Memorandum of Law

History, Force & Effect of the Land Patent

Section I
Allodial v. Feudal itles
In America today there is a phenomenon that has not been experienced since the mid-1930's.
That phenomenon is the sharply rising number of foreclosures both in the rural sector and in the
cities. This phenomenon is occurring because of the debtor!s inability to pay the interest and
principle on a rising debt load that is expanding across the country. As a defense the land patent
and the "ongressional intent that accompanies the patent is presented here. In order to properly
e#aluate the land patent in any gi#en situation it is necessary to understand $hat it is $hy it $as
created and $hat existed before the land patent% particularly in common-la$ &ngland. These
'uestions must be ans$ered in order to understand the association bet$een the go#ernment the
land and the people.
(irst) *hat existed before land patents+ It is imperati#e to understand $hy the land patent
$as created therefore a study of the &nglish land titles in use prior to the land patent process is
#ital. This method allo$s us to fully understand the present system $e ha#e of land o$nership.
In &ngland at least until the mid-1,00's
1
property $as exclusi#ely o$ned by the -ing. 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.
2
The -ing $as the true and
absolute o$ner. .e alone could ta/e or grant land from people in his -ingdom $ho had either
lost or gained his fa#or. The authority to ta/e the land may ha#e re'uired a 0ustifiable reason but
#erification of facts $as often sub0ecti#e and less than stringent.
3
The beneficiary of such a gift
may ha#e $ondered if the same fate a$aited him if e#er he fell into disfa#or $ith the -ing.
1
The -ing's gifts $ere called fiefs. A fief 2also /no$n as a feud3 is described as an estate in
land held of a superior on ondition of rendering him servies.
!
It is also described as an
inheritable right to the use and oupation of lands, held on ondition of rendering servies to
the lord or proprietor, who himself retains the ownership in the lands.
"
The people had land
they occupied de#ised inherited alienated or disposed of as they sa$ fit so long as they
remained in fa#or $ith the -ing.
4
This holding of lands under another $as called a tenure. The
person granting the lands 2the -ing3 $as called the lord paramount. The person recei#ing the
lands $as called the #assal. Tenure $asn!t limited to the lord paramount and his #assals. *ithin
the rules of feudal la$ a #assal $as allo$ed to part out his feud to his o$n #assals. *hen a
#assal created sub-#assals in this $ay he became the mesne lord bet$een his #assals and his
mesne lord or lord paramount. Those $ho held directly to the -ing $ere called his 'tenants-in-
chief'.5
6
These po$erful tenants-in-chief granted smaller parcels of land to sub-feudatories to be
held of themsel#es.
9
The si7e of the gift of the land could #ary from a fe$ acres to thousands of
acres depending on the po$er and prestige of the lord.
10
The fiefs $ere built in the same manner
as a pyramid. The -ing the true o$ner of the land $as at the top. (rom the bottom up there
existed a system of small to medium-si7ed to large to larger-si7ed estates. 8ersons directly
beneath a larger estate o$ed homage to the lord of that estate as $ell as to the -ing.
11
At the
lo$est le#el of this pyramid
19
existed the serfs also /no$n as #illeins. This class of people had
no rights. They $ere recogni7ed as nothing more than real property.
13
This system of hierarchical
land holdings re'uired an elaborate system of payment. These fiefs of the land might be
recompensed in any number of $ays including goods actual money or labor.
:ne of the more common types of fiefs $as the crops fief.
11
;nder this type of fief a certain
portion of the grain har#ested each year $ould immediately be turned o#er to the lord abo#e that
particular fief. Then the shares for the lo$er lords and serfs of the fief $ould be distributed. A
more interesting type of fief for purposes of this memorandum $as the money fief. In most
cases the source of money $as not specified and the payment $as simply made from the fief-
holder's treasury. In some cases the fief might instead consist of fixed re#enue to be paid from a
definite source in annual payments in order for the tenant o$ner of the fief to be able to remain
on the property.
1<
The title held by such tenant-o$ners o#er their land $as described as a =fee
simple absolute>. In modern &nglish tenures the term !fee" signifies an inheritable estate being
the highest and most extensi#e interest the common man or noble other than the -ing could
ha#e in the feudal system.
1,
!Fee sim#le" is described as the largest form of inheritance.
14
#
simple is added, for that it is desendible to his heirs generally, that is, simply, without restraint
to the heirs of his body, or the like,#
$%
&#en $hen the $ord !a$solute" $as attached to the
term =fee simple> it merely denoted that the entire estate could be assigned or passed to heirs.
Thus the term =fee sim#le a$solute" in common-la$ &ngland denotes the most and best title a
person could ha#e as lon% as the &in% allowed him to retain #ossession of 'own( the land. It
has been commented that the basis of &nglish land la$ is the o$nership of all realty by the
so#ereign.
119
. This is in contradiction to the term 5allodium5 $hich is defined as a man's o$n
land $hich he possesses in his o$n right $ithout o$ing any rent or ser#ice to any superior.
90

In common-la$ &ngland practically e#erybody $ho $as allo$ed to retain land had the type
of fee simple absolute often used or defined by courts. This fee simple grants the occupier as
much of a title as the 5so#ereign5 allo$s at that time. The term has become synonymous $ith
the supposed o$nership of land under the feudal system of &ngland at common la$. The original
and true meaning of the $ord 5fee5 is the same as fief or feud. =(ee> is the operati#e $ord here.
=(ee simple absolute> dealt $ith the entire fief) its de#isability alienability and inherit-ability.
91
.
If a fee simple absolute in common-la$ &ngland $as synonymous $ith only as much title as the
-ing allo$ed his barons to possess then $hat did the -ing ha#e by $ay of a title+
he &in% of En%land held ownershi# of land under a different title and with far %reater
#owers than any of his su$)ects. The people of &ngland held fee simple titles to their land but
the &in% actually o$ned all the land in &ngland through his allodial title. Though all the land
$as in the feudal system none of the fee simple titles $ere of e'ual $eight and dignity $ith the
-ing's allodial title. The title to the land al$ays remained in fa#or of the -ing.
99
It is relati#ely
easy to deduce that allodial lands and titles are the hi%hest form of lands and titles *nown to
common-la$. An estate of inheritance $ithout condition belonging to the o$ner and alienable
1
by him transmissible to his heirs absolutely and simply is an absolute estate in perpetuity and
the largest possible estate a man can ha#e being in fact allodial in its nature.
93
5The original
meaning of a perpetuity is an inalienable indestructible interest.>
91
The -ing had such an
inalienable indestructible title to nearly all the land in &ngland. ?uring the classical feudalistic
period of common-la$ &ngland the -ing ans$ered to no one concerning the land. Allodial title
allo$ed the -ing of &ngland to run and control the entire country in the form of one large estate
belonging to the "ro$n.
9<
In summary of common+law En%land,
1. the -ing 2 the so#ereign3 $as the only person to hold complete and full title to a land
2allodial title3%
2. the people $ho maintained estates of land 2either called manors or fiefs3 held title by fee
simple absolute
3. this fee simple absolute pro#ided the means by $hich the supposed =o$ner> could di#ise
alienate or pass by inheritance the estates of land 2manors or fiefs3%
4. this fee simple absolute in feudal &ngland not being the full title did not protect the
5o$ner5 if the -ing found fault $ith the 5o$ner5
5. the 5o$ner5 had to pay a type of homage to the -ing or a higher baron each year to
discharge the obligation of his fief
6. this homage of his fief could ta/e the form of a re#enue or tax an amount of grain labor
or a set and permanent amount of money and
7. as long as the 5o$ner5 of the fief in fee simple absolute paid homage to the
so#ereign
9,
then the 5o$ner5 could remain on the property $ith full rights to sell di#ise
or pass it by inheritance as if the property $as really his.
Section II
Land -wnershi# in America oday)
he American Feudalistic Society
The pri#ate o$nership of land in America is one of those rights people ha#e proclaimed to be
essential in maintaining this republic. The necessary 'uestion $hen discussing this topic is)
.oes ownershi# of land in America today reflect a true and com#lete ownershi# of land
under an allodial conce#t, or is it somethin% much different/ In other $ords are $e li#ing in
an actual allodial freehold or are $e li#ing in an updated #ersion of feudalistic common-la$+
The ans$er is crucial in determining $hat rights $e ha#e in the protection of our realty against
improper sei7ures and encumbrances by our go#ernment and creditors. The ans$er appears to be
extremely clear $hen mortgage or tax payments aren!t paid. If these payments are missed $e
fall into disfa#or $ith our go#ernmental agencies or creditors. Through court proceedings or
non-0udicial foreclosure these creditors or go#ernmental agencies ta/e our land as a penalty.
;nderstand this) if you fail to perform as your creditors or go#ernment demands your land may
be forfeited. *hen you understand exactly $hat type of land-o$nership system controls your
life you should recogni7e the inherent un0ustness of such constitutional #iolations.
he American+$ased system of land ownershi# today consists of three *ey
re0uirements,
1. the $arranty deed or some other type of deed purporting to con#ey o$nership of
land
2. title a$stracts to chronologically follo$ the de#elopment of these different types of
deeds to a piece of property and
3. title insurance to protect the o$nership of that land.
These three ingredients must $or/ together to ensure a systematic and orderly con#eyance of a
piece of property. @one of these three by itself completely con#ey possession of the land from
one person to another. At least t$o of the three are al$ays deemed necessary to ade'uately
satisfy the legal system
94
that the title to the property had been placed in the hands of the
purchaser. :ften all three are necessary to properly pass the o$nership of the land to the
purchaser. Aut does the absolute title 2and therefore the true o$nership of the land3 really pass
from the seller to purchaser $ith the use of any combination of these instruments+ @one of the
three by itself passes the absolute or allodial title to the land the system of land o$nership
America originally operated under. &#en combined all three can not con#ey this absolute type
of o$nership. *hat is the function of these three instruments that are used in land con#eyances
and $hat type of title is con#eyed by the three+ The abstract only traces the title and the title
insurance only insures the title. Therefore the most im#ortant %rou# to e1amine is the deeds
that #ur#ortedly convey the fee 'ownershi#( from seller to #urchaser.
These deeds may include any of the follo$ing) warranty deed, 0uit+claim deed, sheriff2s
deed, trustee3s deed, )udicial deed, ta1 deed, will or any other instrument that #ur#ortedly
conveys the title. All of these documents state that it con#eys the o$nership to the land. Each
of these, however, is actually a color of title.
96

A color of title is that which in a##earance is title, $ut which in reality is not title.
99
In
fact any instrument may constitute color of title $hen it purports to con#ey the title of the land
as $ell the land itself although it is #oid as a muniment of title.
30
The Bupreme "ourt of
Cissouri has stated)
&that 'w(hen we say a person has a olor of title, whatever may be the meaning of the
phrase, we e)press the idea, at least, that some at has been previously done,..., by whih
some title, good or bad, to a parel of land of definite e)tent had been onveyed to him.&
31

In other $ords a color of title is an appearance or apparent title an 5image5 of the true title.
*hen coupled $ith possession the phrase 5color of5 purports to con#ey the o$nership of the
land to the purchaser. .o$e#er this does not say that the color of title is the actual and true title
itself. @or does it say that the color of title itself actually con#eys o$nership. In fact the
claimant or holder of a color of title is not e#en re'uired to trace the title through the chain do$n
to his instrument.
39
Dather it may be said that a color of title is prima facie e#idence of
o$nership of and rights to possession of land until such time as that presumption of o$nership is
dispro#ed by a better title or the actual title itself. If such cannot be pro#en to the contrary then
o$nership of the land is assumed to ha#e passed to occupier of the land. To further strengthen a
color of title-holder's position courts ha#e held that the good faith of the holder to a color of title
is presumed in the absence of e#idence to the contrary.
33
*ith such /no$ledge of $hat a color of title is it is interesting to note $hat constitutes
colors of title. The follo$ing statements are dra$n from $ell-established legal decisions)
A warranty deed is li/e any other deed of con#eyance.
31
A warranty deed or deed of conveyance is a color of title.
3<

A deed that #ur#orts to convey interest in the land is a color of title.
A deed which on its face #ur#orts to convey a title constitutes a claim and color of title.
3,
A 0uit+claim deed is a color of title.
34
4uit+claim deeds can pass the title as effecti#ely as a $arrant $ith full co#enants
36
Sheriff3s deeds also are colors of title.
39
A )udicial deed is color of title.
10
A ta1 deed is only color of title.
11

A sim#le ta1 deed by itself is only a color of title. (ee simple can only be ac'uired though
ad#erse possession #ia payment of taxes% claim and color of title plus se#en years of
payment of taxes. Thus any tax deed $hich purports on its face to con#ey title is a good
color of title.
19
A will passes only a color of title. A $ill can pass only so much as the testator o$ns though it may attempt to
pass more.
13

