. The ings of &urope still had the authority to exert influence and the American#ersion of barons sought to retain large tracts of land. As an example the first patent granted in@e$ Eor/ $ent to illian an Densselaer. It $as dated in 1,30 and confirmed in 1,6< and140.9,The colonial charters of these American colonies granted by the ing of &ngland had

references to the lands in the "ounty of ent the only county in &ngland $ith allodial titles.This effecti#ely denied the more barbaric aspects of feudalism from entering the @e$ *orld.en so feudalism and its tenures did exist for some time94&'I(t may be said that, at an earlydate, feudal tenures e)isted in this ountry to a limited e)tent.& 0% The result $as a ne$ly createdform of feudal land o$nership in America. The colonial barons could dictate $ho farmed theirland ho$ their land $as to be di#ided and to a certain extent to $hom the land should pass.ut ust as the original barons disco#ered this po$er $as premised in part on the performanceof duties for the ing. ;pon the failure of performance the ing could order the grant re#o/edand grant the land to another $illing to submit to the ing's authority. This authority $aspremised on the belief that colonists recently arri#ed and relati#ely independent $ould obey thedictates of a ing based 3000 miles a$ay. Buch a premise $as ill-founded. The colonists came

to America to a#oid taxation $ithout representation to a#oid persecution for their $orship ofAlmighty God and to acuire a tract of land that could be o$ned completely. *hen thecolonists $ere forced to pay taxes and reuired to allo$ their homes to be occupied by soldiers%they re#olted fighting the ritish and declaring their ?eclaration of Independence.

The Bupreme "ourt of the ;nited Btates reflected on this independence in ;hisholm v.Stateof


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here it rests with the people; there a sovereign atually administers the government; here never in

a single instane; our governors are the agents of the people, and at most stand in the same

relation to their sovereign, in whih the regents of urope stand to their sovereigns. 1heir

prines have personal powers, dignities, and pre-eminene, our rules have none but offiial; nor

do they partake in the sovereignty otherwise, or in any other apaity, than as private iti/ens.

2emphasis added. Id. at 40-41.

The Americans had a choice as to ho$ they $anted their ne$ go#ernment to be formed.They had bro/en a$ay from the &nglish so#ereignty and established themsel#es as their o$nso#ereigns. They had their choice of types of taxation freedom of religion and mostimportantly o$nership of land. The American founding fathers chose allodial o$nership of landfor the system of o$nership on this country. In the opinion of Hudge ent the uestion of tenureas an incident to the o$nership of lands &has beome wholly immaterial in this ountry, whereevery vestige of tenure has been annihilated.&00 As late as 169 a leading authority on Americanproperty la$ said +t the present day there is little, if any, trae of the feudal tenures $::

remaining in the +merian law of property. &ands in this country are now held to beabsolutely

allodial. $:$

;pon the completion of the De#olutionary *ar lands in the thirteen colonies $ere held undera different form of o$nership than they had been prior to the $ar. after the +merianevolution, lands in this state beome allodial, sub7et to no tenure, nor to any

servies inident there to.&$:2 This ne$ type of o$nership $as acuired in all thirteen states.103

en before they de#eloped a stable go#ernment the American people de#eloped a stable systemof land o$nership. The people o$ned their land absolutely in a manner similar to the ing incommon-la$ &ngland.

As has been stated earlier the original and true meaning of the $ord 5fee5 $as the same as=fief = or =fued>. Therefore land held in =fee simple absolute> is the same as the land held as a

fief or feud. This is in contradistinction to the term 5allodium5 $hich is defined as man's o$nland $hich he possesses merely in his o$n right $ithout o$ing any rent or ser#ice to anysuperior.10 Btated another $ay the fee simple estate of early &ngland $as ne#er considered asabsolute as $ere lands in allodium. Instead they $ere subect to some superior on condition ofrendering him ser#ices andthat superior had the ultimate o$nership of the land.10


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This fee simple estate means an absolute estate in lands $holly unualified by any reser#ation

re#ersion condition or limitation or possibility of any such thing present or future precedent or

subseuent.109It is the most extensi#e estate and interest one may possess in real property. An

estate subect to an option is not in fee. 110 The Io$a Bupreme "ourt $ent into a lengthy

discussion on $hat the terms = fee simple> and =allodium> mean in American property la$. 111

The "ourt stated)

