MEMORANDUM OF LAW:

HISTORY, FORCE & EFFECT OF THE LAND PATENT

In the American system of law, People have substantive rights (common

law rights) that existed before, and are protected by the U.S.
Constitution. Substantive rights, as such, are not taxable. You may
not be taxed for the words you say, for the hands on the ends of your
arms, or for the property you own.

In order for the government to lay a property tax, it first must be

certain that the property being taxed is not owned by the possessor.

Having title to your property is not full ownership of your property.

Title only proves your right of possession. To have full ownership of
your property you must complete the transfer process by obtaining a
land patent. Having a land patent proves your allodial ownership of
the land. Allodial signifies ownership without limitation.

Once you have allodial ownership of your land, you now can possess it
as a matter of common law right. Remember, common law rights may not
be taxed.

The government-controlled schools no longer teach about land patents

and substantive common law rights. Because so few know about it, the
government is now free to define "title" as "evidence of right of
possession". The true holder of the allodial title is the government.
And like any owner, is entitled to rent the property to the tenants.
To avoid revealing all this to the public, the rent is called a
property tax.

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 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT

In America today, there is a phenomenon occurring that has not been experienced since the mid-
1930’s. That phenomenon is the, increasingly, rising number of foreclosures, both in the rural
sector and in the cities. This phenomenon is occurring because of the inability of the debtor to pay
the creditor the necessary interest and principle on a rising debt load, that is expanding across the
country. As a defense, the land patent or fee simple title to the land and the Congressional intent
that accompanies the patent is hereby being presented. In order to properly evaluate the patent in
any given situation, it is necessary to understand what a patent is, why it was created, what existed
before the patent, particularly in Common-Law England. These questions must be answered in
order to effectively understand the association between the government, the land, and the people.

First, what existed before land patents? Since it is imperative to understand what the land patent is
and why it was created, the best method is a study of the converse, or the Common-Law English
land titles. This method thus allows us to fully understand what we are presently supposed to have
by way-of actual ownership of land.

In England, at least until the mid-1600’s, and arguably until William Blackstone’s time in the mid-
l700’s, property was exclusively owned by the King. In arbitrary governments; the title is held by
and springs from the supreme head--be he the emperor, king, potentate; or by whatever name he is
known. McConnell v. Wilcox, 1 Scam (Ill.) 344, 367 (1837).

The king was the true and complete owner, giving him the authority to take and grant the land from
the people in his kingdom who either lost or gained his favor. The authority to take the land may
have required a justifiable reason, but such a reason could conceivably have been fabricated by the
king leaving the disseised former holder of the land wondering what it was that had brought the
king’s wrath to bear upon him. At the same time the beneficiary of such a gift, while undoubtedly
knowing the circumstances behind such a gift, may still not have known how the facts were
discovered and not knowing how such facts occurred, may have been left to wonder if the same
fate awaited him, if ever be fell into disfavor with the king.

The King’s gifts were called fiefs, a fief being the same as a feud, which is described as an estate in
land held of a superior on condition of rendering him services. 2 Blackstone’s Commentaries,
p.105. It is also described as an inheritable right to the use and occupation of lands held on
condition of rendering services to the lord or proprietor, who himself retains the ownership in the
lands, Black’s Law Dictionary, 4th Edition p. 748 (1968). Thus, the people had land they occupied,
devised, inherited, alienated, or disposed of as they saw fit, so long as they remained in favor with
the King. F.L. Ganshof, Feudalism, P. 113 (1964). This holding of lands under another was called
a tenure, and was not limited to the relation of the first or paramount lord and vassal, but extended’
to those to whom such vassal, within the rules of feudal law,’ may have parted out his own feud to
his own vassals, whereby he became the mesne lord between his vassals and his own or lord
paramount. Those who held directly to the king were called his "tenants in ... chief."
1 E. Washburn, Treatise on The American Law of Real Proverty, Ch. II, Section 58, P. 42 (6th Ed.
1902). In this manner, the lands which had been granted out to the barons principal lands were
again subdivided, and granted by them to sub feudatories to be held of themselves. Id., Section 65,
p.44. The size of the gift of the land could vary from a few acres to thousands of acres depending
on the power and prestige of the lord. See supra Ganshof at 113. The.fiefs were built in the same
manner as a pyramid, with the King, the true owner of the land, being at the top, and from the
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT

bottom up there existed a system of small to medium sized to large sized estates on which the
persons directly beneath one estate owed homage to the lord of that estate as well as to the King.
Id. at 114. At the lowest level of this pyramid through at least the 14th and 15th centuries existed to
serfs or villains, the class of people that had no rights and were recognized as nothing more than
real property. F. Goodwin, Treatise on The Law of Real Property, Ch. 1, p. 10 (1905). This system
of hierarchical land holdings required an elaborate system of payment. These fiefs to the land
might be recompenses in any number of ways.

One of the more common types’of fiefs, or the payment of a rent or obligation to perform rural
labor upon the lord’s lands known as socage, was the crops fief. Id. at 8. Under this type of fief a
certain portion of the grain harvested each year would immediately be turned over to the lord
above that particular fief even before the shares from the lower lords and then serfs of the fief
would be distributed. A more interesting type of fief for purposes of this memorandum was the
money fief. In most cases, the source of money was not specified, and the payment was simply
made from the fief holder’s treasury, but the fief might also consist of a fixed revenue to be
paid from a definite source in annual payments in order for the tenant owner of the fief to be able
to remain on the property. Gilsebert 01 Mons.Chroaique, cc.69 and 115, pp. 109, 175 (ed.
Vanderkindere).

The title held by such tenant—owners over their land was described as a fee simple absolute. Fee
simple, Fee coinmeth of the French fief, i.e., praediuxn beneficiarium, and legally signifieth
inheritance as our author himself hereafter expoundeth it and simple is added, for that it is
descendible to his hairs generally, that is, simply, without restraint to the heirs of his body, or the
like, Feodum est quod quis tenet cx quacunqtte causa sive sit tenementum sive redditus, etc. In
Domesday it is called feudom.’~ Littleton, Tenures, Sec. ib, Fee Simple. In Section 11, fee simple
is described as the largest form of inheritance. Id. In modern English tenures, the term fee signifies
an inheritable estate, being the highest and most extensive interest the common man or noble, other
than the King, could have in the feudal system. 2 Blackstone’s Commentaries, p. 106. Thus, the
term fee simple absolute in Common-Law England denotes the most and best title a person could
have as long as the King allowed him to retain possession of (own) the land. It has been
commented that the basis of English land law is the ownership of all realty by the sovereign. From
the crown, all titles flow. The original and true meaning of the word “fee” and therefore fee simple
absolute is the same as fief or feud, this being in contradiction to the term “allodium” which means
or is defined as a man’s own land, which he possesses merely in his own right, without owing any
rent or service to any superior. Wendell v Crandall, 1 N.Y. 4,91 (1848).

Therefore on Common-Law England practically everybody who was allowed to retain land, bad
the type of fee simple absolute often used or defined by courts, a fee simple that grants or gives the
occupier as much of a title as the “sovereign” allows such occupier to have at that time. The term
became a synonym with the supposed ownership of land under the feudal system of England at
cox~aon law. Thus, even though the word absolute was attached to the f cc simple, it merely
denoted the entire estate that could be assigned or passed to heirs, and the f cc being the operative
word; f cc simple absolute dealt with the entire fief and its divisibility, alienability and
inheritability. Friedman v Steiner, 107 Ill. 131 (1883). If a fee simple absolute in Common-Law
England denoted or was synonymous with only as much ‘title as the King allowed his barons to
possess, then what did the King have by way of a title?
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT

The King of England held ownership of land under a different title and with far greater powers than
any of his subjects. Though the people of England held fee simple titles to their land, the King
actually owned all the land in England through his allodial title, and though all the land was, in the
feudal system, none of the f cc simple titles were of equal weight and dignity with the King’s title,
the land always remaining allodial in favor of the King. Gilsbert of Mons, Chonique, Ch. 43, p.
75 (ed. Vanderkindere). Thus, it is relatively easy to deduce that allodial lands and titles are the
highest form of lands and titles known to Common-Law. An estate of inheritance without
condition, belonging to the owner, and alienable by him, transmissible to his heirs absolutely and
simply, is an absolute estate in perpetuity and the largest possible estate a man can have, being in
fact allodial in its nature. Stanton v Sullivan, 63 R.I. 216, 7 A. 696 (1839). "The original meaning
of a perpetuity is an inalienable, indestructible interest.” Bovier’s Law Dictionary, Volume III, p.
2570 (1914). The King bad such a title inland. As such, during the classical feudalistic period of
Common-Law England, the King answered to no one concerning the land. Allodial titles, being
held by sovereigns, and being full and complete titles, allowed the King of England to own and
control the entire country in the form of one large estate belonging to the Crown. Allodial estates
owned by individuals exercising full and complete ownership, on the other band, existed only to a
limited extent in the County of Kent.

In summary of Common-Law England:

(1) the King was the only person (sovereign) to hold complete and full title to a land (allodial
title);

(2) the people who maintained estates of land, (either called evidence of the manors or fiefs), held
title by fee simple absolute;

(3) this fee simple absolute provided the means by which the “supposed” owner could devise,
alienate, or pass by inheritance the estates of land (manors or fiefs);

(4) this fee simple absolute in feudal England, being not the full title, did not protect the
“owner” if the King found disfavor with the “owner’;

(5) the “owner” therefore had to pay a type of homage to ‘the King or a higher baron each year
to discharge the obligation of his fief;

(6) this homage of his fief could take the form of a revenue or tax, an amount of grain, or a set
and permanent amount of money,

(7) and therefore as long as the “owner” of the fief in f cc simple absolute paid homage to the
king or sovereign, who held the entire country under an allodial title, then the “owner” could
remain on. the property with full rights to sell, devise or pass it by inheritance as if the property
was really his.

The private ownership of land in America is one of those rights people have proclaimed to be
essential in maintaining this republic. The necessary question in discussing this topic however, is
whether ownership of land in America today really is a true and complete ownership of land under
an allodial concept, or is it something much different. In other words, are we living in an actual
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT

allodial freehold or are we living in an updated version of feudalistic Common-Law. The answer is
crucial in determining what rights we have in the protection of our realty against improper seizures
and encumbrances by our government and creditors. The answer appears to be extremely clear
upon proper reflection of our rights when payments are missed on mortgages, or taxes, for
whatever reason, are not paid. If mortgage payments are missed or taxes are not paid, we actually
fall into disfavor with the parties who have the power, and these powers, through court proceedings
or otherwise, take our land as a penalty. When one understands if he is unable to perform as the
government or his creditors request and for such failures of performance his land can be forfeited,
then he can begin to understand exactly what type of land-ownership system controls his life, and
be should recognize the inherent unjustness of such constitutional violations.