A trustee3s deed or a mort%a%e and strict foreclosure are color of title.
11
Any document definin% the e1tent of a disseisor3s claim or #ur#orted claim
1<
has been held to be color of
title.
In fact &'t(here is nothing here re*uiring a deed, to establish a olor of title, and under the former deisions of
this ourt color of title may exist without a deed."
1,
All these statements are based upon cases $ell established in la$.
14
All the documents
mentioned abo#e are the main a#enues of claimed land o$nership in America today yet none
actually con#ey the true allodial title. In fact they con#ey something 'uite different. It has
already been stated that a color of title con#eys only an appearance of or apparent title.
Although this statement is correct perhaps it is too #ague to be properly understood in its correct
legal context. *hat is useful are the more pragmatic statements concerning titles.
In order to be effecti#e in transferring the o$nership 2or purported o$nership of the land3 a title
2color of title3 must be a mar*eta$le or merchanta$le title.
5hat are the le%al o#inions on what constitutes a mar*eta$le or merchanta$le title/
A mar*eta$le or merchanta$le title is one that is reasonably free from doubt.
16
his title must be as reasonably free from doubts as necessary to not affect the
mar/etability or salability of the property and must be a title a reasonably prudent person
$ould be $illing to accept.
19
Such a title is often described as one $hich $ould ensure to the purchaser a peaceful
en0oyment of the property.
<0
Such a title must be ob#ious e#ident apparent certain sure or indubitable.
<1
Car/etable Title Acts
<9
pro#ide an exemption from the burdens of old conditions $hich may
interfere $ith mar/etability of the property at each transfer.
<3

A mar*eta$le title must be a title $hich is good of recent record e#en if it may not be the
actual title in fact.
<1
&+uthorities hold that to render a title marketable it is only neessary that it shall be free
from reasonable doubt; in other words, that a purhaser is not entitled to demand a title
absolutely free from every possible suspiion.
<<
&It is an a)iom of hornbook law that a purhaser has notie only of reorded
!"
instruments
that are within his ,hain of title-.5
<4
In other $ords the purchaser is only notified of
documents and facts that appear in the title abstract of the property. Bince it is entirely
possible other facts and documents exist outside the title abstract the abstract by itself does
not guarantee actual title.
*hat each of these legal statements in the #arious factual situations says is that the color of title
is ne#er described as the absolute or actual title. Dather each says that it is one of the types if
titles necessary to con#ey o$nership or apparent o$nership
;nder the color of title system used most often in this country today no individual o#eratin%
under this ty#e of title system has the a$solute or allodial title. All that is really necessary to
ha#e a #alid title is to ha#e a relati#ely clean abstract $ith a recogni7able color of title 2the
mar/etable title3 $ithin the chain of title. After a number of years contingencies ine#itably arise
and title disputes $ill occur. It becomes difficult if not impossible to e#er properly guarantee an
absolute title. This is not necessarily the fault of the seller. It is the fault of the legal and real
estate systems for allo$ing such a diluted form of title to control an area $here it is imperati#e to
ha#e the absolute title. To correct this problem it is important to return to those documents that
the early leaders of the nation created to ensure property rights for the so#ereign freeholders
remained inalienable. This correction must be t$ofold) restricting or perhaps eliminating the
use of mar/etable titles and returning to allodial 2absolute3 titles.
;se of the color of title system for the con#eyance of land has also caused problems in the area
of terminology. ;se of terms such as =mar/etability> =sale-ability> and =merchantability> are
confusing enough. ?etermining $hether a title is =complete> =perfect> =good> and =clear> or
$hether it is = bad> =defecti#e> =imperfect> and =doubtful>% is e#en more difficult. There is an
ob#ious possibility of destroying a chain of title because of the difficulty of recogni7ing $hat is
acceptable to a reasonable purchaser. 5hat do the courts say a$out !com#lete", !#erfect",
!%ood", and !clear" titles/
A com#lete title means that a person has the possession right of possession and the right of
property.
<6
A #erfect title is exactly the same as a complete title.
<9
A #erfect or com#lete title simply means the type of title a $ell-informed reasonable and
prudent person $ould be $illing to accept $hen paying full #alue for the property.
,0
In other
$ords a complete or perfect title is in reality a mar/etable or merchantable title and is
usually represented by a color of title.
A %ood title does not necessarily mean one perfect of record but consists of one $hich is
both of rightful o$nership and rightful possession of the property.
,1
It means a title free from litigation palpable defects and gra#e doubts consisting of both
legal and e'uitable titles and fairly deducible of record.
,9
6A good title means not merely a title valid in fat, but a marketable title, whih an again
be sold to a reasonable purhaser or mortgaged to a person of reasonable prudene as
seurity for a loan of money.&
,3
A clear title means there are no encumbrances on the land.
,1
*hen contracting to con#ey land the use of the phrase 5good and clear title5 is surplusage
since the terms %ood title and clear title are in fact synonymous.
,<
The $ords =good title> and =clear title> 0ust li/e the $ords =complete title> and =perfect
title> actually describe nothing more than a mar/etable title or merchantable title. As stated
abo#e each can be 2and almost al$ays is3 a color of title rather than a true allodial title. @one of
these types of title purports to be the absolute or allodial title.
,,
@one of these types of title e#en
claims to be a fee simple absolute.
,4
Bince these types of titles are almost al$ays represented by
a color of title none of these types of titles represents that it passes the actual 2allodial3 title.
&ach type states that it passes a title good enough to a#oid the necessity of litigation to determine
$ho actually has the title.
If litigation to determine $ho actually holds a title is necessary then the title has crossed the
boundaries of usefulness and entered a different category of title descriptions and names. This
ne$ category consists of titles $hich are =bad> =defecti#e> =imperfect> or =doubtful>. 5hat
are ! $ad", !defective", !im#erfect" or !dou$tful" titles/
A $ad title con#eys no property to the purchaser of the estates.
,6
A title is defective $hen the party claiming to o$n the land has not the $hole title but
some other person has title to a part or portion of it. Buch a title is the same as no title
$hatsoe#er.
,9
An im#erfect title is one $here something remains to be done by the granting po$er to
pass the title to the land.
40
A dou$tful title is also one $hich con#eys no property to the purchaser of the estate.
41
&#ery title is described as dou$tful $hich in#ites or exposes the party holding it to
litigation.
49
&ach of these types of titles describes exactly the same idea in many different $ays. Aecause
of some problem defect or 'uestion% no title exists. Aecause no title exists none can be
con#eyed. Eet in all of these situations some type of color of title $as used as the operati#e
instrument. *hat ma/es one color of title complete good or clear in one situation and in
another situation the same type of color of title could be described as bad defecti#e imperfect or
doubtful+ The belief of others in the community 2$hether or not properly 0ustified3 that the title
is a good one $hich they $ould be $illing to purchase is $hat ma/es an other$ise doubtful
title into a good title.
43
The methods presently used to determine $hether a title or color of title is
good enough not to be doubtful are the other t$o-thirds of the three possible re'uirements for
the con#eyance of a good or complete 2mar/etable3 title.

The t$o methods of properly ensuring that a title is a good or complete title are title abstracts
2the complete documentary e#idence of title3 and title insurance. The legal title to land, based on
a color of title is made up of a series of documents
78
and certain facts, not e#idenced by
documents. Together these sho$ that the claimant is a person to $hom the la$ gi#es the estate
2the title3. These documentary e#idences are represented by the land patent and the colors of
title.
4<
In compiling the abstract these instruments 'documents(
4,
are relied upon to e#idence the
title $hile dominion is implied by out$ard asserti#e acts 'facts(. "areful examination must be
made to determine the true status of the title.
44
The abstract is the recorded history of the land
and the #arious types of titles mortgages and other liens claims and interests that ha#e been
placed on the property. The abstract can determine the num$er of times the #atent has $een
re+declared $ho o$ns the mineral rights $hat color of title is operable at any particular point
in time or $hat lien-holder is in first position. .o$e#er it does not con#ey or e#en attempt to
con#ey any form of the title itself. It is necessary $hen operating $ith colors of titles to ha#e
an abstract to determine the status of the operable title and determine $hether that title is good or
doubtful.
46
If the title is deemed good after this lengthy process then the property may be
transferred $ithout doing anything more since it is assumed that the seller $as the o$ner of the
property. This is not to say that the seller is the paramount or absolute o$ner. It doesn!t e#en
guarantee that he is the o$ner of the land against any ad#erse claimants. It could be said that the
title-holder has a good title due to the lenient attitude of 0udicial authorities to$ard maintaining a
stable and uniform system of land o$nership.
9ut what is the #ur#ose and %oal of a title a$stract/ An abstract that has been properly
brought up states that it is presumed the seller is the o$ner of the land% thereby ma/ing the title
mar/etable and guaranteeing that he has a good title to sell. This is all an abstract can legally
do. It is not the title itself and it does not state the o$ner has an absolute title. Therefore the
abstract can not guarantee that the o$ner actually holds the title. All of this rhetoric is necessary
if the title is good. If there is some 'uestion concerning the title 2yet not ma/ing it defecti#e3
then the o$ner must turn to the last of the three alternati#es to help pass a good title title
insurance
7:
itle insurance is issued by title insurance companies to insure the #alidity 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 subse'uent determination that his title is
actually unmar/etable
60
Title insurance extends to any defects of title.
61
It protects against the
existence of any encumbrances pro#ided only that any 0udgments ad#erse to the title shall be
pronounced by a court of competent 0urisdiction.
69
It is not e#en necessary that a defect actually
exist $hen the insurance policy $as issued. It is simply necessary that there exists at the time of
issuance of the policy an inchoate or potential defect $hich is rendered operati#e and substantial
by some subse'uent e#ent. Bince all an =o$ner> normally has is a color of title the longer a
title tra#erses history 2the older it is3 the greater the possibility that the title $ill become
defecti#e. The greater the need for insurance simply to /eep the title mar/etable the easier it is
to determine that the title possessed is not the true paramount and absolute title. itle insurance
%uarantees that a title is mar*eta$le, not a$solutely free from dou$t. If a person had the
paramount 2allodial3 title there $ould be no need for title insurance though an abstract might be
useful for record-/eeping and historical purposes. itle insurance and a$stract record+
*ee#in% are useful #rimarily $ecause of e1tensive reliance on colors of title as the o#erative
title for a #iece of #ro#erty. This supplies the necessary information concerning colors of
title title abstracts and title insurance. his does not descri$e the relationshi# $etween the
landowner and the %overnment. As $as stated in the instruction in feudal &ngland the -ing
has the po$er right and authority to ta/e a person's land a$ay from him if and $hen the -ing
felt it necessary. The 'uestion is $hether most of the American system of land o$nership and
titles is in reality nothing more than a feudal system of land o$nership.
Fand o$nership in America presently is based on the use of color of title. Though people
belie#e they are the complete and total o$ners of their property under a color of title system this
is far from the truth. *hen people say they o$n their land they =o$n> it exactly to the extent
that the &nglish barons o$ned their land in common-la$ &ngland. They =o$n> their land so
long as some 5so#ereign5 2the go#ernment or a creditor3 allo$s them to o$n their land. In the
beginning of this memorandum it $as stated that the -ing could ta/e the land from one baron
and gi#e it to another prospecti#e baron. If a =lando$ner does not pay income estate or property
taxes mortgages or e#en a security note on personal property then the go#ernment or creditor
can 0ustify ta/ing the property and selling it to another prospecti#e 5baron5. Today in American
color-of-title property la$ an o$ner is left $ith only limited defenses to such actions. The real
difference bet$een modern America and 1,
th
century &ngland is) no$ others besides the -ing
can profit from the un$illingness or inability of the 5lando$ner5 to pay the tribute re'uired of
e#ery lando$ner of America. @o one is completely so#ereign o#er their property. The
conse'uences of one mista/e could be forfeiture. This isn!t $hat Americans in the mid-1400's
$anted. "omplete 2allodial3 o$nership of the land and a sound monetary system $as the most
important issue of the times.
63
. *hy fight a De#olutionary *ar to escape so#ereign control and
#irtual dictator ship o#er the land then institute exactly the same unpopular system in the ne$
country+ This is hardly $hat the forefathers stro#e for $hen they fought for their ne$ nation. It
is certainly not $hat they had in mind $hen they created the "onstitution for the ;nited Btates
of America.
*hat they did stri#e for is the next segment of the memorandum of la$) allodial o$nership
of the land #ia the land patent. The next segment $ill analy7e the history of this type of title.
*hen the patent is properly understood it possible to comprehend its! role in property la$ today.