1he word ?absolutely@ in law has a varied meaning, but when un*ualifiedly used with

referene to titles or interest in land, its meaning is fairly well settled. Ariginally the two

titles most disussed were ?fee simple@ and ?allodium@ . $$2Brior to

5lakstones time the allodial title was ordinarily alled an ?absolute title@ and was superior

to a ?fee simple title,@ the latter being enumbered with feudal logs whih were laid upon the

first feudaltory when it was granted, making it possible for the holder of a fee-simple title to

lose his land in the event he failed to observe his feudatory oath. 1he allodial title was not

so enumbered. Cater the term ?fee simple@, however, rose to the dignity of the allodial or

absolute estate, and sine the days of 5lakstone the word ?absolute estate@ and ?fee simple@

seem to have been generally used interhangeably; in fat, he so uses them $$D....+nd further

the words ?absolute@ and ?absolutely@ usually arry the fee...5y the terms ?absolute interest@

we understand a omplete and perfet interest,...,an estate in fee simple is meant.$$E

The basis of &nglish land la$ is the o$nership of the realty by the so#ereign from the cro$nall titles flo$.11


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The original thirteen states e#en prior to the creation of our present "onstitutionalgo#ernment issued titles to the unoccupied lands $ithin their boundaries. In @e$ Eor/ e#enbefore the $ar $as $on the state issued the first land patent in 1461. :nly a fe$ $ee/s after thebattle and #ictory at Eor/to$n in 1463 the state issued the first land patent to an indi#idual.119

en before the ;nited Btates $as created @e$ Eor/ and other states had de#eloped their o$n

Fand :ffices $ith "ommissioners. @e$ Eor/!s $as first established in 146 and re#ised in146, to pro#ide a more definite procedure for the sale of unappropriated Btate Fands. 10The statecourts held &1he validity of letters patent and the effetiveness of same to onvey title dependson the proper e)eution and reord...It has generally been the law that publi grants to be validmust be reorded. 1he reord is not for purposes of notie under reording ats but to make the

transfer effetual.&$2$ Fater if there $as a problem $ith the title the state grants could beconfirmed by issuance of a confirmatory grant.1This explains the methods and techniues theoriginal states used to pass title to their lands. Btate lands remained in the possession of the stateunless purchased by the still yet-uncreated federal go#ernment or by indi#iduals. ecause Texas$as originally a separate country it controlled and still controls its lands. In both of theseinstances the land $as not originally o$ned by the federal go#ernment and then later passed to

the people and states. This synopsis of land o$nership rights under the states hasn!t co#ereddisposal of federal lands. *hat methods did the states use in creating the federal go#ernmentand ho$ $ere federal lands disposed of+

The "onstitution in its original form $as ratified by a con#ention of the Btates on Beptember14 1464. The "onstitution and the go#ernment formed under it $ere declared in effect on thefirst *ednesday of Carch 1469. ?uring the "onstitutional "on#ention there $as serious debateon the disposal of $hat the con#ention called the 5*estern Territories5.13This tract of land $asceded to the ne$ American republic in the treaty signed $ith ritain in 1463.

?etermining the disposal of the *estern Territories $as the subect of much discussion in therecords of the "ontinental "ongress. eginning in Beptember 1463 there $as continualdiscussion concerning the Acuisition of and later disposition to the lands east of the CississippiDi#er.

+nd whereas the nited 9tates have sueeded to the sovereignty over the Jestern territory,

and are thereby vested as one undivided and independent nation, with all and every powerand right e)erised by the King of 4reat 5ritain, over the said territory, or the lands lying

and situated without the boundaries of the several states, and within the limits above

desribed; and whereas the western territory eded by 3rane and 9pain to 4reat 5ritain,

relin*uished to the nited 9tates by 4reat 5ritain, and guarantied to the nited 9tates by3rane as aforesaid, if properly managed, will enable the nited 9tates to omply with their

promises of land to their offiers and soldiers; will relieve their iti/ens from muh of the

weight of ta)ation;..., and if ast into new states, will tend to inrease the happiness ofmankind, by rendering the purhase of land easy, and the possession of liberty permanent;

therefore...esolved, that a ommittee be appointed to report the territory lying without the

boundaries of the several states;...; and also to report an establishment for a land offie.$2E

There $as also serious discussion and later acuisition by the then technically non-existentfederal go#ernment of land originally held by the colonial go#ernments. Id. at


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the "ontinental "ongress continued to hold discussions on ho$ to dispose of all $esternterritories. As part of the basis for such disposal it $as determined to di#ide the ne$north$estern territories into medians ranges to$nships and sections ma/ing for easy di#isionof the land and gi#ing the ne$ o$ners of such land a certain number of acres in fee. Hournals of"ongress p. 1 (ebruary 1464 and "ommittee oo/ 8apers of the "ontinental "ongress @o.