The American—based system of land ownership today consists of three key requirements. These
three are the warranty deed or some other type of deed purporting to convey ownership of land,
title abstracts to chronologically follow the development of these different types of deeds to a piece
of property, and title insurance to protect the ownership of that land. These three ingredients must
work together to ensure a systematic and orderly conveyance of a piece of property; none of these
three by itself can act to completely convey possession of the land from one person to another. At
least two of the three are always deemed necessary to adequately satisfy the legal system and real
estate agents that the titles to the property had been placed in the hands of the purchaser and often-
times, all three are necessary to properly pass the ownership of the land to the purchaser. Yet does
the absolute title and therefore the ownership of the land really pass from the seller to purchaser
with the use of any one of these three instruments or in any combination thereof? None of the three
by itself passes the absolute or allodial title to the land, the system of land ownership America
originally operated under, and even combined all three can not convey this absolute type of
ownership. What then is the function of these three instruments that are used in land conveyances
and what type of title is conveyed by the three? Since the abstract only traces the title and the title
insurance only insures the title, the most important and therefore first group to examine are the
deeds that purportedly convey the fee from seller to purchaser. These deeds include the ones as
follows: warranty deed, quit claim deed, sheriffs deed, trustee’s deed, judicial deed, tax deed, wig
or any other instrument that purportedly conveys the title. All of these documents state that it
conveys the ownership to the land. Each of these, however, is actually a color of title. G.
Thompson, Title to Real Property, Preparation and examination of Abstracts, Ch. 3, Section 73, p.93
(1919). A color of title is that which in appearance is title, but which in reality is not title. Wright v
Mattison, 18 How. (U.S.) 50 (1855). In fact, any instrument may constitute color of title when it
purports to convey the title of the land, as well the land itself, although it is void as a muniment of
title. Joiplin Brewing Co. ‘V Payne, 197 No. 422, 94 S.W. 896 (1906). The Supreme Court of
Missouri has stated, ‘that [w]hen we say a person has a color of title, whatever may be the meaning
of the phrase, we express the idea, at least, that some act has been previously done,..., by which
some title, good or bad, to a parcel of land of definite extent had been conveyed to him.” St. Louis
v Gorman, 29 Mo. 593 (1860). In other words, a color of title is an appearance or apparent title,
and “image” of the true title, hence the phrase “color of”, which, when coupled with possession
purports to convey the ownership of the land to the purchaser.

This however does not say that the color of title is the actual and true title itself, nor does it say that
the color of title itself actually conveys ownership. In fact, the claimant or holder of a color of title
is not even required to trace the title through the chain down to his instrument. Rawson v Fox, 65
Ill 200 (1872). Rather it may be said that a color of title is prima facie evidence of ownership of
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT

and rights to possession of land until such time as that presumption of ownership is disproved by a
better title or the actual title itself. If such cannot be proven to the contrary, then ownership of the
land is assumed to have passed to occupier of the land. To further strengthen a color titleholder’s
position, courts have held that the good faith of the holder to a color of title is presumed in the
absence of evidence to the contrary. David v Hall, 92 Ill. 85 (1879); see also Morrison v Norman,
47 Ill. 477 (1868); and McConnell v Street, 17 Ill. 253 (1855).

With such knowledge of what a color of title is, it is interesting what constitutes colors of title. A
warranty deed is like any other deed of conveyance. Mahrenholz v County Board of School
Trustees of Lawrence Coun~y1 et. al., 93 Ill, app. 3d 366 (1981). A warranty deed or deed of
conveyance is a color of title, as stated in Demosey v Burns, 281 Ill. 644, 650 (1917) (Deeds
constitute colors of title); see also Dryden v Newman, 116 111. 186 (1886) (A deed that purports to
convey interest in the land is a color of title); Hinckley v Green, 52 Ill. 223 (1869) (A deed which,
on its face, purports~to convey a title, constitutes a claim and color of title); Busch v Huston, 75
Ill. 343 (1874); Chicking v Failes, 26 Ill. 508 (1861). A quit claim deed is a color of title as stated
in Safford v Stubbs, 117 ILL. 389 (1886); see also Hooway v Clark, 27 ILL. 483 (1861) and
McCellan v Kellogg, 17 Ill. 498 (1855). Quit claim deeds can pass the title as effectively as a
warrant with full covenants. Grant v Bennett, 96 Ill. 513, 525 (1880); See also Morgan v Clayton,
61 Ill. 35 (1871); Brady v spurck, 27 Ill. 478 (1861); Butterfield v Smith, 11 Ill. 485 (1849).
Sheriffs deeds also are colors of title. Kendrick v Latham, 25 Fla. 819 (1889); as is a judicial deed,
Huls v Buntin, 47 111. 396 (1865). The Illinois Supreme Court went into detail in its determination
that a tax deed is only color of title. “There the complainant seem to have relied upon the tax deed
as conveying to him the fee, and to sustain such a bill, it was incumbent of him to show that all the
requirements of the law had beec complied with.” A simple tax deed by itself is only a color of
title. Fee simple can only be acquired though adverse possession via payment of taxes; claim and
color of title, plus seven years of payment of taxes. Thus any tax deed purports, on its face, to
convey title is a good color of title. Walker v Converse, 148 Ill. 622, 629 (1894); see also Peadro v
Carriker, 168 Ill. 570 (1897); Chicago v Middlebrooke, 143 Ill. 265 (1892); Piatt County v
Gooden, 97 Ill. 84 (1880); Stubblefield v Borders, 92 Ill. 570 (1897); Coleman v Billings, 89 Ill.
183 (1878); Whitney v Stevens, 89 Ill. 53 (1878); Thomas v Eckard, 88 III. 593 (1878); Hollowav
v Clarke, 27 Ill. 483 (1861). A will passes only a color of title. Baldwin v Ratcliff, 125 Ill. 376
(1888); Bradley v Rees, 113 Ill. 327 (1885) (A wig can pass only so much as the testator owns,
though it may attempt to pass more). A trustee’s deed, a mortgages and strict foreclosure,
Chickerin v Failes, 26 Ill. 508, 519 (1861), or any document defining the extent of a disseisor’s
claim or purported claim, Cook v Norton, 43 Ill. 391 (1867), all have been held to be colors of title.
In fact, “(t]here is nothing here requiring a deed, to establish a color of title, and under the former
decisions of this court, color or title may exist without a deed.” Baldwin v Ratcliff, 125 Ill. 376,
383 (1882); County of Piatt v Goodell, 97 Ill. 84 (1880); Smith v Ferguson, 91 Ill. 304 (1878);
Hassett v Ridgely, 49 111. 197 (1868); Brooks v. Bruyn, 35 Ill. 392 (1864); McCagg v Heacock,
34 Ill. 476 (1864); Bride v Watt, 23 Ill. 507 (1860); and Woodward v Blanchard, 16111. 424
(1855). All of these cases being still valid and none being overruled, in effect, the statements in
these cases are well established law. All of the documents described in these cases are the main
avenues of claimed land ownership in America today, yet none actually conveys the true and
allodial title. They in fact convey something quite different.

When it is stated that a color of title conveys only an appearance of or apparent title, such a
statement is correct but perhaps too vague to be properly understood in its correct legal context.
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT

What are useful are the more pragmatic statements concerning titles. A title or color of title, in
order to be effective in transferring the ownership or purported ownership of the land, must be a
marketable or merchantable title.

A marketable or merchantable title is one that is reasonably free from doubt. Austin v Barnum, 52
Minn. 136 (1892). This title must be as reasonably free from doubts as necessary to not affect the
marketability or salability of the property, and must be a title a reasonably prudent person would be
willing to accept. Robert v McFadden, 32 Tex-Civ.App. 47, 74 S.W. 105 (1903). Such a title is
often described as one which would ensure to the purchaser a peaceful enjoyment of the property,
Barnard v Brown, 112 Mich. 452, 70 N.W. 1038 (1897), and it is stated that such a title must be
obvious, evident, apparent, certain, sure or indubitable. Ormsby v Graham, 123 Ia. 202, 98 N.W.
724 (1904). Marketable Title Acts, which have been adopted in several of the states, generally do
not lend themselves to an interpretation that they might operate to provide a new foundation of title
based upon a stray, accidental, or interloping conveyance. Their object is to provide, for the
recorded fee simple ownership, an exemption from the burdens of old conditions which at each
transfer of the property interferes with its marketability. Wichelman v Messner, 83 N.W. 2d 800
(1957). what each of these legal statements in the various factual situations says is
that the color of title is never described as the absolute or actual title, rather each says that it is one
of the types of titles necessary to convey ownership or apparent ownership. A marketable title,
what a color of title must be in order to be effective, must be a title which is good of recent record,
even if it may not be the actual title in fact.

Close v. Stuyvesant, 132 Ill. 607, 24 N.E. 868 (1890). Authorities hold that to render a title
marketable it is only necessary that it shall be free from reasonable doubt; in other words, that a
purchaser is not entitled to demand a title absolutely free from every possible suspicion. Cummings
v Dolan, 52 Wash. 496, 100 P. 989 (1909). The record being spoken of here is the title abstract and
all documentary evidence pertaining to it. “It is an axiom of hornbook law that a purchaser has
notice only of recorded instruments that are within his ‘chain of title’.” 1 R. Patton & C. Patton,
Patton on Land Title, Section 69, at 230-33. (2nd ed 1957); Sabo v Horvath, 559 P. 2d 1038, 1043
(Ak. 1976). Title insurance then guarantees that a title is marketable, not absolutely free from
doubt.

Thus, under the color or title system used most often in this country today, no individual operating
under this type of title system has the absolute or allodial title. All that is really necessary to have a
valid title is to have a relatively clean abstract with a recognizable color of title as the operative
marketable title within the chain of title. It therefore becomes necessarily difficult, if not
impossible after a number of years, considering the inevitable contingencies that must arise and the
title disputes that will occur, to ever properly guarantee an absolute title. This is not necessarily the
fault of the seller, but it is the fault of the legal and real estate systems for allowing such a diluted
form of title to be controlling in an area where it is imperative to have the absolute title. In order to
correct this problem, it is important to return to those documents
the early leaders of the nation created to properly ensure that property remained one of the
inalienable rights that the newly established sovereign freeholders could rely on to always exist.
This correction must be in the form of restricting or perhaps eliminating the widespread use of a
marketable title and returning to the absolute title.

Other problems have developed because of the use of a color of title system for the conveyance of
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT

land. These problems arise in the area of terminology that succeed in only confusing and clouding
the title to an even greater extent than merely using terms like marketability, salability or
merchantability. When a person must also determine whether a title is complete, perfect, good and
clear, or whether it is a bad, defective, imperfect and doubtful, there is an obvious possibility of
destroying a chain of title because of an inability to recognize what is acceptable to a reasonable
purchaser.

A complete title means that a person has the possession, right of possession and the right of
property. Dingey v Paxton, 60 Miss. 1038 (1883) and Ehle v Quackenboss, 6 Hill (N.Y.) 537
(1844). A perfect title is exactly the same as a complete title, Donovan v Pitcher, 53 Ala. 411
(1875) and Converse v Kellogg, 7 Barb. (N.Y.) 590 (1850); and each simply means the type of title
a well-informed, reasonable and prudent person would be willing to accept when paying full value
for the property. Birge v Bock, 44 Mo. App. 69 (1890). In other words, a complete or perfect title
is in reality a marketable or merchantable title, and is usually represented by a color of title.