Section III
Land Patents, 5hy hey 5ere ;reated
*hen economic conditions ma/e it impossible to perform on a debt there is little to protect
the lando$ner $ho holds title in the chain of title. ;nder the color-of-title system the property
can be ta/en for non-performance on loan obligations. This type of o$nership is similar to the
feudal o$nership found in the Ciddle Ages
;pon defeating the &nglish in 10,, A.?. *illiam the "on'ueror
61
&...effetually redued the
lands of .ngland to feuds, whih were delared to be inheritable and from that time the ma)im
prevailed there that all lands in .ngland are held from the King, and that all preeded from his
bounty.&
%!
All lands in &urope prior to the creation of the feudal system in (rance and Germany
$ere allodial. Cost of these lands $ere #oluntarily changed to feudal lands as protection from
the neighboring barons or chieftains.
6,
There $ere no documents that protected a landholders
title to his lands once they had been pledged for protection. In much of &urope once the lands
$ere pledged they $ere lost fore#er. This $as not the case in &ngland.
&ngland ne#er #oluntarily relin'uished its land to *illiam I. A large proportion of the Baxon
lands prior to the "on'uest of A.?. 10,, &were held as allodial, that is, by an absolute
ownership, without reogni/ing any superior to whom any duty was due on aount thereof.&
64
These allodial lands $ere most commonly con#eyed by a $riting or charter called a land-boc or
land-allodial charter. (or safe/eeping bet$een con#eyances this document $as generally
deposited in a nearby monastery.
66
:ne portion of &ngland the "ounty of -ent $as allo$ed to
retain the allodial form of land o$nership $hile the rest of &ngland become feudal.
69
@eedless
to say the rest of &ngland $as not happy $ith this fa#oritism sho$n to the "ounty of -ent.
*hen *illiam I established feudalism in &ngland to maintain control o#er his barons it created
a great deal of animosity o#er the next 9 centuries.
90

(inally as a result of such dictatorial control some 9< barons 0oined forces to exert pressure
on the ruling monarch -ing Hohn. Their ob0ecti#e $as to secure rights for themsel#es abo#e
those of common men. The result of this pressure at Dunnymede became /no$n as the Cagna
"arta. &nglish common la$ is based on a series of 0udicial decisions and royal decrees
interpreting and follo$ing the Cagna "arta. *hile the Cagna "arta protected only the basic
rights of the nobility it had the effect of gi#ing all people more freedom and po$er and slo$ly
eroding the -ing!s po$er.
Among the rights the nobles secured $as a particular section dealing $ith o$nership of the
land. *hile they still recogni7ed the -ing as the lord paramount the barons $anted some of the
rights their ancestors had prior to A.?. 10,,.
91
The barons $anted se#eral rights and po$ers o#er
the land as the #isible o$ners that had not existed in &ngland for 1<0 years. The particular
section of most importance $as Bection ,9. It ga#e the most po$erful barons letters patent
raising their land o$nership close to the le#el of an allodial title.
99
:ther sections
93
$ere $ritten
to protect the right to 5o$n5 property to illustrate ho$ debts affected this right to o$n property
and to secure the return of property that $as un0ustly ta/en. All these sections $ere $ritten $ith
the goal of protecting the 5lando$ner5 and helping him retain possession of his land ac'uired in
the ser#ice of the -ing from un0ust sei7ures or improper debts. The barons attempted these
goals $ith the intention of securing property to pass to their heirs. ;nfortunately goals are
often not attained.
The barons re-pledged their loyalty to -ing Hohn and 'uic/ly disbanded their armies. -ing
Hohn died in 191, A.?. one year after signing the Cagna "arta. The ne$ -ing did not $ish to
grant the rights agreed upon in that document. &#entually the barons $ho had forced the signing
of the Cagna "hart died. *ith them $ent the dri#ing force that created the great charter. The
Cagna "arta may still ha#e existed but the ne$ -ing had no armies at his door forcing him to
honor it. The charter $as forced to lie dormant. The barons $ho had actually recei#ed the
letters patent perhaps could ha#e enforced their rights under the charter% but their heirs $ere not
in a position to do so. &#entually the rights contained in the charter $ere forgotten. The -ing's
po$er increased until the mid-1,00!s abruptly ending $ith the execution of "harles I in 1,19
A.?. Ay then the original intent of the Cagna "arta at least partially lost and the descendents of
the original barons ne#er insisted on their rights to free land o$nership. To this day the freehold
lands in &ngland are still held to a great extent upon the feudal tenures.
91
This lac/ of complete
o$nership in the land
9<
dro#e ad#enturous &uropeans to the Americas a$ay from these
restrictions.
The American colonists ho$e#er soon adopted many of the same land concepts used in the
old $orld. The -ings of &urope still had the authority to exert influence and the American
#ersion of barons sought to retain large tracts of land. As an example the first patent granted in
@e$ Eor/ $ent to -illian Ian Densselaer. It $as dated in 1,30 and confirmed in 1,6< and
1401.
9,
The colonial charters of these American colonies granted by the -ing of &ngland had
references to the lands in the "ounty of -ent the only county in &ngland $ith allodial titles.
This effecti#ely denied the more barbaric aspects of feudalism from entering the @e$ *orld.
&#en so feudalism and its tenures did exist for some time
94
&'I(t may be said that, at an early
date, feudal tenures e)isted in this ountry to a limited e)tent.&
0%
The result $as a ne$ly created
form of feudal land o$nership in America. The colonial barons could dictate $ho farmed their
land ho$ their land $as to be di#ided and to a certain extent to $hom the land should pass.
Aut 0ust as the original barons disco#ered this po$er $as premised in part on the performance
of duties for the -ing. ;pon the failure of performance the -ing could order the grant re#o/ed
and grant the land to another $illing to submit to the -ing's authority. This authority $as
premised on the belief that colonists recently arri#ed and relati#ely independent $ould obey the
dictates of a -ing based 3000 miles a$ay. Buch a premise $as ill-founded. The colonists came
to America to a#oid taxation $ithout representation to a#oid persecution for their $orship of
Almighty God and to ac'uire a tract of land that could be o$ned completely. *hen the
colonists $ere forced to pay taxes and re'uired to allo$ their homes to be occupied by soldiers%
they re#olted fighting the Aritish and declaring their ?eclaration of Independence.
The Bupreme "ourt of the ;nited Btates reflected on this independence in ;hisholm v. State
of <eor%ia 9 ?all. 2;.B.3 119 214933 stating)
1he revolution, or rather the 2elaration of Independene, found the people already united for
general purposes, and at the same time, providing for their more domesti onerns, by state
onventions, and other temporary arrangements. 3rom the rown of 4reat 5ritain, the
sovereignty of their ountry passed to the people of it; and it was then not an unommon opinion,
that the un-appropriated lands, whih belonged to that rown, passed, not to the people of the
olony 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.& 6ere we see the people ating
as sovereigns of the whole ountry; and in the language of sovereignty, establishing a
onstitution by whih it was their will, that the state governments, should be bound, and to whih
the state onstitutions should be made to onform... It will be suffiient to observe briefly, that the
sovereignties in .urope, and partiularly in .ngland, e)ist on feudal priniples. 1hat system
onsiders the prine as the sovereign, and the people his sub7ets; it regards his person as the
ob7et of allegiane, and e)ludes the idea of his being on an e*ual footing with a sub7et, either
in a ourt of 7ustie or elsewhere. 1hat system ontemplates him as being the fountain of honor
and authority; and from his grae and grant, derives all franhises, immunities and privileges; it
is easy to pereive, that suh a sovereign ould not be amendable to a ourt of 7ustie, or
sub7eted to 7udiial ontrol and atual onstraint...1he same feudal ideas run through all their
7urisprudene, and onstantly remind us of the distintion between the prine and the sub7et. 8o
suh ideas obtain here 'in +meria(; at the revolution, the soereignty deoled on the People;
and they are truly the soereigns of the country, but they are sovereigns without sub7ets and
have none to govern but themselves; the !iti"ens of America are e#ual as follow$!iti"ens, and
as %oint tenants in the Soereignty. 3rom the differenes e)isting between feudal sovereignties
and governments founded on ompats, it neessarily follows, that their respetive prerogatives
must differ. 9overeignty is the right to govern; a nation or state sovereign is the person or
persons in whom that resides. In .urope, the sovereignty is generally asribed to the prine;
here it rests with the people; there a sovereign atually administers the government; here never in
a single instane; our governors are the agents of the people, and at most stand in the same
relation to their sovereign, in whih the regents of .urope stand to their sovereigns. 1heir
prines have personal powers, dignities, and pre-eminene, our rules have none but offiial; nor
do they partake in the sovereignty otherwise, or in any other apaity, than as private iti/ens.
2emphasis added3. Id. at 140-41.
The Americans had a choice as to ho$ they $anted their ne$ go#ernment to be formed.
They had bro/en a$ay from the &nglish so#ereignty and established themsel#es as their o$n
so#ereigns. They had their choice of types of taxation freedom of religion and most
importantly o$nership of land. The American founding fathers chose allodial o$nership of land
for the system of o$nership on this country. In the opinion of Hudge -ent the 'uestion of tenure
as an incident to the o$nership of lands &has beome wholly immaterial in this ountry, where
every vestige of tenure has been annihilated.&
00
As late as 1699 a leading authority on American
property la$ said +t the present day there is little, if any, trae of the feudal tenures
$::
remaining in the +merian law of property. &ands in this country are now held to be absolutely
allodial.
$:$
;pon the completion of the De#olutionary *ar lands in the thirteen colonies $ere held under
a different form of o$nership than they had been prior to the $ar. &#after the +merian
;evolution, lands in this state <=aryland> beome allodial, sub7et to no tenure, nor to any
servies inident there to.&
$:2
This ne$ type of o$nership $as ac'uired in all thirteen states.
103
&#en before they de#eloped a stable go#ernment the American people de#eloped a stable system
of land o$nership. The people o$ned their land absolutely in a manner similar to the -ing in
common-la$ &ngland.

As has been stated earlier the original and true meaning of the $ord 5fee5 $as the same as
=fief = or =fued>. Therefore land held in =fee simple absolute> is the same as the land held as a
fief or feud. This is in contradistinction to the term 5allodium5 $hich is defined as man's o$n
land $hich he possesses merely in his o$n right $ithout o$ing any rent or ser#ice to any
superior.
101
Btated another $ay the fee simple estate of early &ngland $as ne#er considered as
absolute as $ere lands in allodium. Instead they $ere sub0ect to some superior on condition of
rendering him ser#ices and that superior had the ultimate o$nership of the land.
10<
This type of
fee simple is a common-la$ term and sometimes corresponds to $hat in ci#il la$ is a perfect
title.
10,
It is un'uestioned that the -ing held an allodial title $hich $as different than the common-
la$ fee simple absolute. his ty#e of su#erior title was $estowed u#on the newly esta$lished
American #eo#le $y the foundin% fathers . The people $ere Bo#ereigns by choice and through
this ne$ type of land o$nership. he #eo#le were Soverei%n freeholders or &in%s over their
own land, $eholden to no lord or su#erior. Buch an estate is an absolute estate in perpetuity
and the largest possible estate a man can ha#e being in fact allodial in its nature.
104
This type of
fee simple as thus de#eloped has definite characteristics)
1) it is a present estate in land that is of indefinite duration%
2) it is freely alienable%
3) it carries $ith it the right of possession% and most importantly
4) the holder may ma/e use of any portion of the freehold $ithout being beholden to any
person.
106
This fee simple estate means an absolute estate in lands $holly un'ualified by any reser#ation
re#ersion condition or limitation or possibility of any such thing present or future precedent or
subse'uent.
109
It is the most extensi#e estate and interest one may possess in real property. An
estate sub0ect to an option is not in fee.
110
The Io$a Bupreme "ourt $ent into a lengthy
discussion on $hat the terms = fee simple> and =allodium> mean in American property la$.
111
The "ourt stated)
1he word ?absolutely@ in law has a varied meaning, but when un*ualifiedly used with
referene to titles or interest in land, its meaning is fairly well settled. Ariginally the two
titles most disussed were ?fee simple@ and ?allodium@ <whih meant absolute>.
$$2
Brior to
5lakstone-s time the allodial title was ordinarily alled an ?absolute title@ and was superior
to a ?fee simple title,@ the latter being enumbered with feudal logs whih were laid upon the
first feudaltory when it was granted, making it possible for the holder of a fee-simple title to
lose his land in the event he failed to observe his feudatory oath. 1he allodial title was not
so enumbered. Cater the term ?fee simple@, however, rose to the dignity of the allodial or
absolute estate, and sine the days of 5lakstone the word ?absolute estate@ and ?fee simple@
seem to have been generally used interhangeably; in fat, he so uses them
$$D
....+nd further
the words ?absolute@ and ?absolutely@ usually arry the fee...5y the terms ?absolute interest@
we understand a omplete and perfet interest,...,an estate in fee simple is meant.
$$E
The basis of &nglish land la$ is the o$nership of the realty by the so#ereign from the cro$n
all titles flo$.
11<
It has been stated this $ay)
11,

3rom what soure does the title to the land derived from a government springF In arbitrary
governments, from the supreme head-be he the emperor, King, or potentate; or by whatever
name he is known. In a republi, from the law making or authori/ing to be made the grant or
sale. In the first ase, the party looks alone to his letters patent; in the seond, to the law
and the evidene of the ats neessary to be done under the law, to a perfetion of his grant,
donation or purhase...1he law alone must be the fountain from whene the authority is
drawn; and there an be no other soure.
$$G
After the #ictory of the De#olutionary *ar the American 8eople became ne$ly established
so#ereigns in this republic. They became complete o$ners in their land beholden to no lord or
superior. Instead they themsel#es $ere so#ereign freeholders in the land. These freeholders in
the original thirteen states no$ held allodially the land they possessed before the $ar only
feudally. This ne$ and more po$erful title protected the so#ereigns from un$arranted intrusions
or attempted ta/ings of their land and more importantly it secured in them a right to o$n land
absolutely in perpetuity. Ay definition the $ord !#er#etuity" means) &Hontinuing forever.
Cegally, pertaining to real property, any ondition e)tending the inalienability#
$$%
As it relates
to an allodial title it means to ha#e the property of inalienability fore#er. Bo#ereigns need do
nothing more to establish the o$nership of their land. .o$e#er confirmations are usually
helpful to a#oid possible future title confrontations.