190 p. 13 21466. In Beptember of that same year there $ere most discussions on the methodsof disposing the land. In those discussions there $ere debates in the #alidity and solemnity ofthe state patents that has been issued in the past. Id. @o. , p.


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the so#ereigns. :ne of these acts ho$e#er $as the main patent statute in reference to the intent"ongress had $hen creating the patents. That status is 3 Btat.


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from the ;nited Btates and the $hole legislation of the Go#ernment must be examined in thedetermination of such titles. agnell #. roderic/ 36 ;.B. 3, 21639

.It $as clearly the policy of "ongress in passing the preemption and patent la$s to confer the

benefits of those la$s to actual settlers upon the land. "lose #. Btuy#esant13 Ill. ,04 ,14

21690. The intent of "ongress is manifest in the determinations of meaning force and po$er#ested in the patent. These cases all illustrate the po$erand dignity gi#en to the patent. It $as created to di#est the go#ernment of its lands and to act asa means of con#eying such lands to the %enerationsof people that $ould occupy those lands.This formula 5or his legal representati#es5 embraces representati#es of the original grantee inthe land by contract such as assignees or grantees as $ell as be operation of la$ and lea#es theuestion open to inuiry in a court of )usticeas to the party to $hom the patent or confirmationshould inure. ogan #. 8age ,9 ;.B.,0< 216,. The patent $as and is the document and la$that protects the settler from the merciless speculators from the people that use a#arice tounustly benefit themsel#es against an unsuspecting nation. The patent $as created $ith thesehigh and grant intentions and $as created $ith such intentions for a sound reason.

The settlers as a rule seem to ha#e been poor persons and presumably $ithout the necessaryfunds to impro#e and pay for their land but it appears that in e#ery case $here the settlement$as made under the preemption la$ the settler...entered and paid for the land at the expiration ofthe shortest period at $hich the entry could be made...5 "lose #. Btuy#esant 13 Ill. ,04 ,321690. *e must loo/ to the beneficent character of the acts that created this grants and patentsand the peculiar obects they $ere intended to protect and secure. A class of enterprising hardyand most meritorious and #aluable citi7ens has become the pioneers in the settlement andimpro#ement of the ne$ and distant lands of the go#ernment. Cc"onnell #. *ilcox 1 Bcam.2Ill. 3 3,4 21634.

5In furtherance of $hat is deemed a $ise policy tending to encourage settlement and tode#elop the resources of the country it in#ites the heads of families to occupy smallparcels of the public land...To deny "ongress the po$er to ma/e a #alid and effecti#econtract of this character...$ould materially abridge its po$er of disposal and seriouslyinterfere $ith a fa#orite policy of the go#ernment $hich fosters measures tending to adistribution of the lands to actual settlers at a nominal price.5 Ciller #. Fittle 4 "al.36 3


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small family farm and utili7e the cheap production of these situations it has been necessary toprotect the so#ereign on his parcel of land and ensure that he remain in that position. The landpatent and the patent acts $ere created to accomplish these goals. In other $ords the patent ortitle deed being regular in its form the la$ $ill not presume that such $as obtained throughfraud of the public right. This principle is not merely an arbitrary rule of la$ established by the

courts rather it is a doctrine $hich is founded upon reason and the soundest principles of publicpolicy. It is one $hich has been adopted in the interest of peace in the society and the permanentsecurity of titles. ;nless fraud is sho$n this rule is held to apply to patents executed by thepublic authorities. Btate #. e$itt Fand "o. 13 8. 449 21913. It is therefore necessary todetermine exact po$er and authority contained in a patent.

Fegal titles to lands cannot be con#eyed except in the form pro#ided by la$. CcGarrahan #.Cining "o. 9, ;.B. 31, 21644. Le%al title to #ro#erty is contin%ent u#on the #atent issuin%from the %overnment. Babo #. or#ath


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title. The land patent is the muniment of title such title being absolute in its nature ma/ing theso#ereigns absolute freeholders on their lands. (inally the patent is the only e#idence of thelegal fee simple title. Cc"onnell #. *ilcox 1 Bcam 2Ill. 361 39, 21634. All these #ariouscases and uotes illustrate one statement that should be thoroughly understood at this time thepatent is the highest e#idence of title and is conclusi#e of the o$nership of land in courts of

competent urisdiction. This ho$e#er does not examine the methods or possibilities ofchallenging a land patent.