A good title does not necessarily mean one perfect of record but consists of one which is both of
rightful ownership and rightful possession of the property. Bloch v Ryan, 4 App. Cas. 283 (1894).
It means a title free from litigation, palpable defects and grave doubts consisting of both legal and
equitable titles and fairly deducible of record. Reynolds v Borel, 86 Cal. 538, 25 p. 67 (1890). “A
good title means not merely a title valid in fact, but a marketable title, which can again be sold to a
reasonable purchaser or mortgaged to a person of reasonable prudence as security for a loan of
money.” Moore v Williams, 115 N.Y. 586, 22 N.E. 253 (1889). A clear title means there are no
encumbrances on the land, Roberts v Bassett, 105 Mass. 409 (1870). Thus, when contracting to
convey land, the use of the phrase “good and clear title” is surplusage, since the terms good title
and clear title are in fact synonymous. Oakley v Cook, 41 N.J. Eq. 350, 7 A.2d 495 (1886).
Therefore, the words good title and clear title, just like the words complete title and perfect title,
describe nothing more than a marketable title or merchantable title, and as stated above, each can
and almost always is represented in a transaction by a color of title. None of these types of title
purports to be the absolute, or allodial title, and none of them are that type of title. None of these
actually claims to be a fee simple absolute, and since these types of titles are almost always
represented by a color of title, none represents that it passes the actual title. Each one does state
that it passes what can be described as a title good enough to avoid the necessity of litigation to
determine who actually has the title. If such litigation to determine titles is necessary, then the title
has crossed the boundaries of usefulness and entered a different category of title descriptions and
names.

This new category consists of titles which are bad, defective, imperfect or doubtful. A bad title
conveys no property to the purchaser of the estates. Heller v Cohen, 15 Misc. 378, 36 N.Y.S. 668
(1895). A title is defective when the party claiming to own the land has not the whole title, but
some other person has title to a part or portion of it. Such a title is the same as no title whatsoever.
Place v People, 192 Ill. 160, 61 N.E. 354 (1901); See also Cospertini v Oppermann, 76 Cal. 181,
18 P. 256 (1888). An imperfect title is one where something remains to be done by the granting
power to pass the title to the land, Raschel v Perez, 7 Tex. 348 (1851); and a doubtful title is also
one which conveys no property to the purchaser of the estate. Heller v Cohen, 15 Misc. 378, 36
N.Y.S. 668 (1895). Every title is described as doubtful which invites or exposes the party holding it
to litigation. Herman v Somers, 158 PA.St. 424, 27 A. 1050 (1893). Each of these types of titles
describes exactly the same idea stated in many different ways, that because of some problem,
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT

defect, or question surrounding the title, no title can be conveyed, since no title exists. Yet in all of
these situations some type of color of title was used as the operative instrument. What then makes
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, defective, imperfect or doubtful? What is necessary to
make what might otherwise be a doubtful title, a good title, is the belief of others in the
community, whether or not properly justified, that the title is a good one
which they would be willing to purchase. Moore v Williams, 115 N. Y. 586, 22 N.E. 253 (1889).
The methods presently used to determine whether a title or color of title is good enough to not be
doubtful, are the other two-thirds of the three possible requirements for the conveyance of a good
or complete (marketable) title.

These two methods of properly ensuring that a title is a good or complete title are title abstracts, the
complete documentary evidence of title, and title insurance. The legal title to land, based on a color
of title, is made up of a series of documents required to be executed with the solemnities prescribed
by law, and of facts not evidenced by documents, which show the claimant a person to whom the
law gives the estate. Documentary evidences of title consist of voluntary- grants by the sovereign,
deeds if conveyances and wills by individuals, conveyances by statutory or judicial permission,
deeds made in connection with the sale of land for delinquent taxes, proceedings under the power
of eminent domain, and deeds executed by ministerial or fiduciary officers.
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

These documentary evidences are represented by the land patent and the colors of title. 1 G.
Thompson, Commentaries on the Modern Law of Real Prooerty, pp. 99-100 (5th ed. 1980).
These instruments, relied upon to evidence the title, coupled with the outward assertive acts that
import dominion, must be used by the abstractor in compiling the abstract, and the attorney must
examine to determine the true status of the title. Id. The abstract is the recorded history of the
land and the various types of titles, mortgages and other liens, claims and interests that have been
placed on the property. The abstract can determine the number of times the patent has been
redeclared, who owns the mineral rights, what color of title is operable at any particular point in
time, and what lien holder is in first position, but it does not convey or even attempt to convey
any form of the title itself. As Thompson, supra has stated, it is necessary when operating with
colors of titles to have an abstract to determine the status of the operable title and determine
whether that title is good or doubtful. Id. at 101. If the title is deemed good after this lengthy
process, then the property may be transferred without doing anything more, since it is assumed
that the seller was the owner of the property.. This is not to say emphatically that the seller is the
paramount or absolute owner. This does not even completely guarantee that he is the owner of the
land against any adverse claimants. It is not even that difficult to claim that the title holder has a
good title due to the leniency and attitude now evidenced by the judicial authorities toward
maintaining a stable and uniform system of land ownership, whether or not that ownership is
justified. This however, does not explain the purpose and goal of a title abstract.

An abstract that has been properly brought up simply states that it is presumed the seller is the
owner of the land, making the title marketable, and guaranteeing that he has a good title to sell.
This is all an abstract can legally do since it is not the title itself and it does not state the owner
has an absolute title. Therefore, the abstract can not guarantee unquestionably that the title is held
by the owner. All of this rhetoric is necessary if the title is good; if there is some question
concerning the title without making it defective, then the owner must turn to the last of the three
alternatives to help pass a good title, Title Insurance. G. Thompson, Title to Real Prooert~
Preparation and Examination of Abstracts, Ch. III, Section 79, pp. 99—100 (1919).

Title Insurance is issued by title insurance companies to ensure the validity of the title against any
defects, against any encumbrances affecting the designated property, and to protect the purchaser
against any losses he sustains from the subsequent determination that his title is actually
unmarketable. Id. at 100. Title Insurance extends to any defects of title. Id. It protects against the
existence of any encumbrances, provided only that any judgments adverse to the title shall be
pronounced by a court of competent jurisdiction. Id. It is not even necessary that a defect
actually exist when the insurance policy was issued, it is simply necessary that there exists at the
time of issuance of the policy and inchoate or potential defect which is rendered operative and
substantial by the happening of some subsequent event. Since all one normally has is a color of
title, the longer a title traverses history, the greater the possibility that the title will become
defective. The greater the need for insurance simply to keep the title marketable, the easier it is to
determine that the title possessed is not the true, paramount and absolute title. If a person had the
paramount title, there would be no need for title insurance, though an abstract might be useful for
record keeping and historical purposes. Title insurance, and abstract record keeping are useful
primarily because of extensive reliance on colors of title as the operative title for a piece of
property.

A marketable or merchantable title is one that is reasonably

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This then supplies the necessary information concerning colors of title, title abstracts, and title
insurance. This does not describe the relationship between the landowner and the government. As
was stated in the introduction, in feudal England, the King has the power, right and authority to
take a person’s land away from him, if and when the King felt it necessary. The question is
whether most of the American system of land ownership and titles is in reality any different and
whether therefore the American-based system of ownership, is in reality nothing more than a
feudal system of land ownership.

Land ownership in America presently is founded on colors of title, and though people believe
they are the complete and total owners of their property; under a color of title system this is far
from the truth. When people state that they are free and own their land, they in fact own it exactly
to the extent the English barons owned their land in Common-Law England. They own their land
so long as some "sovereign", the government or a creditor, states that they can own their land. If
one recalls from the beginning of this memorandum, it was stated that if the King felt it justified,
he could take the land from one person and give such land to another prospective baron. Today,
in American color-of-title property law, if the landowner does not pay income tax, estate tax,
property tax, mortgages or even a security note on personal property, then the "sovereign0, the
government or the creditor, can justify the taking of the property and the sale of that same
property to another prospective "baron", while leaving the owner with only limited defenses to
such actions. The only real difference between this and Common-Law England is that now others
besides the King can profit from the unwillingness or inability of the "landowner" to perform the
socage or tenure required of every landowner of America. As such, no one is completely safe or
protected on his property; no one can afford to make one mistake or the consequences will be
forfeiture of the property. If this were what the people in the mid 1700’s wanted, there would
have been no need to have an American Revolution, since taxes were secondary to having a
sound monetary system and complete ownership of the land. Why fight a Revolutionary War to
escape sovereign control and virtual dictatorship over the land, when in the 1990’s these exact
problems are prevalent with this one exception, money now changes hands in order to give
validity to the eventual and continuous takeover of the property between the parties. This is
hardly what the forefathers strove for when creating the United States Constitution, and what they
did strive for is the next segment of the memorandum of law, allodial ownership of the land via
the land patent. The next segment will analyze the history of this type of title so that the patent
can be properly understood, making it possible to comprehend the patent’s true role in property
law today.

 As was seen in the previous sections, there is little to protect the landowner who holds title in the
chain of title, when distressful economic or weather condition make it impossible to perform on
the debt. Under the color-of-title system, the property, "one of those inalienable rights", can be
taken for the nonperformance on loan obligations. This type of ownership is similar to the feudal
ownership found in the Middle Ages.
 
Upon defeating the English in 1066 A.D., William the Conqueror pursuant to his 52nd and 58th
laws, "...effectually reduced the lands of England to feuds, which were declared to be inheritable
and from that time the maxim prevailed there that all lands in England are held from the King,
and that all proceeded from his bounty." I. E. Washburn, Treatise on The American Law of Real
Property, Section 65, p.44 (6th ed. 1902). All lands in Europe, prior to the creation of the feudal
system in France and Germany, were allodial. Most of these lands were voluntarily changed to
A marketable or merchantable title is one that is reasonably
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feudal lands as protection from the neighboring barons or chieftains. Id. Section 56, at 40. Since
no documents protected one’s freedom over his land, once the lands were pledged for protection,
the lands were lost forever. This was not the case in England.
 
England never voluntarily relinquished its land to William I. In fact, were it not for a tactical
error by King Harold II’s men in the Battle of Hastings, England might never have become
feudal. A large proportion of the Saxon lands prior to the Conquest of A.D. 1066 "were held as
allodial, that is, by an absolute ownership, without recognizing any superior to whom any duty
was due on account thereof." Id. Section 54, at 39. The mode of conveying these allodial lands
was most commonly done by a writing or charter, called a land-boc, or land allodial charter,
which, for safekeeping between conveyances, was generally deposited in the monasteries. Id.,
Section 54, at 40. In fact, one portion of England, the County of Kent, was allowed to retain this
form of land ownership while the rest of England became feudal. Id., Section 55, at 40.
Therefore, when William I established feudalism in England to maintain control over his barons,
such control created animosity over the next 2 centuries. F.L. Ganshof, Feudalism, p. 114 (1964).
As a result of such dictatorial control, some 25 barons joined forces to exert pressure on the then
ruling monarch, King John, to gain some rights not all of which the common man would possess.
The result of this pressure at Runnymede became known as the Magna Carta.

The Magna Carta was the basis of modern common law, the common law being a series of
judicial decisions and royal decrees interpreting and following that document. The Magna Carta
protected the basic rights, the rights that gave all people more freedom and power. The rights that
would slowly erode the king’s power.
 
Among these rights was a particular section dealing with ownership of the land. The barons still
recognized the king as the lord paramount, but the barons wanted some of the rights their
ancestors had prior to A.D. 1066. F. Goodwin, Treatise on The Law of Real Property, Ch. 1, p.3
(1905). Under this theory, the barons would have several rights and powers over the land, as the
visible owners, that had not existed in England for 150 years. The particular section of most
importance was Section 62 giving the most powerful barons letters of patent, raising their land
ownership close to the level found in the County of Kent.

Other sections, i.e., 10, 11, 26, 27, 37, 43, 52, 56, 57, and 61 were written to protect the right to
"own" property, to illustrate how debts affected this right to own property, and to secure the
return of property that was unjustly taken. All these paragraphs were written with the single goal
of protecting the landowner" and helping him retain possession of his land, acquired in the
service of the King, from unjust seizures or improper debts. The barons attempted these goals
with the intention of securing property to pass to their heirs.