The original thirteen states e#en prior to the creation of our present "onstitutional
go#ernment issued titles to the unoccupied lands $ithin their boundaries. In @e$ Eor/ e#en
before the $ar $as $on the state issued the first land patent in 1461. :nly a fe$ $ee/s after the
battle and #ictory at Eor/to$n in 1463 the state issued the first land patent to an indi#idual.
119
&#en before the ;nited Btates $as created @e$ Eor/ and other states had de#eloped their o$n
Fand :ffices $ith "ommissioners. @e$ Eor/!s $as first established in 1461 and re#ised in
146, to pro#ide a more definite procedure for the sale of unappropriated Btate Fands.
190
The state
courts held &1he validity of letters patent and the effetiveness of same to onvey title depends
on the proper e)eution and reord...It has generally been the law that publi grants to be valid
must be reorded. 1he reord is not for purposes of notie under reording ats but to make the
transfer effetual.&
$2$
Fater if there $as a problem $ith the title the state grants could be
confirmed by issuance of a confirmatory grant.
199
This explains the methods and techni'ues the
original states used to pass title to their lands. Btate lands remained in the possession of the state
unless purchased by the still yet-uncreated federal go#ernment or by indi#iduals. Aecause Texas
$as originally a separate country it controlled and still controls its lands. In both of these
instances the land $as not originally o$ned by the federal go#ernment and then later passed to
the people and states. This synopsis of land o$nership rights under the states hasn!t co#ered
disposal of federal lands. *hat methods did the states use in creating the federal go#ernment
and ho$ $ere federal lands disposed of+
The "onstitution in its original form $as ratified by a con#ention of the Btates on Beptember
14 1464. The "onstitution and the go#ernment formed under it $ere declared in effect on the
first *ednesday of Carch 1469. ?uring the "onstitutional "on#ention there $as serious debate
on the disposal of $hat the con#ention called the 5*estern Territories5.
193
This tract of land $as
ceded to the ne$ American republic in the treaty signed $ith Aritain in 1463.
?etermining the disposal of the *estern Territories $as the sub0ect of much discussion in the
records of the "ontinental "ongress. Aeginning in Beptember 1463 there $as continual
discussion concerning the Ac'uisition of and later disposition to the lands east of the Cississippi
Di#er.
+nd whereas the Inited 9tates have sueeded to the sovereignty over the Jestern territory,
and are thereby vested as one undivided and independent nation, with all and every power
and right e)erised by the King of 4reat 5ritain, over the said territory, or the lands lying
and situated without the boundaries of the several states, and within the limits above
desribed; and whereas the western territory eded by 3rane and 9pain to 4reat 5ritain,
relin*uished to the Inited 9tates by 4reat 5ritain, and guarantied to the Inited 9tates by
3rane as aforesaid, if properly managed, will enable the Inited 9tates to omply with their
promises of land to their offiers and soldiers; will relieve their iti/ens from muh of the
weight of ta)ation;..., and if ast into new states, will tend to inrease the happiness of
mankind, by rendering the purhase of land easy, and the possession of liberty permanent;
therefore...;esolved, that a ommittee be appointed to report the territory lying without the
boundaries of the several states;...; and also to report an establishment for a land offie.
$2E
There $as also serious discussion and later ac'uisition by the then technically non-existent
federal go#ernment of land originally held by the colonial go#ernments. Id. at <,9-,3. As the
years progressed the goal remained the same a proper determination of a simple method of
disposing of the $estern lands. 5That an ad#antageous disposition of the $estern territory is an
ob0ect $orthy the deliberation of "ongress.5 Id. (ebruary 11 146, at p. ,6. In (ebruary 1464
the "ontinental "ongress continued to hold discussions on ho$ to dispose of all $estern
territories. As part of the basis for such disposal it $as determined to di#ide the ne$
north$estern territories into medians ranges to$nships and sections ma/ing for easy di#ision
of the land and gi#ing the ne$ o$ners of such land a certain number of acres in fee. Hournals of
"ongress p. 91 (ebruary 1464 and "ommittee Aoo/ 8apers of the "ontinental "ongress @o.
190 p. 139 214663. In Beptember of that same year there $ere most discussions on the methods
of disposing the land. In those discussions there $ere debates in the #alidity and solemnity of
the state patents that has been issued in the past. Id. @o. ,9 p. <1,. :nly a $ee/ earlier the
"onstitution $as ratified by the con#entions of the states. (inally the future Benate and .ouse
of Depresentati#es though not officially a go#ernment for another 1 J years held discussions on
the possible creation of documents that $ould pass the title of lands from the ne$ go#ernment to
the people. In these discussions the first patents $ere created and ratified ma/ing the old land-
boc or land-allodial charters of the Baxon nobles 4<0 years earlier and the letters patent of the
Cagna "arta guidelines by $hich the land $ould pass to the so#ereign freeholders of America.
Id. Huly 9 1466 pp. 944-96,.
As part of the method by $hich the ne$ ;nited Btates decided to dispose of its territories it
created in the "onstitution an article section and clause that specifically dealt $ith such
disposals. Article II Bection III "lause II states in part)
5The "ongress shall ha#e 8o$er to dispose of and ma/e all needful Dules and
Degulations respecting the Territory or other 8roperty belonging to the ;nited Btates.5
Thus "ongress $as gi#en the po$er to create a #ehicle to di#est the (ederal Go#ernment of all
its right and interest in the land. his vehicle, *nown as the Land Patent $as to fore#er di#est
the federal go#ernment of its land and $as to place such total o$nership in the hands of the
so#ereign freeholders $ho collecti#ely created the go#ernment. The land patents issued prior to
the initial date of recognition of the ;nited Btates "onstitution $ere ratified by the members of
"onstitutional "ongress. Those patents created by statute after Carch 1469 had only the po$er
of the statutes and the "ongressional intent behind such statutes as a reference and basis for the
determination of their po$ers and operational effect originally and in the American system of
land o$nership today.
There ha#e been do7ens of statutes enacted pursuant to Article II Bection III "lause II.
Bome of these statutes had #ery specific intents of aiding soldiers of $ars or di#iding lands in a
#ery small region of one state but all had the main goal of creating in the so#ereigns freeholders
on their lands beholden to no lord or superior Bome of the statutes include 19 Btat. 399 34th
"ongress Bess. II "h. 4< 216,93 2the .omestead Act3% 9 Btat. <90 31st "ongress Bess. I "h.
6< 216<03 2Cilitary Aounty Ber#ice Act3% 6 Btat. 193 99th "ongress Bess. II "h. 6 216143 2Act
to raise additional military force and for other purposes3% < Btat. 111 91st "ongress Bess. II
"h. 30 216313% 1 Btat. <1 16th "ongress Bess. I. "h. 141 216913% < Btat. <9 16th "ongress
Bess. I "h. 143 216913% < Btat. <, 16th "ongress Bess. I "h. 149 216913% 3 Btat. <,, 1,th
"ongress Bess. I "h. <1 216903 2the ma0or land patent statute enacted to dispose of lands3% 9
Btat. 416 19th "ongress Bess. I. "h. 99 216193% 9 Btat. 496 19
th
"ongress Bess.I "h. 44
216193% 9 Btat. 41, 19th "ongress Bess. I "h. ,6 216193 2the act establishing the General
Fand-:ffice in the ?epartment of Treasury3% 9 Btat. <90 11th "ongress Bess. II "h. 3<216103%9
Btat. 134 9th "ongress Bess. II "h. 31 216043% and 9 Btat. 134 9th "ongress Bess. II "h. 31
216043. These of course are only a fe$ of the statutes of enacted to dispose of public lands to
the so#ereigns. :ne of these acts ho$e#er $as the main patent statute in reference to the intent
"ongress had $hen creating the patents. That status is 3 Btat. <,, supra.
In order to understand the #alidity of a land patent in today's property la$ it is necessary to
turn to other sources than the acts themsel#es. These sources include the "ongressional debates
and case la$ citing such debates. (or the best ans$er to this 'uestion it is necessary to turn to
the Abridgment of the ?ebates of "ongress Conday Carch , 1690 in the Benate considering
the topic 5The 8ublic Fands.5 This abridgment and the actual debates found in its concern one of
the most important of the land patent statutes 3 Btat. <,, 1,th "ongress Bess. I. "h. <1 Btat. I
2April 91 16903.
In this important debate the reason for such a particular act in general and the protections
afforded by the land patent in particular $ere discussed. As Benator &d$ards states)
=Aut said he it is not my purpose to discuss at large the merits of the proposed change.
I $ill at present connect myself $ith an effort merely to shield the present settlers upon
public lands from merciless speculators $hose cupidity and a#arice $ould
un'uestionably be tempted by the impro#ements $hich those settlers ha#e made $ith the
s$eat of their bro$s and to $hich they ha#e been encouraged by the conduct of the
go#ernment itself% for though they might be considered as embraced by the letter of the
la$ $hich pro#ides against intrusion on public lands yet that their case has not been
considered by the Go#ernment as $ithin the mischiefs intended to be pre#ented is
manifest not only form the forebearance to enforce the la$ but form the positi#e re$ards
$hich others in their situation ha#e recei#ed by the se#eral la$s $hich ha#e heretofore
been granted to them by the same right if preemption $hich I no$ $ish extended to the
present settlers. Id. at 1<,.
(urther Benator -ing from @e$ Eor/ stated)
.e considered the change as highly fa#orable to the poor man% and he argued at some
length that it $as calculated to plant in the ne$ country a population of independent
unembarrassed freeholders%...that it $ould cut up speculation and monopoly% that the
money paid for the lands $ould be carried from the Btate or country from $hich the
purchaser should remo#e% that it $ould pre#ent the accumulation of an alarming debt
$hich experience pro#ed ne#er $ould and ne#er could be paid. Id. at 1<,-<4.
In other statutes the "ourt recogni7ed much of these same ideas. In ;nited Btates #. Deynes
9 .o$. 2;.B.3 194 216<03 the Bupreme "ourt stated)
=The ob0ect of the Fegislature is manifest. It $as intended to pre#ent speculation by
dealing for rights of preference before the public lands $ere in the mar/et. The
speculator ac'uired po$er o#er choice spots by procuring occupants to seat
themsel#es on them and $ho abandoned them as soon as the land $as entered under
their preemption right and the speculation accomplished. @othing could be more
easily done than this if contracts of this description could be enforced. The act of
1630 ho$e#er pro#ed to be of little a#ail% and then came the Act of 163< 2< Btat.
9<13 $hich compelled the preemptor to s$ear that he had not made an arrangement
by $hich the title might insure to the benefit of anyone except himself or that he
$ould transfer it to another at any subse'uent time. This $as preliminary to the
allo$ing if his entry and discloses the policy of "ongress.> Id. at 1<1.
5It is al$ays to be borne in mind in construing a congressional grant that the act by
$hich it is made is a la$ as $ell as a con#eyance and that such effect must be gi#en
to it as $ill carry out the intent of "ongress. That intent should not be defeated by
applying to the grant the rules of common la$...$ords of present grant are operati#e
if at all only as contracts to con#ey. Aut the rules of common la$ must yield in this
as in other cases to the legislati#e $ill.5 Cissouri -ansas K Texas Dail$ay
"ompany #. -ansas 8acific Dail$ay "ompany 94 ;.B. 191 194 216463.
The administration of the land system in this country is #ested in the &xecuti#e ?epartment if
the Go#ernment first in the Treasury and no$ in the Interior ?epartment. The officers charged
$ith the disposal of the public domain under the authority of acts of "ongress are re'uired and
empo$ered 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 gi#en through their actions to indi#iduals.
This is a portion of the political po$er of the Go#ernment and courts of 0ustice must ne#er
interfere $ith it. Car/s #. ?ic/son ,1 ;.B. 290 .o$3 <01 216<43% see also "ousin #. Alanc's
&x. 19 .o$. 2;.B.3 90, 909 216<,3.
5The po$er of "ongress to dispose of its land cannot be interfered $ith or its exercise
embarrassed by any Btate legislation% nor can such legislation depri#e the grantees of the
;nited Btates of the possession and en0oyment of the property granted by reason of any
delay in the transfer of the title after the initiation of proceedings for its ac'uisition.5
Gibsion #. "houteau 13 *al. 2;.B.3 99 93 216413.
Btate statutes that gi#e lesser authoritati#e o$nership of title than the patent can not e#en be
brought into federal court. Fangdon #. Bher$ood 191 ;.B. 41 61 216643. These acts of
"ongress ma/ing grants are not to be treated both la$ and grant and the intent of "ongress $hen
ascertained is to control in the interpretation of the la$. *isconsin ".D. "o. #. (orsythe 1<9
;.B. 1, 2169<3. The intent to be searched for by the courts in a go#ernment patent is the intent
$hich the go#ernment had as that time and not $hat it $ould ha#e been had no mista/e been
made. The true meaning of a binding expression in a patent must be applied no matter $here
such expressions are found in the document. It should be construed as to effectuate the primary
ob0ect "ongress had in #ie$% and ob#iously a construction that gi#es effect to a patent is to be
preferred to one that renders it inoperati#e and #oid. A grant must be interpreted by the la$ of
the country in force at the time $hen it $as made. The construction of federal grant by a state
court is necessarily controlled by the federal decisions on the same sub0ect.
The ;nited Btates may dispose of the public lands on such terms and conditions and sub0ect
to such restrictions and limitations as in its 0udgment $ill best promote the public $elfare even
if the condition is to e1em#t the land from sale on e1ecution issued or )ud%ment recovered
in a State ;ourt for a de$t contracted $efore the #atent issues. Ciller #. Fittle 14 "al. 316
3<0 216413. "ongress has the sole po$er to declare the dignity and effect if titles emanating
from the ;nited Btates and the $hole legislation of the Go#ernment must be examined in the
determination of such titles. Aagnell #. Aroderic/ 36 ;.B. 13, 216393
.
It $as clearly the policy of "ongress in passing the preemption and patent la$s to confer the
benefits of those la$s to actual settlers upon the land. "lose #. Btuy#esant139 Ill. ,04 ,14
216903. The intent of "ongress is manifest in the determinations of meaning force and po$er
#ested in the patent. These cases all illustrate the po$er
and dignity gi#en to the patent. It $as created to di#est the go#ernment of its lands and to act as
a means of con#eying such lands to the %enerations of people that $ould occupy those lands.
This formula 5or his legal representati#es5 embraces representati#es of the original grantee in
the land by contract such as assignees or grantees as $ell as be operation of la$ and lea#es the
'uestion open to in'uiry in a court of )ustice as to the party to $hom the patent or confirmation
should inure. .ogan #. 8age ,9 ;.B.,0< 216,13. The patent $as and is the document and la$
that protects the settler from the merciless speculators from the people that use a#arice to
un0ustly benefit themsel#es against an unsuspecting nation. The patent $as created $ith these
high and grant intentions and $as created $ith such intentions for a sound reason.
The settlers as a rule seem to ha#e been poor persons and presumably $ithout the necessary
funds to impro#e and pay for their land but it appears that in e#ery case $here the settlement
$as made under the preemption la$ the settler...entered and paid for the land at the expiration of
the shortest period at $hich the entry could be made...5 "lose #. Btuy#esant 139 Ill. ,04 ,93
216903. *e must loo/ to the beneficent character of the acts that created this grants and patents
and the peculiar ob0ects they $ere intended to protect and secure. A class of enterprising hardy
and most meritorious and #aluable citi7ens has become the pioneers in the settlement and
impro#ement of the ne$ and distant lands of the go#ernment. Cc"onnell #. *ilcox 1 Bcam.
2Ill.3 311 3,4 216343.
5In furtherance of $hat is deemed a $ise policy tending to encourage settlement and to
de#elop the resources of the country it in#ites the heads of families to occupy small
parcels of the public land...To deny "ongress the po$er to ma/e a #alid and effecti#e
contract of this character...$ould materially abridge its po$er of disposal and seriously
interfere $ith a fa#orite policy of the go#ernment $hich fosters measures tending to a
distribution of the lands to actual settlers at a nominal price.5 Ciller #. Fittle 14 "al.
316 3<1 216413.
The legislati#e acts the Btatutes at Farge enacted to di#est the ;nited Btates of its land and
to sell that land to the true so#ereigns of this republic had #ery distinct intents. "ongress
recogni7ed that the a#erage settler of this nation $ould ha#e little money therefore "ongress
built into the patent and its corresponding act the understanding that these lands $ere to be free
from a#arice and cupidity free from the speculators $ho preyed on the unsuspecting nation and
fore#er under the control and o$nership of the freeholder $ho by the s$eat of his bro$ made
the land produce the food that $ould feed himself and e#entually the nation. &#en today the
intent of "ongress is to maintain a cheap food supply though the retention of the so#ereign
farmers on the land. ;nited Btates #. -imball (oods Inc. 110 ;.B. 41< 219493% see also "urry
#. Aloc/ <11 (. Bupp. <0, 219693.