In ooper et. al. #. Bcheimer , ;.B. 23 o$. 3< 216


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Canufacturing "o. 16 ;.B. ,43 21666% but courts of euity cannot set aside annul orcorrect patents or other e#idence of title obtained from the ;nited Btates by fraud ormista/e unless on specific a#erment of the mista/e or fraud supported by clear andsatisfactory proof% Caxell Fand Grant "ancellation 11 o$. 2;.B.


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Therefore a collateral attac/ by definition is any attac/ upon a patent that is not co#ered $ithinthe direct attac/ list. Perha#s the most #revalent collateral attac* in #ro#erty law today is amort%a%e or deed of trust foreclosure on a color of title. In these instances it is determinedthat the complete title and interest in the land is purchased by the mortgagee or another in hisplace. Buch a determination displaces the patentee's o$nership of the title $ithout the court e#er

ruling that the patent $as acuired through fraud or mista/e. *his is against public policy,legislatie intent, and the oerwhelming ma%ority of case law. Therefore it is no$ necessary todetermine the patent's role in American property la$ today to see $hat po$ers the courts ofeuity ha#e in protecting the rights of the challengers of patents.

The attitude of the "ourts is to promote simplicity and certainty in title transactions therebythey follo$ $hat is in the chain of title and not $hat is outside. Babo #. or#ath


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It $as said in common-la$ &ngland that $hen a title $as not completely alienable and notthe complete title it $as not a fee simple absolute. Dather it $as some type of contingentcon#eyance that depended on the performance of certain tas/s before the title $as considered tobe absolute. In fact normally the title ne#er did de#elop into a fee simple absolute. These typesof con#eyance $ere e#idenced in part by the operable $ord sin the con#eyance and in part by

manner in $hich the granter could reclaim the property. If the title automatically re#erted to thegrantor upon the happening of a contingent action then the title $as by a fee simpledeterminable. Bcheller #. Trustees of Bchools of To$nship 1 @orth ,4 Ill.App.3d 6


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219


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8acific Dailroad "o. #. arden , (.


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The Btate of "alifornia attempted to acuire land that belonged to the corporation. The Btate

maintained that there $as a public trust easement granting to the Btate authority to ta/e the land$ithout compensation for public use. The corporation relied in part on the intent of the treaty inpart on the intent of the patent and the statute creating it and in part in the reuisite challenge

date of the patent expiring. The Bumma "ourt follo$ed the lengthy dissertation of the dissentingudge on the "alifornia Bupreme "ourt Bee 31 "al.3d 66 dissenting opinion in determiningthat the patent $hich had been the apparent operati#e title throughout the years $as paramountand the actions by the Btate $ere against the manifest $eight of the Treaty and the legislati#eintent of the patent statutes. Id. at -,. In each of these cases it is states that the patentthrough possession or claim and color of title or through the term 5his heirs and assi%nsforever5 or through the necessary passage of title at the death of a oint tenant or tenant incommon is still the operable title and is reuired to secure the peaceful control of the land.These same ideas can also apply to state patents for lands that $ent to the state or remained inthe hands of the state upon admission into the ;nion. :liphant #. (ra7ho 1, @.*.d ,6


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freeholders in the rural sector in an effort to implant upon the country large corporate holdings.This last area must be effecti#ely met and eliminated.

To those $ho framed the "onstitution the rights of the se#eral Btates and the rights of the8eople $ere t$o distinct and different things. Throughout their debates they had t$o obects

foremost in their minds. (irst to create a strong and effecti#e national go#ernment and secondlyto protect the people and their rights from usurpation and tyranny by go#ernment. The people'sliberties and indi#idual rights and safeguards $ere to be /ept fore#er beyond the go#ernmentthey distrusted and against $hom they so carefully guarded themsel#es. If such control anddomination and unlimited po$ers $ere gi#en to a fe$ legislatures they could o#erride e#ery oneof the reser#ed rights co#ered by the first ten Amendments 2the bill of rights% they could changethe go#ernment of limited po$ers to one of unlimited po$ers% they could declare themsel#eshereditary rulers% they could abolish religious freedoms% they could abolish free speech and theright of the people to petition for redress% they could not only abolish trial by ury but e#en therights to a day in court% and most importantly they could abolish free so#ereign o$nership of theland.