Unfortunately, goals are often not attained. Having repledged their loyalty to King John, the
barons quickly disbanded their armies. King John died in 1216, one year after signing the Magna
Carta, and the new king did not wish to grant such privileges found in that document. Finally, the
barons who forced the signing of the Magna Carta died, and with them went the driving force that
created this great charter. The Magna Carta may have still been alive, but the new kings had no
armies at their door forcing them to follow policies, and the charter was to a great extent forced to
lie dormant. The barons who received the letters of patent, as well as other landholders perhaps
should have enforced their rights, but their heirs were not in a position to do so and eventually the
A marketable or merchantable title is one that is reasonably
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rights contained in the charter were forgotten. Increasingly until the mid-1600’s, the king’s power
waxed, abruptly ending with the execution of Charles I in 1649. By then however, the original
intent of the Magna Carta was in part lost and the descendants of the original barons never
required, properly protected, free land ownership. To this day, the freehold lands in England are
still held to a great extent upon the feudal tenures. See supra Washburn, Section 80, p. 48. This
lack of complete ownership in the land, as well as the most publicized search for religious
freedom, drove the more adventurous Europeans to the Americas to be away from these
restrictions.

The American colonists however soon adopted many of the same land concepts used in the old
world. The kings of Europe had the authority to still exert influence, and the American version of
barons sought to retain large tracts of land. As an example, the first patent granted in New York
went to Killian Van Rensselaer dated in 1630 and confirmed in 1685 and 1704. A. Getman, Title
to Real Property, Principles and Sources of Titles-Compensation For Lands and Waters, Part III,
Ch. 17, p. 229 (1921). The colonial charters of these American colonies, granted by the king of
England, had references to the lands in the County of Kent, effectively denying the more barbaric
aspects of feudalism from ever entering the continent, but feudalism with its tenures did exist for
some time. See supra Washburn, Section 55, p. 40. "[I)t may be said that, at an early date, feudal
tenures existed in this country to a limited extent." C. Tiedeman, An Elementary Treatise on the
American Law of Real Property, Ch. II. The Principles of the Feudal System, Section 25, p.22
(2nd ed. 1892).

The result was a newly created form of feudal land ownership in America. As such, the feudal
barons in the colonies could dictate who farmed their land, bow their land was to be divided, and
to a certain extent to whom the land should pass. But, just as the original barons discovered, this
power was premised in part of the performance of duties for the king. Upon the failure of
performance, the king could order the grant revoked and grant the land to another willing to
acquiesce to the king’s authority. This authority, however, was premised on the belief that
people, recently arrived and relatively independent, would follow the authority of a king based
3000 miles away. Such a premise was ill founded. The colonists came to America to avoid
taxation without representation, to avoid persecution of religious freedom, and to acquire a small
tract of land that could be owned completely. When the colonists were forced to pay taxes and
were required to allow their homes to be occupied by soldiers; they revolted, fighting the British,
and declaring their Declaration of Independence.
 
The Supreme Court of the United States reflected on this independence, in Chisholm v Georgia, 2
Dall. (U.S.) 419 (1793), stating: the revolution, or rather the Declaration of Independence, found
the people already united for general purposes, and at the same time, providing for their more
domestic concerns, by state conventions, and other temporary arrangements. From the crown of
Great Britain, the sovereignty of their country passed to the people of it; and it was then not an
uncommon opinion, that the unappropriated lands, which belonged to that crown, passed, not to
the people of the colony or states within those limits they were situated, but to the whole
people;..."We, the people of the United States, do ordain and establish this constitution." Here we
see the people acting as sovereigns of the whole country; and in the language of sovereignty,
establishing a constitution by which it was their. will, that the state governments, should be
bound, and to which the state constitutions should be made to conform. It will be sufficient to
observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal
A marketable or merchantable title is one that is reasonably
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principles. That system considers the prince as the sovereign, and the people his subjects; it
regards his person as the object of allegiance, and excludes the idea of his being on an equal
footing with a subject, either in a court of justice or elsewhere. That system contemplates him as
being the fountain of honor and authority; and from his grace and grant, derives all franchises,
immunities and privileges; it is easy to perceive, that such a sovereign could not be amenable to a
court of justice, or subjected to judicial control and actual constraint. The same feudal ideas run
through all their jurisprudence, and constantly remind us of the distinction between the prince and
the subject. No such ideas obtain here; at the revolution, the sovereignty devolved on the people;
and they are truly the sovereigns of the country, but they are sovereigns without subjects and
have none to govern but themselves; the citizens of America are equal as fellow— citizens, and
as joint tenants in the sovereignty. From the differences existing between feudal sovereignties
and governments founded on compacts, it necessarily follows, that their respective prerogatives
must differ. Sovereignty is the right to govern; a nation or state sovereign is the person or persons
in whom that resides. In Europe, the sovereignty is generally ascribed to the prince; here it rest
with the people; there the sovereign actually administers the government; here never in a single
instance; our governors are the agents of the people, and at most stand in the same relation to
their sovereign, in which the regents of Europe stand to their sovereigns. Their princes have
personal powers, dignities, and preeminence, our rules have none but official; nor do they partake
in the sovereignty otherwise, or in any other capacity, than as private citizens. (emphasis added).
d. at 470-71. The Americans had a choice as to how they wanted their new government and
country to be formed. Having broken away from the English sovereignty and establishing
themselves as their own sovereigns, they had their choice of types of taxation, freedom of
religion, and most importantly ownership of land. The American founding fathers chose allodial
ownership of land for the system of ownership on this country. In the opinion of Judge Kent, the
question of tenure as an incident to the ownership of lands *has become wholly immaterial in this
country, where every vestige of tenure has been annihilated.4 See supra Washburn, Section 118,
p.59. At the present day there is little, if any, trace of the feudal tenures remaining in the
American law of property. Lands in this country are now held to be absolutely allodial. See Supra
Tiedeman, Section 25, p. 22. Upon the completion of the Revolutionary War, lands in the thirteen
colonies were held under a different form of land ownership. As stated in re Waltz et. al. Barlow
v Security Trust & Savings Bank, 240 p. 19 (1925), quoting Matthews v Ward, 10 Gill & J. (Md.)
443 (1839), “after the American Revolution, lands in this state (Maryland) became allodial,
subject to no tenure, nor to any services incident there to.” The tenure, as you will recall, was the
feudal tenure and the, services or taxes required to be paid to retain possession of the land under
the feudal system. This new type of ownership was acquired in all thirteen states. Wallace v
Harmstead, 44 Pa. 492 (1863). The American people, before developing a properly functioning
stable government, developed a stable system of land ownership, whereby the people owned their
land absolutely and in a manner similar to the king in Common-Law England. As has been stated
earlier, the original and true meaning of the word 4fee” and therefore fee simple absolute is the
same as fief or feud, this being in contradistinction to the term “allodium” which means or is
defined as man’s own land, which he possesses merely in his own right, without Owing any rent
or service to any superior. Wendell v Crandall, 1 N.Y. 491 (1848). Stated another way, the fee
simple estate of early England was never considered as absolute, as were lands in allodiun, but
were subject to some superior on condition of rendering him services, and in which such superior
had the ultimate ownership of the land. In re Waltz, at page 20, quoting 1 Cooley’s Blackstone,
(4th ed.) p. 512.

A marketable or merchantable title is one that is reasonably

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This type of fee simple is a Common-Law term and sometimes corresponds to what in civil law is
a perfect title. ‘United States v Sunset Cemetery Co., 132 F. 2d 163 (1943). It is unquestioned
that the king held an allodial title which was different than the Common-Law fee simple absolute.
This type of superior title was bestowed upon the newly established American people by the
founding fathers. The people were sovereigns by choice, and through this new type of land
ownership, the people were sovereign freeholders or kings over their own land, beholden to no
lord or superior. As stated in Stanton v Sullivan, 7 A. 696 (1839), such an estate is an absolute
estate in perpetuity and the largest possible estate a man can have, being, in fact allodial in its
nature. This type of fee simple, as thus developed, has definite characteristics:

(1) it is a present estate in land that is of indefinite duration;

(2) it is freely alienable;
(3) it carries with it the right of possession; and most importantly;
(4) the holder may make use of any portion of the freehold without being beholden to any
person. 1 G. Thompson, Commentaries on the Modern Law of Real Property, Section 1856, p.
412 (1st ed. 1924).

This fee simple estate means an absolute estate in lands wholly unqualmed by any reservation,
reversion, condition or limitation, or possibility of any such thing present or future, precedent or
subsequent. Id; Wichelman v Messner, 83 N.W. 2d 800, 806 (1957). It is the most extensive
estate and interest one may possess in real property. Where, an estate subject to an option is not
in fee. See supra 1 Thompson, Section 1856, p. 413. In the case, Bradford v Martin, 201 N.W.
574 (1925), the Iowa Supreme Court went into a lengthy discussion on what the terms fee simple
and allodium means in American property law.

The Court stated:

The word “absolutely’ in law has a varied meaning, but when unqualifiedly used with reference
to titles or interest in land, its meaning is fairly well settled. Originally the two titles most
discussed were ‘fee simple’ and ‘allodium’ (which meant absolute). See Bouvier’s Law
Dictionary. (Rawle Ed.) 134; Wallace v Harmstead, 44 Pa. 492; McCartee v Orphan’s Asylum, 9
Cow. (N.Y.) 437, 18 Am. Dec. 516. Prior to Blackstone’s time the allodial title was ordinarily
called an ‘absolute title’ and was superior to a ‘fee simple title,’ the latter being encumbered with
feudal clogs which were laid upon the first feudatory 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.
The allodial title was not so encumbered. Later the term “fee simple,” however rose to the dignity
of the allodial or absolute estate, and since the days of Blackstone the word “in absolute estate”
and “fee simple" seen to have been generally used interchangeably; in fact, he so uses them. See
Book II, chap. 7, pp. 104-05 .... And further the words “absolute” and absolutely” usually carry
the fee ... By the terms “absolute interest” we understand a complete and perfect interest,. ..,an
estate in fee simple is meant. Id. at 576.

The basis of English land law is the ownership of the realty by the sovereign, from the crown all
titles flow. People v. Richardson, 269 Ill. 275, 109 N.E. 1033 (1914); see also Matthew v. Ward,
10 Gill & J (Md.) 443 (1844). The case, McConnell v. Wilcox, I Scam. (Ill.) 344 (1837), stated it
this way: From what source does the title to the land derived from a government spring? In
arbitrary governments, from the supreme head-be he the emperor, king, or potentate; or by
A marketable or merchantable title is one that is reasonably
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whatever name he is known. In a republic, from the law making or authorizing to be made the
grant or sale. In the first case, the party looks alone to his letters patent; in the second, to the law
and the evidence of the acts necessary to be done under the law, to a perfection of his grant,
donation or purchase ... The law alone must be the fountain from whence the authority is drawn;
and there can be no other source. Id. at 367.