:riginally the intent of "ongress $as to protect the so#ereign freeholders and create a
permanent system of land o$nership in the country. Today the intent of "ongress is to retain the
small family farm and utili7e the cheap production of these situations it has been necessary to
protect the so#ereign on his parcel of land and ensure that he remain in that position. The land
patent and the patent acts $ere created to accomplish these goals. In other $ords the patent or
title deed being regular in its form the la$ $ill not presume that such $as obtained through
fraud of the public right. This principle is not merely an arbitrary rule of la$ established by the
courts rather it is a doctrine $hich is founded upon reason and the soundest principles of public
policy. It is one $hich has been adopted in the interest of peace in the society and the permanent
security of titles. ;nless fraud is sho$n this rule is held to apply to patents executed by the
public authorities. Btate #. .e$itt Fand "o. 131 8. 141149 219133. It is therefore necessary to
determine exact po$er and authority contained in a patent.
Fegal titles to lands cannot be con#eyed except in the form pro#ided by la$. CcGarrahan #.
Cining "o. 9, ;.B. 31, 216443. Le%al title to #ro#erty is contin%ent u#on the #atent issuin%
from the %overnment. Babo #. .or#ath <<9 8.9d 1036 1010 2A/a. 194,3.
5That the patent carries the fee and is the best title /no$n to a court to la$ is the settled
doctrine of this court.5 Carshall #. Fadd 4 *all. 241 ;.B.3 10, 216,93.
5A patent issued by the go#ernment of the ;nited Btates is legal and conclusi#e e#idence
of title to the land described therein. =o e0uita$le interest, however stron%, to land
descri$ed in such a #atent, can #revail at law, a%ainst the #atent.6 Fand 8atents
:pinions of the ;nited Btates Attorney General's office 2Beptember 19,93.
5A patent is the highest e#idence of title and is conclusi#e against the go#ernment and all
claiming under 0unior patents or titles until it is set aside or annulled by some 0udicial
tribunal.5 Btone #. ;nited Btates 9 *all. 2,4 ;.B.3 4,< 216,<3.
The patent is the instrument $hich under the la$s of "ongress passes title from the ;nited
Btates of America and the patent $hen regular on its face is conclusi#e e#idence of title in the
patentee. 5hen there is a confrontation $etween two #arties as to the su#erior le%al title,
the #atent is conclusive evidence of title in the #atentee. *hen there is a confrontation
bet$een t$o parties as to the superior legal title the patent is conclusi#e e#idence as to
ownershi#. Gibson #. "houteau 13 *all. 91-9 216413. "ongress ha#ing the sole po$er to
declare the dignity and effect of its titles has declared the patent to be the superior and conclusi#e
e#idence of the legal title. Aagnell #. Arodric/ 36 ;.B. 136 216393.
5Issuance of a go#ernment patent granting title to land is Lthe most accredited type of
con#eyance /no$n to our la$'.5 ;nited Btates #. "ree/ @ation 99< ;.B. 103111 2193<3%
see also ;nited Btates #. "hero/ee @ation 141 (.9d ,96 ,31 219433.
The patent is prima facia conclusi#e e#idence of the title. Carsh #. Aroo/s 19 ;.B. 993 933
216<03. A patent once issued is the highest e#idence of title and is a final determination of the
existence of all facts. *alton #. ;nited Btates 11< (.9d 191 193 210th "ir. 19,93% see also
;nited Btates #. Aeaman 919 (. 64, 219143% (ile #. Alas/a <93 8.9,6 940 219493 2*hen the
federal go#ernment grants land #ia a patent the patent is the highest e#idence of title3. 8atent
rights to the land is the title in fee "ity of Fos Angeles #. Aoard of Buper#isors of Cono "ounty
999 8.9d <39 219<,3 the patent or the fee simple B'uire #. "apoeman 3<1 ;.B. 1, 219<,3 and
the patent is re'uired to carry the fee. "arter #. Dubby 1,, ;.B. 193 19, 2169,3% see also -lais
#. ?ano$s/i 199 @.*.9d 111 199 219,132Interposition of the patent or interposition of the fee
title3. The land patent is the muniment of title such title being absolute in its nature ma/ing the
so#ereigns absolute freeholders on their lands. (inally the patent is the only e#idence of the
legal fee simple title. Cc"onnell #. *ilcox 1 Bcam 2Ill.3 361 39, 216343. All these #arious
cases and 'uotes illustrate one statement that should be thoroughly understood at this time the
patent is the highest e#idence of title and is conclusi#e of the o$nership of land in courts of
competent 0urisdiction. This ho$e#er does not examine the methods or possibilities of
challenging a land patent.

In .ooper et. al. #. Bcheimer ,1 ;.B. 293 .o$.3 93< 216<93 the ;nited Btates Bupreme "ourt
stated)
5I affirm that a patent is unimpeachable at la$ except perhaps $hen it appears on its
o$n face to be #oid% and the authorities on this point are so uniform and unbro/en in the
courts (ederal and Btate that little else $ill be necessary beyond a reference to them.5
Id. at 910 216<93.
=A patent cannot be declared #oid at la$ nor can a party tra#el behind the patent to a#oid
it.> Id.

=A patent cannot be a#oided at la$ in a collateral proceeding unless it is declared #oid by
statute or its nullity indicated by some e'ually explicit statutory denunciations.> Id.
=:ne perfect on its face is not to be a#oided in a trail at la$ by anything sa#e an elder
patent. It is not to be affected by e#idence or circumstances $hich might sho$ that the
impeaching party might pre#ail in a court of e'uity.> Id. at 913.
=A patent is e#idence in a court of la$ of the regularity of all pre#ious steps to it and no
facts behind it can be in#estigated. Id. A patent cannot be collaterally a#oided at la$ e#en
for fraud.> Id. at 91<.
'A patent, being a superior title, must of course, preail oer colors of title( nor is it
proper for any State legislation to gie such titles, which are only e#uitable in nature
with a recogni"ed legal status in e#uity courts, precedence oer the legal title in a court
of law.) Id. at 91,.
The .ooper case has many of the maxims that apply to the po$ers and possible disabilities of a
land patent ho$e#er there is extensi#e case la$ in the area.