The $hole literature of the period of the adoption of the "onstitution and the first tenamendments is one great testimony to the insistence that the "onstitution must be so amended asto safeguard unuestionably the rights and freedoms of the people so as to secure from any futureinterference by the ne$ go#ernment matters the people had not already gi#en into its controlunless by their o$n consent. ;nited Btates #. Bprague 6 ;.B. 41, 43-4, 21930.

The problem lies not in the lending institutions that simply practice good business on theirpart. The problem in the loss of freedoms by this present interference $ith allodial so#ereigno$nership lies $ith the state legislatures that created la$ or mar/etable title acts that claimed toenact ne$ simplistic stable land titles and actually created a $atered-do$n #ersion of the feesimple absolute that reuires complicated tracing and protection and is ineffecti#e againstmortgage foreclosures.

@one of these problems $ould occur if the patent $ere the operable title again as long as theso#ereigns recogni7ed the po$ers and disabilities of their fee simple title. The patent $as meantto /eep the so#ereign freeholder on the land but the land $as also to be /ept free of debt sincethat debt $as recogni7ed in 160 as unrepayable and today is unrepayable. The re-declarationof the patent is essential in the protection of the rural sector of so#ereign freeholders but alsoessential is the need to impress the state legislatures that ha#e strayed from their enumeratedpo$ers $ith the /no$ledge that they ha#e enacted la$s that ha#e defeated the intent and goal ofman since the middle ages. That intent of course is to o$n a small tract of land absolutely$hether by land-boc or patent on $hich the freeholder is beholden to no lord or superior. Thepatent ma/es so#ereign freeholders of each "iti7en $ho o$n hisNher land. A return to the patentmust occur if those so#ereign freeholders $ish to protect that land from the encroachment of thestate legislatures and the speculators that benefit from such legislation.

Section I?


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;onclusion

As has been seen man is al$ays stri#ing to protect his rights the most dear being the absoluteright to o$nership of the land. This right $as guaranteed by the land patent the public policy ofthe "ongress and the legislati#e intent behind the Btatutes at Farge. Buch rights must be

reacuired through the re-declaration of the patent in the color of title claimant's name based onhis color of title and possession. *ith such =born-again> rights the land is protected from theforced sale because of delinuency on a promissory note and foreclosure on the mortgage.

This protected land $ill not eliminate the debt a trust must be created $hereby 5partners5$ill $or/ together to repay it. These rights must be recaptured from the state legislated la$s orthe freedoms guaranteed in the ill of Dights and "onstitution $ill be lost. :nce lost thoserights $ill be exceedingly hard to reclaim and uite possibly as Thomas Hefferson said thechildren of this generation may someday $a/e up homeless on the land their forefathersfounded.


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1It can be argued this $as still the case until *illiam lac/stone!s time in the mid-1400!s.

2Cc"onnell #. *ilcox 1 Bcam 2Ill. 3 3,4 21634.3"oncei#ably such a reason could be fabricated by a ri#al or by the ing himself. The former holder of the land $ould be left $ondering $hat had brought the ing!s $rath to bear upon him.4*hile the beneficiary undoubtedly /ne$ the circumstances behind such a gift he still might be una$are ho$ the

facts $ere disco#ered or ho$ they occurred.

5 lac/stone!s "ommentaries p. 10 $as a maxim of &nglish common la$.

20*endell #. "randall 1 @.E. 91 2166

21(riedman #. Bteiner 104 Ill. 131 21663.

22Gilsbert of Cons "hroniue ch. 3 p. 4< 2ed. ander/indere.

23Btanton #. Bulli#an ,3 D.I. 1, 4 A. ,9, 21639.

24ou#ier's Fa$ ?ictionary olume III p.


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Ciddlebroo/e 13 Ill. ,< 2169% 8iatt "ounty #. Goodell 94 Ill. 6 21660% Btubblefield #. orders 9 Ill.


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81Id.

82Id.

83The unpopular taxes $ere secondary more li/e the stra$ that bro/e the camel!s bac/.

84According to his


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124Hournals of "ongress 8apers of the "ontinental "ongress @o.

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