The American people, newly established sovereigns in. this republic after the victory achieved
during the Revolutionary War, became complete owners in their land, beholden to no lord or
superior; sovereign freeholders in the land themselves. These freeholders in the original thirteen
states now held allodial the land they possessed before the war only feudally. This new and more
powerful title protected the sovereigns from unwarranted intrusions or attempted takings of their
land, and more importantly it secured in them a right to own land absolutely in perpetuity. By
definition, the word perpetuity means, “Continuing forever. Legally, pertaining to real property,
any condition extending the inalienability...” Black’s Law Dictionary, p. 1027 (5th ed. 1980). In
terms of an allodial title, it is to have the property of inalienability forever. Nothing more need be
done to establish the ownership of the sovereigns to their land, although confirmations were
usually required to avoid possible future title confrontations. The states, even prior to the creation
of our present Constitutional government, were issuing titles to the unoccupied lands within their
boundaries. In New York, even before the war was won, the state issued the first land patent in
1781, and only a few weeks after the battle and victory at Yorktown in 1783, the state issued the
first land patent to an individual. A Getinan, supra, Part III, Ch. 17, State Legislative Grants, pp.
231-32 (1921). In fact, even before the United States was created, New York and other states bad
developed their own Land Offices with Commissioners. New York’s was first established in
1784 and was revised in 1786 to further provide for a more definite procedure for the sale of
unappropriated State Lands. Id. The state courts held, “The validity of letters patent and the
effectiveness of same to convey title depends on the proper execution and record

It has generally been the law that public grants to be valid must be recorded. The record is not for
purposes of notice under recording acts but to make the transfer effectual.” Id. at 242. Later, if
there was deemed to be a problem with the title, the state grants could be confirmed by issuance
of a confirmatory grant Id. at 239. This then, in part, explains the methods and techniques the
original states used to pass title to their lands, lands that remained in the possession of the state
unless purchased by the still yet un-created federal government, or by individuals in the
respective states. To much this same extent Texas, having been a separate country and republic,
controlled and still controls its lands. In each of these instances, the land was not originally
owned by the federal government and then later passed to the people and states. This then is a
synopsis of the transition from colony to statehood and the rights to land ownership under each
situation. This however has said nothing of the methods used by the states in the creation of the
federal government and the eventual disposal of the federal lands.

The Constitution in its original form was ratified by a convention of the States, on September 17,
1787. The Constitution and the government formed under it were declared in effect on the first
Wednesday of March, 1789. Prior to this time, during the Constitutional Convention, there was
serious debate on the disposal of what the convention called. the “Western Territories,” now the
states of Ohio, Indiana, Illinois, Michigan, Wisconsin and part of Minnesota, more commonly
known as the Northwest Territory. This tract of land was ceded to the new American republic in
the treaty signed with Britain in 1783.
A marketable or merchantable title is one that is reasonably
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The attempts to determine how such a disposal of the western territories should come about was
the subject of much discussion in the records of the Continental Congress. Beginning in
September, 1783, there was continual discussion concerning the acquisition of and later
disposition to the lands east of the Mississippi River. Journals of Congress, Papers of the
Continental Congress, No. 25, II, folio 255, p. 544—557 (September 13, 1783).

And whereas the United States have succeeded to the sovereignty over the Western territory, and
are thereby vested as one undivided and independent nation, with all and every power and right
exercised by the king of Great Britain, over the said territory, or the lands lying and situated
without the boundaries of the several states, and within the limits above described; and whereas
the western territory ceded by France and Spain to Great Britain, relinquished to the United
States by Great Britain, and guarantied to the United States by France as aforesaid, if properly
managed, will enable the United States to comply with their promises of land to their officers and
soldiers; will relieve their citizens from much of the weight of taxation;..., and if cast into new
states, will tend to increase the happiness of mankind, by rendering the purchase of land easy, and
the possession of liberty permanent; therefore ... Resolved, that a committee be appointed to
report the territory lying without the boundaries of the several states;... ; and also to report an
establishment for a land office. Id. at 558, reported in the writing of James McHenry. I

There was also serious discussion and later acquisition by the then technically nonexistent federal
government of land originally held by the colonial governments. Id. at 562-63. As the years
progressed, the goal remained the same, a proper determination of a simple method of disposing
of the western lands. “That an advantageous disposition of the western territory is an object
worthy the deliberation of Congress.” Id. February 14, 1786, at p. 68. In February, 1787, the
Continental Congress continued to hold discussions on how to dispose of all western territories.
As part of the basis for such disposal, it was determined to divide the new northwestern territories
into medians, ranges, townships, and sections, making for easy division of the land, and giving
the new owners of such land a certain number of acres in fee. Journals of Conqress, p. 21,
February 1787, and Committee Book, Papers of the Continental Congress, No. 190, p. 132
(1788). In September of that same year, there were more discussions on the methods of disposing
the land. In those discussions, there were debates in the validity and solemnity of the state patents
that had been issued in the past Id., No. 62, p. 546. Only a week earlier the Constitution was
ratified by. the conventions of the states. Finally, the future Senate and House of Representatives,
though not officially a government for another 1 & 1/2 years, held discussions on the possible
creation of documents that would pass the title of lands from the new government to the people.
In these discussions, the first patents were created and ratified, making the old land-boc, or land-
allodial charters of the Saxon nobles, 750 years earlier, and the letters patent of the Magna Carta,
guidelines by which the land would pass to the sovereign freeholders of America. Id., July 2,
1788, pp. 277—286.

As part of the method by which the new United States decided to dispose of its territories, it
created in the Constitution an article, section, and clause, that specifically dealt with such
disposal. Article IV, Section III~ Clause II, states in part, “The Congress shall have Power to
dispose of and make all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States.” Thus, Congress was given the power to create a vehicle to divest
the Federal Government of all its right and interest in the land. This vehicle, known as the land
A marketable or merchantable title is one that is reasonably
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patent, was to forever divest the federal government of its land and was to place such total
ownership in the hands of the sovereign freeholders who collectively created the government.
The land patents issued prior to the initial date of recognition of the United States Constitution
were ratified by the members of Constitutional Congress. Those patents created by statute after
March, 1789, had only the power of the statutes and the Congressional intent behind such statutes
as a reference and basis for the determination of their powers and operational effect originally
and in the American system of land ownership today.

There have been dozens of statutes enacted pursuant to Article IV, Section III, Clause II. Some of
these statutes had very specific intents of aiding soldiers of wars, or dividing lands in a very small
region of one state, but all had the main goal of creating in the sovereigns, freeholders on their
lands, beholden to no lord or superior. Some of the statutes include, 12 Stat 392, 37th Congress,
Sass. II, Ch. 75, (1862) (the Homestead Act); 9 Stat. 520, 31st Congress, Sess. I, Ch. 85 (1850)
(Military Bounty Service Act); 8 Stat. 123, 29th Congress, Sess. II Ch. 8, (1847) (Act to raise
additional military force and for other purposes); 5 Stat 444, 21st Congress, Sees. II, Ch. 30
(1831); 4 Stat 51, 18th Congress, Sess. I., Ch. 174 (1824); 5 Stat 52, 18th Congress, Sess. I, Ch.
173 (1824); 5 Stat 56, 18th Congress, Sass. I, Ch. 172, (1824); 3 Stat. 566, 16th Congress, Sen. I,
Ch. 51, (1820) (the major land patent statute enacted to dispose of lands); 2 Stat 748, 12th
Congress, Sess. I. Ch. 99 (1812); 2 Stat. 728, 12th Congress, Sess. I, Ch. 77, (1812); 2 Stat. 716,
12th Congress, Sess. I, Ch. 68, (1812) (the act establishing the General Land-Office in the
Department of Treasury); 2 Stat 590, 11th Congress, Sess. II, Ch. 35, (1810); 2 Stat. 437, 9th
Congress, Sees. II Ch. 34, (1807); and 2 Stat 437, 9th Congress, Sees. II, Ch. 31, (1807). These,
of course, are only a few of the statutes enacted to dispose of public lands to the sovereigns. One
of these acts however, was the main patent statute in reference to the intent Congress had when
creating the patents. That statue is 3 Stat. 566, supra.

In order to understand the validity of a patent, in today’s property law, it is necessary to turn to
other sources than the acts themselves. These sources include the Congressional debates and case
law citing such debates. For the best answer to this question, it is necessary to turn to the
Abridgment of the Debates of Congress, Monday, March 6, 1820, in the Senate, considering the
topic "The Public Lands." This abridgment and the actual debates found in it concerns one of
most important of the land patent statutes, 3 Stat 566, 16th Congress Sess. I. Ch. 51, Stat. I,
(April 24, 1820).

In this important debate, the reason for such a particular act in general and the protection afforded
by the patent in particular were discussed. As Senator Edwards states; But, said, he, it is not my
purpose to discuss, at length, the merits of the proposed change. I will, at present, content myself
with an effort, merely, to shield the present settlers upon public lands from merciless speculators,
whose cupidity and avarice would unquestionably be tempted by the improvements which those
settlers have made with the sweat of their brows, and to which they have been encouraged by the
conduct of the government itself, for though they might be considered as embraced by the letter
of the law which provides against intrusion on public lands, yet, that their case has not been
considered by the Government as within the mischiefs intended to be prevented is manifest, not
only from the forbearance to enforce the law, but from the positive rewards which others, in their
situation, have received, by the several laws which have heretofore been granted to them by the
same right if preemption which I now wish extended to the present settlers. Id. at 456.

A marketable or merchantable title is one that is reasonably

 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

Further, Senator King from New York stated; He considered the change as highly favorable to
the poor man; and he argued at some length, that it was calculated to plant in the new country a
population of independent, unembarrassed freeholders; ... that it would cut up speculation and
monopoly; that the money paid for the lands would be carried from the State or country from
which the purchaser should remove; that it would prevent the accumulation of an alarming debt,
which experience proved never would and never could be paid. Id. at 456-457.

In other statutes, the Court recognized much of these same ideas. In United States v. Reynes, 9
How. (U.S.) 127 (1850), the Supreme Court stated: The object of the Legislature is manifest. It
was intended to prevent speculation by dealing for rights of preference before the public lands
were in the market. The speculator acquired power over choice spots, by procuring occupants to
seat themselves on them and who abandoned them as soon as the land was entered under their
preemption right, and the speculation accomplished. Nothing could be mote easily done than this,
if contracts of this description could be enforced. The act of 1830, however, proved to be of little
avail; and then came the Act of 1835 (5 Stat 251) which compelled the preemptor to swear that
he had not made an arrangement by which the title might insure to the benefit of anyone except
himself, or that he would transfer it to another at any subsequent time. This was preliminary to
the allowing of his entry, and discloses the policy of Congress. Id. at 154.

‘It is always to be borne in mind, in construing a congressional grant, that the act by which it is
made is a law as well as a conveyance and that such effect must be given to it as will carry out
the intent of Congress. That intent should not be defeated by applying to the grant the rules of
common law ... words of present grant, are operative, if at all, only as contracts to convey. But
the rules of common law must yield in this, as in other cases, to the legislative will.” Missouri
Kansas & Texas Railway Company v. Kansas Pacific Railway Company, 97 U.S. 491, 497
(1878). The administration of the land system in this country is vested in the Executive
Department of the Government, first in the Treasury and now in the Interior Department. The
officers charged with the disposal of the public domain under the authority of acts of Congress
are required and empowered to determine the construction of those acts so far as it relates to the
extent and character of the rights claimed under them, and to be given, though their actions, to —
individuals. This is a portion of the Political power of the Government, and courts of justice must
never interfere with it Marks v Dickson, 61 U.S. (20 How) 501 (1857); see also Cousin v Blanc’s
Ex., 19 How. (U.S.) 206, 209 (1856). "The power of Congress to dispose of its land cannot be
interfered with, or its exercise embarrassed by any State legislation; nor can such legislation
deprive the grantees of the United States of the possession and enjoyment of the property granted
by reason of any delay in the transfer of the title after the initiation of proceedings for its
acquisition." Gibsion v Chouteau, 13 Wal. (U.S.) 92, 93 (1871).