The presumptions arise from the existence of a patent e#idencing a grant of land from the
;nited Btates that all acts ha#e been performed and all facts ha#e been sho$n $hich are
prere'uisites to its issuance and that the right of the party grantee therein to ha#e it issued has
been presented and passed upon by the proper authorities. Green #. Aarber ,, @.*. 1039
2169,3. As stated in Aou#ier's Fa$ ?ictionary Iol. II p. 1631 219113)
=Cisrepresentations /no$ingly made by the application for a patent $ill 0ustify the
go#ernment in proceedings to set it aside as it has a right to demand a cancellation of a
patent obtained by false and fraudulent misrepresentations. ;nited Btates #.
Canufacturing "o. 196 ;.B. ,43 216663% but courts of e'uity cannot set aside annul or
correct patents or other e#idence of title obtained from the ;nited Btates by fraud or
mista/e unless on specific a#erment of the mista/e or fraud supported by clear and
satisfactory proof% Caxell Fand Grant "ancellation 11 .o$. 2;.B.3 <<9 216<03% although
a patent fraudulently obtained by one /no$ing 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 e'uity filed
by the attorney of the ;nited Btates for the district in $hich the land lies% Id. A court of
e'uity upon a bill filed for that purpose $ill #acate a patent of the ;nited Btates for a
tract of land obtained by mista/e from the officers of the land office in order that a clear
title may be transferred to the pre#ious purchaser% .ughes #. ;nited Btates 1 *all. 2;.B.3
939 216,,3% but a patent for land of the ;nited Btates $ill not be declared #oid merely
because the e#idence to authori7e its issue is deemed insufficient by the court% Cilli/en #.
Btarling's lessee 1, :hio ,1. A state can impeach the title con#eyed by it to a grantee
only by a bill in chancery to cancel it either for fraud on the part of the grantee or
mista/e of la$% and until so cancelled it cannot issue to any other party a #alid patent for
the same land. "handler #. Canufacturing "o. 119 ;.B. 49 216933.
:ther cases espouse these and other rules of la$. A patentee can be depri#ed of his rights
only by direct proceedings instituted by the go#ernment or by parties acting in its name or by
persons ha#ing a superior title to that ac'uired through the go#ernment. 8utnum #. Ic/es 46 (.9d
933 cert denied 99, ;.B. ,19 2193<3. It is not sufficient for the one challen%in% a #atent to
show that the #atentee should not have received the #atent> he must also show that he as
the challen%er is entitled to it. -ale #. ;nited Btates 169 (.9d 119 1<1 219433. A ;nited
Btates patent is protected from easy third party attac/s. (isher #. Dule 916 ;.B. 311 316 219193%
see also .oofnagle #. Anderson 90 ;.B. 24 *heat.3 919 216993. A patent issued by the ;nited
Btates of America so #ests the title in the lands co#ered thereby that it is the further general rule
that such patents are not open to collateral attac/. Thomas #. ;nion 8acific Dailroad "ompany
139 (.Bupp. <66 <9, 219<,3. Bee also Btate #. "ra$ford 14< 8.9d <1< 2Ari7. App. 19403 2A
patent is prima facia #alid and if its #alidity can be attac/ed at all the burden of proof is upon
the defendant3% Btate #. "ra$ford 111 8.9d <6, <90 2Ari7. App. 19,63 2A patent to land is the
highest e#idence of title and may not be collaterally attac/ed3% and ?redge #. .usite "ompany
3,9 8.9d ,4,,69 219,93 2A patent is the act of legally instituted tribunal done $ithin its
0urisdiction and passes the title. Buch a patent is a final 0udgement as $ell as a con#eyance and
is conclusi#e upon a collateral attac/3. Absent some facial in#alidity the patents are presumed
#alid. Curray #. Btate <9, 8.9d 60< 61, 219493. The go#ernment retains no po$er to nullify a
patent except through a direct court proceeding. ;nited Btates #. Deimann <01 (.9d 13< 219413%
Bee also Green #. Aar/er ,, @.*. 1039 1031 2169,3 2The doctrine announced $as that the deed
upon its face purported to ha#e been issued in pursuance of the la$ and $as therefore only
assailable in a direct proceeding by aggrie#ed parties to set it aside3. Through these cases it can
be sho$n that the patent $hich passes the title from the ;nited Btates to the so#ereign "iti7ens
and $as created to /eep the speculators from the land is only assailable in a direct proceeding
for fraud or mista/e. In no other situation is it allo$able for the courts to simply eliminate the
patent. :ne 'uestion that may arise is $hat do the courts mean by a collateral attac/ and $hat
can be done by courts of e'uity if a collateral attac/ is presented+
8erhaps the easiest means of defining a collateral attac/ is to sho$ the con#erse corollary or a
direct attac/ on a patent. As $as stated in the pre#ious paragraphs a direct attac/ upon a land
patent is an action for fraud or mista/e brought by the go#ernment or a party acting in its place.
Therefore a collateral attac/ by definition is any attac/ upon a patent that is not co#ered $ithin
the direct attac/ list. Perha#s the most #revalent collateral attac* in #ro#erty law today is a
mort%a%e or deed of trust foreclosure on a color of title. In these instances it is determined
that the complete title and interest in the land is purchased by the mortgagee or another in his
place. Buch a determination displaces the patentee's o$nership of the title $ithout the court e#er
ruling that the patent $as ac'uired through fraud or mista/e. *his is against public policy,
legislatie intent, and the oerwhelming ma%ority of case law. Therefore it is no$ necessary to
determine the patent's role in American property la$ today to see $hat po$ers the courts of
e'uity ha#e in protecting the rights of the challengers of patents
.
The attitude of the "ourts is to promote simplicity and certainty in title transactions thereby
they follo$ $hat is in the chain of title and not $hat is outside. Babo #. .or#ath <<9 8.9d 1036
1011 2194,3. .o$e#er in e'uity courts title under a patent from the go#ernment is sub0ect to
control to protect the rights of parties acting in a fiduciary capacity. Banford #. Banford 139
;.B. 990 216913. This protection ho$e#er does not include the in#alidation of the patent. The
determination of the land department in matters cogni7able by it in the alienation of lands and
the #alidity of patents cannot be collaterally attac/ed or impeached. Id. Therefore the courts
ha#e had to de#ise another means to control the patentee if not the patent itself. As stated in
Daestle #. *hitson <69 8.9d 140 149 219463 5The land patent is the highest e#idence of title
and is immune from collateral attac/.> This does not preclude a court from imposing a
constructi#e trust upon the patentee for the benefit of the o$ners of an e'uitable interest.> This
then explains the most e'uitable $ay a court may effecti#ely restrict the sometimes harsh 0ustice
handed do$n by a strict court of la$. &'uity courts $ill impose a trust upon the patentee until
the debt has been paid. As has been stated a patent can not be collaterally attac/ed therefore the
land can not be sold or ta/en by the courts unless there is strong e#idence of fraud or mista/e.
.o$e#er the courts can re'uire the patentee to pay a certain amount at regular inter#als until the
debt is paid unless of course, there is a #ro$lem with the validity of the de$t itself. This is
the main purpose of the patent in this gro$ing epidemic of farm foreclosures that defy the public
policy of "ongress the legislati#e intent of the Btatutes at large and the legal authority as to the
type of land o$nership possessed in America. *hy then is the rate of foreclosures on the rise+
Titles to land today as $as stated earlier in this memorandum are normally in the form of
colors of title. This is because of the trend in recent property la$ to maintain the status 'uo. The
rule in most 0urisdictions and those $hich ha#e adopted a grantor-grantee index in particular is
that a deed outside the chain of title does not act as a #alid con#eyance and does not ser#e notice
of a defect of title on a subse'uent purchaser. These deeds outside the chain of title are /no$n as
5$ild deeds.5 Babo #. .or#ath <<9 8.9d 1036 1013 2194,3% Bee also 8orter #. Auc/ 33< Bo.9d
3,9 341 2194,3% The &xchange @ational Aan/ #. Fa$ndale @ational Aan/ 11 Ill9d 31, 913
@.&.9d 193 19<-9, 219,63 2The chain of title for purposes of the mar/etable title act may not be
founded on a $ild deed. These stray accidental or interloping con#eyances are contrary to the
intent of the mar/etable title act $hich is to simplify and facilitate land title transactions3% and
Canson #. Aer/man 3<, Ill.90 190 @.&. 44 49 219313. This liberal construction of $hat
constitutes a #alid con#eyance has led to a thinning of the title to a point $here 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. ;nder the guise of being the fee simple absolute these titles
ha#e operated freely but in reality the e#idence something much different.
It $as said in common-la$ &ngland that $hen a title $as not completely alienable and not
the complete title it $as not a fee simple absolute. Dather it $as some type of contingent
con#eyance that depended on the performance of certain tas/s before the title $as considered to
be absolute. In fact normally the title ne#er did de#elop into a fee simple absolute. These types
of con#eyance $ere e#idenced in part by the operable $ord sin the con#eyance and in part by
manner in $hich the granter could reclaim the property. If the title automatically re#erted to the
grantor upon the happening of a contingent action then the title $as by a fee simple
determinable. Bcheller #. Trustees of Bchools of To$nship 11 @orth ,4 Ill.App.3d 6<4 6,3
219463. This is e#idenced most closely today by deeds of trust in some states. If it re'uired a
court's ruling to reac'uire the land and title then the transaction and title $ere held by a fee
simple $ith a condition subse'uent. Cahrenhol7 #. "ountry Aoard of Trustees of Fa$rence
"ounty 93 Ill.App.3d 3,, 340-41 219613. This is most closely e#idenced by a mortgage in a
lien or intermediate-theory state.

These analogies may be some$hat startling and ne$ to some but the analogies are accurate.
*hen a mortgage is ac'uired on property the mortgagee steps into the position of a grantor $ith
the authority to create the contingent estate as re'uired by the particular facts. This is exactly
$hat the grantor in common-la$ property la$ could ac'uire. All the grantor had to do $as
choose a particular type of contingency and use the necessary catch-$ords and almost in#ariably
the land $ould one day be returned due to a #iolation of the contingency. In today's property
la$ the color of title has little po$er to protect the lando$ner. *hen the so#ereign is unable to
pay the necessary principal and interest on the debt load then the catch-$ords and phrases found
in the deed of trust or mortgage become operational. ;pon the occurrence of that e#ent the
mortgagee or speculator ha#ing through a legal myth ac'uired the position of a grantor is in a
position to either automatically recei#e the property simply by ad#ertising and selling it or can
ac'uire the position of the grantor and e#entually the possession of the property by a court
proceeding.
In common-la$ the grantor of a fee simple determinable $here the contingency $as bro/en
or #iolated could automatically ta/e the land from the grantee holder by force if necessary. If
ho$e#er the grant $as a fee simple upon condition subse'uent the grantor $hen the
contingency bro/en had to bring a legal proceeding to declare the contingence bro/en to declare
the grantee in #iolation and to order the grantee to #acate the premises. These situations though
under different names and proceedings occur e#ery day in America. Is there really any serious
debate therefore that the colors of title used today $ith the creation of a lien upon the property
become fee simple determinable and fee simples upon condition subse'uent+ Is this a legitimate
method of ensuring a stable and permanent system of land o$nership+ If the color of title is
$ea/ then ho$ strong is a mortgage or deed of trust placed on the property+
(ee simple estates may be either legal or e'uitable. In each situation it is the largest estate in
the land that the la$ $ill recogni7e. .ughes #. Ciller's Cutual (ire Insurance "o. 91, B.*.93
219993. If a mortgagee upon the creation of a mortgage or deed of trust steps into the shoes of
the grantor upon a conditional fee simple does it then mean the mortgagee has ac'uired one of
the t$o hal#es of a fee simple $hen cases ha#e sho$n the fee simple is only e#idenced by a
patent+ Actually courts ha#e held in many states that a mortgage is only a lien. ;nited Btates #.
"ertain Interests in 8roperty in "hampaign "ounty Btate of Illinois 1,< (.Bupp.141 160 219<63
2In Illinois and other lien theory states the mortgagee has only a lien and not a #ested interest in
the leasehold3% Bee also (ederal (arm Cortgage "orp. #. Gans$er 11, @eb. ,3< 90 @.*.9d ,69
2191<3 2&#en after a condition is bro/en or there is a default on a mortgage a mortgagee only
has an e'uitable lien $hich can be enforced in proper proceedings3% Bouth :maha Aan/ #. Fe#y
9< @.*.,03 219093
Strict foreclosure will not lie when mort%a%or holds the le%al title% (irst @ational Aan/ #.
Bargeant ,< @eb. 391 91 @.*. <9< 219093 2Cortgagee cannot demand more than is legally
due3% Corrill #. B/inner <4 @eb. 1,1 44 @.*. 34< 216963 2Cortgage con#eys no estate but
merely creates a lien3% Aarber #. "ro$ell << @eb. <41 4< @.*. 1109 216963 2Cortgage is mere
security in form of conditional con#eyance3 Bpeer #. .adduc/ 31 (reeman 2Ill.3 139 113
216,33 2Assignments or con#eyances of mortgages do not con#ey the fee simple rather they hold
only security interests3.
hese cases am#ly illustrate that a mort%a%e or deed of trust is only a lien in lien and
intermediate-theory states. &#en in title-theory of mortgages states courts of e'uity ha#e
determined that the fee simple title is not really con#eyed either in its e'uitable or legal state.
Bee supra Aarber at 1110. A fee simple estate still exists e#en though the property is mortgaged
or encumbered. .ughes #. Ciller's Cutual (ire Insurance "o. 91, B.*. 93 91 219993. In fact,
a creditor assertin% a lien 'mort%a%e( must introduce evidence or #roof that will clearly
demonstrate the $asis of his lien. ;nited Btates #. ;nited Btates "hain "ompany 919 (.Bupp.
141 2@.?. Ill. 19,93. If a mortgagee e#en in the title theory states has only a lien yet $hen the
mortgage or deed of trust is created he has a fee simple determinable or condition subse'uent
then ob#iously the color of title used as the operati#e title has little force or po$er to protect the
so#ereign freeholder. @or 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
go#ernment. Theoretically then the public policy "ongressional intent from the 1600's and the
"ongressional intent of the last fe$ decades should protect the so#ereign in the en0oyment and
possession of his freehold. This ho$e#er is not the case. Instead #ast mortgaging of the land has
occurred. The agriculture debt alone has risen to o#er M990000000000 in the past three
decades. This is in part due to the #ast expansion of mortgaged holdings and in part due to the
rural sector's inability to repay existing loans re'uiring the increased mortgaging if the land.