State statutes that give lesser authoritative ownership of title than the patent can not even be
brought into federal court. Langdon v. Sherwood, 124 U.S. 74, 81 (1887). These acts of Congress
making grants are not to be treated both law and grant, and the intent of Congress, when
ascertained, is to control in the interpretation of the law. Wisconsin R.R. Co. v. Forsythe, 159
U.S. 46 (1895). The intent to be searched for by the courts in a government patent is the intent
which the government had at that time, and not what it would have been had no mistake been
made. The true meaning of a binding expression in a patent must be applied, no matter where
such expressions an found in the document. It should be construed as to effectuate the primary
object Congress bad in view; and obviously a construction that gives effect to a patent is to be
A marketable or merchantable title is one that is reasonably
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

preferred to one that renders it inoperative and void. A grant must be interpreted by the law of the
country in force at the time when it was made. The construction of federal grant by a state court
is necessarily controlled by the federal decisions on the same subject. The United States may
dispose of the public lands on such terms and conditions, and subject to such restrictions and
limitations as in its judgment will best promote the public welfare, even if the condition is to
exempt the land from sale on execution issued or judgment recovered in a State Court for a debt
contracted before the patent issues. Miller v. Little, 47 Cal. 348, 350 (1874). Congress has the
sole power to declare the dignity and effect of titles emanating from the United States and the
whole legislation of the Government must be examined in the determination of such titles.
Begneu v. Broderick, 38 U.S. 436 (1839). It was clearly the policy of Congress, in passing the
preemption and patent laws, to confer the benefits of those laws to actual settlers upon the land.
Close v. Stuyvesant, 132 Ill. 607, 617 (1890). The intent of Congress is manifest in the
determinations of meaning, force and power vested in the patent. These cases all illustrate the
power and dignity given to the patent. It was created to divest the government of its lands, and to
act as a means of conveying such lands to the generations of people that would occupy those
lands. This formula, ‘or his legal representatives,” embraces representatives of the original
grantee in the land, by contract, such as assignees or grantees, as well as by operation of law, and
leaves the question open to inquiry in a court of justice as to the party to whom the patent, or
confirmation, should enure. Hogan v. Page, 69 U.S. 605 (1864). The patent was and-is the
document and law that protects the settler from the merciless speculators, from the people that
use avarice to unjustly benefit themselves against an unsuspecting nation. The patent was created
with these high and grand intentions, and was created with such intentions for a sound reason.

The settlers as a rule seem to have been poor persons, and presumably without the necessary
funds to improve and pay for their land, but it appears that in every case where the settlement was
made under the preemption law, the settler ... entered and paid for the land at the expiration of the
shortest period at which the entry could be made...” Close v. Stuyvesant, 132 Ill. 607, 623 (1890).
We must look to the beneficent character of the acts that created these grants and patents and the
peculiar objects they were intended to protect and secure. A class of enterprising, hardy and most
meritorious and valuable citizens have become the pioneers in the settlement and improvement of
the new and distant lands of the government. McConnell v. Wilcox, I Scam.(Ill.) 344, 367 (1837).
“In furtherance of what is deemed a wise policy, tending to encourage settlement, and to develop
the resources of the country, it invites the heads of families to occupy small parcels of the public
land ... To deny Congress the power to make a valid and effective contract of this character ...
would materially abridge its power of disposal, and seriously interfere with a favorite policy of
the government, which fosters measures tending to a distribution of the lands to actual settlers at
a nominal price.’ Miller v. Little, 47 Cal. 348, 351 (1874). The legislative acts, the Statutes at
Lange, enacted to divest the United States of its land and to sell that land to the true sovereigns of
this republic, had very distinct intents. Congress recognized that the average settler of this nation
would have little money, therefore Congress built into the patent, and its corresponding act, the
understanding that these lands were to be free from avarice and cupidity, free from the
speculators who preyed on the unsuspecting nation, and forever under the control and ownership
of the freeholder, who by the sweat of his brow made the land produce the food that would feed
himself and eventually the nation. Even today, the intent of Congress is to maintain a cheap food
supply though the retention of the sovereign farmers on the land. United States v Kimball Foods,
Inc., 440 U.S. 715 (1979); see also Curry v. Block, 541 F. Supp. 506 (1982). Originally, the
intent of Congress was to protect the sovereign freeholders and create a permanent system of land
A marketable or merchantable title is one that is reasonably
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

ownership in the country. Today, the intent of Congress is to retain the small family farm and
utilize the cheap production of these situations, it has been necessary to protect the sovereign on
his parcel of land, and ensure that he remain in that position. The land patent and the patent acts
were created to accomplish these goals. In other words, the patent or title deed being regular in its
form, the law will not presume that such was obtained through fraud of the public right. This
principle is ‘not merely an arbitrary rule of law established by the courts, rather it is a doctrine
which is founded upon reason and the soundest principles of public policy. It is one which has
been adopted in the interest of peace in the society and the permanent security of titles. Unless
fraud is shown, this rule is held to apply to patents executed by the public authorities. State v.
Hewitt Land Co., 134 P. 474, 479 (1913). It is therefore necessary to determine exact power and
authority contained in a patent.

Legal titles to lands cannot be conveyed except in the form provided by law. McGarrahan v.
Mining Co., 96 U.S. 316 (1877). Legal title to property is contingent upon the patent issuing from
the government. Sabo v. Horvath, 559 P.2d 1038, 1040 (Aka. 1976).

"That the patent carries the fee and is the best title known to a court of law is the settled doctrine
of this court. Marshall v. Ladd, 7 Wall. (74 U.S.) 106 (1869).

“A patent issued by the government of the United States is legal and conclusive evidence of title
to the land described therein. No equitable interest, however strong, to land described in such a
patent, can prevail at law, against the patent.” Land Patents, Opinions of the United States
Attorney General’s office, (September, 1969).

“A patent is the highest evidence of title, and is conclusive against the government and all
claiming under junior patents’ or titles, until it is set aside or annulled by some judicial tribunal."
Stone v. United States, 2 Wall. (67 U.S.) 765 (1865).

The patent is the instrument which, under the laws of Congress, passes title from the United
States and the patent when regular on its face, is conclusive evidence of title in the patentee.
When there is a confrontation between two parties as to the superior legal title, the patent is
conclusive evidence as to ownership. Gibson v. Chouteau, 13 Wall. 912 (1871).

Congress having the sole power to declare the dignity and effect of its titles has declared the
patent to be the superior and conclusive evidence of the legal title. Bagnell v. Brodrick, 38 U.S.
438 (1839).

“Issuance of a government patent granting title to land is the most accredited type of conveyance
known to our law’." United States v. Creek Nation, 295 U.S. 103, 111 (1935); see also United
States v. Cherokee Nation, 474 F.2d 628, 634 (1973).

“The patent is prima facie conclusive evidence of the title.” Marsh v. Brooks, 49 U.S. 223, 233
(1850).

“A patent, once issued, is the highest evidence of title, and is a final determination of the
existence of all facts.” Walton v. United States, 415 F.2d 121, 123 (10th Cir. 1969); see also
United States v. Beaman, 242 F. 876 (1917); File v. Alaska, 593 P.268, 270 (1979)
A marketable or merchantable title is one that is reasonably
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

(When the federal government grants land via a patent, the patent is the highest evidence of title).
Patent rights to the land is the title in fee, City of Los Angeles v. Board of Supervisors of Mono
County, 292 P.2d 539 (1956), the patent of the fee simple, Squire v. Capoeman, 351 U.S. 16
(1956), and the patent is required to carry the fee. Carter v. Rubby, 166 U.S. 493, 496 (1896); see
also Klais v. Danowski, 129 N.W. 2d 414, 422 (1964) (Interposition of the patent or interposition
of the f cc title). The land patent is the muniment of title, such title being absolute in its nature,
making the sovereigns absolute freeholders on their lands. Finally, the patent is the only evidence
of the legal fee simple title. McConnell v. Wilcox, 1 Scam (ILL.) 381, 396 (1837).

All these various cases and quotes illustrate one statement that should be thoroughly understood
at this time, the patent is the highest evidence of title and is conclusive of the ownership of land
in courts of competent jurisdiction. This however, does not examine the methods or possibilities
of challenging a land patent.

In Hooper et al. v. Scheimer, 64 U.S. (23 How.) 235 (1859), the United States Supreme Court
stated, “I affirm that a patent is unimpeachable at law, except, perhaps, when it appears on its
own face to be void; and the authorities on this point are so uniform and unbroken in the counts,
Federal and State, that little else will be necessary beyond a reference to them.” Id. at 240 (1859).
A patent cannot be declared void at law, nor can a party travel behind the patent to avoid it. Id. A
patent cannot be avoided at law in a collateral proceeding unless it is declared void by statute, or
its nullity indicated by some equally explicit statutory denunciations. Id. One perfect on its face is
not to be avoided, in a trail at law, by anything save an elder patent. It is not to be affected by
evidence or circumstances which might show that the impeaching party might prevail in a court
of equity. Id. at 243. A patent is evidence, in a court of law, of the regularity of all previous steps
to it, and no facts behind it can be investigated. Id. A patent cannot be collaterally avoided at law,
even for fraud. Id. at 245. A patent, being a superior title, must of course, prevail over colors of
title; nor is it proper for any state legislation to give such titles, which are only equitable in nature
with a recognized legal status in equity courts, precedence over the legal title in a court of law. Id.
at 246. The Hooper case has many of the maxims that apply to the powers and possible
disabilities of a land patent, however there is extensive case law in the area.

The presumptions arise, from the existence of a patent, evidencing a grant of land from the
United States, that all acts have been performed and all facts have been shown, which are
prerequisites to its issuance, and that the right of the party, grantee therein, to have it issued, has
been presented and passed upon by the proper authorities. Green v. Barber, 66 N.W. 1032 (1896).
As stated in Bovier’s Law Dictionary, Vol. II, p. 1834 (1914): Misrepresentations knowingly
made by the application for a patent will justify the government in proceedings to set it aside, as
it has a right to demand a cancellation of a patent obtained by false and fraudulent
misrepresentations. United States v. Manufacturing Co., 128 U.S. 673 (1888); but courts of
equity cannot set aside, annul, or correct patents or other evidence of title obtained from the
United States by fraud or mistake, unless on specific averment of the mistake or fraud, supported
by clear and satisfactory proof, Maxelll Land Grant Cancellation, 11 How. (U.S.) 552 (1850);
although a patent fraudulently obtained by one knowing at the time that another person has a
prior right to the land may be set aside by an information in the nature of a bill in equity filed by
the attorney of the United States for the district in which the land lies; Id. A court of equity, upon
a bill filed for that purpose, will vacate a patent of the United States for a tract of land obtained
A marketable or merchantable title is one that is reasonably
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

by mistake from the officers of the land office, in order that a clear title may be transferred to the
previous purchaser; Hughes v. United States, 4 Wall. (U.S.) 232 (1866); but a patent for land of
the United States will not be declared void merely because the evidence to authorize its issue is
deemed insufficient by the court; Milliken v Starling’s lessee, 16 Ohio 61. A state can impeach
the title conveyed by it to a grantee only by a bill in chancery to cancel it, either for fraud on the
part of the grantee or mistake of law; and until4 so canceled it cannot issue to any other party a
valid patent for the same land. Chandler v. Manufacturing Co., 149 U.S. 79 (1893).

Other cases espouse these and other rules of law. A patentee can be deprived of his rights only by
direct proceedings instituted by the government or by parties acting in its name, or by persons
having a superior title to that acquired through the government. Putnum v. Ickes, 78 F.2d 233,
cert denied 296 U.S. 612 (1935).

It is not sufficient for the one challenging a patent to show that the patentee should not have
received the patent; he must also show that he, as the challenger, is entitled to it. Kale v. United
States, 489 F.2d 449, 454 (1973).

A United States patent is protected from easy third party attacks. Fisher v. Rule, 248 U.S. 314,
318 (1919); see also Hoofnagle v. Anderson, 20 U.S. (7 Wheat.) 212 (1822).

A patent issued by the United States of America so vests the title in the lands covered thereby,
that it is the further general rule that, such patents are not open to collateral attack. Thomas v.
Union Pacific Railroad Company, 139 F.Supp. 588, 596 (1956). See also State v.
Crawford, 475 P.2d 515 (Ariz. App. 1970) (A patent is prima facie valid, and if its validity can be
attacked at all, the burden of proof is upon the defendant); State v. Crawford, 441 P.2d 586, 590
(Ariz. App. 1968) (A patent to land is the highest evidence of title and may not be collaterally
attacked); Dredge v. Husite Company, 369 P.2d 676,682 (1962) (A patent is the act of legally
instituted tribunal, done within its jurisdiction, and passes the title. Such a patent is a final
judgment as well as a conveyance and is conclusive upon a collateral attack). Absent some facial
invalidity, the patents are presumed valid. Murray v. State, 596 P.2d 805, 816 (1979). The
government retains no power to nullify a patent except through a direct court proceeding. United
States v. Reimann, 504 F.2d 135 (1974); See also Green v. Barker, 66 N.W. 1032, 1034 (1896)
(The doctrine announced was that the deed upon its face, purported to have been issued in
pursuance of the law, and was therefore only assailable in a direct proceeding by aggrieved
parties to set it aside). Through these cases, it can be shown that the patent which passes the title
from the United States to the sovereigns, and was created to keep the speculators from the land, is
only assailable in a direct proceeding for fraud or mistake. In no other situation is it allowable for
the courts, to simply eliminate the patent. One question that may arise is what do the courts mean
by a collateral attack and what can be done by courts of equity if a collateral attack is presented?

Perhaps the easiest means of defining a collateral attack is to show the converse corollary, or a
direct attack on a patent as was stated in the previous paragraphs, a direct attack upon a land
patent is an action for fraud or mistake brought by the government or a party acting in its place.
Therefore, a collateral attack, by definition, is any attack upon a patent that is not covered within
the direct attack list. Perhaps the most prevalent collateral attack in property law today is a
mortgage or deed of trust foreclosure on a color of title. In these instances, it is determined that
the complete title and interest in the land is purchased by the mortgagee or another in his place.
A marketable or merchantable title is one that is reasonably
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

Such a determination displaces the patentee’s ownership of the title without the court ever ruling
that the patent was acquired through fraud or mistake. This is against public policy, legislative
intent, and the overwhelming majority of case law. Therefore, it is now necessary to determine
the patent’s role in American property law today, to see what powers the courts of equity have in
protecting the rights of the challengers of patents.

The attitude of the Courts is to promote simplicity and certainty in title transactions, thereby they
follow what is in the chain of title and not what is outside. Sabo v. Horvath, 559 P.2d 1038, 1044
(1976). However, in equity courts, title under a patent from the government is subject to control,
to protect the rights of parties acting in a fiduciary capacity. Sanford v. Sanford, 139 U.S. 290
(1891). This protection however does not include the invalidation of the patent. The
determination of the land department in matters cognizable by it, in the alienation of lands and
the validity of patents, cannot be collaterally attacked or impeached. Id. Therefore the courts have
had to devise another means to control the patentee, if not the patent itself, as stated in Raestle v.
Whitson, 582 P.2d 170, 172 (1978), “The land patent is the highest evidence of title and is
immune from collateral attack. This does not preclude a court from imposing a constructive trust
upon the patentee for the benefit of the owners of an! “equitable interest”. This then explains the
most equitable way a court may effectively restrict the sometimes harsh justice handed down by a
strict court of law. Equity courts will impose a trust upon the patentee until the debt has been
paid. As has been stated, a patent can not be collaterally attacked, therefore the land can not be
sold or taken by the courts unless there is strong evidence of fraud or mistake. However, the
courts can require the patentee to pay a certain amount at regular intervals until the debt is paid,
unless of course, there is a problem with the validity of the debt itself. This is the main purpose of
the patent in this growing epidemic of farm foreclosures that defy the public policy of Congress,
the legislative intent of the Statutes at large, and the legal authority as to the type of land
ownership possessed in America. Why then is the rate of foreclosures on the rise?

Titles to land today, as was stated earlier in this memorandum, are normally in the form of colors
of title. This is because of the trend in recent property law to maintain the status quo. The rule in
most jurisdictions, and those which have adopted a grantor-grantee index in particular, is that a
deed outside’ the chain of title does not act as a valid conveyance and does not serve notice of a
defect of title on a subsequent purchaser. These deeds outside the chain of title are known as
“wild deeds.” Sabo v Horvath, 559 P.2d 1038, 1043 (1976); See also Porter v Buck, 335 So.2d
369, 371 (1976); The Exchange National Bank v Lawndale National Bank, 41 ILL.2d 316, 243
N.E.2d 193, 195—96 (1968) (The chain of title for purposes of the marketable title act, may not
be founded on a wild deed. These stray, accidental, or interloping conveyances are contrary to the
intent of the marketable title act, which is to simplify and facilitate land title transactions); and
Manson v. Berkman, 356 ILL. 20, 190 N.E. 77, 79 (1934). This liberal construction of what
constitutes a valid conveyance has led to a thinning of the title to a point where the absolute and
paramount title is almost impossible to guarantee. This thinning can be directly attributed to the
constant use of the colors of title. Under the guise of being the fee simple absolute, these titles
have operated freely, but in reality, they evidence something much different.

It was said in Common-Law England, that when a title was not completely alienable and not the
complete title, it was not a fee simple absolute. Rather it was some type of contingent conveyance
that depended on the performance of certain tasks before the title was considered to be absolute.
In fact, normally the title never did develop into a fee simple absolute. These types of conveyance
A marketable or merchantable title is one that is reasonably
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

were evidenced in part by the operable word, sin, the conveyance and in part by manner in which
the granter could reclaim the property. If the title automatically reverted to the grantor upon the
happening of a contingent action, then the title was by a fee simple determinable. Scheller v.
Trustees of Schools of Township, 41 North, 67 ILL. App.3d 857, 863 (1978). This is evidenced
most closely today by deeds of trust in some states. If it required a, court’s ruling to reacquire the
land and title, then the transaction and title were held by a fee simple with a condition
subsequent. Mahrenholz v. Country Board of Trustees of Lawrence County, 93 III. App.3d 366,
370—74 (1981). This is most closely evidenced by a mortgage, in a lien or intermediate-theory
state. These analogies may be somewhat startling and new to some, but the analogies are
accurate. When a mortgage is acquired on property, the mortgagee steps into the position of a
grantor with the authority to create the contingent estate as required by the particular facts. This is
exactly what the grantor in Common—Law property law could acquire. All the grantor had to do
was choose a particular type of contingency and use the necessary catch-words, and almost
invariably the land would one day be refused due to a violation of the contingency. In today’s
property law, the color of title has little power to protect the landowner. When the sovereign is
unable to pay the necessary principal and interest on the debt load, then the catch-words and
phrases found in the deed of trust or mortgage become operational. Upon the occurrence of that
event, the mortgagee or speculator, having through a legal myth acquired the position of a
grantor, is in a position to either automatically receive the property simply by advertising and
selling it, or can acquire the position of the grantor and eventually the possession of the property
by a court proceeding.

In Common-Law, the grantor of a fee simple determinable where the contingency was broken or
violated, could automatically take the land from the grantee holder, by force if necessary. If
however, the grant was a fee simple upon condition subsequent the grantor, when the
contingency broken, had to bring a legal proceeding to declare the contingence broken, to declare
the grantee in violation, and to order the grantee to vacate the premises. These situations, though
under different names and proceedings, occur every day in America. Is there really any serious
debate therefore, that the colors! of title used today, with the creation of a lien upon the property,
become fee simple
determinable and fee simples upon condition subsequent? Is this a legitimate method of ensuring
a stable and permanent system of land ownership? If the color of title is weak, then how strong is
a mortgage or deed of trust placed on the property?

Fee simple estates may be either legal or equitable. In each situation it is the largest estate in the
land that the law will recognize. Hughes v. Miller’s Mutual Fire Insurance Co., 246 S.W. 23
(1922). If a mortgagee, upon the creation of a mortgage or deed of trust, steps into the shoes of
the grantor upon a conditional fee simple, does it then mean the mortgagee has acquired one o~
the two halves of a fee simple, when cases have shown the fee simple is only evidenced by a
patent? Actually, courts have held in many states that a mortgage is only a lien. United States v.
Certain Interests in Property in Champaign County, State of Illinois, 165 F.Supp.474, 480 (1958)
(In Illinois and other lien theory states, the mortgagee has only a lien and not a vested interest in
the leasehold); See also Federal Farm Mortgage Corp. v. Ganswer, 146 Neb. 635, 20 N.W. 2d
689 (1945) (Even after a condition is broken or there is a default on a mortgage, a mortgagee only
has an equitable lien which can be enforced in proper proceedings); South Omaha Bank v. Levy,
95 N.W.603 (1902) Strict foreclosure will not lie when mortgagor holds the legal title); First
National Bank v. Sergeant, 65 Neb. 394, 91 N.W. 595 (1902) (Mortgagee cannot demand more
A marketable or merchantable title is one that is reasonably
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

than is legally due); Morrill. v. Skinner, 57 Neb. 164, 77 N.W. 375 (1898) (Mortgage conveys no
estate but merely creates a lien); Barber v. Crowell, 55 Neb. 571, 75 N.W. 1109 (1898)
(Mortgage is mere security in form of conditional conveyance), Sneer v. Hadduck, 31 Freeman
(Ill.) 439, 443 (1863) (Assignments or conveyances of mortgages do not convey the fee simple,
rather they hold only security interests). These cases amply illustrate that a mortgage or deed of
trust is only a lien, in lien and intermediate-theory states. Even in title theory of mortgages states,
courts of equity have determined that the fee simple title is not really conveyed, either in its
equitable or legal state. See supra Barber, at 1110. A fee simple estate still exists even though the
property is mortgaged or encumbered. Hughes v. Miller’s Mutual Fire Insurance ~ 246 S.W. 23,
24 (1922). In fact, a creditor asserting a lien (mortgage) must introduce evidence or proof that
will clearly demonstrate the basis of his lien. United States v. United States Chain Company, 212
F.Supp. 171 (N.D. M. 1962). If a mortgagee, even in the title theory states, has only a lien, yet
when the mortgage or deed of trust is created he has a f cc simple determinable or condition
subsequent, then obviously the color of title used as the operative title has little force or power to
protect the sovereign freeholder. Nor can it be said that such a color of title is useful in the
maintenance of stable and permanent titles. The patent, in almost all cases, has been originally
issued to the first purchaser from the government. Theoretically then the public policy,
Congressional intent from the 1800’s, and the Congressional intent of the last few decades should
protect the sovereign in the enjoyment and possession of his freehold. This however is not the
case. Instead, vast mortgaging of the land has occurred. The agriculture debt alone has risen to
over $220,000,000,000 in the past three decades. This is in part due to the vast expansion of
mortgaged holdings and in part due to the rural sector’s inability to repay existing loans requiring
the increased mortgaging of the land. This is in exact contradiction to the public policy and
legislative intent of maintaining stable and simplistic land records, yet marketable titles (colors of
title) were supposed to guarantee such records. Wichelman v. Messner, 83 N.W.2d 800, 805
(1957). Colors of title are ineffective against mortgages and promote the instability ,and
complexity of the records of land titles by requiring abstracts and title insurance simply to
guarantee a marketable title. Worse, a practice has prevailed in some of the states .... of
permitting actions to determine titles to be maintained upon warrants for land (warranty deeds)
and other titles not complete or legal in their character. This practice is against the intent of the
Constitution and the Acts of Congress. Bagnell v. Broderick, 38 U.S. 438 (1839). Such lesser
titles have no value in actions brought in federal courts not withstanding a State legislature which
may have provided otherwise. Hooper et. al. v. Scheimer, 64 U.S. (23 How.) 235 (1859). It is in
fact possible that the state legislatures have even violated the Supremacy Clause of the United
States Constitution. These actions are against the intent of the founding fathers and against the
legislative intent of the Congressman who enacted the statutes at large creating the land patent or
land grant. This patent or grant, since the land grant has been stated to be another name for the
patent, the terms be4,ng synonymous, Northern Pacific Railroad Co. v. Barden, 46 F. 592, 617
(1891); prevented every problem that was created by the advent of colors of title, marketable
titles, and mortgages. Therefore it is necessary to determine the validity of returning to the patent
as the operative title.