This is in exact contradiction to the public policy and legislati#e intent if maintaining stable
and simplistic land records yet mar/etable titles 2colors of title3 $ere supposed to guarantee
such records. *ichelman #. Cessner 63 @.*.9d 600 60< 219<43. "olors of title are ineffecti#e
against mortgages and promote the instability and complexity of the records of land titles by
re'uiring abstracts and title insurance simply to guarantee a mar/etable title. *orse a practice
has pre#ailed in some of the states...of permitting actions to determine titles to be maintained
upon $arrants for land 2$arranty deeds3 and other titles not complete or legal in their character.
This practice is against the intent of the "onstitution and the Acts of "ongress. Aagnell #.
Aroderic/ 36 ;.B. 136 216393. Buch lesser titles ha#e no #alue in actions brought in federal
courts not $ith standing a Btate legislature $hich may ha#e pro#ided other$ise. .ooper et. al. #.
Bcheimer ,1 ;.B. 293 .o$.3 93< 216<93. It is in fact possible that the state legislatures ha#e e#en
#iolated the Bupremacy "lause of the ;nited Btates "onstitution. These actions are against the
intent of the founding fathers and against the legislati#e intent of the "ongressman $ho enacted
the statutes at large creating the land patent or land grant. This patent or grant since the land
grant has been states to be another name for the patent the terms being synonymous @orthern
8acific Dailroad "o. #. Aarden 1, (. <99 ,14 216913% pre#ented e#ery problem that $as created
by the ad#ent of colors of title mar/etable titles and mortgages. Therefore it is necessary to
determine the #alidity of returning to the patent as the operati#e title.
Patents are issued 'and theoretically #assed( $etween soverei%ns...and deeds are
e1ecuted $y =#ersons" and #rivate cor#orations without these soverei%n #owers. Feading
(ighter #. "ounty of Gregory 930 @.*.9d 111 11, 2194<3. As $as stated earlier the American
8eople in creating the "onstitution and the go#ernment formed under it made such a document
and go#ernment as Bo#ereigns retaining that status e#en after the creation of the go#ernment.
"hisholm #. Georgia supra. The go#ernment as so#ereign passes the title to the American
people creating in them so#ereign freeholders. Therefore it follo$s that the American people as
Bo#ereigns $ould also ha#e this authority to transfer the fee simple title through the patent to
others.
"ases ha#e been some$hat scarce in this area but there is some case la$ to reinforce this
idea. In *ilcox #. "allo$ay 1 *ash. 2Ia.3 36 36-11 216933 the Iirginia "ourt of Appeals heard
a case $here the patent $as brought up or reissued to the parties four separate times. Bome of
the issuance of the patent came before the creation of the "onstitutional ;nited Btates
go#ernment and some occurred during the creation of that go#ernment. The courts determined
the #alidity of those patents recogni7ing each actual ac'uisition as being #alid but reconciling
the differences by finding the first patent properly secured $ith all the necessary re'uisite acts
fulfilled carried the title. The other patents and the necessary re'uisition of a ne$ patent each
time yielded the phrase 5lapsed patent.5

A la#sed #atent $ein% one that must $e re+ac0uired to #erfect the title. Id. Bubse'uent
patentees ta/e sub0ect to any reser#ations in the original patent. Btate #. "ra$ford 111 8.9d <6,
<90 219,63. A patent regularly issued by the go#ernment is the best and only e#idence of a
perfect title. The actual patent should be secured to place at rest any 'uestion as to #alidity of
entries 2possession under a claim and color of title3. Eoung #. Ciller 19< Bo.9d 9<4 9<6 219,03.
;nder the color of title act the Becretary of Interior may be re'uired to issue a patent if certain
conditions ha#e been met and the freeholder and his predecessors in title are in peaceful ad#erse
possession under claim and color of title for more than a specified period. Aea#er #. ;nited
Btates 3<0 (.9d 1 cert. denied 364 ;.B. 934 219,<3. A descri#tion which will identify the
lands 'and #ossession( is all that is necessary for the validity of the Patent. Fossing #. Bhull
143 B.*.9d 1 1 Co. 319 219133. A patent to t$o or more persons creates presumpti#ely a
tenancy in common in the patentees. Btoll #. Gottbreht 14, @.*. 939 1< @.?. 1<6 219903. A
patent to the original grantee or his legal representati#es embrace the representati#es by contract
as $ell as by la$. Deichert #. Herome .. Bheip Inc. 131 Bo. 999 999 Ala. 133 219303.

A patent has a double operation. In the first place it is documentary e#idence ha#ing the
dignity of a record of the e#idence of the Title or such e'uities respecting the claim as to 0ustify
its recognition and later confirmation. In the second place it is a deed of the ;nited Btates of
America or a title deed. As a deed its operation is that if a 'uit-claim or rather of a con#eyance
of such interest as the ;nited Btates of America possess in the land such interest in the land
passing to the people or so#ereign freeholders. ,3 Am. Hur. 9d Bection 94 p. <,,. (inally the
;nited Btates Bupreme "ourt in Bumma "orporation #. "alifornia ex rel. Btate Fands
"ommission etc. 60 F.&d.9d 934 219613 made determinations as to the #alidity of a patent
confirmed by the ;nited Btates through the Treaty of Guadalupe .idalgo 9 Btat. ,31 216113.

The Btate of "alifornia attempted to ac'uire land that belonged to the corporation. The Btate
maintained that there $as a public trust easement granting to the Btate authority to ta/e the land
$ithout compensation for public use. The corporation relied in part on the intent of the treaty in
part on the intent of the patent and the statute creating it and in part in the re'uisite challenge
date of the patent expiring. The Bumma "ourt follo$ed the lengthy dissertation of the dissenting
0udge on the "alifornia Bupreme "ourt Bee 31 "al.3d 966 dissenting opinion in determining
that the patent $hich had been the apparent operati#e title throughout the years $as paramount
and the actions by the Btate $ere against the manifest $eight of the Treaty and the legislati#e
intent of the patent statutes. Id. at 911-1,. In each of these cases it is states that the patent
through possession or claim and color of title or through the term 5his heirs and assi%ns
forever5 or through the necessary passage of title at the death of a 0oint tenant or tenant in
common is still the operable title and is re'uired to secure the peaceful control of the land.
These same ideas can also apply to state patents for lands that $ent to the state or remained in
the hands of the state upon admission into the ;nion. :liphant #. (ra7ho 11, @.*.9d ,6< ,6,-
64 219,,3% (iedler #. 8ipers 104 Bo.9d 109 111-119 219<63 2@ot e#en the Btate could be heard
to 'uestion the #alidity of a patent signed by the Go#ernor and the Degister of the Btate Fand
:ffice3.
@o go#ernment can ob0ect to the intent and creation of a patent after such is issued unless
issued through fraud or mista/e. The patent either federal or state has an intent to create
so#ereign freeholders in the land protected form the speculators 2any lending institution
speculates upon land3 and a public policy to maintain a simplistic stable and permanent system
if land records. Fand patents $ere designed to effecti#ely insure that this intent and policy $ere
retained. "olors of title can not pro#ide this type of stability since such titles are po$erless
against liens mortgages $hen the freeholder is unable to repay principle and interest on the
accompanying promissory note.
&'uity $ill entertain 0urisdiction at the instance of the o$ner of fee of lands to remo#e 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. .odgen #. Guttery <6 (ree. 2Ill.3 131 136 216413 2though
this case dealt $ith an improper sale of land co#ered by a patent any forced sales of lands
co#ered by a patent is improper in #ie$ of the policy and intent of "ongress3. &'uity ho$e#er
$ill protect the mortgagee $ho stands to lose his interest in the property thereby re'uiring a trust
to be created until the debt is erased ma/ing partners of the creditor and debtor.
*hat then exists is a situation $here the patent should be declared 2confirmed or reissued3 to
protect the so#ereign freeholder and to re-institute the policy and intent of "ongress. The patent
as the paramount title fee simple absolute can not be collaterally attac/ed but $hen a debt can
not be paid immediately placing the creditor in 0eopardy the courts $ill impose a constructi#e
trust until the ne$ 5partners5 can mutually eliminate the debt. If the debt can not be
satisfactorily remo#ed it is still possible considering the present intent of the go#ernment to
maintain so#ereign freeholders on the property immune from the loss of the land since it is
"ongress' intent to /eep the family farm in place. The use of colors of title to act as the operati#e
title is inappropriate considering the rising number of foreclosures and the inability of the colors
of title to restrain a mortgage or lien. .o$e#er the lending institutions speculators on the land
maintain that the public policy of the country includes the eradication of the so#ereign
freeholders in the rural sector in an effort to implant upon the country large corporate holdings.
This last area must be effecti#ely met and eliminated.
To those $ho framed the "onstitution the rights of the se#eral Btates and the rights of the
8eople $ere t$o distinct and different things. Throughout their debates they had t$o ob0ects
foremost in their minds. (irst to create a strong and effecti#e national go#ernment and secondly
to protect the people and their rights from usurpation and tyranny by go#ernment. The people's
liberties and indi#idual rights and safeguards $ere to be /ept fore#er beyond the go#ernment
they distrusted and against $hom they so carefully guarded themsel#es. If such control and
domination and unlimited po$ers $ere gi#en to a fe$ legislatures they could o#erride e#ery one
of the reser#ed rights co#ered by the first ten Amendments 2the bill of rights3% they could change
the go#ernment of limited po$ers to one of unlimited po$ers% they could declare themsel#es
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 0ury but e#en the
rights to a day in court% and most importantly they could abolish free so#ereign o$nership of the
land.
The $hole literature of the period of the adoption of the "onstitution and the first ten
amendments is one great testimony to the insistence that the "onstitution must be so amended as
to safeguard un'uestionably the rights and freedoms of the people so as to secure from any future
interference by the ne$ go#ernment matters the people had not already gi#en into its control
unless by their o$n consent. ;nited Btates #. Bprague 969 ;.B. 41, 493-49, 219303.

The problem lies not in the lending institutions that simply practice good business on their
part. The problem in the loss of freedoms by this present interference $ith allodial so#ereign
o$nership lies $ith the state legislatures that created la$ or mar/etable title acts that claimed to
enact ne$ simplistic stable land titles and actually created a $atered-do$n #ersion of the fee
simple absolute that re'uires complicated tracing and protection and is ineffecti#e against
mortgage foreclosures.

@one of these problems $ould occur if the patent $ere the operable title again as long as the
so#ereigns recogni7ed the po$ers and disabilities of their fee simple title. The patent $as meant
to /eep the so#ereign freeholder on the land but the land $as also to be /ept free of debt since
that debt $as recogni7ed in 1690 as unrepayable and today is unrepayable. The re-declaration
of the patent is essential in the protection of the rural sector of so#ereign freeholders but also
essential is the need to impress the state legislatures that ha#e strayed from their enumerated
po$ers $ith the /no$ledge that they ha#e enacted la$s that ha#e defeated the intent and goal of
man since the middle ages. That intent of course is to o$n a small tract of land absolutely
$hether by land-boc or patent on $hich the freeholder is beholden to no lord or superior. The
patent ma/es so#ereign freeholders of each "iti7en $ho o$n hisNher land. A return to the patent
must occur if those so#ereign freeholders $ish to protect that land from the encroachment of the
state legislatures and the speculators that benefit from such legislation.

Section I?
;onclusion
As has been seen man is al$ays stri#ing to protect his rights the most dear being the absolute
right to o$nership of the land. This right $as guaranteed by the land patent the public policy of
the "ongress and the legislati#e intent behind the Btatutes at Farge. Buch rights must be
reac'uired through the re-declaration of the patent in the color of title claimant's name based on
his color of title and possession. *ith such =born-again> rights the land is protected from the
forced sale because of delin'uency on a promissory note and foreclosure on the mortgage.
This protected land $ill not eliminate the debt a trust must be created $hereby 5partners5
$ill $or/ together to repay it. These rights must be recaptured from the state legislated la$s or
the freedoms guaranteed in the Aill of Dights and "onstitution $ill be lost. :nce lost those
rights $ill be exceedingly hard to reclaim and 'uite possibly as Thomas Hefferson said the
children of this generation may someday $a/e up homeless on the land their forefathers
founded.
1 It can be argued this $as still the case until *illiam Alac/stone!s time in the mid-1400!s.
2 Cc"onnell #. *ilcox 1 Bcam 2Ill.3 311 3,4 216343.
3 "oncei#ably such a reason could be fabricated by a ri#al or by the -ing himself. The former holder of the land
$ould be left $ondering $hat had brought the -ing!s $rath to bear upon him.
4 *hile the beneficiary undoubtedly /ne$ the circumstances behind such a gift he still might be una$are ho$ the
facts $ere disco#ered or ho$ they occurred.
5 9 Alac/stone!s "ommentaries p. 10<.
6 Alac/!s Fa$ ?ictionary 1
th
&dition p.416 219,63.
7 (.F. Ganshof (uedalism 8. 113 219,13.
8 1 &. *ashburn Treatise on The American Fa$ of Deal 8roperty "h.II Bection <6 8. 19 2,th &d. 19093.
9 Id. Bection ,< p.11.
10 Bee supra Ganshof at 113.
11 Id. at 111.
12 Through at least the 11th and 1<th centuries.
13 (. Good$in Treatise on The Fa$ of Deal 8roperty "h. 1 p. 10 2190<3.
14 Id. at 6
15 Gilsebert of Cons "hroni'ue cc.,9 and 11< pp. 109 14< 2 ed. Iander/indere3.
16 9 Alac/stone's "ommentaries p. 10,.
17 Fittleton Tenures Bec. 11 (ee Bimple
18 Fittleton Tenures Bec. 1b (ee Bimple
19 =(rom the cro$n all titles flo$ > $as a maxim of &nglish common la$.
20 *endell #. "randall 1 @.E. 191 216163
21 (riedman #. Bteiner 104 Ill. 131 216633.
22 Gilsbert of Cons "hroni'ue ch. 13 p. 4< 2ed. Iander/indere3.
23 Btanton #. Bulli#an ,3 D.I. 91, 4 A. ,9, 216393.
24 Aou#ier's Fa$ ?ictionary Iolume III p. 9<40 219113.
25 Allodial estates o$ned by indi#iduals exercising full and complete o$nership existed to a limited extent only in
the "ounty of -ent.
26 The so#ereign 2synonymous $ith the -ing3 held the allodial title to the entire country.
27 And the real estate agentsO
28 G. Thompson Title to Deal 8roperty 8reparation and &xamination of Abstracts "h. 3 Bection 43 p.93 219193.
29 *right #. Cattison 16 .o$. 2;.B.3 <0 216<<3.
30 Hoplin Are$ing co. #. 8ayne 194 @o. 199 91 B.*. 69, 2190,3.
31 Bt. Fouis #. Gorman 99 Co. <93 216,03.
32 Da$son #. (ox ,< Ill. 900 216493.
33 ?a#id #. .all 99 Ill. 6< 216493% see also Corrison #. @orman 14 Ill. 144 216,63% and Cc"onnell #. Btreet 14 Ill.
9<3 216<<3.
34 Cahrenhol7 #. "ounty Aoard of Bchool Trustees of Fa$rence "ounty et. al. 93 Ill. app. 3d 3,, 219613.
35 As stated in ?empsey #. Aurns 961 I..,11 ,<0 219143 2?eeds constitute colors of title3% see also ?ryden #.
@e$man 11, I..16, 2166,3
36 Ausch #. .uston 4< Ill. 313 216413% "hic/ing #. (ailes 9, Ill. <06 216,13.
37 As stated in Bafford #. Btubbs 114 Ill. 369 2166,3% see also .ooo$ay #. "lar/ 94 Ill. 163 216,13 and Cc"ellan #.
-ellogg 14 Ill. 196 216<<3.
38 Grant #. Aennett 9, Ill. <13 <9< 216603% Bee also Corgan #. "layton ,1 Ill. 3< 216413% Arady #. Bpurc/ 94
I..146 216,13% Autterfield #. Bmith 11 Ill. 16< 216193.
39 -endric/ #. Fatham 9< (la. 619 216693
40 .uls #. Auntin 14 Ill. 39, 216,<3.
41 The Illinois Bupreme "ourt $ent into detail in its determination 5There the complainant seem to ha#e relied
upon the tax deed as con#eying to him the fee and to sustain such a bill it $as incumbent of him to sho$ that all
the re'uirements of the la$ had been complied $ith.5
42 *al/er #. "on#erse 116 Ill. ,99 ,99 216913% see also 8eadro #. "arri/er 1,6 Ill. <40 216943% "hicago #.
Ciddlebroo/e 113 Ill. 9,< 216993% 8iatt "ounty #. Goodell 94 Ill. 61 216603% Btubblefield #. Aorders 99 Ill. <40
216943% "oleman #. Aillings 69 Ill. 163 216463% *hitney #. Bte#ens 69 Ill. <3 216463% Thomas #. &c/ard 66 Ill.
<93 216463% .ollo$ay #. "lar/e 94 Ill. 163 216,13.
43 Aald$in #. Datcliff 19< Ill. 34, 216663% Aradley #. Dees 113 Ill. 394 2166<3
44 "hic/ering #. (ailes 9, Ill. <06 <19 216,13.
45 "oo/ #. @orton 13 Ill. 391 216,
46 Aald$in #. Datcliff 19< I..34, 363 216693% "ounty of 8iatt #. Goodell 94 I.. 61 216603% Bmith #. (erguson 91 Ill
301 216463% .assett #. Didgely 19 Ill. 194 216,63% Aroo/s #. Aruyn 3< Ill. 399 216,13% Cc"agg #. .eacoc/ 31
Ill. 14, 216,13% Aride #. *att 93 Ill. <04 216,03% and *ood$ard #. Alanchard 1, Ill. 191 216<<3.
47 All cases are still #alid and none ha#e been o#erruled.
48 Aarnum <9 Cinn. 13, 216993.
49 Dobert #. Cc(adden 39 Tex."i#.App. 14 41 B.*. 10< 219033.
50 Aarnard #. Aro$n 119 Cich. 1<9 40 @.*. 1036 216943.
51 :rmsby #. Graham 193 Ia. 909 96 @.*. 491 219013.
52 Car/etable Title Acts $hich ha#e been adopted in se#eral if the states generally do not lend themsel#es to an
interpretation that they might operate to pro#ide a ne$ foundation of title based upon a stray accidental or
interloping con#eyance.
53 *ichelman #. Cessner 63 @.*. 9d 600 219<43.
54 "lose #. Btuy#esant 139 Ill. ,04 91 @.&. 6,6 216903.
55 "ummings #. ?olan <9 *ash. 19, 100 8. 969 219093.
56 The record being spo/en of here is the title abstract and all documentary e#idence pertaining to it.
57 1 D. 8atton K ". 8atton 8atton on Fand Title Bection ,9 at 930-33.29nd ed. 19<43% Babo #. .or#ath <<9 8. 9d
1036 1013 2A/. 194,3.
58 ?ingey #. 8axton ,0 Ciss. 1036 216633 and &hle #. Puac/enboss , .ill 2@.E.3 <34 216113.
59 ?ono#an #. 8itcher <3 Ala. 111 2164<3 and "on#erse #. -ellogg 4 Aarb. 2@.E.3 <90 216<03.
60 Airge #. Aoc/ 11 Co. App. ,9 216903.
61 Aloch #. Dyan 1 App. "as. 963 216913.
62 Deynolds #. Aorel 6, "al. <36 9< 8. ,4 216903.
63 Coore #. *illiams 11< @.E. <6, 99 @.&. 9<3 216693.
64 Doberts #. Aassett 10< Cass. 109 216403.
65 :a/ley #. "oo/ 11 @.H. &'. 3<0 4 A.9d 19< 2166,3.
66 In fact none of them are an allodial title.
67 The form of title directly belo$ an allodial title in dignity and authority.
68 .eller #. "ohen 1< misc. 346 3, @.E.B. ,,6 Q169<3.
69 8lace #. 8eople 199 Ill. 1,0 ,1 @.&. 3<1 219013% Bee also "ospertini #. :ppermann 4, "al. 161 16 8. 9<,
216663.
70 Daschel #. 8ere7 4 Tex. 316 216<13.
71 .eller #. "ohen 1< Cisc. 346 3, @.E.B. ,,6 2169<3.
72 .erman #. Bomers 1<6 8a.Bt. 191 94 A. 10<0 216933.
73 Coore #. *illiams 11< @. E. <6, 99 @.&. 9<3 216693.
74 These are re'uired to be executed $ith the solemnities prescribed by la$.
75 I. G. Thompson "ommentaries on the Codern Fa$ of Deal 8roperty pp. 99-100 2<th ed. 19603.
76 ?ocumentary e#idence of title consists of #oluntary grants by the so#ereign deeds of con#eyances and $ills by
indi#iduals con#eyances by statutory or 0udicial permission deeds made in connection $ith the sale of land for
delin'uent taxes proceedings under the po$er of eminent domain and deeds executed by ministerial or fiduciary
officers.
77 Id.
78 Id at 101.
79 G. Thompson Title to Deal 8roperty 8reparation and &xamination of Abstracts "h. III Bection 49 pp. 99-100
219193.
80 Id. at 100.
81 Id.
82 Id.
83 The unpopular taxes $ere secondary more li/e the stra$ that bro/e the camel!s bac/.
84 According to his <9nd and <6th la$s.
85 I. &. *ashburn Treatise on The American Fa$ of Deal 8roperty Bection ,< p.11 2,
th
edition 19093.
86 Id. Bection <, at 10.
87 Id. Bection <1 at 39.
88 Id.Bection <1 at 10.
89 Id. Bection << at 10.
90 (.F. Ganshof (eudalism p.111 219,13.
91 (. Good$in Treatise on The Fa$ of Deal 8roperty "h. 1 p.3 2190<3.
92 Allodial titles $ere only found in the "ounty of -ent at this time.
93 Bections 10 11 9, 94 34 13 <9 <, <4 and ,1.
94 Bee supra *ashburn Bection 60 p. 16.
95 As $ell as the more publici7ed search for religious freedom.
96 A. Getman Title to Deal 8roperty 8rinciples and Bources of Titles-"ompensation (or Fands and *aters 8art III
"h. 14 p.999 219913.
97 Bee supra *ashburn Bection << p. 10.
98 ". Tiedeman An &lementary Treatise on the American Fa$ of Deal 8roperty "h. II The 8rinciples of the (eudal
Bystem Bection 9< p.99 29nd ed. 16993.
99 Bee supra *ashburn Bection 116 p.<9.
100 As you $ill recall tenure $as the ser#ices or taxes re'uired to retain possession of the land under the feudal
system.
101 Bee Bupra Tiedeman Bection 9< p. 99.
102 As stated in In re *alt7 et. al. Aarlo$ #. Becurity Trust K Ba#ings Aan/ 910 p. 19 2199<3 'uoting Catthe$s #.
*ard 10 Gill K H. 2Cd.3 113 216393.
103 *allace #. .armstead 11 8a. 199 216,33.
104 *endall #. "randall 1 @.E. 191 216163.
105 In re *alt7 at page 90 'uoting 1 "ooley's Alac/stone 21th ed.3 p. <19.
106 ;nited Btates #. Bunset "emetary "o. 139 (. 9d 1,3 219133.
107 As stated in Btanton #. Bulli#an 4 A. ,9, 216393.
108 I. G. Thompson "ommentaries on the Codern Fa$ of Deal 8roperty Bection 16<, p. 119 21
st
edition 19913.
109 Id.% *ichelman #. Cessner 63 @.*. 9d 600 60, 219<43
110 Bee supra 1 Thompson Bection 16<, p. 113.
111 Aradford #. Cartin 901 @.*. <41 2199<3.
112 Bee Aou#. Fa$ ?ictionary 2Da$le &d.3 131% *allace #. .armstead 11 8a. 199% Cc"artee #. :rphan's Asylum 9 "o$.
2@.E.3 134 16 Am. ?ec. <1,.
113 Bee Aoo/ II chap. 4 pp. 101-10<.
114 Id. at 576.
115 8eople #. Dichardson 9,9 Ill. 94< 109 @.&. 1033 219113% see also Catthe$ #. *ard 10 Gill K H 2Cd.3 113 216113.
116 Cc"onnell #. *ilcox 1 Bcam. 2Ill.3 311 216343.
117 Id. at 3,4.
118 Alac/'s Fa$ ?ictionary p. 1094 2<th ed. 19603.
119 A German supra 8art III "h. 14 Btate Fegislati#e Grants pp. 931-39 219913.
120 Id.
121 Id. at 919.
122 Id. at 939.
123 @o$ the states of :hio Indiana Illinois Cichigan *isconsin and part of Cinnesota more commonly /no$n as the
@orth$est Territory.
124 Hournals of "ongress 8apers of the "ontinental "ongress @o. 9< II folio 9<< p. <11-<<4 2Beptember 13 14633.
reported in the $riting of Hames Cc.enry.