Patents are issued (and theoretically passed) between sovereigns ... and deeds are executed by
persons and private corporations without these sovereign powers. Leading Fighter v. County of
Gregory, 230 N.W.2d 114, 116 (1975). As was stated earlier, the American people in creating the
Constitution and the government formed under it, made such a document and government as
sovereigns, retaining that status even after the creation of the government. Chisholm v. Georgia,
A marketable or merchantable title is one that is reasonably
 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION III: LAND PATENTS AND WHY THEY WERE CREATED

2 Dall. (U.S.) 419 (1793). The government as sovereign passes the title to the American people
creating in them sovereign freeholders. Therefore, it follows that the American people, as
sovereigns, would also have this authority to transfer the fee simple title, through the patent, to
others. Cases have been somewhat scarce in this area, but there is some case law to reinforce this
idea. In Wilcox v. Calloway, I Wash. (Va.) 38, 38-41 (1823), the Virginia Court of Appeals heard
a case where the patent was brought up or reissued to the parties four separate times. Some
patents were issued before the creation of the Constitutional United States government, and some
occurred
during the creation of that government. The courts determined the validity of those patents,
recognizing each actual acquisition as being valid, but reconciling the differences by finding the
first patent, properly secured with all the necessary requisite acts fulfilled, carried the title. The
other patents and the necessary requisition of a new patent each time yielded the phrase “lapsed
patent.” A lapsed patent being one that must be required to perfect the title. Id. Subsequent
patentees take subject to any reservations in the original patent. State v. Crawford, 441 P.2d 586,
590 (1968). A patent regularly issued by the government is the best and only evidence of a
perfect title. The actual patent should be secured to place at rest any question as to validity of
entries (possession under a claim and color of title). Young v. Miller, 125 So.2d 257, 258 (1960).
Under the color of title act, the Secretary of Interior may be required to issue a patent if certain
conditions have been met, and the freeholder and his predecessors in title are in peaceful, adverse
possession under claim and color of title for more than a specified period. Beaver v. United
States, 350 F.2d 4, cert. denied, 387 U.S. 937 (1965). A description which will identify the lands
(and possession) is all that is necessary for the validity of the patent Lossing v. Shull., 173
S.W.2d 1, 1 Mo. 342 (1943). A patent to two or more persons creates presumptively a tenancy in
common in the patentees. Stoll v. Gottbreht, 176 NW. 932, 45 N.D. 158 (1920). A patent to be
the original grantee or his legal representatives embrace the representatives by contract as well as
by law. Reichert v. Jerome H. Sheip, Inc., 131 So. 229, 222 Ala. 133 (1930). A patent has a
double operation. In the first place, it is documentary evidence having the dignity of a record of
the evidence of the title or such equities respecting the claim as to justify its recognition and later
confirmation. In the second place, it is a deed of the United States, or a title deed. As a deed, its
operation is that of a quitclaim or rather of a conveyance of such interest as the United States
possess in the land, such interest in the land passing to the people or sovereign freeholders. 63
Am. Jur. 2d Section 97, P. 566. Finally, the United States Supreme Court, in Summa Corporation
v. California ex rel. State Lands Commission, etc., 80 L.Ed.2d 237 (1984), made determinations
as to the validity of a patent confirmed by the United States through the Treaty of Guadalupe
Hidalgo, 9 Stat. 631 (1851). The State of California attempted to acquire land that belonged to the
corporation. The State maintained that there was a public trust easement granting to the State
authority to take the land without compensation for public use. The corporation relied in part on
the intent of the treaty, in part on the intent of the patent and the statute creating it, and in part in
the requisite challenge date of the patent expiring. The Summa Court followed the lengthy
dissertation of the dissenting judge on the California Supreme Court, See 31 Cal.3d 288,
dissenting opinion, in determining that the patent which had been the apparent operative title
throughout the years, was paramount and the actions by the State were against the manifest
weight of the Treaty and the legislative intent of the

A marketable or merchantable title is one that is reasonably

 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION IV: CONCLUSION
patent statutes. Id. at 244-46. In each of these cases it is stated that the patent, through possession,
or claim and color of title, or through the term “his heirs and assigns forever”, or through the
necessary passage of title at the death of a joint tenant or tenant in common, is still the operable
title and is required to secure the peaceful control of the land. These same ideas can also apply to
state patents for lands that went to the state or remained in the hands of the state upon admission
into the Union. Oliphant v. Frazho, 146 N.W.2d 685, 686-87 (1966); Fiedler v. Pipers, 107 So.2d
409, 411-12 (1958) (Not even the State could be heard to question the validity of a patent signed
by 1the Governor and the Register of the State Land Office). No government can object to the
intent and creation of a patent after such is issued, unless issued through fraud or mistake. The
patent, either federal or state, has an intent to create sovereign freeholders in the land protected
from the speculators, (any lending institution speculates upon land), and a public policy to
maintain a simplistic, stable and permanent system of land records. Land patents were designed
to effectively insure that this intent and policy were retained. Colors of title can not provide this
type of stability, since such titles are powerless against liens, mortgages, when the freeholder is
unable to repay principle and interest on the accompanying promissory note. Equity will entertain
jurisdiction at the instance of the owner of f cc of lands to remove a cloud upon his title created
by the sale of the premises and a deed issued thereto under a decree of foreclosure of a mortgage
thereon. Hodgen v. Guttery, 58 Free. (ILL.) 431, 438 (1871) (though this case dealt with an
improper sale of land covered by a patent, any forced sales of lands covered by a patent is
improper in view of the policy and intent of Congress). Equity however will protect the
mortgagee who stands to lose his interest in the property, thereby requiring a trust to be created
until the debt is erased, making partners of the creditor and debtor. What then exists is a situation
where the patent should be declared (confirmed or reissued), to protect the sovereign freeholder
and to re-institute the policy and intent of Congress. The patent as the paramount title, fee simple
absolute, can not be collaterally attacked, but when a debt can not be paid, immediately placing
the creditor in jeopardy, the courts will impose a constructive trust until the new "partners" can
mutually eliminate the debt. If the debt can not be satisfactorily removed, it is still possible,
considering the present intent of the government, to maintain sovereign freeholders on the
property immune from the loss of the land, since it is Congress’ intent to keep the family farm in
place. No use of colors of title to act as the operative title is inappropriate considering the rising
number of foreclosures and the inability of the colors of title to restrain a mortgage or lien.
However, the lending institutions, speculators on the land, maintain that the public policy of the
country includes the eradication of the sovereign freeholders in the rural sector in an effort to
implant upon the country, large corporate holdings. This last area must be effectively met and
eliminated.

To those who framed the Constitution, the rights of the States and the rights of the people were
two distinct and different things. Throughout their debates they had two objects foremost in their
minds. First, to create a strong and effective national government, and secondly to protect the
people and their rights from usurpation and tyranny by government. The people’s liberties and
individual rights and safeguards were to be kept forever beyond the control and dominion of the
legislatures of the States, whom they distrusted, and against whom they so carefully guarded
themselves. If such control and domination and unlimited powers were given to a few legislatures
they could override every one of the reserved rights covered by the first ten Amendments (the

A marketable or merchantable title is one that is reasonably

 MEMORANDUM OF LAW:
HISTORY, FORCE & EFFECT OF THE LAND PATENT
SECTION IV: CONCLUSION
Bill of Rights); they could change the government of limited powers to one of unlimited powers;
they could declare themselves hereditary rulers; they could abolish religious freedoms; they
could abolish free speech and the right of the people to petition for redress; they could not only
abolish trial by jury, but even the rights to a day in court; and most importantly they could
abolish free sovereign ownership of the land. The whole literature of the period of the adoption of
the Constitution and the first ten amendments is one great testimony to the insistence that the
Constitution must be so wended as to safeguard unquestionably the rights and freedoms of the
people so as to secure from any future interference by the new government, matters the people
had not already given into its control, unless by their own consent United States v. Sprague, 282
U.S. 716, 723—726 (1930). The problem is
not in the lending institutions that simply practice good business on their part. The problem is the
loss of freedoms and the present interference with allodial sovereign ownership lies with the state
legislatures that created law, or marketable title acts, that claimed to enact new simplistic, stable
land titles and actually created a watered-down version of the fee simple absolute that requires
complicated tracing and protection, and is ineffective against mortgage foreclosures. None of
these problems would occur if the patent were the operable title again, as long as the sovereigns
recognized the powers and disabilities of their fee simple title. The patent was meant to keep the
sovereign freeholder on the land, but the land was also to be kept free of debt, since that debt was
recognized in 1820 as un-repayable, and today is un-repayable. The re-declaration of the patent is
essential in the protection of the rural sector of sovereign freeholders, but also essential is the
need to impress the state legislatures that have strayed from their enumerated powers with the
knowledge that they have enacted laws that have defeated the intent and goal of man since the
middle ages. That intent, of course, is to own a small tract of land absolutely, whether by landboc
or patent, on which the freeholder is beholden to no lord or superior. The patent makes sovereign
freeholders of each person who own his/her land. A return to the patent must occur if those
sovereign freeholders wish to protect that land from the encroachment of the state legislatures
and the speculators that benefit from such legislation.

As has been seen, man is always striving to protect his rights, the most dear being the absolute
right to ownership of the land. This right was guaranteed by the land patent, the public policy of
the Congress, and the legislative intent behind the Statutes at Large. Such rights must be
reacquired through the redeclaration of the patent in the color of title claimant's name, based on
his color of title and possession. With such reborn rights, the land is protected from the forced
sale because of delinquency on a promissory note and foreclosure on the mortgage.

This protected land will not eliminate the debt, a trust must be created whereby "partners" will
work together to repay it. These rights must be recaptured from the state legislated laws, or the
freedoms guaranteed in the Bill of Rights and Constitution will be lost. Once lost, those rights
will be exceedingly hard to reclaim, and quite possibly, as Thomas Jefferson said, the children of
this generation may someday wake up homeless on the land their forefathers founded.

A marketable or merchantable title is one that is reasonably